🏴‍☠️ DYSFUNCTIONAL COURTS: HIGH DENYING IJ IN HOUSTON REJECTS BIA REMAND, LECTURES HIGHER COURT JUDGES ON HOW TO DENY ASYLUM TO REFUGEE WOMAN — Parties Given No Input In Garland’s Zany, Topsy-Turvy, Out Of Control, Asylum Denial Machine! — Who’s On First In This Deadly ☠️ “Ongoing Clown Show” 🤡 That Degrades Human Rights & Mocks Judicial Competence & Best Practices?

Woman Tortured — “Nexus? What nexus? These “just happen to be” women facing a little “random violence!”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

Here are the redacted decisions:

BIA Remand Maria Delmy Andasol-Parada_20220531_0001_Redacted IJ Ceritification Maria Delmy Andasol-Parada_20220531_0001_Redacted

**********************

Not rocket science 🚀 here:

With credible testimony and harm that rises to the level of persecution for a woman in El Salvador, who was the victim multiple rapes, on its face, this should have been an easy grant for a competent IJ.

- - Essentially, this judge argues that harm rising to the level of persecution — multiple rapes — inflicted on a woman in El Salvador, where femicide and misogyny run rampant, has nothing to do with her being a woman. Such a conclusion is unlikely — some experts would say facially absurd!
  - Indeed, the IJ’s apparent view that multiple rapes had nothing to do with a gender-based protected ground of being a woman would be totally “off the wall” for any experienced asylum adjudicator who truly understood the well-documented nature of violence against women as a widespread form of persecution worldwide!
  - According to the UN Handbook for Determining Refugee Status, adjudicators should give credible applicants “the benefit of the doubt.” “It is therefore frequently necessary to give the applicant the benefit of the doubt.” (Par. 203). That’s not what this IJ did!
  - Also, in the remand order, the BIA specifically rejected the IJ’s finding that this gross harm to the respondent was “individualized” and “personalized” and therefore not a basis for an asylum claim — something not mentioned by the IJ in his “certification.”

Another, better qualified Immigration Judge in the 5th Circuit recently granted a similar case for a Honduran woman. https://immigrationcourtside.com/wp-content/uploads/2022/06/Immigration-Judge-Asylum-Decision-5-6-2022-Redacted.pdf.

- - Counsel for the applicant is well aware of this “better analysis” and could have argued it. But, in his snarky haste to prejudge and deny needed protection, this Houston IJ didn’t even give the parties a chance to participate in his “return to sender” (“certification”) nonsense.
  - A better functioning expert BIA would have long ago provided precedential guidance granting cases like this — adopting and amplifying the rationale of the IJ in the Honduran case.
  - Additionally, the BIA remand instructed the IJ to inquire of the DHS as to whether this victim of multiple rapes with no apparent criminal record or other adverse factors was and “enforcement priority” under applicable DHS guidelines — something that the IJ contemptuously and improperly did not do! Indeed, he didn’t seek any input from the parties despite being instructed to do so.

Unquestionably, being an El Salvadoran woman is a) immutable or fundamental to identity; b) highly particularized, and c) socially visible, as recognized by the Salvadoran government and everyone in El Salvador, thereby clearly qualifying as a “particular social group.”
Like the rest of the Northern Triangle, femicide, and abuse of women because they are women is endemic in El Salvador. Five minutes of internet research by a competent judge, assisted by good lawyers, would have turn up mountains of compelling, actually irrefutable, evidence of such uncontrolled abuse. Try the research yourself. See, e.g., https://doi.org/10.3389/fpsyg.2022.867945; https://immigrationcourtside.com/2021/06/05/🇺🇸🗽⚖%EF%B8%8Fgeorge-w-bush-institute-report-gender-violence-☠%EF%B8%8F⚰%EF%B8%8Fdrives-continuing-refugee-flow-to-u-s-dishonesty-o/ (this is from the George W. Bush Institute, no less).
There is also plenty of reliable evidence that El Salvador, like the rest of the Northern and Triangle Governments, is basically a failed state — something publicly admitted by some Administration officials, including Special Envoy to the Northern Triangle Ricardo Zuniga. https://apple.news/A9FpzsjRAQ2OoAyQZzHZm1A (“democracy, the rule of law and the security situation continue to deteriorate”). The Salvadoran government is neither willing nor able to provide a reasonable level of protection to women like this applicant. Indeed, there is likely sufficient evidence for a better BIA to establish a “rebuttable presumption of failure of state protection” in El Salvador and the rest of the Northern Triangle.
Temporary Appellate Immigration Judge Gabe Gonzalez, author of the remand, is one of the better BIA judges. But, his remand could have been even stronger. He could have reversed this IJ and granted asylum on this record. Why “beat around the bush” on grantable cases that are being mishandled by “chronically over-denying IJs” below? At this point, removal of this particular judge from the case would be more than justified. Cases like this certainly raise the legitimate question of why IJs who sit around inventing reasons to deny relief to those in need of protection are on the Immigration Bench in the first place. There are certainly better-qualified judicial choices — many of them located in Texas — who could bring legitimacy, quality, and efficiency to Garland’s dysfunctional courts!
“Bogus lack of nexus” is one of the most overused grounds for improper denials of protection by EOIR judges at all levels. It’s part of the “any reason to deny” approach enabled by EOIR’s current “anti-asylum culture” — one that was overtly encouraged and promoted by the Trump DOJ.

- - Recently, a BIA panel led by Judge Ellen Liebowitz rebuked another high-denying IJ’s bogus nexus denial in a Houston, 5th Circuit case. See https://immigrationcourtside.com/category/department-of-justice/executive-office-for-immigration-review-eoir/board-of-immigration-appeals-bia/judge-ellen-liebowitz/. So, what isn’t THAT case a precedent — which would end the anti-asylum nonsense and intentionally wrong analysis employed by this judge? “Houston, we’ve got a problem!” What is Garland doing to solve it?
  - Inexplicably selecting Houston as one of the “test locations” for the new asylum regulations is “built to fail.” Without expert, positive guidance from qualified IJs in Houston (and the BIA) on granting asylum — something that this “denial centered court” simply doesn’t possess — there is every reason to believe that asylum seekers will not receive professional treatment or correct decisions from either the Asylum Office or the Immigration Court in Houston. And, relying on the BIA or, worse yet the “over the top” 5th Circuit,” to guarantee fairness and justice for asylum seekers? That’s a sick joke under current conditions!

8) Poorly reasoned, legally incorrect asylum denials and frivolous actions like the IJ’s “certification” in this case are a major factor in generating a 1.8 million case EOIR backlog and enabling a lawless, non-expert, anti-immigrant “culture of denial” at EOIR. Many grantable asylum cases languish in the backlog, are subjected to “Aimless Docket Reshuffling,” and then are wrongfully denied by poorly performing judges at both levels of EOIR.

9) EOIR suffers from poor leadership, a poorly performing BIA that overall lacks the expertise and courage to grant the large number of deserving asylum cases currently languishing in the EOIR backlog, and to set proper legal standards that will guide Immigration Judges and Asylum Officers in efficiently granting deserving cases at the first level of the system.

