"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.
A federal judge on Tuesday struck down a Donald Trump-era policy used by U.S. border officials to quickly expel migrants because of the covid pandemic, saying the ban had little proven benefit to public health even as it shunted migrants to dangerous places.
U.S. District Judge Emmet G. Sullivan in the District of Columbia vacated the order known as Title 42, effectively restoring asylum seekers’ access to the borders for the first time since the Trump administration issued it during the earliest days of the pandemic.
The decision — which takes effect immediately — knocks down one of the last remaining barriers to asylum from the Trump administration, advocates for immigrants said. It also poses an immediate logistical challenge for the Biden administration after two consecutive years of record apprehensions on the U.S.-Mexico border, with the possibility that the numbers could grow.
Biden officials have long worried about a mass rush to the border creating an emergency similar to the one that occurred in Del Rio, Texas, in Sept. 2021, when thousands of migrants crossed illegally and overwhelmed U.S. agents, creating a squalid camp on the banks of the Rio Grande that embarrassed the Biden administration.
Sullivan’s ruling also comes days after top border official Chris Magnus resigned under pressure after clashing with Homeland Security Secretary Alejandro Mayorkas.
The Justice Department and the Department of Homeland Security had no immediate response to the ruling.
The American Civil Liberties Union, one of the organizations that brought the lawsuit on behalf of migrants, said Sullivan’s decision to vacate the Title 42 policy means the policy ends for all migrants, including families and adults traveling without children.
“Title 42 unfortunately had a long shelf life but has finally been ended, and that will mean enormous relief to desperate asylum seekers,” said ACLU lawyer Lee Gelernt.
Sullivan also made clear that that he would not stay his order pending appeal, leaving it to a higher court to do so if the Biden administration sought more time to address the ruling.
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Key Quote:
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.”
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The horrific consequences for lawful asylum seekers subjected to this unlawful policy have indeed been “dire:” rape, assault, kidnapping, beating, torture, extortion, starvation, illness, sickness, death, family separation, despair, to name a few.
By contrast, there have been NO consequences for Stephen Miller and the other Trump Administration officials who fabricated and directed this ruse on the justice system and attack on humanity and the rule of law! Nor have there been any consequences for lower level officials who “went along to get along” with what they knew or should have knownto be deadly abuses of our laws.
Additionally, Biden officials who continued to violate the law and even concocted ways of expanding its illegal and immoral use have escaped accountability and continue in their jobs. DOJ lawyers who failed to do “due diligence” and defended a policy based on pretext, misrepresentations of fact, racism, and xenophobia have also continued to operate in the “ethical twilight zone” that normally would have serious professional consequences!
Of course the whole history of the Title 42 charade ☠️🤮has been one of one step forward and three steps back. The corrupt decision-making extends to unqualified right-wing zealots with lifetime sinecures on the Federal Article III bench and to equally corrupt GOP state AG’s for their dishonest scheme to force continued illegal Title 42expulsions.
So, despite these “crimes against humanity,” don’t expect that “heads will roll!” Given the current sorry state of our Federal Courts and the DOJ, it’s not certain that Judge Sullivan’s order will actually have effect or that asylum seekers will ever get the fundamentally fair and humane treatment to which they are entitled.
But, I am certain that this will eventually go down in history as one of the most disgraceful intentional abrogations of law, with the most drastic consequences for humanity and our nation’s reputation, in 21st Century legal history!
It’s also worthy of note that rather than getting the asylum system properly staffed and trained, bringing in Immigration Judges with the required expertise, installing a BIA of expert judges capable of issuing correct, realistic, generous, practical asylum precedents, working cooperatively with the private bar to facilitate representation, and developing an orderly process for resettlement (away from the border) of asylum applicants who pass credible fear, Garland, Mayorkas, and a White House officials have dithered away two years of time without getting the necessary robust, fair, expert, efficient, timely asylum adjudication system up and running!
The advice and pleas of experts and advocates have been “tuned out” or ignored by those in charge! Now, as all of us predicted, the “chickens have come home to roost” for the Administration’s indifferent, incompetent, and lackadaisical approach to the biggest racial justice and human rights crisis facing our nation.
Thanks Judge Sullivan! Thanks ACLU! Apologies to the hundreds of thousands of asylum seekers wronged by the cowardly failure of America to uphold our laws, Constitution, and international obligations — that “subset” of victims who are still alive despite our Government’s grotesque misconduct!
So far, defending this guy and his cruel policies is about the only thing that Judge Garland has done well at a DOJ that continues to treat “justice” for migrants of color as a joke! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.comUnlike Miller, the “losers” under Garland’s unconscionable policies often aren’t in a position to complain — at least in this world! 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)
On Thursday, a federal appeals court allowed the continued use of the Title 42 policy, pushed initially through the previous administration by Stephen Miller, that’s used the novel coronavirus pandemic as an excuse to quickly deport asylum-seekers, including thousands of Haitians who have arrived at the southern border in search of help.
The Biden administration was set to be blocked from using the policy against families, following a federal judge’s order earlier this month. That lower court order was set to go into effect Thursday. But the policy was saved by the Biden administration, which had shockingly appealed the lower court’s decision. To be clear, the administration could have let the lower court decision stand. But it decided to protect this scientifically unsound order for continued use.
“It’s troubling to see the court grant the government’s motion to reinstate Title 42 just days after the district court ruled that its policy violates U.S. law,” Oxfam America global policy lead Noah Gottschalk told NBC News. The group is among the organizations that have led lawsuits against the policy. “We all saw the horrific images of the abuse faced by Haitian asylum-seekers subjected to Title 42, and we cannot allow people to face further harm because of this xenophobic policy.”
Department of Homeland Security Sec. Alejandro Mayorkas has claimed it is continuing Title 42 “out of a public health need.” Meanwhile, White House Press Sec. Jen Psaki has defended the policy as “a public health requirement.” That’s complete bullshit. “Vice President Mike Pence in March directed the nation’s top disease control agency to use its emergency powers to effectively seal the U.S. borders, overruling the agency’s scientists who said there was no evidence the action would slow the coronavirus,” The Associated Press (AP) reported last October.
The previous administration got its way by twisting arms. There was no science involved, only anti-immigrant and anti-asylum animus. “That was a Stephen Miller special. He was all over that,” a former Pence aide told the AP.
And, as vaccines have become readily available, the supposed rationale to keep Title 42 in place has only gotten more flimsy. If this is truly all about public health, why not rescind the policy and offer families the single-shot Johnson & Johnson vaccine? “Let me also remind the Biden administration that over 300,000 people cross the border from Mexico every day through ports of entry,” American Immigration Council Policy Counsel Aaron Reichlin-Melnick tweeted in July. “None are given COVID tests, unlike migrants who all get tested and nearly all get vaccinated.”
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“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color — Progressive human rights experts and migrants of color haven’t been welcome at Garland’s DOJ “Happy Hours” where Stephen Miller’s policies, his judicial appointments, and his dysfunctional “star chamber” immigration courts are celebrated, defended, and even “enhanced!”
Read more about this legal, moral, and political travesty perpetrated by the Biden Administration with Garland’s support at the link.
When it comes to things like defending ending the reprehensible “killer-program” known as “Remain in Mexico” or protecting the DACA program, Garland’s litigation team has fared poorly.
They also have drawn raised eyebrows, even if not yet any ethical complaints, from Article III Judges for their questionable representations and disingenuous defense of wrongfully issued BIA final orders of removal.
Perhaps, part the problem is that after four years of “anything goes” often misleading, sometimes downright dishonest, defense of the Trump/Miller White Nationalist xenophobic, often misogynistic, dehumanizing agenda, their hearts aren’t in it. The other glaring problem is the obvious lack of commitment to progressive humanitarian values, due process for all, and “cleaning house” at a broken and dysfunctional DOJ that has been shown by Garland.
Obviously, Garland’s DOJ lawyers are more at home and more successful when when arguing for intellectually dishonest and unconstitutional dehumanization (or “Dred Scottification”) of “the other,” primarily individuals of color who are the most vulnerable among us.
What a totally disgraceful legacy for a guy that was once just “one Moscow Mitch” away from the Supremes! On the other hand, it now appears that the GOP right wingers wouldn’t have had much to fear from a guy who won’t stand up for liberal American democratic values or even simple human decency! I doubt that he would have presented much threat to the far-right, anti-American agenda!
A federal appellate court Thursday temporarily granted the Biden administration’s request to continue the use of a public health order to quickly expel migrants with children who are stopped along the U.S. border.
A lower court had given the Biden administration until Thursday to limit use of the law, while immigrant and legal advocates proceeded with a lawsuit against it. The Trump administration had invoked the 1944 health statute, known as Title 42, to close the border to prevent people from entering the country, citing concerns about the spread of the coronavirus.
The case, brought in the District of Columbia by the American Civil Liberties Union and other groups, focuses on families with children, meaning the administration can continue to expel single adults under the provision.
U.S. District Judge Emmet Sullivan found earlier this month that advocates were likely to succeed with their case. In a 58-page ruling, he wrote that migrant families subjected to Title 42 “face real threats of violence and persecution” and are deprived of statutory rights to seek protection in the U.S.
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Read Andrea’s complete article at the link!
More unfair and unjustified returns of refugees to death and despair courtesy of an Administration that doesn’t care and Federal Judges unwilling to do their jobs! The dead can’t speak. But, history will judge all those involved in this disgraceful episode!
DEL RIO, Tex. — Thousands of Haitian migrants who have crossed the Rio Grande in recent days are sleeping outdoors under a border bridge in South Texas, creating a humanitarian emergency and a logistical challenge U.S. agents describe as unprecedented.
Authorities in Del Rio say more than 10,000 migrants have arrived at the impromptu camp, and they are expecting more in the coming days. The sudden influx has presented the Biden administration with a new border emergency at a time when illegal crossings have reached a 20-year high and Department of Homeland Security officials are straining to accommodate and resettle more than 60,000 Afghan evacuees.
The migrants arriving to Del Rio appear to be part of a larger wave of Haitians heading northward, many of whom arrived in Brazil and other South American nations after the 2010 earthquake. They are on the move again, embarking on a grueling, dangerous journey to the United States with smuggling organizations managing the trip, according to border authorities and refugee groups.
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Read the rest of the article at the link.
The arrival of asylum seekers at the Southern Border is predictable. Contrary to GOP right wing nativist BS, asylum seekers don’t present a significant national security threat to the U.S.
On the other hand, Texas Governor Gregg Abbott and his GOP right wing crazies are a clear and present existential danger to our heath and security as a nation. Don’t let Abbott and his neo-fascist gang shrift the focus away from their lawless, stupid, and immoral behavior — with glaring racial overtones!
The current disorder is the direct result of Mayorkas and Garland not taking the obvious steps to re-establish credible fear screening at ports of entry and the lack of progressive leaders and judges at EOIR who could cut through the self-created backlog and establish and enforce fair precedents and procedures that would enable timely, yet fair and efficient, processing of asylum cases in Immigration Court for those who pass credible fear.
Instead, Garland has gone with inane, backlog-building, aimless-docket-reshuffling encouraging “gimmicks” like “Dedicated Dockets,” and ill-advised proposals to increase use of “expedited removal” and limit the rights of asylum seekers to de novo hearings, without instituting the major EOIR reforms necessary to make such a system credible.
So far, the results have been predictably chaotic and ineffective. By dragging their feet on elimination of the Title 42 farce initiated by Trump & Miller, Garland and Mayorkas now find themselves “between a rock and a hard place” because of District Judge Sullivan’s recent order finding the misuse of Title 42 to “orbit” asylum seekers to doom without any process was likely illegal.
A restored, fair, legal asylum system inevitably would result in the legal admission of more asylees. Again, contrary to the GOP blather, that is something 1) our law requires, and 2) our country needs. Running a viable refugee program for the Americas outside U.S. borders is also something that should already have been in operation and could reduce the necessity for irregular entries.
Restoration of the rule of law and morality at the border would also take the regulation of immigration out of the hands of smugglers and cartels and restore it to the Government. But, that requires both an understanding of the dynamics of human migration and the courage to do the right thing in making the system work — not as a “false deterrent” but as a fair, generous, efficient, and equitable system, led by and composed of progressive human rights experts.
In the wake of the DOJ’s decision to appeal Judge Sullivan’s order and reports that the Biden Administration will begin illegal deportations of Haitians back to danger zones in Haiti without any due process, 71 human rights organizations wrote a letter blasting the Administration’s actions.
September 17, 2021
Hon. Joseph R. Biden, Jr. President of the United States 1600 Pennsylvania Avenue, NW Washington, DC 20500
Hon. Alejandro N. Mayorkas
Secretary of Homeland Security
U.S. Department of Homeland Security 2707 Martin Luther King Jr. Avenue, SE Washington, DC 20528
Hon. Merrick Garland
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue NW Washington, DC 20530
Dear President Biden, Secretary Mayorkas, and Attorney General Garland:
In the wake of multiple federal court decisions holding that your administration’s policies are likely unlawful, we, the 71 undersigned organizations, are appalled that you have chosen to file a notice of appeal in the Huisha-Huisha litigation, resisting an order to process the protection claims of families with children who seek asylum. This decision serves as a particularly disturbing step in what is emerging to be a clear pattern of failure to uphold the refugee laws enacted by Congress. We write to urge you to immediately change course before you further tarnish this administration’s record and inflict even more harm on families, children and adults seeking our country’s protection. We call on the administration to immediately end its embrace, defense, and advancement of illegal and cruel Trump administration policies that harm families and people seeking protection and bolster xenophobic rhetoric by treating people seeking protection as threats. Instead, we urge your administration to restore access to U.S. asylum at ports of entry and also to immediately stop blocking and expelling asylum seekers and migrants to life-threatening dangers.
On September 16, a federal district court held that the government likely does not have authority under U.S. law to implement the Title 42 policy, which subjects people to “real threats of violence and persecution” by returning them to danger in Mexico or the countries they fled, and enjoined the use of the policy against families. Rather than respect human rights and restore asylum in compliance with this ruling, the administration has already filed a notice of appeal in this case. Earlier this month, another federal district court held that the government’s policy of turning back people seeking protection at ports of entry is likely unlawful under the Immigration
and Nationality Act. Your administration must reverse course and accept these court rulings, immediately take steps to restart asylum processing, and permanently end these policies, which were designed to deter and punish people seeking safety in the United States and betray our values and legal obligations towards refugees.
Rather than abiding by campaign promises to uphold the legal right to seek asylum and treat migrants humanely, your administration has embraced and escalated the unlawful Title 42 policy created by the Trump administration to use public health as a pretext to evade U.S. refugee laws. In August 2021, your administration issued a new Centers for Disease Control and Prevention (CDC) order extending the policy and relying on much of the same dangerous and false rhetoric that the Trump administration relied on in its CDC orders.
The human toll of the Title 42 policy during your first eight months in office is enormous. Since January 2021, there have been at least 6,356 public and media reports of violent attacks— including rape, kidnapping, trafficking, and assault—against people blocked from requesting asylum protection at the U.S.-Mexico border and/or expelled to Mexico. The U.N. Refugee Agency (UNHCR) and other international bodies have repeatedly condemned the use of Title 42 to return refugees to danger in violation of international law and urged the United States to restore access to asylum. Leading public health experts have warned the administration time and time again that the policy has no scientific basis as a public health measure and urged the use of rational science-based measures to process asylum seekers and migrants to safety. In its ruling enjoining the use of Title 42, the district court also emphasized that the government’s public health arguments were specious.
This month, the Department of Homeland Security (DHS) expelled dozens of Haitian families and adults to danger in Haiti under Title 42, despite ongoing turmoil following the assassination of the country’s president in July and a major earthquake in August, and flew more than 6,000 Guatemalan migrants and asylum seekers directly to the danger they had fled in Guatemala without an opportunity to apply for U.S. asylum. Since August, DHS has also expelled asylum seekers and migrants directly to southern Mexico, where Mexican immigration authorities forced them to cross the border into remote areas of Guatemala. These expulsions to southern Mexico sparked public condemnation from UNHCR, which warned that this practice “increases the risk of chain refoulement—pushbacks by successive countries— of vulnerable people in danger, in contravention of international law and the humanitarian principles of the 1951 Refugee Convention.”
We further call on your administration to take all necessary legal steps to end the Migrant Protection Protocols (MPP), most importantly by immediately making a public commitment to issue a new policy memo that provides a fuller explanation for the decision to terminate MPP and that resolves any perceived Administrative Procedure Act (APA) issues identified by the district court in its ruling requiring the government to restart this shameful program. The APA
2
was the singular concern cited by the Supreme Court in its decision upholding the district court’s preliminary injunction, and the administration’s failure to date to commit to issuing a new policy memo raises serious concerns over whether you intend to use the legal challenge as cover to backtrack on your commitment to fulfill your campaign promise to end MPP.
During the two years that MPP was in effect, there were over 1,500 publicly reported cases of violent attacks against people returned to Mexico, including asylum seekers who were brutally murdered. In addition to subjecting individuals to life-threatening dangers under MPP, the program violated the due process rights of asylum seekers and migrants by stranding them in Mexico without access to legal counsel, forcing them to risk their lives to attend their court hearings—there have been numerous reports of asylum seekers in MPP being kidnapped while attempting to reach immigration court—and requiring many to prepare their cases while facing unrelenting fear and insecurity. It is clear that there is no way to make MPP lawful, humane, safe, or rights-respecting. The administration should take all lawful and necessary steps to preserve the MPP wind down and continue processing individuals previously subjected to MPP into the United States while taking immediate steps to address the District Court’s concerns to terminate the policy once and for all.
Policies that turn back, block, expel, and force asylum seekers and migrants to wait in danger are unlawful, as now confirmed by multiple federal courts, and we entreat your administration to immediately stop inflicting violence on people seeking safety in our country by permanently ending these policies and restoring asylum in compliance with U.S. and international refugee laws.
Sincerely,
ADL (Anti-Defamation League) African Communities Together Aldea – The People’s Justice Center Alliance San Diego
America’s Voice
American Friends Service Committee
American Immigration Lawyers Association
Asylum Seeker Advocacy Project (ASAP)
Bellevue Program for Survivors of Torture
Border Angels
Border Kindness
Border Organizing Project
Bridges Faith Initiative
Capital Area Immigrants’ Rights Coalition
CARECEN SF – Central American Resource Center of Northern California
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Catholic Charities of Southern New Mexico Catholic Legal Immigration Network, Inc. Center for Justice and International Law (CEJIL) Center for Victims of Torture
Church World Service
Detention Watch Network
Familia: Trans Queer Liberation Movement
First Focus on Children
Florence Immigrant & Refugee Rights Project Grassroots Leadership
Haitian Bridge Alliance
HIAS
Hope Border Institute
Houston Immigration Legal Services Collaborative Human Rights First
Human Rights Initiative of North Texas
Immigrant Defenders Law Center
Immigration Equality
International Mayan League
International Refugee Assistance Project (IRAP) International Rescue Committee
Japanese American Citizens League
Jesuit Refugee Service/USA
Jewish Activists for Immigration Justice of Western MA Justice Action Center
Justice in Motion
Karen Organization of San Diego
Kino Border Initiative
Latin America Working Group (LAWG)
Lawyers for Good Government (L4GG)
National Immigrant Justice Center
National Immigration Law Center
National Immigration Project (NIPNLG)
National Network for Immigrant & Refugee Rights NETWORK Lobby for Catholic Social Justice
Oasis Legal Services
Oxfam America
Physicians for Human Rights
Project Blueprint
Refugees International
4
Safe Harbors Network
San Diego Immigrant Rights Consortium
South Bay Peope Power
Student Clinic for Immigrant Justice
Tahirih Justice Center
The Advocates for Human Rights
Transgender Law Center
Unified U.S. Deported Veterans resource Center
Unitarian Universalist Refugee & Immigrant Services & Education VECINA
Vera Institute of Justice
Washington Office on Latin America (WOLA)
Witness at the Border
Women’s Refugee Commission
Young Center for Immigrant Children’s Rights
5
Obviously, the Biden Administration has little regard for the human rights advocates who helped put them in office. Only time will tell whether disrespecting, antagonizing, and making enemies and adversaries out of a highly talented and motivated group of progressives, who successfully fended off some of the most grotesque human rights violations by the Trump kakistocracy, and who have demonstrated the capacity to consistently “out-litigate” the floundering DOJ, will prove to be a successful strategy!