10) Garland should remove or reassign the “under-performers” and “non-performers” at EOIR and replace them with qualified experts committed to best practices and “guaranteeing fairness and due process for all” (EOIR’s now long-forgotten and dishonored mission).

11) Lives and the future of democracy are at stake here! America simply can’t afford the “institutionalized nonsense” still rampant at EOIR as illustrated by this case!

12) Also, EOIR’s performance in this cases is inconsistent with almost every sentence of the recent “LA Declaration.” Issuing statements of principle that are directly contradicted by your actual practices is a bad idea!

This has been a bad week for individual rights and particularly the rights and humanity of women in America. Garland can’t fix the out of control, “fringe-right,” Supremes’ majority. But, he can fix EOIR! And, that would be a long overdue and desperately needed first step toward fixing the entire broken and foundering Federal Court system. Start “at the retail level” with what you have the power to fix and work from there!

🇺🇸 Due Process Forever!

PWS

06-24-22

🤮☠️ AMERICA’S KIDDIE GULAG: CRUEL, INHUMAN, GROTESQUE, UNNECESSARY, INDEFENSIBLE! — The Biden Administration Knows That! — Yet, They Destroy Our World’s Future Promise For A Thoroughly Debunked & Discredited White Nativist Immigration/Racial Agenda! — WHY? 🤯

Julia Preston
American Journalist
The Marshall Project

Anna Flagg
Senior Data Reporter
The Marshall Project

https://www.politico.com/news/magazine/2022/06/16/border-patrol-migrant-children-detention-00039291

INVESTIGATION

‘No Place for a Child’: 1 in 3 Migrants Held in Border Patrol Facilities Is a Minor

Thousands of kids have been routinely detained in cold, overcrowded cells built for adults, while authorities have resisted improving conditions.

By ANNA FLAGG and JULIA PRESTON

06/16/2022 04:30 AM EDT

.ST1{FILL-RULE:EVENODD;CLIP-RULE:EVENODD;FILL:#FFF}

Anna Flagg is The Marshall Project’s senior data reporter.

Julia Preston is a contributing writer at The Marshall Project.

This article was published in partnership with The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. Sign up for their newsletters, and follow them on Twitter, Instagram and Facebook.

During their harrowing journey from Venezuela to the Texas border, the three Zaragoza children liked to imagine the refuge they would find when they reached the United States, a place where they would finally be free from hunger and police harassment and could simply be kids

Instead, when they reached the border in March, they were detained — dirty with mud from the Rio Grande and shivering with cold — in frigid cinder block cells. They spent sleepless nights on cement floors, packed in with dozens of other children under the glare of white lights, with agents in green uniforms shouting orders.

The siblings were booked by officers who asked questions they didn’t understand and were told to sign documents in English they couldn’t read. Even after their release three days later, they feared the U.S. would never be the haven they had longed for.

Since early 2017, one of every three people held in a Border Patrol facility was a minor, a far bigger share than has been reported before now, according to an analysis by The Marshall Project of previously unpublished official records. Out of almost 2 million people detained by the Border Patrol from February 2017 through June 2021, more than 650,000 were under 18, the analysis showed. More than 220,000 of those children, about one-third, were held for longer than 72 hours, the period established by federal court rulings and an anti-trafficking statute as a limit for border detention of children.

For most young migrants crossing without documents, the first stop in the U.S. is one of some 70 Border Patrol stations along the boundary line. The records reveal that detaining children and teenagers has become a major part of the Border Patrol’s everyday work. The records also show that conditions for minors have not significantly improved under President Joe Biden. While the numbers of kids in Border Patrol custody peaked in 2019 under former President Donald Trump, they rose again when Biden took office and have remained high.

Those numbers could surge to new highs when the Biden administration eventually lifts Title 42, a public health order that border authorities have used for more than two years to swiftly expel most unauthorized border crossers, including many children.

But the Border Patrol has resisted making changes to its facilities and practices to adapt to children, even while officials acknowledge that the conditions young people routinely face are often unsafe.

“A Border Patrol facility is no place for a child,” Homeland Security Secretary Alejandro Mayorkas, the nation’s highest immigration official, has repeatedly said. However, even now, as authorities are scrambling to beef up enforcement and expand detention capacity in preparation for a post-Title 42 influx, the Border Patrol’s basic approach to kids remains the same: Just move them out of custody as fast as possible.

Without broader changes, many thousands of kids seeking protection will remain at risk for harsh, demeaning and sometimes dangerous treatment as their first experience of the United States.

. . . .

*************************************************

Read Anna’s and Julia’s complete, disturbing, infuriating report at the link. Unnecessary, immoral, inappropriate, and just plain stupid and evil! Did I mention stupid and evil?

Thanks, in part, to the Trump Administration’s policies of racist child abuse masquerading as “immigration enforcement,” there is a large body of recent, available, accessible empirical data on the devastating effects on children, families, society, and our world’s future of immigration enforcement that targets children, teens, and other vulnerable groups!

The “perps” of these repulsive policies will “check out” at some point in the future. The Biden Administration, which pledged to do better but disgracefully hasn’t delivered, also can’t and should not escape accountability.

The damage they are inflicting on future generations and the ability of our world to harness and utilize in a cooperative fashion the “human capital” needed for our planet’s and humanity’s survival is totally unacceptable! People of intelligence, courage, energy, innovation, and compassion must work together to stop this disgraceful abuse. Those chosen as responsible leaders and officials in the future must represent “our better angels!” 😇

While those of us in the “senior generation” who believe in social justice and a better future for humanity will continue the fight, our “time on the stage” is inexorably winding down. It will be up to the NDPA and the rest of the upcoming generation — in America and elsewhere — to decide what kind of world they want to live in and what they are willing to do, and sometimes sacrifice, to make it happen.

As I have said many times: “We can diminish ourselves as a nation, but it won’t stop human migration!”

It’s past time for a better, more realistic, more human, and “robustly humane” approach to human migration!😎 One that focuses on the long-term welfare of children and society, NOT short-term mythical “enforcement goals” or fears!

🇺🇸Due Process Forever!

PWS

06-20-22

☠️👎🏽DEM’S CATASTROPHIC DUE PROCESS FAILURE: AS PREDICTED, GARLAND’S “DEDICATED DOCKETS” ARE “ASYLUM FREE ZONES” TARGETING CHILDREN!🤮

“Floaters” — Garland’s vision of “justice” for refugee children appears to be little different from that of Stephen Miller and his White Nationalist predecessors at DOJ!
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)

Cindy Carcamo reports for the LA Times:

BY CINDY CARCAMO STAFF WRITER

MAY 25, 2022 11:56 AM PT

After drug traffickers killed his little brother, William and his 6-year-old son, Santiago, fled Colombia last September to seek asylum in the United States.

Unbeknownst to William, who ended up in Los Angeles with a friend, he and his son immediately became part of a cohort of thousands of families in a “dedicated docket” program that the Biden administration established in 11 cities, including Los Angeles, in May 2021.