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” — Those who don’t die in the river, the desert, or at the hands of traffickers while trying to seek asylum in an arrogant America that disdains human rights and moral values face arbitrary and illegal removal to potential torture, rape, and death in the countries they fled! Why is the Biden Administration, like the Trump kakistocracy, afraid to make fair and honest determinations of qualifications for asylum? 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)
Finally, Defendants argue that “[a]ny time [the government]
is enjoined by a court from effectuating statutes enacted by
representatives of its people, it suffers a form of irreparable
injury.” Defs.’ Opp’n, ECF No. 76 at 38 (quoting Maryland v.
King, 133 S. Ct. 1, 3 (2012)). But, as explained above, the
Title 42 Process is likely unlawful, and “[t]here is generally
no public interest in the perpetuation of an unlawful agency
action.” Newby, 838 F.3d at 12.
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“There is generally no public interest in the perpetuation of an unlawful agency action.” Yup! Couldn’t have said it better myself!
Who knows if this will stand. Both the DC Circuit and the Supremes have too often been willing to allow continued Government abuse of the rights of “mere migrants,” mostly of color, because they can’t really see them as fellow human beings, entitled to due process, justice, and human dignity!
But, at least for this moment in time, it’s a victory for due process, humanity, and judicial integrity.
BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons“She struggled madly in the torturing Ray” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
A Parting Shot At Women
As the Trump Administration comes to an end, let’s remember how it began. On the day following the inauguration, millions participated in Women’s Marches around the world. There is sadly no need to list the reasons why women in particular would feel the need to respond in such a way to a Trump presidency.
It was therefore no surprise that Trump’s first Attorney General issued a decision intended to strip protection under our asylum laws from women who are victims of domestic violence. That decision, Matter of A-B-, was so soundly rejected by U.S. District Court Judge Emmet Sullivan that the U.S. Court of Appeals for the Sixth Circuit relied on his reasoning to conclude that Sessions’s decision had been abrogated. The First and Ninth Circuits further rejected Sessions’s view that the particular social group relied upon in A-B- was legally unsound. The Eighth Circuit rejected Sessions’s description of the standard for proving a government’s inability or unwillingness to control an abusive spouse, for example, as requiring evidence that the government condones his actions, or is completely helpless to prevent them.
The administration tried to codify the views expressed in A-B- and in another case, Matter of L-E-A-, by issuing proposed regulation designed to completely rewrite our asylum laws, with the purpose of making it virtually impossible for domestic violence and gang violence victims to qualify for asylum protection. Those rules, which were rushed out with very little time for public comment, were blocked on January 8 by a U.S. District Court judge.
There are at least two important cases presently before the U.S. Court of Appeals for the Fourth Circuit involving the issues raised in both A-B- and L-E-A-. Had these decisions been issued by, e.g., U.S. District Court judges, the Department of Justice would be representing the government (in the form of the Attorney General), but not the judge who issued the decision below. But as to A-B-, the government attorneys represent an Attorney General acting as judge, and a judge with extraordinary powers. As a result of those powers, the official presently filling the position on an acting basis (who had come to the job a few weeks earlier from the Department of Transportation with absolutely no background in immigration law) was able to unilaterally issue a new decision in the case, in an attempt to shore up issues of concern before the circuits.
So what does the new decision of the recent Deputy Transportation Secretary say? It addresses two issues: the “condone or complete helplessness” language used by Sessions, and the proper test for when persecution can be said to be “on account of” an asylum seeker’s gender, familial relationship, or other group membership.
As to the first issue, the Acting AG now states that Sessions did not change the preexisting legal standard for determining whether a government is unwilling or unable to provide protection. The Acting AG accomplishes this by explaining that “condone” doesn’t actually mean condone, and that “complete helplessness” doesn’t mean complete helplessness.
I’m not sure of the need for what follows on the topic. Perhaps there is an Attorney General Style Guide which advises to never be succinct when there are so many more exciting options available. Besides from sounding overly defensive in explaining why Sessions chose to use terms that sure sounded like they raised the standard in order to supposedly signal that he was doing no such thing, the decision also feels the need to remind us of what that preexisting standard is, in spite of the fact that no one other than perhaps a Deputy Transportation Secretary pretending to be an asylum law scholar is in need of such a recap. Yes, we understand there are no crime-free societies, and the failure to prevent every single crime from occurring is not “unwilling or unable.” No court has ever said that it was. Let’s move on.
The second part of this new A-B- decision addresses a conflict between the views of the Fourth Circuit and the BIA in regard to when a nexus is established. This issue arises in all asylum claims, but the BIA addressed it in a case, Matter of L-E-A-, in which an asylum applicant was threatened by a violent gang because it wished to sell drugs in a store owned by his father. The question was whether the asylum seeker’s fear of harm from the gang was “on account of” his familial relationship to his father.
Our laws recognize that persecution can arise for multiple reasons. A 2005 statute requires a showing that one of the five specific bases for a grant of asylum (i.e. race, religion, nationality, membership in a particular social group, or political opinion) must form “one central reason” for the harm. The BIA itself has defined this to mean that the reason was more than “incidental, tangential, superficial, or subordinate to another reason.”
In the context of family membership, the Fourth Circuit has repeatedly held that this “one central reason” test is satisfied where the family membership formed the reason why the asylum seeker, and not someone else, was targeted for harm. Using the L-E-A- example, the gang members were obviously motivated most of all by their desire for financial gain from the selling of the drugs in the store. But under the Fourth Circuit’s test, the family relationship would also be “one central reason” for the harm, because had the asylum seeker not been the son of the store owner, he wouldn’t have been the one targeted. This is known as a “but for” test, as in “but for” the familial relationship, the asylum seeker wouldn’t have been the one harmed
In L-E-A-, the BIA recognized the Fourth Circuit’s interpretation in a footnote, but added that the case it was deciding didn’t arise under that court’s jurisdiction. The BIA thus went on to create its own test, requiring evidence of an actual animus towards the family. The BIA provided as an example of its new test the assassination of the Romanov family in 1917 Russia, stating that while there were political reasons for the murders, it would be difficult to say that family membership was not one central reason for their persecution.
I’m going to create my own rule here: when you are proposing a particular legal standard, and the judge asks for an example, and all you can come up with is the Romanov family in 1917 Russia, you’re skating on thin ice. The other thing about legal standards is in order for judges to apply them and appeals courts to review them, they have to be understandable. I’m not a student of Russian history, but it would seem to me that (as the BIA acknowledged), the main motive in assassinating the Romanovs was political. I’m not sure what jumps out in that example as evidence of animus towards the family itself. How would one apply the Romanov test to anyone ever appearing in Immigration Court? By comparison, the Fourth Circuit’s test is a very clear one that is easy to apply and review on appeal.
Of course, this is just my humble opinion. The assistant Transportation czar feels differently. Drawing on his extensive minutes of experience in the complex field of asylum, he concluded: “I believe that the Fourth Circuit’s recent interpretation of ‘one central reason’ is not the best reading of the statutory language.”
I am guessing that by saying this in a precedent decision in the final days of this Administration, Transportation guy is hoping that the Fourth Circuit will feel compelled to accord his opinion Brand X deference. Legal scholar Geoffrey Hoffman has pointed out that no such deference is due, as the requirement that the statute be ambiguous is not satisfied. (Geoffrey’s excellent takedown of this same decision can be found here, and is well worth reading).
But the term in question, “on account of,” is also not one requiring agency expertise, which is of course a main justification for judicial deference. It is instead a legal standard not specific to asylum or immigration law.
For example, last June, the Supreme Court decided Bostock v. Clayton County, a case involving employment discrimination based on sexual orientation or identity. In a 6-3 decision authored by Justice Gorsuch, the Court explained that the statutory term in question, “because of,” carries the same legal meaning as “on account of,” the relevant phrase for asylum purposes. In determining nexus, the Court stated:
It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.
That last sentence – “if changing the employee’s sex would have yielded a different choice by the employer” – is essentially the same “but for” standard applied by the Fourth Circuit in the asylum context. What would give an Acting Attorney General the authority to hold otherwise?
A conservative commentator observed a difference between the discrimination required in Bostock and the persecution required in L-E-A-, stating that discrimination can involve favoring one group without necessarily hating the group being passed over, whereas persecuting someone requires an animus towards them.
However, the BIA recognized nearly 25 years ago that persecution can be found in harm resulting from actions intended to overcome a characteristic of the victim, and that no subjective punitive or malignant intent is required. The BIA acknowledged this in L-E-A-, noting that a punitive intent is not required.
Furthermore, the legislative history of the REAL ID Act (which created the requirement in question) shows that Congress amended the original proposed requirement that the protected ground be “the central motive” for the harm, to the final language requiring that it be “one central reason.”1 While animus would fall under “motive,” “reason” covers the type of causation central to the Fourth Circuit’s “but for” test. The history seems to undermine the former Transportation official’s claim that under the Fourth Circuit’s test, the “one central reason” language would be “mere surplusage.” This is untrue, as that additional language serves to clarify that the reason can be one of many (as opposed to “the” reason), and that the relevant issue is reason and not motive. Perhaps the author required more than three weeks at the Department of Justice to understand this.
I write this on the last full day of the Trump presidency. Let’s hope that all of the decisions issued by this administration will be vacated shortly; that the BIA will soon be comprised of fair and independent immigration law scholars (preferably as part of an independent Article I Immigration Court), and that future posts will document a much more enlightened era of asylum adjudication.
Note:
1. See Deborah Anker, The Law of Asylum in the United States (Thomson Reuters) at § 5:12.See also Ndayshimiye v. Att’y Gen. of U.S., 557 F.3d 124 (3d Cir. 2009) (recounting the legislative history and rejecting a dominance test for determining “one central reason”).
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Copyright 2021 Jeffrey S. Chase. All rights reserved.
Republished by permission.
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Judge Garland and his team must address systemic failures at the dysfunctional DOJ well beyond the festering, unconstitutional mess @ EOIR (“The Clown Show” 🤡) that requires an immediate “remove and replace.” The ethical failings, bad lawyering, dilatory litigating tactics, anti-American attitudes, racism, misogyny, intellectual dishonesty, coddling of authoritarianism, and complicity in the face of tyranny are in every corner of the disgraced Department.