In response to a sudden rise of apprehensions last spring of families and children at the Southwest border, Biden promised the accelerated docket would resolve cases “more expeditiously and fairly.” These sorts of programs have existed in various forms under previous administrations; Biden’s program pushes immigration judges to resolve cases in 300 days, significantly shorter than the 4.5-year average of asylum cases in immigration court.

But according to a new Center for Immigration Law and Policy at UCLA Law report, the docket’s fast-track timeline has imposed new hardships on many asylum seekers and created additional obstacles that ultimately lead to higher rates of deportation orders, sometimes based on legal technicalities.

For William — who didn’t want his last name published, fearing reprisal against his family still living in Colombia — the docket’s expeditious nature meant he had only six weeks to secure legal representation before his first court hearing, leaving him to navigate a complex and often confusing system without an attorney. Immigration officials provided him with documents heavy with legal jargon in English. He could read only in Spanish.

In addition, those on the docket are released with “alternatives to detention,” which means they are monitored, either with an ankle bracelet or via a phone application. Immigration officials shackled William with a GPS monitor on his ankle before releasing him and his son.

Ultimately, an immigration judge ordered William and his 6-year-old to be deported in “absentia” when they didn’t show up for their court hearing at U.S. Immigration Court in downtown Los Angeles. In fact, at the time the judge gave the order, William was in the building, but was three floors below the courtroom in a waiting area at the direction of an Immigration and Customs Enforcement official. By the time William was told he was in the wrong place, the judge had already ordered the father and son’s removal from the U.S.

In Los Angeles, an estimated 99% of the 449 cases completed on the dedicated docket as of February of this year resulted in removal orders and about 72% of those cases were issued to people who missed their court hearing — “in absentia” — according to a report released Wednesday by the Center for Immigration Law and Policy and Immigrants’ Rights Policy Clinic at UCLA School of Law

Perhaps most striking, the report shows that almost half of those in absentia removal orders are for children, many 6 and younger.

In addition, court data analyzed in the report show that an estimated 70% of people on this particular docket don’t have legal counsel. In contrast, an estimated 33% of those on the Los Angeles court’s non-accelerated docket lack legal counsel.

The nature of the accelerated dockets made it nearly impossible for asylum-seekers to get a fair hearing, the report’s authors concluded. The high absentia rate, the report concluded, is a red flag that the dedicated docket isn’t working as it should.

. . . .

**********************

Read the rest of Cindy’s totally disturbing article at the link!

Sadly, this news will come as no surprise to readers of “Courtside.” Having watched these types of efforts to co-opt the Immigration Courts as a vehicle of unfair, racially motivated “deterrence” and “enforcement,” I could see that this program was going to be an unmitigated disaster at EOIR, given Garland’s failure to install progressive judicial leadership and human rights and due process expertise into the broken and biased system he inherited from Sessions and Barr.

The NDPA is going to have to “dig in” and fight Garland and Mayorkas every step of the way, at every level of the system, to save as many lives as possible from their disgraceful continuation of a “Miller Lite” White Nationalist, anti-immigrant program of abusing and dehumanizing asylum seekers — most individuals of color and many of them children or other “vulnerable individuals.”

🇺🇸 Due Process Forever! Garland’s dysfunctional, biased, leaderless, soul-less, ethically challenged EOIR, never!

PWS

05-26-22

🗽⚖️ANOTHER BITE OF JUSTICE FOR DV VICTIM: BIA Temporary Appellate Immigration Judge Gabe Gonzalez With An A-B-/A-R-R-G- Remand!

Roberto Blum reports from Houston, TX:

*********************************

Thanks, Roberto!

Just think how much better this system would work if Immigration Judges were getting guidance from the BIA to get these correct in the first place.

Also raises additional questions of why: 1) cases like this aren’t precedents; and 2) so-called “Temporary” Appellate Immigration Judges like Judge Gabe Gonzalez are “outperforming” most “permanent” BIA Judges?

🇺🇸Due Process Forever!

PWS

05-16-22

⚖️🧑🏻‍⚖️BIA APPELLATE JUDGE BETH LIEBMANN ISSUES MATTER OF A-B- REMAND, PROVIDES USEFUL GUIDANCE!

Here’s the decision (unfortunately unpublished):

https://drive.google.com/file/d/15v7-tVnh-eqBWDWgwBE-Wxqx4rNCH_f8/view?usp=drivesdk

**********************************

There is more helpful, practical guidance in Judge Liebmann’s “two-pager” than in most BIA precedents. So, why isn’t this a precedent?

A.G. Garland overruled Session’s abominable, wrong-headed precedent nearly one year ago. Yet, there has been no further guidance from the BIA on the meaning of the “reinstated A-R-C-G-.” Nor, have the so-called “gender-based regulations” ordered by Biden and referenced by Garland ever seen the light of day.

Meanwhile, there are many cases like this out there in the backlog. Most of them could be granted with proper guidance and supervision from a “Better BIA.” No wonder the backlog continues to grow!

My prediction that the “ascension” (she was a “mere TBM” at the time of this particular decision) of Judge Liebmann to join Judge Saenz on the BIA would be a “breath of fresh air” for practitioners appears to be gaining at least some traction. But, it’s going to take more than two well-qualified judges to pull the BIA out of its current “death spiral.”

🇺🇸Due Process Forever!

PWS

05-13-22

😎DANG, IF THE NDPA DIDN’T WIN ANOTHER ONE, AS THE BIA DECIDES TO FOLLOW THE SUPREMES’ JOHNSON RULING IN IMMIGRATION CASES! — Matter of Dang

https://www.justice.gov/eoir/page/file/1497716/download

Matter of DANG, 28 I&N Dec. 541 (BIA 2022)

(1) The Supreme Court’s construction of “physical force” in Johnson v. United States, 559 U.S. 133 (2010), and Stokeling v. United States, 139 S. Ct. 544 (2019), controls our interpretation of 18 U.S.C. § 16(a) (2018), which is incorporated by reference into section 237(a)(2)(E)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(E)(i) (2018); the Court’s construction of “physical force” in United States v. Castleman, 572 U.S. 157 (2014), is inapplicable in this context.

(2) Because misdemeanor domestic abuse battery with child endangerment under section 14:35.3(I) of the Louisiana Statutes extends to mere offensive touching, it is overbroad with respect to § 16(a) and therefore is not categorically a crime of domestic violence under section 237(a)(2)(E)(i) of the INA, 8 U.S.C. § 1227(a)(2)(E)(i).

PANEL: CREPPY, LIEBOWITZ, and PETTY, Appellate Immigration Judges.

OPINION: Judge Petty

*****************************

Sometimes, the BIA decides to “blow off” the Supremes! But not this time!

🇺🇸Due Process Forever!

PWS

04-28-22

🤮👎🏽SPOTLIGHT ON GOP HUMAN RIGHTS ABUSERS! — New Tool From Justice Action Center (“JAC”) Keeps Tabs On Xenophobic, Dehumanizing Litigation By GOP State AGs!☠️🏴‍☠️

From Tasha Moro, Communications Director @ Justice Action Center:

Hi friends!

In response to states like TX, FL, AZ and others engaged in unrelenting legal challenges to defend Trump-era policies that harm immigrants, JAC is launching our litigation tracker microsite—an interactive, searchable index of anti-immigrant legal challenges, decoded and technical legal summaries, court filings, news coverage, and advocacy tools. We hope it’s useful to advocates and litigators alike!

As a compliment to the tracker, we also send out a biweekly newsletter summarizing the latest case updates, which you can subscribe to here. Feel free to explore the microsite, and read our press release below, and RT our thread here!

All the best,

Tasha

JAC’s New Litigation Tracker Follows States’ Legal Efforts to Uphold Trump-Era Immigration Policies

https://justiceactioncenter.org/jacs-new-litigation-tracker-follows-states-legal-efforts-to-uphold-trump-era-immigration-policies/

FOR IMMEDIATE RELEASE

March 15, 2022

LOS ANGELES—Justice Action Center (JAC) launched a litigation tracker microsite that follows states’ legal challenges to inclusive federal immigration policies. Since President Biden took office, states like Texas, Arizona, Florida, and others have poured immense resources into impeding progress and defending Trump-era policies that demonize, endanger, and discriminate against immigrants. Updated continuously, the JAC litigation tracker decodes these complex legal battles using accessible language, and includes court filings, news coverage, and resources.

One example of such a case detailed in the tracker is Biden v. Texas, the critical Remain in Mexico (also known as “MPP” or “RMX”) case that the Supreme Court announced last month it would hear on an expedited schedule. Over the last year, Texas has challenged President Biden’s attempts to end Trump’s cruel and inhumane RMX program, which has stranded tens of thousands of asylum seekers in dangerous conditions in Mexico while awaiting their immigration court hearings in the U.S.

Like other cases, JAC’s litigation tracker outlines the history of Biden v. Texas as it worked its way up the federal court system. Providing critical analysis, the tracker explains how the Supreme Court’s decision will not only determine the future of asylum in the United States, but also have far reaching implications on executive powers. Users will find continuously updated news coverage and resources that can be used to take action on this and other important immigration related litigation.

“It is crucial that the American public is informed of various states’ attempts to obstruct inclusive immigration policies that would benefit our communities, culture, and economy. JAC’s litigation tracker decodes these legal moves to empower people of conscience to engage in smart, creative advocacy to counter them—whether they have a law degree or not,” said JAC legal director Esther Sung.

As a complement to the tracker, JAC sends out a bi-weekly newsletter outlining the latest courtroom updates, which users can subscribe to here.

Justice Action Center (JAC) is a new nonprofit organization dedicated to fighting for greater justice for immigrant communities by combining litigation and storytelling. JAC is committed to bringing additional litigation resources to address unmet needs, empower clients, and change the corrosive narrative around immigrants in the U.S. Learn more at justiceactioncenter.org and follow us on Twitter, Instagram, and Facebook.

*******************

The bad news: These morally debilitated heirs to the slave-owning class and Jim Crow politicians exist and, like those antecedents, hold influential positions of public trust that they use to pick on and dehumanize the vulnerable.

The good news: You’ll no longer have to look under rocks and other dark places where slimy creatures hang out to see what shenanigans they are up to now!

Just when you think the GOP couldn’t sink any lower, they dredge up these sleazy “public officials” who show that there is no lower limit.

🇺🇸 Due Process Forever!

PWS

03-15-22

FINALLY, LEADING DEMS IN CONGRESS DEMAND END TO BIDEN’S TITLE 42 CHARADE! — NDPA All-Star 🌟🦸🏻‍♀️ Blaine Bookey Speaks Out For Ukrainians & Other Legal Asylum Seekers Being Abused 🤮 By Biden Administration @ The Southern Border!

MarIa Sacchetti reports for WashPost:

https://www.washingtonpost.com/national-security/2022/03/10/title42-border-asylum-democrats-trump/

Leading Senate Democrats demanded that the Biden administration immediately end a Trump-era policy that blocks asylum-seeking migrants from crossing land borders into the United States, after lawyers said U.S. Customs and Border Protection expelled a single mother of three who had traveled from Ukraine to Mexico seeking refuge.

Senate Majority Leader Charles E. Schumer (D-N.Y.) cited the “desperate” Ukrainian family at a news conference Thursday and said he was deeply disappointed that the Biden administration has dragged out the Trump-era policy, which a federal appeals court in D.C. last week called “questionable.” The Trump administration issued the order two years ago under Title 42, which is the public health code. Since then, officials have expelled more than 1.6 million migrants to countries such as Haiti and Mexico.

“The United States is supposed to welcome refugees with open arms, not put them in additional danger by denying them a chance to plead their case and leaving them at the mercy of criminals and smugglers,” Schumer said, joined by advocates for immigrants. “Now’s the time to stop the madness.”

Courts issue new directives to Biden on border expulsions

Sen. Robert Menendez (D-N.J.), chair of the Senate Foreign Relations Committee, added that the policy “has created life-threatening conditions” for migrants. He called on the Centers for Disease Control and Prevention, which issued the order under President Donald Trump and has extended it under President Biden, to rescind it.

. . . .

Sofiia, 34, who asked to be identified only by her first name because she has family sheltering in their basements in Ukraine, said in a telephone interview that her family had enjoyed a good life there. She worked as a Hebrew teacher and lived in her father’s house. They left as bombs grew closer.

“I was seriously afraid for my life and the life of my kids,” she said in English, one of four languages that she speaks.

She said she and her children — ages 6, 12 and 14 — flung suitcases stuffed with clothes and medicines into her old Citroen and drove straight to Moldova, the closest border, and then into Romania, where they traveled to Germany and caught a flight to Mexico. She said that they tried to enter legally twice, once by car and again by foot, and that officials rejected them both times, citing the Title 42 order.

“I was surprised that they don’t even want to listen,” she said. “I was trying to tell them that I have tests and I am vaccinated but they told me, ‘No, no, no, no, no.’”

She said she does not speak Spanish and was crying on the bridge in Mexico when lawyer Blaine Bookey spotted her. Bookey, the legal director of the Center for Gender and Refugee Studies at the University of California’s Hastings law school, was there with her students to aid Haitian migrants facing similar troubles.

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Bookey said Customs and Border Protection told her that they would consider admitting the Ukrainian family. They were planning to try again Thursday, she said, adding that shelters in Mexico are filled with other would-be refugees who are not eligible to enter.

“There’s families like this that are showing up at the border from all sorts of countries from similar levels of violence. They deserve process to apply for asylum,” Bookey said. “This case really brings it home for people how just problematic this policy is.”

*********************

Read Maria’s full article at the link.

Rhetoric over action!

“Do as I say, not as I do!”

More cowardly performances from AG Garland and SG Prelogar who continue to “defend the indefensible,” putting politics over their constitutional duty to speak up for due process, human rights, racial justice, adherence to international conventions, and the rule of law.

The “COVID emergency” appears to be “over” everywhere in the U.S., even in areas with significant infection rates, EXCEPT for asylum seekers at the Southern Border who never were a major threat anyway.

“Saying no” to desperate Ukrainian mothers and children seeking refuge in the U.S. That’s ”law enforcement?” That’s how your tax dollars are being spent? Do these count as “border apprehensions?”