Withdrawal of every bogus, biased, unconstitutional, racist- motivated “precedent” issued during the Trump regime and turning the proper development and fair interpretation of immigration and asylum laws over to a “new BIA” — consisting of real judges who are widely recognized and respected experts in immigration, human rights, and due process — must be a “day one” priority for Judge Garland and his team.
The Clown Show🤡🦹🏿♂️ that has made mincemeat out of American justice — not to mention legal ethics and human morality — must go! And, the problem goes far beyond the “Falls Church Circus!”🎪🤹
🇺🇸⚖️🗽Due Process Forever! Institutionalized misogyny, 🤮☠️never! No more Jeffrey Rosens @ DOJ —ever!
And, firms like Kirkland & Ellis need to think twice about re-employing a sleazy “empty suit” like Rosen who represents everything that is wrong with American law in the 21st century! Public disgrace should not be mistaken for “public service.”
“Normalizing” political toadies, “senior executives,” government “lawyers,” and other “public officials” who carried the water and willingly (often, as in Rosen’s case, enthusiastically, gratuitously, and totally unnecessarily) advanced the objectives of a White Nationalist, anti-American regime whose disgraceful and toxic rule ended in a violent, unhinged, failed insurrection against our democracy encouraged by a Traitor-President, his supporters, and members of the GOP would be a HUGE, perhaps fatal, mistake!
Make no mistake about it! Brave, determined refugee women like Ms. A-B- and her lawyers (superstars like Professor Karen Musalo and Blaine Bookey of the Center for Gender and Refugee Studies) are the true American heroes 🦸🏻 of the resistance to White Nationalist, racist, xenophobic policies of cruelty, hate, and disparaging of the rule of law. Toadies and traitors like Rosen are the eternal villains!🦹🏿♂️ Picking on refugees on the way out the door is an act of supreme cowardice that will live in infamy!🐓🤮
Here’s an array of reports on how America under the Trump regime has joined the ranks of dictatorships, torturers, child abusers, persecutors, and human rights criminals!
Eugene Robinson Opinion Columnist Washington Post Source: WashPost Website
Eugene Robinson @ WashPost:
What kind of people are we? As a society, are we so decadent and insecure that we show “toughness” by deliberately being cruel to innocent children? Is this what our nation has come to? Or are we better than that?
This election demands we answer those questions. The choice between President Trump and Joe Biden is not just political. It is also moral. And perhaps nothing more starkly illustrates the moral dimension of that decision than the Trump administration’s policy of kidnapping children at the southern U.S. border, ripping them away from their families — and doing so for no reason other than to demonstrate Trump’s warped vision of American strength.
We learned this week that some of those separations will probably be permanent. As NBC News first reported, 545 boys and girls taken as many as three years ago — the children of would-be immigrants and asylum seekers, mostly from Central America — have not been reunited with their parents and may never see their families again.
These are not among the nearly 3,000 families separated at the border in 2018, when children were kept in cages like animals or shipped away to facilities across the country, hundreds or thousands of miles from the border. We now know, thanks to the American Civil Liberties Union and other pro bono lawyers, that an additional 1,500 children were torn away from their families beginning in 2017, when the Trump administration conducted a trial run of the separation policy.
Please think about that. The shocking scenes we saw two years ago did not result from a sudden spasm of presidential anger. They didn’t stem from a Fox News segment Trump might have seen one evening. Rather, the administration rehearsed this form of cruelty.
What the administration did not plan for was how to reunite the children taken in 2017 with their families. Many of the parents were deported, and their children were placed in shelters around the country, then ostensibly released to parents or guardians, placements that the ACLU is still trying to confirm.
[Our Democracy in Peril: A series on the damage Trump has caused — and the danger he would pose in a second term]
The ACLU and other organizations have sent investigators to towns and villages in Central America in an attempt to find the kidnapped children’s families — an effort complicated not just by time and distance, but also by the covid-19 pandemic. Parents of 545 children have not been found, the ACLU reported this week.
Disturbingly, the Department of Homeland Security suggested that some of the parents declined to get their children back so they could remain in the United States. Keep in mind that most of these families were seeking asylum from deadly violence in their home countries. The Trump administration changed immigration guidelines to make it unlikely that the families would ultimately be allowed to stay in the United States, but federal law gives them the right to apply for asylum and to have their cases heard. They did nothing wrong. They should never have been asked to choose between parenting their children and getting them to safety — not by their home countries, and not by the United States.
Trump’s racism and xenophobia have been hallmarks of his presidency from the beginning, so perhaps it should be no surprise that he would preside over such an outrage. But he didn’t do this by himself. He had plenty of help.
Former attorney general Jeff Sessions seized an opportunity to make his rabid antipathy toward Hispanic immigration into policy. White House senior adviser Stephen Miller, a former Sessions aide in the Senate, was the architect of Trump’s “zero tolerance” immigration policy. Then-White House Chief of Staff John F. Kelly said in 2018 that the children taken would be “taken care of — put into foster care or whatever.” Former homeland security secretary Kirstjen Nielsen said last year that she regretted that “information flow and coordination to quickly reunite the families was clearly not in place” — but not the separations themselves.
President Donald Trump’s administration started and carried out a policy that took more than 4,000 children from their parents, at least 545 of whom are still split apart years later. But at Thursday’s debate, the president insisted that he did nothing wrong at all ― blaming his Democratic predecessors and even insisting the kids are doing fine.
“They are so well taken care of,” Trump said of the children taken from their parents by his administration. “They’re in facilities that were so clean.”
Trump’s first term was marked by a full-out assault on immigration, both legal and unauthorized. The most dramatic was his “zero tolerance” policy on unauthorized border-crossing, used in a 2017 pilot program and expanded more broadly in 2018, that led to criminal prosecution of parents and locking up their kids separately. Splitting up families was intentional and calculated, according to multiple reports.
Thanks to mass public outrage and a court order, Trump was forced to stop his family separation policy. Most families were reunited, but the American Civil Liberties Union, which was part of the lawsuit against the government that stopped the policy, said this week that at least 545 kids are still away from their parents.
“Their kids were ripped from their arms and separated,” Democratic nominee Joe Biden said during the debate. “And now they cannot find over 500 sets of those parents and those kids are alone. Nowhere to go. Nowhere to go. It’s criminal.”
Washington Post Columnist Ruth Marcus, moderates a panel discussion about chronic poverty with Education Secretary John B. King and Agriculture Secretary Tom Vilsack, during the National Association of Counties at the Washington Marriott Wardman Park, in Washington, DC, on Tuesday, Feb. 23, 2016. U.S. Department of Agriculture photo by Lance Cheung.
Ruth Marcus @ WashPost:
545.
That is the number of children still separated from their families by the Trump administration — separated deliberately, cruelly and recklessly. They might never be reunited with their parents again. Even if they are, the damage is unimaginable and irreparable.
545.
Even one would be too many. Each one represents a unique tragedy. Imagine being ripped from your parents, or having your child taken from you. Imagine the desperation that the parents feel, the trauma inflicted on their children.
545.
That number represents an indelible stain on President Trump and every individual in his administration who implemented this policy, flawed at the conception and typically, gruesomely incompetent in the execution. It is, perhaps in the technical sense but surely in the broader one, a crime against humanity. It is torture.
545.
That number — I will stop repeating it, yet it cannot be repeated enough — represents a moral challenge and responsibility for the next administration. If Joe Biden is elected president, he must devote the maximum resources of the federal government to fixing this disaster. The United States broke these families; it must do whatever it takes to help them heal.
Nothing like that would happen in a second Trump term, because Trump himself doesn’t care. He doesn’t grasp the horror that he oversaw. He doesn’t comprehend the policy, and he is incapable of feeling the pain it inflicted.
Those truths could not have been clearer cut than during Thursday night’s debate.
Moderator Kristen Welker of NBC News asked the president a simple question: “How will these families ever be reunited?”
First, Trump misstated the situation: “Their children are brought here by coyotes and lots of bad people, cartels, and they’re brought here, and they used to use them to get into our country.”
No. These are children separated from their families, not separated from smugglers. They are children brought by their parents in desperate search of a better life, desperate enough that they would take the risk of the dangerous journey.
Then Trump pivoted to the irrelevant: “We now have as strong a border as we’ve ever had. We’re over 400 miles of brand new wall. You see the numbers. And we let people in, but they have to come in legally.”
Welker persisted: “But how will you reunite these kids with their families, Mr. President?”
Trump responded by pointing his finger at his predecessor: “Let me just tell you, they built cages. You know, they used to say I built the cages, and then they had a picture in a certain newspaper and it was a picture of these horrible cages and they said look at these cages, President Trump built them, and then it was determined they were built in 2014. That was him.”
This is typical Trumpian deflection, bluster undergirded by ignorance. The “cages” are ugly but irrelevant to the topic at hand: the deliberately cruel plan to deter border-crossing by separating children from parents. That was a Trump administration special, implemented with callous sloppiness and so extreme that even the Trump administration abandoned it.
Welker, for the third time: “Do you have a plan to reunite the kids with their families?”
At which point Trump made clear that he did not: “We’re trying very hard, but a lot of these kids come out without the parents, they come over through cartels and through coyotes and through gangs.” The children, he added later, “are so well taken care of, they’re in facilities that were so clean.”
The third and final presidential debate gave Donald Trump and Joe Biden the opportunity to make their final pitch to the American people before the 2020 election. For the Democratic nominee, that meant driving home the point that he believes in science, that he’ll take the COVID-19 pandemic seriously, that climate change is real, and that systemic racism must be dealt with. For Trump, it meant making it clear that in addition to being a science-denying, QAnon-promoting dimwit, he’s also an actual monster who thinks separating small children from their parents, in some cases permanently, is absolutely fine.
Asked by moderated Kristen Welker about the news that parents of 545 children separated at the border—60 of whom are under the age of five—cannot be located, Trump defended the policy and gave no explanation for how the government plans to find these people and reunite their families. “Children are brought here by coyotes and lots of bad people, cartels, and they’re brought here and they used to use them to get into our country,” Trump said, which is objectively false, as they are brought here by their parents, which is why it’s called the family separation policy. “We now have as strong a border as we’ve ever had. We’re over 400 miles of brand new wall. You see the numbers and we let people in but they have to come in legally.”