The Dem leaders are right to speak out. But, they waited far too long to do so. This travesty has been going on since Day 1 of the Biden Administration.

The only “hero” 🌟 here is Blaine Bookey and others like her who have the guts and courage to stand up for equal justice for all when politicos, judges, and public officials “tank!”

Meanwhile, although the opposition to Biden’s scofflaw policy hasn’t restored the rule of law for most asylum seekers, it might have generated at least a modest reaction. CBS News reports that the CDC has revoked the (bogus) Title 42 authority to bar the entry of unaccompanied children seeking asylum. News: https://apple.news/Anfp9S-UAQFqT5PWRc-8u2A

This appears to be a response to the attack on this group of vulnerable children by Trump-appointed righty anti-immigrant zealot U.S. District Judge Mark Pittman and his motley gang of GOP state AGs. See, e.g., https://immigrationcourtside.com/2022/03/05/%f0%9f%a4%aftitle-42-madness-even-as-dc-circuit-bars-returns-to-persecution-or-torture-trump-federal-judge-in-texas-abuses-children%f0%9f%a4%ae%e2%98%a0%ef%b8%8f-circuit-findings-of-ill/

🇺🇸 Due Process Forever!

PWS

03-12-22

🤯TITLE 42 MADNESS: Even As DC Circuit Bars Returns To Persecution &/Or Torture, Trump Federal Judge In Texas Abuses Children!🤮☠️ — Circuit Findings Of Illegal Returns To “Stomach-Churning” Conditions & No Evidence Supporting Bogus Title 42 Orders Fails To Motivate “Robed Ones” To Reinstate The Rule Of Law! — Meanwhile, In Texas, Rogue Righty Judge Takes Over Immigration, Targets Vulnerable Kids For Rape, Torture, Death!

Here’s the DC Circuit Decision:

https://www.cadc.uscourts.gov/internet/opinions.nsf/F6289C9DDB487716852587FB00546E14/$file/21-5200-1937710.pdf

Here’s the decision by Trump scofflaw U.S. District Judge Mark T. Pittman:

https://storage.courtlistener.com/recap/gov.uscourts.txnd.347182/gov.uscourts.txnd.347182.100.0_1.pdf

Here’s a link to “Instant Twitter Analysis” by Aaron Reichlin-Melnick, Policy Counsel at the American Immigration Council:

https://twitter.com/reichlinmelnick/status/1499891832569876481?s=21

ThreadOpen appSee new TweetsConversationAaron Reichlin-Melnick@ReichlinMelnick🚨Absolute madness. The same day the DC Circuit rules that families can’t be expelled under Title 42 to places they will be persecuted, a federal judge in Texas just overruled the CDC and ordered the Biden administration to expel unaccompanied children. https://storage.courtlistener.com/recap/gov.uscourts.txnd.347182/gov.uscourts.txnd.347182.100.0_1.pdf…

. . . .

*************************

Read the rest of Aaron’s feed at the link.

Although the DC Circuit basically confirmed that the evidence produced by plaintiffs showed illegal returns to death and that there was little, if any, support for the draconian Title 42 exclusion order, the relief granted was unacceptably narrow. The order merely directed the Administration to cease returning individuals to countries where they would be persecuted or tortured.

That order is weak because:

It doesn’t specify any particular fair procedure that must be followed by DHS in determining who faces persecution or torture. That appears to leave open the possibility of DHS employing bogus “summary determinations by enforcement agents” rather than using Asylum Officers and having cases referred to Immigration Courts.
There are no limits on the Government’s ability to detain individuals and/or return them to other countries.
The standard for so-called “withholding of removal” to persecution is “more likely than not” as opposed to the more generous “well-founded fear” or “reasonable possibility” standard for asylum (although individuals should be able to invoke the regulatory “presumption of future persecution” arising out of past persecution).
Even if granted, withholding of removal does not provide individuals with “durable legal status” nor does it allow them to access the asylum system, from which they apparently would remain barred under Title 42.

Judge Mark T. Pittman of the Northern District of Texas is a Trump appointee with strong ties to the Federalist Society and a very loose grasp on domestic and international laws and procedures for protecting children.

It’s interesting, if disheartening, to compare the “overt wishy-washiness” of the DC Circuit Judges who were timidly, “sort of” trying to protect at least some minimal legal and human rights with the “in your face,” overtly anti-immigrant, arrogant tone and ridiculous self-assuredness with which activist righty District Judge Mark Pittman advanced his absurdist notion that the White Nationalist agenda of “protecting” America from the “non-threat” of brown-skinned children merited his simultaneous assumption of the roles of President, Secretary of DHS, Attorney General, and for a good measure, Congress.

Obviously, the “judicial restraint,” supposedly a hallmark of modern conservatism, was just a “smoke screen” for the GOP’s activist anti-social, anti-immigrant, racially charged agenda. That’s not news to many of us, although it seems to have gone “over the head” of many in the Biden Administration and many Dems on the Hill.

It shows once again why “Team Garland’s” indolent, often uninformed, and floundering approach to immigrant justice under law is being steamrolled by Trump holdovers and crusading right-wing Federal Judges. And, you wonder why Dems can’t figure out what they stand for and what their “line in the sand” is!

Meanwhile, back at the ranch, Garland and other weak-kneed Biden officials can’t decide how much of the leftover “Miller Lite” anti-asylum, anti-humanitarian, anti-due-process policy they want to retain and defend and how much effort, if any, they want to put into re-establishing human rights and the rule of law.

One observation: After more than one-year in office, the Biden Administration is no closer to having an orderly, functional, due-process-oriented asylum system in place and ready for the border than they were on January 20, 2021! The expert Asylum Officers and qualified Immigration Judges who are necessary to operate such a system are still few and far between, and the program to facilitate legal assistance for those seeking legal protection at the border is all but non-existent.

🇺🇸Due Process Forever!

PWS

03-05-22

🤮🤯🏴‍☠️👎🏽GARLAND’S DOJ GOES “FULL MILLER LITE” ON TRAUMATIZED REFUGEE FAMILIES! — Some Dem “Strategists” Like New Policy: Dis Progressives, Abandon Campaign Promises, Trash Vulnerable Migrant Families Of Color In Hopes Of Appeasing White Nationalist GOP Nativists!

Maria Sacchetti & Sean Sullivan report for WashPost:

https://www.washingtonpost.com/national/biden-separated-families-court-migrants/2022/01/12/5c592f74-725a-11ec-8b0a-bcfab800c430_story.html

Two months after President Biden said migrant families separated at the border under the Trump administration deserve compensation, his administration’s lawyers are arguing in federal court that they are not in fact entitled to financial damages and their cases should be dismissed.

The Justice Department outlined its position in the government’s first court filings since settlement negotiations that could have awarded the families hundreds of thousands of dollars broke down in mid-December.

Government lawyers emphasized in the court documents that they do not condone the Trump administration’s policy of separating the children of undocumented migrants from their parents. But they said the U.S. government has a good deal of leeway when it comes to managing immigration and is immune from such legal challenges.

“At issue in this case is whether adults who entered the country without authorization can challenge the federal government’s enforcement of federal immigration laws” under federal tort claims laws, the Justice Department said in a Jan. 7 brief in a lawsuit in Pennsylvania. “They cannot.”

The legal strategy reflects the Biden administration’s awkward position as it shifts from championing the migrant families politically to fighting them in court. Migrant families have filed approximately 20 lawsuits and hundreds of administrative claims seeking compensation for the emotional and sometimes physical abuse they allege they suffered during the separations.

. . . .

But while immigrant advocates and liberals are likely to be furious at the administration’s position in court, some Democrats say privately that it has a political upside. The image of the administration fighting against the large payments, they say, could blunt GOP arguments that the administration is too soft on immigration.

. . . .

*****************

Read the full article at the link.

“Awkward” seems like a “sanitized term” for “duplicitous and immoral!”

So, I assume that the Dems who are unwilling to stand up for progressive values and the human rights of migrants will look to their GOP nativist, White Nationalist buddies for contributions and votes come election time. Contrary to DOJ’s misrepresentation to the courts, individuals regardless of status had a statutory and treaty right to seek protection in the U.S. regardless of manner of entry. The unconstitutional Sessions/Miller scofflaw conduct was intended to punish and deter individuals from asserting and vindicating their legal rights.

Additionally, so-called “illegal entries” are to a large extent fueled by illegal policies by both the Biden and Trump Administrations of not having an operating, fair, timely asylum system at legal ports of entry. This has been compounded by failure of both Administrations to establish robust, fair refugee processing systems for Latin America in the regions where the refugee situations are generated.

I have a different perspective: A party afraid to stand up for the values of its core constituency stands for nothing at all! And we already have a major “party of no values.” So, the “competition” for the “no values voters” might already be over.

Disgusting as the anti-democracy, White Nationalist GOP is, I must say that they know who their supporters are and aren’t afraid to act accordingly. Just who are the Dems representing in this disgraceful and cowardly race to the bottom being led by Garland and Mayorkas (with an assist from Vice President “Die in Place” Harris)?

The Biden Administration’s “policy” of abandoning asylum seekers and allowing the Immigration Courts to operate dysfunctionally with mostly “holdover judges” and ever-mushrooming backlogs hasn’t proved to be a “political winner” to date. So, why do the tone-deaf Dems pushing it believe it will help them in November?

Hopefully, at least some Federal Courts will see through Garland’s disingenuous smokescreen and stick the DOJ & DHS with judgements much larger than the ones they were afraid to agree to in settlement.

The Garland DOJ continues to squander time, resources, and goodwill by filling the Article IIIs with ill-advised “Stephen Miller Lite” litigation positions. And, these are the folks progressives are depending on to vindicate voting rights and hold the leaders of the insurrection accountable? Good luck with that! Garland appears to be too busy defending Stephen Miller’s policies to effectively push progressive, due-process-oriented positions in the Article IIIs or reform his wholly owned, totally dysfunctional Immigration “Courts.”

🇺🇸Due Process Forever!

PWS

01-13-22

🤮👎🏽WASHPOST SLAMS BIDEN ADMINISTRATION FOR ABANDONING NEGOTIATIONS WITH FAMILIES WHO SUFFERED CHILD ABUSE BY SESSIONS & MILLER! — “Having condemned a policy that traumatized children and their parents, Mr. Biden now leads an administration fighting in court to deny recompense to those same families.”

https://www.washingtonpost.com/opinions/2022/01/05/president-biden-broke-his-promise-separated-migrant-families/

Opinion by the Editorial Board

January 5 at 2:18 PM ET

When the Trump administration wrenched migrant babies, toddlers and tweens from their parents as a means of frightening away prospective asylum seekers, it was guilty of emotionally torturing innocent children. Americans of every political leaning expressed revulsion toward the policy implemented in 2018, especially when it became clear that the government had kept no clear records linking parents with their children — in other words, no ready means to reunite the families.

President Biden, as a candidate and also once in office, made clear his own disgust at the so-called zero-tolerance policy, calling it “criminal.” He said, correctly, that it “violates every notion of who we are as a nation.”

Now the president, having explicitly endorsed government compensation that would address the suffering of separated migrant family members, has apparently had a change of heart — or political calculation. In mid-December, the Justice Department abruptly broke off negotiations aimed at a financial settlement with hundreds of affected families. Having condemned a policy that traumatized children and their parents, Mr. Biden now leads an administration fighting in court to deny recompense to those same families.

The government has no means of alleviating the trauma inflicted by the previous president’s egregious treatment of those families. That is particularly true as regards the children, whose torment has been described and documented by medical professionals, advocates and journalists. The babies and toddlers who didn’t recognize their own mothers when they were finally reunited; the depression; the fear of further separations, even brief ones — the human aftershocks of Donald Trump’s heartlessness will linger for years, and for lifetimes in some cases.

The administration compounds the hurt by breaking off negotiations on compensating victims. The government must be held accountable; compensation is the most potent and credible vehicle for achieving that.

Granted, there may be a political price to pay. Republicans had a field day blasting the White House after media reports this fall suggested the government might pay $450,000 to separated family members — a settlement that could amount to $1 billion if applied to the several thousand affected migrants. Mr. Biden, apparently unaware of the status of negotiations at that time, said the reports, first published in the Wall Street Journal, were “garbage.” He later backed away from that remark, saying he did not know how much money would be suitable but that some amount was certainly due.

Now, it seems, all bets are off. In the absence of a negotiated settlement, the government would enter into what would likely be years of costly litigation, in which Mr. Biden’s Justice Department would be in the awkward position of defending a policy that Mr. Biden himself — and most Americans — have condemned as evil. There is no predicting how individual judges or juries might react to documented accounts of harm done to children. No one should be surprised if some were to award enormous damages — conceivably in amounts that exceed the $450,000 contemplated in the now-stalled negotiations.

By walking away from the bargaining table, Mr. Biden has broken an explicit, repeated promise. Whatever the political calculus behind that decision, it is morally indefensible.

**********************

Garland fails to stand up for the rights of families of color — again. At the same time, he ties up resources on a frivolous DOJ defense of the indefensible!

“Replacement theory,” White Nationalism, and racism always have been and remain at the core of the GOP’s anti-democracy insurrection. It’s no coincidence that Trump’s plans to de-stabilize American democracy began with cowardly attacks on vulnerable migrants (enabled by a failed Supremes) and culminated in open insurrection.

The dots aren’t that hard to connect. But, Garland doesn’t seem to be able to do it!

If Garland can’t handle the “low hanging fruit” — like settling these cases and creating a progressive judiciary at EOIR who will stand up for the rights of all persons while using expertise and “practical scholarship” to replace dysfunction with efficiency, his pledge to hold the January insurrectionists and their leaders accountable rings hollow!

I’m not the only one to note and question Garland’s uninspiring performance as Attorney General at a time of existential crisis. https://www.sfchronicle.com/opinion/editorials/article/Editorial-Merrick-Garland-isn-t-going-to-save-16752522.php?utm_source=newsletter&utm_medium=email&utm_content=headlines&utm_campaign=sfc_opinioncentral&sid=5bfc15614843ea55da6b8709

For those who read the LA Times, there was a “spot on” letter to the editors today accurately characterizing Garland as the “Attorney General for different era.”