Noting that Trump hadn’t answered the question, Welker pressed: “But how will you unite these kids with their families?”
“They built cages, they used to say I built cages…that was him,” Trump said, pointing to Biden and referring to the fact that the Obama administration did build temporary enclosures but failing, naturally, to mention that his predecessor did not separate families.
“Do you have a plan to reunite the kids with their parents?” Welker asked a third time. Again, Trump responded by claiming that the children “come without the parents, they come over through cartels and through coyotes and through gangs.”
At this point, Joe Biden was given a chance to weigh in and used his time to describe the policy implemented by Trump as the horror show all non-sociopaths know it to be. “Parents, their kids were ripped from their arms and they were separated and now they cannot find over 500 sets of those parents and those kids are alone, nowhere to go. It’s criminal.”
Then Trump interjected with what he apparently believed was an important point that would cast his administration in a much more favorable light and perhaps might even win it some awards or sainthood by the Catholic church. “Kristen, I will say this,” he told the moderator, of the children stolen from their parents. “They’re so well taken care of. They’re in facilities that are so clean.
With regard to that claim, NBC News reporter Jacob Soboroff weighed in on that after the debate, telling Rachel Maddow: “I was one of the reporters I guess the president mentioned, they invited me to go to the epicenter of this policy…what I saw was little children sitting on concrete floors, covered by mylar blankets, supervised by security contractors in a watchtower, it makes me sick every time I recall it. And Physicians for Human Rights…called this torture…the American Academy of Pediatrics called this state-sanctioned child abuse, and the president of the United States I guess interprets that as children being well taken care of.”
Jacob Soboroff NBC Correspondent Jacob Soboroff at the ABC News Democratic Debate National Constitution Center. Philadelphia, PA. Creative Commons License
Here’s a video from NBC New’sJacob Soboroff, who has actually been inside “Trump’s Kiddie Gulag.” Surprise spoiler: It’s not “nice.” More like “torture” and “child abuse.”
There is neither moral nor legal justification for what the Trump regime has done to asylum seekers and other migrants over the past four years as part of their racist, White Nationalist, nativist agenda. But, we can show that we’re a better country than his horrible vision by voting him and all of his enablers out of office! Vote ‘Em out, vote ‘Em out!
Lawrence S. Robbins is an appellate and trial lawyer at Robbins Russell. George T. Conway III is a lawyer and an adviser to the Lincoln Project, an anti-Trump super PAC. The writers both submittedfriend-of-the-court briefsopposing the government’s motion in the Flynn case.
If there’s one thing you can say about President Trump and his administration, it’s that nothing is regular except the irregular, which has had myriad damaging consequences for the nation. And it’s had particularly adverse consequences for the federal government’s ability to defend itself in court.
The latest example comes in the criminal case against Trump’s first, short-tenured national security adviser, Michael Flynn. He pleaded guilty — not once but twice — to charges that he had lied to FBI agents during an interview about his conversations with senior Russian officials during the presidential transition. Despite Flynn’s admissions of guilt, Attorney General William P. Barr filed a motion asking that the case be dismissed — and supporting Flynn’s effort to have that done without even a hearing before the district judge.
Flynn won before an appeals court panel. But when the full court of appeals heard arguments on Flynn’s petition, the judges couldn’t have seemed more bewildered at the Trump administration’s position. The government argued that the district judge couldn’t inquire into the government’s reasons for seeking dismissal even if he’d seen the prosecutor take a bribe, in open court, in exchange for dismissing the case.
The Trump administration has been saying things like that a lot lately — trying to stretch the law in ways that undermine its remaining credibility. It argued that a sitting president’s accountants and bankers can’t be subpoenaed for his personal records during his term in office by either a state grand jury or, without meeting an impossibly high burden, by Congress. It argued that the president’s close aides can’t be called to testify before a congressional committee investigating presidential misconduct. The least trustworthy administration in decades, if not ever, keeps arguing: “You’ve just got to trust us.”
Lawyers have a phrase for the government’s saying “Trust us.” It’s called the “presumption of regularity.” The presumption of regularity means that courts should presume that government officials acted through a “regular” process: that it carefully vetted its policy and scrupulously examined relevant legal precedents.
But, as its name suggests, the presumption of regularity rests on the premise that the government is functioning in a regular way. And the Trump administration is anything but regular. Following the cues of a chief executive who despises what he calls the “deep state,” administration officials have cut corners, displaced career professionals, exiled dissenters and abandoned institutional norms — in short, circumvented the very processes that justify the presumption of regularity in the first place.
The chickens have now come home to roost. Whether they say so explicitly or not, courts have been dispensing with the presumption of regularity. The best example: In the litigation over the 2020 Census, the Supreme Court held that Commerce Secretary Wilbur Ross’s decision to add a citizenship question to the census form was arbitrary and capricious. The reason? “Altogether,” Chief Justice John G. Roberts Jr. wrote, “the evidence does not match the explanation the secretary gave for his decision.” That’s just a polite lawyer’s way of saying Ross lied.
Examples of the administration’s disrespect for regularity are legion, and not just confined to litigated matters. Barr has acted as a virtual one-man band of irregularity: He forced the U.S. attorney in Washington, Jessie K. Liu, out of her job, thereby enabling him to countermand former special counsel Robert S. Mueller III’s sentencing recommendation for Roger Stone. And Barr gave a transparently false account of the Mueller report in the week before it was released to the public.
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Read the rest of the op-ed at the above link.
Perhaps the most disturbing thing is that Billy the Bigot actually “runs” a so-called “court system” — the U.S. Immigration Court — that has life or death authority over some of the most vulnerable individuals in our society, indeed in the world! How this stunning violation of both the Fifth Amendment and fundamental human decency (not to mention basic principles of competent management and good governance) continues to grind humanity into a grisly mess 🤮 of human misery ☠️ in plain sight every day is beyond me!
Almost everything in this “spot on” op-ed echoes “Courtside.” I have consistently criticized the irresponsibility and the gross dereliction of Constitutional duty by a Supremes majority that all too often treats Trump’s patently false, racist, xenophobic, and invidious immigration, refugee, and asylum policies as the actions of a “normal Executive” when Trump is nothing of the sort.
Nor does he even claim to be! He ran on overtly racist and hate-driven policies and has promoted racist tropes and lies about immigrants at every turn. Yet, the Supremes often pretend that there is some “legitimate basis” for clearly illegitimate policies and abrogation of important laws without the involvement of Congress and of Constitutional protections without any reasonable, fact-based justification.
If the “chickens have come home to roost” for the corrupt Trump DOJ, so will they eventually come home to roost for Supremes who have disingenuously and intentionally looked the other way and have enabled, or in some cases even encouraged, Trump’s racist and lie-driven dismantling of American democracy and “Dred Scottification” of “the other.” Life tenure protects the jobs of derelict Federal Judges. But, it won’t protect their reputations from the truth of history.
This November, vote like your life and the future of America depend on it! Because they do!
2-1 D.C. Circuit decision in Grace v. Barr, on the AG’s credible-fear rules.
Holding: We reverse the district court’s grant of summary judgment with respect to the circularity rule and the statements regarding domestic- and gang-violence claims, vacate the injunction insofar as it pertains to those issues, and remand to the district court for further proceedings consistent with this opinion. In all other respects, we affirm.
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Marty Lederman
Georgetown University Law Center
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Perhaps the key holdings in this 45-page majority decision are that:
The “condoned- or-completely-helpless standard” cannot replace the “unable or unwilling to control” standard in determining whether persecution by non-state-actors” (e.g., gangs) qualifies; and
The direction to apply “law of the Circuit where the credible fear interview took place” instead of “the interpretation most favorable to the applicant . . . when determining whether the applicant meets the credible fear standard” is arbitrary and capricious.
The full decision with dissent is at the above link.
Of course, with most asylum and immigration laws for arriving individuals basically (and quite illegally) “suspended” during the COVID-19 “crisis,” and the regime’s plans (also patently illegal) to repeal asylum law by regulation in process, the practical effects of this decision remain unclear.
WASHINGTON — The retired judge appointed to act as a friend of the court in the Michael Flynn case strongly urged the court Wednesday not to let the Justice Department abandon the prosecution.
In a scorching 83-page submission, John Gleeson said the government’s move to drop the case was “riddled with inexplicable and elementary errors of law and fact,” which were contradicted by the positions it has taken in other false statement cases and by its own previous court filings about Flynn’s conduct as well as his decisions to plead guilty twice.
“Even recognizing that the Government is entitled to deference in assessing the strength of its case, these claims are not credible,” the retired judge wrote. “Indeed, they are preposterous. For starters — and most unusually — they are directly and decisively disproven by the Government’s own briefs filed just months ago in this very proceeding.”
Gleeson said judges must ordinarily defer to the wishes of the Justice Department about whether to pursue a prosecution, but not when the motives of the government are suspect. In Flynn’s case, the government’s move to dismiss the case “is based solely on the fact that Flynn is an ally of President Trump.”
Federal District Court Judge Emmet Sullivan of Washington appointed Gleeson to submit arguments about why the government should not be allowed to drop the case, so that Sullivan could consider both sides.
The appointment came after the Justice Department last month asked the judge to dismiss the case, having determined that even if Flynn lied to FBI agents in early 2017 about his phone calls with Russia’s ambassador to the U.S., his lies were not “material” to any investigation and did not, therefore, violate the false statement law at the heart of his case.
Flynn told the FBI that he did talk to Ambassador Sergey Kislyak during the Trump transition but denied that they talked about Russia’s response to the latest Obama sanctions or about a forthcoming UN vote. He later admitted that both those statements were untrue.
Those statements, Gleeson said, were clearly important to the FBI’s investigation into potential connections between the Trump campaign and the Russian government.
“It is hard to conceive of a more material false statement than this one,” Gleeson said.
Gleeson said without any firm legal basis for wanting to drop the case, the only other reason must be Flynn’s relationship with Trump. Wednesday’s brief noted that the president tweeted or re-tweeted about Flynn at least 100 times since March 2017.
Clearly the president is personally invested in ensuring that Flynn’s prosecution ends, Gleeson said, adding, “Everything about this irregular.”