As I’ve noted before, this is NOT Ed Levi’s, Griffin Bell’s, or Ben Civiletti’s DOJ. It isn’t even Janet Reno’s DOJ. (I ought to know, as I worked under each of the foregoing.)

It’s an organization that has become increasingly politicized over the last two decades (as it was during Watergate), and that allowed itself to be weaponized by Trump’s White Nationalist regime. EOIR, Executive Orders, and immigration litigation were perhaps the most obvious, but by no means the only, examples.

🇺🇸 Due Process Forever!

PWS

01-07-22

⚖️YET ANOTHER BIA PRECEDENT, MATTER OF SORAM, 25 I&N DEC. 378 (BIA 2010), BITES THE DUST IN 9TH CIR. — “We conclude that the text of 8 U.S.C. § 1227(a)(2)(E)(i) unambiguously forecloses the BIA’s interpretation of “a crime of child abuse, child neglect, or child abandonment” as encompassing negligent child endangerment offenses.” — Diaz-Rodriguez v. Garland (2-1)

Diaz-Rodriguez v. Garland, 9th Cir., 09-10-21, published

Here’s the opinion:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/10/13-73719.pdf

PANEL: Consuelo M. Callahan and*Paul J. Watford, Circuit Judges, and Jed S. Rakoff, District Judge.

Opinion by Judge Watford; Dissent by Judge Callahan

* The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation.

STAFF SUMMARY:

Granting Rafael Diaz-Rodriguez’s petition for review of a decision of the Board of Immigration Appeals, the panel held that child endangerment, in violation of California Penal Code § 273a(a), does not constitute “a crime of child abuse, child neglect, or child abandonment” within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i).

In Martinez-Cedillo v. Sessions, 896 F.3d 979 (9th Cir. 2018), a divided panel held to the contrary, and a majority of the non-recused active judges voted to rehear the case en banc. However, after the petitioner passed away, the en banc court dismissed the appeal as moot and vacated the panel decision. The panel here observed that Martinez-Cedillo is no longer binding precedent, but explained that between its issuance and the decision to rehear the case en banc, two published opinions relied on it: Menendez v. Whitaker, 908 F.3d 467 (9th Cir. 2018), and Alvarez-Cerriteno v. Sessions, 899 F.3d 774 (9th Cir. 2018).

The panel concluded that the unusual circumstance here led it to conclude that this case falls outside the scope of the general rule that three-judge panels are bound to follow published decisions of prior panels. The panel explained that both Alvarez-Cerriteno and Menendez simply followed Martinez-Cedillo as then-binding precedent without engaging in independent analysis of the deference issue, and

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

DIAZ-RODRIGUEZ V. GARLAND 3

both decisions were effectively insulated from en banc review on that issue. The panel explained that both decisions are irreconcilable with a subsequent decision of the court sitting en banc because their reliance on Martinez-Cedillo is in conflict with the en banc court’s decision to designate that decision as non-precedential.

Applying the categorical approach, the panel identified the elements of California Penal Code § 273a(a): causing or permitting a child “to be placed in a situation where his or her person or health is endangered,” committed with a mens rea of criminal negligence. As to the federal offense, the panel explained that Congress enacted the ground of removability at 8 U.S.C. § 1227(a)(2)(E)(i) as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and did not define the phrase “a crime of child abuse, child neglect, or child abandonment.” In Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010), however, the BIA held that the phrase encompassed child endangerment offenses committed with a mens rea of at least criminal negligence. In considering whether Soram was entitled to deference, the panel was guided by the Supreme Court’s decision in Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), where the Court observed that the term “sexual abuse of a minor” was undefined and then looked to normal tools of statutory interpretation in concluding that the statute unambiguously forecloses the BIA’s interpretation of it.

Applying this approach, the panel concluded that deference was precluded at Chevron step one because the text of §1227(a)(2)(E)(i) unambiguously forecloses the BIA’s interpretation as encompassing negligent child endangerment offenses. First, the panel explained that contemporary legal dictionaries from the time of IIRIRA’s enactment indicate that child abuse, child neglect, and child

4 DIAZ-RODRIGUEZ V. GARLAND

abandonment were well-understood concepts with distinct meanings that do not encompass one-time negligent child endangerment offenses. Second, the panel explained that the statutory structure suggested that Congress deliberately omitted child endangerment from the list of offenses specified in § 1227(a)(2)(E)(i). Third, the panel explained that the general consensus drawn from state criminal codes confirms that the phrase does not encompass negligent child endangerment offenses. The panel noted that the fourth source consulted in Esquivel-Quintana, related federal criminal statutes, did not aid its analysis.

Because a violation of California Penal Code § 273a(a) can be committed with a mens rea of criminal negligence, the panel concluded that it is not a categorical match for “a crime of child abuse, child neglect, or child abandonment.” Accordingly, the panel concluded that Diaz-Rodriguez’s conviction under that statute did not render him removable under § 1227(a)(2)(E)(i).

Dissenting, Judge Callahan wrote that she was compelled to dissent for two reasons. First, she did not agree that the three-judge panel could disregard Menendez and Alvarez-Cerriteno. Second, Judge Callahan did not agree with the majority’s peculiar reading of the phrase as not encompassing a child endangerment offense committed with a mens rea of at least criminal negligence. Judge Callahan wrote that majority’s suggestion that § 1227(a)(2)(E)(i) is unambiguous is contrary to precedent and the unanimous opinions of the court’s sister circuits. Moreover, she wrote that the majority failed to recognize that the court’s task is limited to reviewing the agency’s interpretation for “reasonableness.” Instead, the majority proffered its own definition based primarily on selected dictionary definitions and its own research.

*****************

Who knows how this eventually will come out? But, what I can guarantee is until it is finally resolved, by the Supremes or otherwise, immigration practitioners and their clients will have a mess of inconsistency and bad decisions by EOIR on their hands.

Complicated issues involving criminal law come up all the time in EOIR “detention courts,” located in the Mayorkas/Garland “New American Gulag,” where many respondents are unrepresented or under-represented. How would an unrepresented respondent be able to prepare a “defense” like this? No way! The entire EOIR system suffers from some extreme constitutional problems that Garland has done nothing to address.

Having bad precedents like this in effect for a decade or more, almost always tilted toward DHS enforcement, results in many wrongful removals, as well as numerous remands and “redos” that help increase the astronomical 1.4 million case backlog! Having better judges on the BIA, real independent jurists with practical scholarly expertise, unafraid to interpret statutes and apply the law in favor of respondents when that is the “better view,” and to impose “best practices” on the Immigration Courts, is a necessary first step in addressing EOIR’s many legal and operational shortcomings.

It appears that Garland is disinterested in meaningful due process reforms and inserting real progressive judicial leadership into EOIR. The good news: With the vast majority of the immigration, human rights, and constitutional expertise and legal talent now in the private sector, and more talent coming out of law schools all the time, the NDPA stands a good chance of “litigating Garland’s failed EOIR to a standstill” over the next four years.