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Read the rest of Pete’s article at the link.
Add this to the absolute legal, ethical, constitutional, and management disaster going in in the U.S. Immigration Courts under Barr’s “maliciously incompetent” management, and the case for removing him from office is overwhelming. Won’t happen. But, it should!
Actually, filing a “preposterous motion” backed by clearly untrue assertions is a clear violation of an attorney’s role as an “officer of the court” owing “candor to the tribunal.” If Barr were a private practitioner, it would likely earn him a referral to his state bar authorities for possible discipline or license revocation.
But, in Federal Courts these days the “undue deference” and unfairly favorable treatment of DOJ attorneys continues. It has actually been institutionalized, and even unjustly rewarded, by the Supremes. Talk about encouraging worst practices and highlighting “negative role models!”
The whole ethical debacle of the Trump Administration DOJ and the overall feckless performance of our Federal Courts, particularly the Supremes and certain Circuit Courts of Appeals, at halting clear Executive abuses and requiring honesty and professionalism (including rejecting racist or religiously bigoted agendas) from the Federal Government before tribunals cries out for a serious re-examination of: 1) who should be sitting on the Federal Bench; 2) what ethical standards they should be held to; and 3) the undue favoritism and leniency traditionally shown by Federal Courts to Government lawyers engaging in misrepresentations, sloppy work, promoting pretexts for overtly racist agendas, and constantly using dilatory litigation tactics intended to punish individual litigants for asserting their legal rights.
The last three years have shown that better Federal Judges and much more courageous, effective judicial leadership committed to guaranteeing due process and fairness for all is absolutely necessary for our nation to achieve “equal justice under law.” The current sorry state of the Article III Judiciary shows that police departments are not the only part of our broken justice system that needs reform and some “different faces” to achieve equal justice under law. As a nation, we can’t achieve social and racial justice with the gang that promoted, enabled, and in some cases even encouraged injustice in charge. And, that goes for all three failed branches of our Federal Government.
George Floyd’s death should never have happened; nor should families be separated, kids put in cages, legal asylum applicants told to rot in Mexico, and Billy Barr be allowed to operate unconstitutional “Star Chambers” masquerading as “courts” (when they are nothing of the sort). The problems in our justice system go much deeper than the Minneapolis Police Department!
Yes, they can be solved! But, not without some new faces, new approaches, and some progressive thinking and input from all of society, particularly our younger generations! You have to believe in equal justice to achieve equal justice! We can’t get there with the current gang of “non-believers” in charge and promoting their failed, and all too often overtly or covertly racially biased, agendas.
Due Process Forever!
This November, vote like your life depends on it! Because it does!
Michelle Hackman Immigration Reporter Wall Street Journal
Michelle Hackman reports for the WSJ:
WASHINGTON—The Trump administration, which has used the coronavirus health emergency to expel migrants at the border without allowing them to apply for asylum, faces its first court challenge over the practice in a lawsuit filed on behalf of a 16-year-old boy.
Since President Trump declared a public-health emergency in March, immigration agents have turned back nearly all migrants, including children, at the border without providing a chance to file asylum claims. The government invoked a 1944 public-health law allowing it to expel any noncitizen who poses a threat of spreading disease during an emergency. It extended that provision indefinitely in May.
The new process overrides immigration laws that allow any foreigner on American soil with a credible fear of persecution to apply for asylum, and laws prohibiting migrant children from being deported.
The lawsuit was filed in the district court in Washington by the American Civil Liberties Union on behalf of a 16-year-old boy from Honduras, known only by his initials J.B.B.C. He crossed the border in early June to join his father, who is living in the U.S. and awaiting his own immigration case to be heard, after fleeing what the suit described as “severe persecution” in his home country.
Under the typical process, border agents would have turned over the child to the Department of Health and Human Services, which runs a network of migrant shelters for children across the country and seeks to find them suitable guardians. Instead, border agents detained the boy in El Paso, Texas, and plan to deport him imminently, in accordance with the public-health emergency process.
Late Tuesday evening, Judge Emmet G. Sullivan granted J.B.B.C. a temporary restraining order, ordering the government not to deport him through at least Wednesday at midnight.
The White House and the Department of Homeland Security didn’t immediately respond to requests for comment.
The lawsuit’s supporters acknowledge that the suit is a gamble. If a federal judge rules that immigration laws can be bypassed during an emergency—a novel application of the public-health law—the government would gain broad new authority. But not suing, they say, could allow deportations without due process to continue.
“If the courts don’t step in, the Trump administration will continue to indefinitely strip refugees of the right to seek asylum,” said Aaron Reichlin-Melnick, policy counsel at the American Immigration Council.
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Read the rest of Michelle’s article at the link.
The name of the use is J.B.B.C. v. Wolf.
So far, in showing no genuine concern for human rights, the rule of law, or overt racism in major non-legislative eradications of asylum, refugee, and immigration protections by a scofflaw Administration, which has made only cosmetic efforts to disguise its racist immigration agenda, a Supremes’ majority has sent a strong chilling signal to lower Federal Judges willing to stand up for racial justice, equal justice before the law, and Executive accountability. Will the Trump regime continue to literally “get away with attempted (or actual) murder” of children and other asylum applicants? How far does the Supremes’ majority’s resolve not to give Black and Brown lives and rights their deserved legal protections, and to fold in the face of Trump’s racist bullying, extend?
Due Process Forever! Complicit Courts Never!
This November, vote like your life depends ons it! Because it does!
Judge John “Maximum John” Sirica 1904-1992 US District Court, D.C. 1957-1992Hon. Emmet G. Sullivan US District Judge DC
HISTORICAL PERSPECTIVE: Will Judge Emmet Sullivan Become The Judge John Sirica of “Trumpgate?” — “No Nincompoops!”
By Paul Wickham Schmidt
Courtside Exclusive
May 17, 2020.Nearly five decades ago, a tough-mindedU.S. District Judge in Washington, D.C., refused to “go along to get along.” Judge “Maximum John” Sirica saw through the corrupt B.S. being put forth by defendants (“The Plumbers”) who pleaded guilty in attempting to “cover up” the badly bungled Watergate burglary of DNC headquarters in the Watergate Hotel. So, Sirica did some digging on his own.
One of his most famous quotes — the “No Nincompoops Rule”was set forth in his New York Times obit:
None other than former Attorney General John Mitchell had been involved in orchestrating the Watergate caper, and the “cover-up” trail eventually led all the way to the Oval Office and President Nixon. Nixon eventually resigned with impeachment, conviction, and removal staring him in the face.
The scandal involved some truly bizarre moments such as the “kidnapping” of Mitchell’s eccentric, talkative, estranged wife Martha and White House Counsel John Dean being told to “deep six” potentially incriminating documents by throwing them off the 14th Street Bridge on the way home to his Alexandria townhouse. It added to our vocabulary colorful terms like “stonewalling,” “twisting slowly in the wind,” “Deep Throat,” and more, in addition, of course, to “deep six.” John “The Con” Mitchell was convicted of conspiracy, perjury, and obstruction of justice (although never charged with Martha’s kidnapping) and served time in a Federal Penitentiary. Judge Sirica was named Time’s “Man of the Year.”
Watergate also resulted in changes in ethical rules and an effort to insulate the DOJ investigative and prosecution functions from political influence, particularly interference from the White House. With AG Billy Barr’s assistance, Trump has basically blown away all ethical safeguards and politicized and “weaponized” government institutions to a degree that probably exceeds Watergate.
Now, Billy Barr is trying to further Trump’s agenda by making the Flynn prosecution go away. That’s after Flynn actually pleaded guilty to the charges before Judge Emmet G. Sullivan. At least initially, Judge Sullivan appears skeptical about the sudden change of course by DOJ prosecutors. It’s a move that led to the withdrawal of the career prosecutors involved in the case and a demand from a bipartisan group of more than 2,000 former DOJ officials (including me and many colleagues from the Round Table of Retired Judges) that Barr resign.
Judge Sullivan has a reputation for independence and not suffering fools lightly. He has appointed private counsel to argue against dismissal of the charges. We’ll have to see what, if anything, comes of it all.
It’s also unclear whether a lone Federal Judge of courage and integrity still can “make a difference” in today’s rapidly deteriorating legal and political environment. During Watergate, a unanimous Supremes (with Chief Justice Rehnquist recused) stood up to Nixon and rejected his bogus executive privilege claim on incriminating tapes. GOP Congressional leaders eventually joined those voices urging Nixon to resign.
So far, by contrast, the Roberts-led Supremes’ majority hasn’t shown an inclination to stand up to Trump on any major issue of Executive overreach. And, GOP legislators have shown themselves to be so scared of Trump and so far inside his pocket that they can’t see the light of day. Indeed, they appear to have lost ambition to do anything other than help Trump and cover up his corruption and “malicious incompetence.”
Even if Sullivan does uncover something shady, it’s likely that Roberts and the GOP will leap to help Trump and Barr suppress and cover up any evidence of wrongdoing by blocking or obstructing any further investigation by House Democrats. Times have changed. And, right now, that doesn’t appear to be for the better for our justice system or our nation.
BIA NEWS: Judge Garry D. Malphrus Leapfrogs Into Acting Chair Job, As Two Of The Remaining “Voices Of Reason” Bite The Dust At Barr’s “Newly Packed” Falls Church Station Stop On The “Trump Deportation Express!”
By Paul Wickham Schmidt
Exclusive for immigrationcourtside.com
Nov . 7, 2019. In a little noticed move, “Trump Chump” Attorney General Billy Barr in October advanced conservative GOP appointed Appellate Immigration Judge Garry D. Malphrus to the position of Acting Chair of the Board of Immigration Appeals in Falls Church Virginia. The move followed the sudden reputedly essentially forced “retirement” of former Chair David Neal in September.
Notably, Barr bypassed long-time BIA Vice Chair and three-decade veteran of the Executive Office for Immigration Review (“EOIR”) (which “houses” the BIA) Judge Charles “Chuck” Adkins-Blanch to elevate Judge Malphrus. Increasingly, particularly in the immigration area, the Trump Administration has circumvented bureaucratic chains of command and normal succession protocols for “acting” positions in favor of installing those committed to their restrictionist political program.
Like former Chair Neal, Vice Chair Adkins-Blanch has long been rumored not to be on the “Restrictionist A Team” at EOIR. Apparently, that’s because he occasionally votes in favor of recognizing migrants’ due process rights and for their fair and impartial treatment under the immigration laws.
For example, although generally known as a low-key “middle of the road jurist,” Vice Chair Adkins-Blanch authored the key BIA precedent Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). There, the BIA recognized the right of abused women, particularly from the Northern Triangle area of Central America, to receive protection under our asylum, and immigration laws. That decision was widely hailed as both appropriate and long overdue by immigration scholars and advocates and saved numerous lives and futures during the period it was in effect. It also promoted judicial efficiency by encouraging ICE to not oppose well-documented domestic violence cases.
Nevertheless, in a highly controversial 2018 decision, White Nationalist restrictionist Attorney General Jeff Sessions dismantled A-R-C-G-. This was an an overt attempt to keep brown-skinned refugees, particularly women, from qualifying for asylum. Matter of A-B –, 27 I&N Dec. 316 (A.G. 2018). Session’s decision was widely panned by immigration scholars and ripped apart by U.S. District Judge Emmet Sullivan, the only Article III Judge to address it in detail to date, in Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018). Nevertheless, Matter of A-B- remains a precedent in Immigration Court.
In addition to the Malphrus announcement, sources have told “Courtside” that veteran BIA Appellate Immigration Judges John Guendelsberger and Molly Kendall Clark will be retiring at the end of December. While the current BIA intentionally has been configured over the past three Administrations to have nothing approaching a true “liberal wing,” Judges Guendelsberger and Kendall Clark were generally perceived as fair, scholarly, and willing to support and respect individual respondents’ rights, at least in unpublished, non-precedential decisions.
This was during an era when the BIA as a whole was moving in an ever more restrictive direction, seldom publishing precedent decisions favoring or vindicating the rights of individuals over DHS enforcement. Additionally, under Sessions and now Barr, the BIA has increasingly been pushed aside and given the role of “restrictionist enforcer” rather than “expert tribunal.” The most significant policies are rewritten in favor of hard-line enforcement and issued as “precedents” by the Attorney General, sometimes without any input or consultation from the BIA at all.
The BIA’s new role evidently is to insure that Immigration Judges aggressively use these restrictionist precedents to quickly remove individuals without regard to due process. Apparently, this new role also includes promptly reversing any grants of relief to individuals, thus insuring that ICE Enforcement wins no matter what, and actively discouraging individuals from daring to use our justice system to assert their rights. To this end, Barr’s six most recent judicial appointments to the BIA, part of an obvious “court-packing scheme,” are all Immigration Judges with asylum denial rates far in excess of the national average and reputations for being unsympathetic, sometimes also rude and demeaning, to respondents and their attorneys.
Indeed, adding insult to injury, Barr’s latest regulatory proposal would give a non-judicial official, the EOIR Director, decisional and precedent setting authority over the BIA in certain cases. This directly undoes some of the intentional separation of administrative and judicial functions that had been one of the objectives of EOIR.
Judge Guendelsberger was originally appointed to the BIA by the late Attorney General Janet Reno in 1995. However, as a member (along with me) of the notorious due process oriented “Gang of Five,” he often wrote or joined dissents from some of the BIA majority’s unduly restrictive asylum jurisprudence. Consequently, Judge Guendelsberger and the rest of the “Gang” were “purged” from the BIA by Attorney General John Ashcroft in 2003.
Reassigned to “re-education camp” in the bowels of the BIA, Judge Guendelsberger worked his way back and was “rehabilitated” and reappointed to the BIA by Attorney General Eric Holder in August 2009. This followed several years as a “Temporary Board Member,” (“TBM”). The TBM is a clever device used to conceal the dysfunction caused by the Ashcroft purge by quietly designating senior BIA staff as judges to overcome the shortage caused by the purge and irrational BIA “downsizing” used to cover up the political motive for the purge. TBMs are also disenfranchised from voting at en banc, thus insuring a more compliant and less influential temporary judicial workforce.
Judge Guendelsberger was the only member of the “Gang of Five” to achieve rehabilitation. However, his former “due process fire” was gone. In his “judicial reincarnation” he seldom dissented from BIA precedents. He even joined and authored decisions restricting the ability of refugees to qualify for asylum based on persecution from gangs that the governments of the Northern Triangle were unwilling or unable to control or were actually using to achieve political ends.
Indeed, his later public judicial pronouncements bore little resemblance to the courageous and often forward-looking jurisprudence with which he was associated during his “prior judicial life” with the “Gang of Five.” Nevertheless, he continued to save lives whenever possible “under the radar screen” in his unpublished decisions, which actually constitute the vast bulk of a BIA judge’s work.
Judge Kendall Clark was finally appointed to a permanent BIA Appellate Judgeship by Attorney General Loretta Lynch in February 2016, following a lengthy series of appointments as a TBM. Perhaps because of her disposition to recognize respondents’ rights in an era of sharp rightward movement at the BIA, she authored few published precedents.
However, she did write or participate in a number of notable unpublished cases that saved lives at the time and advanced the overall cause of due process. She also had the distinction of serving as a Senior Legal Advisor to four different BIA Chairs (including me) from 1995 to 2016.
Thus, the BIA continues its downward spiral from a tribunal devoted to excellence, best practices, due process, and fundamental fairness to one whose primary function is to serve as a “rubber stamp” for White Nationalist restrictionist enforcement initiatives by DHS. The voices of reasonable, thoughtful, scholarly jurists like Judges Guendelsberger and Kendall Clark will be missed.
They are some of the last disappearing remnants of what EOIR could have been under different circumstances. Their departure also shows why an independent Article I Judiciary, with unbiased judges appointed because of their reputations for fairness, scholarship, timeliness, teamwork, and demonstrated respect for the statutory and constitutional rights of individuals, is the only solution for the current dysfunctional mess at EOIR.
The Trump administration has sent new guidelines to asylum officers directing them to take a more skeptical and confrontational approach during interviews with migrants seeking refuge in the United States. It is the latest measure aimed at tightening the nation’s legal “loopholes” Homeland Security officials blame for a spike in border crossings.
According to internal documents and staff emails obtained Tuesday by The Washington Post, the asylum officers will more aggressively challenge applicants whose claims of persecution contain discrepancies, and they will need to provide detailed justifications before concluding an applicant has a well-founded fear of harm if deported to their home country.
The changes require officers to zero in on any gaps between what migrants say to U.S. border agents after they are taken into custody and testimony they provide during the interview process with a trained asylum officer.
“Officers conducting credible fear interviews should also be addressing any more detailed inconsistencies between the applicant’s testimony during the credible fear interview and other testimony in sworn statement,” John Lafferty, the head of the asylum division at U.S. Citizenship and Immigration Services (CIS), wrote to staff in an email, outlining the changes.
‘This is what we’re seeing every day’: Another long night on the U.S.-Mexico border
The new guidelines and directive to asylum officers are among the most significant steps the administration has taken to limit access to the country for foreigners seeking asylum, whose right to apply for humanitarian protection is protected by U.S. law and rooted in post-World War II international treaties granting refuge to those fleeing persecution. The changes appear to signal the administration wants to turn away asylum seekers earlier in the legal process, aiming to cut down on the number of applicants who enter the court system and to deter others from attempting to cross into the United States to seek asylum.
Tighter control over asylum claims would fit into a broader White House effort to control the parameters of legal immigration. White House officials — including senior adviser Jared Kushner — met with Republican members of Congress on Tuesday as they draft a proposal that would base the immigration system largely on an immigrant’s ability to contribute to the economy. The Trump administration already has set lower limits on refugees, is cracking down on visa overstays and has alleged that many asylum seekers crossing the southern border are frauds.
With a record number of Central American families arriving at the border and swamping U.S. courts with asylum claims, Trump has repeatedly scoffed at the protections and has told crowds that dangerous criminals are using it to game the system and stay in the United States.
“The asylum program is a scam,” Trump said last month in a speech. “Some of the roughest people you’ve ever seen, people that look like they should be fighting for the UFC (Ultimate Fighting Championship) . . . you look at this guy you say ‘Wow, that’s a tough cookie!”
One asylum officer, who spoke on the condition of anonymity for fear of retribution, said the changes are “huge” and would make the screening process more time-consuming by requiring officers to provide detailed written analysis before referring an applicant to the courts.
Jessica Collins, a CIS spokesperson, confirmed that new guidelines — included in a lesson plan Reuters has posted online — were issued to officers, describing them as a “periodic update.”
“As part of this periodic update, we have reiterated to asylum officers long-standing policies that help determine an individual’s credibility during the credible fear interview and have ensured there are consistent processes for both positive and negative credible fear determinations,” Collins said in a written statement.
Central American asylum seekers exit the Chaparral border crossing gate after being sent back to Mexico by the U.S. in Tijuana, Mexico, in January. (Shannon Stapleton/Reuters)
Homeland Security agencies already are struggling to comply with court orders limiting the amount of time families with children can be held in detention, and further processing delays could exacerbate dangerous overcrowding at Border Patrol stations and immigration jails. Some areas along the border have been overwhelmed, at times seeing three times as many migrants as they have beds in detention facilities, leading many to be directly released into the United States after initial questioning.
Migrants taken into custody at the border who state a fear of persecution in their homelands typically receive a cursory interview with an asylum officer, and it is up to that officer to evaluate whether the person’s story is credible enough to be referred to immigration courts for a fuller assessment.
The initial screening is known as a “credible fear” assessment, and it has become a particular focus of frustration for the White House at a time when illegal border crossings have jumped to a 12-year high, exceeding 100,000 per month.
The influx has swamped U.S. agents and filled Border Patrol stations far beyond their capacity, forcing the government to frequently bypass the credible fear screening process and release tens of thousands of Central American families with little more than a notice to appear in court.
Matthew Albence, the acting director of U.S. Immigration and Customs Enforcement, told reporters Tuesday that his agency has released 168,000 family members since Dec. 21.
“We’ve released four times as many people as we’re able to arrest on an annual basis,” said Albence, noting that ICE makes approximately 40,000 “at large” arrests of immigration violators in the U.S. interior each year.
Statistics show most migrants who claim persecution pass the initial credible fear screening, but far fewer ultimately receive asylum from a judge. An avalanche of new applicants in recent years has contributed to a backlog of more than 860,000 cases in U.S. immigration courts, and it can take years for an asylum applicant to get a final answer in court.
That lag time that has created a loophole in U.S. immigration enforcement, Homeland Security officials say, especially for applicants who arrive with children. They are typically released from custody and allowed to remain in the country while their cases are adjudicated. The process allows them to spend years living and working in the United States, regardless of whether their claims are ultimately found to be valid.
Senior Trump adviser Stephen Miller has led the push to tighten up the asylum system, and his frustration with the slow pace of change was at the heart of his recent attempt to oust L. Francis Cissna, the head of CIS, according to three administration officials. Cissna kept his job after senior GOP senators came to his defense and urged Trump to keep him.
One senior DHS official said Miller and others in the administration are struggling against an asylum officer corps that doesn’t share its immigration goals and would rather refer an applicant to the courts than risk making the wrong choice in a rushed decision with life-or-death consequences.
The administration’s changes take effect immediately, and asylum officers will be trained in their application in coming weeks, according to the emails and CIS officials.
The overhaul follows a White House directive last week ordering Homeland Security and Justice Department officials to tighten asylum rules by limiting access to work permits for applicants and charging fees for the first time to migrants who arrive on U.S. soil seeking humanitarian protection.
Those changes also direct the Justice Department to complete processing of asylum claims within 180 days.
Lafferty also told staff that 10 U.S. Border Patrol agents had volunteered to join a pilot program that will train them to conduct credible fear screenings. As many as 50 agents will be trained in coming months, he said.
The plan has raised concerns from immigrant advocates who say agents should not be making such consequential decisions about credibility of migrants’ deportation fears and their eligibility for humanitarian refuge.
“Credible fear interviews involve the discussion of sensitive, difficult issues,” Julie Veroff, of the American Civil Liberties Union’s Immigrant Rights Project, wrote Monday, calling the plan “highly concerning.”
“Federal law thus requires that credible fear interviews be conducted in a ‘nonadversarial manner,’” Veroff wrote. “Credible fear interviews have always been conducted by professionals who specialize in asylum adjudication, not immigration enforcement.”
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Same old, same old. Seems like Trump has been down this path before with Sessions and Nielsen. It ended in a stinging rebuke from Judge Emmet Sullivan in Grace v. Whitaker.
Why aren’t we at the point of contempt citations and disbarment actions for frivolous litigation being conducted by the Trump Administration?
Vox: Homeland Security Secretary Kirstjen Nielsen submitted her resignation to President Donald Trump Sunday night, in an unexpected move that appears related to the president’s ongoing rage over the number of Central American families and asylum seekers coming into the United States. Kevin McAleenan, the head of Customs and Border Protection, will serve as acting DHS secretary. It’s not yet clear whether Trump will formally nominate a successor to Nielsen in the near future.
CNN: President Donald Trump is pulling the nomination of Ron Vitiello to lead US Immigration and Customs Enforcement, saying he wants to go in a “tougher direction” — a move that came at the urging of White House senior adviser Stephen Miller.
WaTimes: Brandon Judd, president of the National Border Patrol Council, said the pilot program will begin in two weeks, with agents deputized to begin hearing “credible fear” claims lodged by migrants who say they need protection in the U.S.
NYT: It may take federal officials two years to identify what could be thousands of immigrant children who were separated from their families at the southern United States border, the government said in court documents filed on Friday.
NPR: Immigration and Customs Enforcement arrested 280 employees at a technology repair company in Collin County, Texas, on charges of working in the United States illegally. It’s the largest work site raid in the country in more than a decade, according to a Homeland Security Investigations official.
NYT: About 633 Central American asylum seekers have been turned away since January, unable to prove sufficient fear of being tortured and persecuted in Mexico.
ABA: Immigration courts have always been susceptible to politics; presidents have, for example, rearranged dockets to suit their political needs. But the NAIJ and others are concerned that the Trump administration has moved from reprioritizing cases to deliberately trying to affect case outcomes.
CNN: Judges at an immigration court in El Paso, Texas, are undermining due process, making inappropriate comments and fostering a “culture of hostility” toward immigrants, according to a new complaint.
WaPo: As President Trump threatened to shut down the U.S.-Mexico border in recent days, his Department of Homeland Security nearly doubled the number of temporary guest worker visas available this summer.
AIC: USCIS is denying some immigrants U.S. citizenship over their work in the legal marijuana industry, exposing a conflict between state and federal laws.
WashEx: The American Civil Liberties Union has issued a travel advisory for “immigrants and people of color to use extreme caution” in Florida because of a pending immigration bill the state legislature is considering that would ban so-called sanctuary cities.
US News: Republican Gov. Bill Lee said Tuesday he’s working to ensure his proposed $125 million school voucher program will be provided only to “legal residents” of Tennessee — a plan that some critics say could be illegal.
TheCity: Fresh off passage of a state budget that included the DREAM Act to fund higher education for undocumented immigrants, some Democrats in the Legislature are looking for a bigger win: New York state-issued driver’s licenses.
On 3/28/19, DHS Secretary Kirstjen Nielsen sent a letter to Congress to request legislative changes to the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) and the Flores settlement agreement to address “root causes of the emergency” along the U.S./Mexico border. AILA Doc. No. 19040801
ABC: The budget motel operator illegally shared the personal information of about 80,000 customers for more than two years, resulting in a “targeted” ICE investigation into guests with Latino-sounding names, the Washington state attorney general’s office announced Thursday.
Law360: New York federal court has ruled two local immigration attorneys can’t shake a suit alleging they misled clients about services they could provide and filed asylum petitions without their clients’ knowledge, which then allegedly plunged the noncitizens into removal proceedings.
NPR: U.S. District Judge George Hazel of Maryland in a 119-page opinion released Friday. Hazel concluded that the decision by Commerce Secretary Wilbur Ross, who oversees the census, to add the question violated administrative law. See also Commission divided on funding needs for census outreach.
The court held that the BIA did not abuse its discretion in finding that the information that the petitioner had provided to immigration officials—the names of his town and county in El Salvador—did not satisfy the notice requirement of INA §242b(a)(1)(F)(i). (Ramos-Portillo v. Barr, 4/1/19)
The court found the BIA did not abuse its discretion when, in applying the Matter of M-R-A- factors and looking to the totality of the circumstances, it determined that petitioner had failed to overcome the weaker presumption of effective service. (Navarrete-Lopez v. Barr, 4/1/19)
The court denied the petition for review, holding that substantial evidence supported the BIA’s determination that the petitioner had failed to show that he would suffer persecution in Somalia because he belonged to the Ashraf minority clan. (Qorane v. Barr, 3/26/19)
The court remanded for BIA to explain why it found it made no difference that petitioner had included a U visa filing receipt in his remand request, when Matter of Sanchez-Sosasuggests that a completed application should pause the removal process. (Caballero-Martinez v. Barr, 4/3/19)
The court granted in part the petition for review, holding that petitioner’s conviction for third-degree robbery in Oregon was not categorically a crime involving moral turpitude (CIMT) that would render the petitioner ineligible for cancellation of removal. (Aguirre Barbosa v. Barr, 3/28/19)
The court issued an order denying the rehearing en banc of Sanchez v. Barr, in which the court held that the petitioner may be entitled to termination of removal proceedings after he made a prima facie showing of an egregious violation of 8 CFR §287.8(b)(2). (Sanchez v. Barr, 4/1/19)
The Justice Department announced that it has reached a settlement agreement with the Housing Authority of Victoria, Texas, after finding that it discriminated against a LPR when it rejected his valid employment documents and fired him. AILA member Paul Parsons represented the employee.
DHS Secretary Nielsen ordered CBP increase its temporary reassignment of personnel and resources to address the influx of migrants at the southern border. She also directed CBP to expand the Migrant Protection Protocols and return hundreds of additional migrants per day to Mexico. AILA Doc. No. 19040174
EOIR issued PM 19-11, No Dark Courtrooms, to ensure that all available courtrooms are used for hearing cases every day during normal court operating hours, including maximizing the use of video teleconferencing and immigration adjudication centers. The memo is effective 5/1/19. AILA Doc. No. 19040130
A complaint filed with DOJ’s EOIR, OIG, and OPR by the American Immigration Council and AILA highlights systemic due process violations that are undermining justice for detained immigrants called before judges at the El Paso Service Processing Center immigration court. AILA Doc. No. 19040260
Elizabeth’s items #1 and #3 (in addition to being totally outrageous and illegal) could spell either a short career for Acting DHS Secretary Kevin McAleenan or some time in Federal Prison.
Trump has no authority to get rid of the Asylum System and Immigration Judges, nor will Congress do so. Moreover, any attempt by Congress to eliminate asylum or a fair hearing process for individuals who entered the U.S. regardless of status would be likely to violate both the Due Process Clause of the Constitution and our international treaty obligations. To the extent that Trump tries to do this through “back door” methods (as other reports have indicated), they clearly will be both illegal and unconstitutional. Any officer carrying them out will be “at risk.”
The “Program,” described in Item #3 of substituting Border Patrol Officers for trained Asylum Officers is clearly illegal. Under the 8 U.S.C. 1325(b)(1)(E), an Asylum Officer must have extensive training in “country conditions, asylum law, and interview techniques comparable to that given full-time adjudicators of asylum applications.” Border Patrol Officers would not normally meet those criteria;
Indeed, this provision is a reflection of Congress’s specific intent that someone other than a law enforcement official make asylum and credible fear determinations;
The statute further requires supervision by an Officer who “has had substantial experience adjudicating asylum applications;” any supervisor who signed off on this bogus program would be acting illegally;
The Government is already under an injunction in Grace v. Whitaker from Judge Sullivan preventing an illegal attempt by former Attorney General Sessions and Kristjen Nielsen to rig the credible fear process against asylum applicants;
The bogus “pilot program” intended to result in illegal rejections of those claiming credible fear by agents patently unqualified to make such determinations under the statute would violate that injunction;
Judge Sullivan has a reputation for not taking much guff from anyone, including the Government;
Implementation of this illegal program should result in the Border Patrol Agents who carry it out as well as McAleenan and hopefully scofflaw Stephen Miller being held in contempt by Judge Sullivan and doing some jail time.