While that’s hardly the most desirable result, it would be infinitely better than the continuing due-process-denying “Clown Show” 🤡 that Garland currently runs at EOIR! Sometimes, you just have to take what the opposition gives you!

At what point will “powers that be” finally pay attention to the ongoing disaster at EOIR? When the backlog reaches 1.5 million? 2 million? 3 million? 4 million? 5 million? How many unjust and illegal removals will take place, and how many lives and futures irrevocably altered or ruined before this dysfunctional system finally reaches its “breaking point?”

EYORE — “Eyore is completely distraught that Garland has eschewed installing progressive expert judging and creative thinking, instead allowing the ‘death spiral’ to continue!” “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

🇺🇸Due Process Forever!

PWS

09-13-21

🤮🏴‍☠️👎🏽RACE-BASED CHILD ABUSE & SEXUAL ABUSE OF KIDS MUST STOP — Demand An End To Scofflaw Behavior By Our Government!

Crimes Against Humanity — Thomas Cizauskas Crimes against humanity
Creative Commons License — The Biden Administration promised to stop these crimes committed by our Government, but hasn’t.

https://www.newsweek.com/we-fled-honduras-fearing-our-lives-immigration-officers-abused-my-child-opinion-1605760p

Daniel Paz writes in Newsweek:

“Welcome to hell.”

Those were the words I heard from an immigration officer not long after I entered the United States near El Paso, Texas in May 2018. I thought I had just reached safety with Angie, my 7-year-old daughter. I was wrong.

Once we arrived at the border, immigration officers processed me and my daughter at a detention facility, and led us to a crowded cell packed with 50 to 60 other families. It smelled terrible—like urine—and everything was gray. We were so cold. They didn’t even offer us one of the cellophane blankets you see on TV. I had to take my shirt off to wrap it around Angie and keep her warm. I was shivering.

The journey to this point had been excruciatingly painful. Fearing for our lives, we had to make the decision to flee. I had a good life in Honduras. I was a businessman and I owned my own home. I knew it would be hard to leave everything I worked so hard to build behind. Starting a new life in a new country with a different culture wouldn’t be easy. But desperate circumstances called for desperate measures. Hope of reaching a safe place for my family kept me going.

At the detention center, many fathers began hearing rumors that immigration officials were going to take our children away from us. Take them where? Take my daughter? To another cell? A new facility? On the inside I was panicking, but I knew I needed to show strength for my daughter. I needed to be brave and prepare her if the rumors were true. You will contact your grandparents in Ohio, I told Angie.

In the cell, we practiced memorizing their phone numbers, repeating them over and over. To be extra safe, I then wrote the numbers with a ball-point pen on my daughter’s arm, her belly, her foot and on the inside of her jeans hoping she’d have the chance to make a phone call before immigration officials washed off the ink.

Then my nightmare happened. They came to take our children. I witnessed pain, agonizing cries and a deep sense of helplessness. Some of the immigration officers joked as they handcuffed the parents. Others expressed a cruelty I never would have expected. Rather than trying to ease our pain, they were somehow enjoying their power. As if they believed their actions were the right thing to do. I don’t know how anyone believes separating a child from a parent is right.

. . . .

While being transferred to a detention facility for children, an immigration officer sexually abused her. When she fought back, the officer threatened her, saying if she told anyone she would never see her parents again. Then Angie witnessed the same officer sexually abuse two girls who were even younger than her. Angie stayed quiet about the experience even months after we were reunited.

We were reunited after several weeks, though the separation felt eternal. The Angie the U.S. government returned to me is not the same girl they took out of my arms in that detention center. She cannot forget what happened to her. And she wants me to share what happened to her because she is worried the officer who abused her is still an immigration official. We do not know the officer’s name—let alone whether the officer is still working in government.

“What if that officer is still hurting other kids?” Angie asked me.

As a father I want to tell Angie not to worry. That is why I am asking President Joe Biden to act. Reuniting families and making sure they have immigration status in the U.S. is critical—but it is not enough. The government can make a huge difference in the lives of thousands of asylum seekers who are being turned away at the border right now. All asylum seekers should be allowed to seek protection and refuge in the U.S. without fear.

The government must also investigate every allegation of sexual abuse and mistreatment by immigration officers. Those officers must immediately be identified and removed from their positions so they cannot hurt anyone else. President Biden, the Department of Homeland Security and the Department of Justice together have the ability to ensure that families like mine can begin to heal.

It is hell to leave your home and risk everything so your child can be safe. It shouldn’t be hell once you have reached what you thought would be a safe haven.

After entering the United States to seek safety, Daniel Paz and his daughter were separated for several weeks. Paz and his family were reunited in 2018 and have since won asylum. He is a committed advocate for other families who have faced similar trauma.

The views expressed in this article are the writer’s own.

*********************

Who would have thought that nearly six months into the Biden Administration our Government would still be abusing asylum seekers and ignoring the Constitution, mocking the rule of law, and degrading humanity?

So, how is it that Garland, Monaco, Gupta, and Clarke intend to combat racism and unequal justice in America when they have failed to re-establish the rule of law for asylum seekers at the border and continue to run an unjust and grossly mismanaged “court system” @ EOIR filled with too many “Miller Lite” judges?

Tell the Biden Administration and Judge Garland that we need progressive reforms, now! EOIR would be a great starting place!

🇺🇸Due Process Forever!

PWS

07-06-21

‘SIR JEFFREY” CHASE: Garland’s “First Steps” To Eradicate Misogyny & Anti-Asylum Bias @ EOIR Are Totally Insufficient Without Progressive Personnel Changes — Regulations Will Only Be Effective If Drafted By Progressive Human Rights Experts Of Which There Currently Are NONE @ DOJ Save For Some Immigration Judges In The Field Whose Expertise, Intellectual Integrity, & Moral Courage Has Been Ignored By Team Garland! — There Will Be No Gender, Racial, Or Immigrant Justice @ Justice As Long As Garland Mindlessly Lets “Miller’s Club Denial” Operate @ BIA! — Progressives Must Turn Up The Heat On Garland To Reform & Remake EOIR With Qualified Expert Judges & Dynamic, Independent, Progressive Leaders!

https://www.jeffreyschase.com/blog/2021/6/21/first-steps

The latest from the Hon. “Sir Jeffrey:”

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

Blog Archive Press and Interviews Calendar Contact

First Steps

On June 16, Attorney General Merrick Garland finally, mercifully vacated three decisions that formed a key part of the Trump administration’s unrelenting attack on the law of asylum.1 Matter of A-B-, issued by Jeff Sessions in June 2018, took aim in particular at victims of domestic violence.2 Matter of L-E-A-, issued the following year by William Barr, sought to undermine protection for those targeted by gangs due to their familial ties.3 And on January 14, 2021, six days from the end of the Trump Administration, acting A.G. Jeffrey Rosen issued a second decision in A-B-, gratuitously criticizing the method for determining nexus in asylum claims employed by the U.S. Court of Appeals for the Fourth Circuit, while conveniently evading that court’s review of the original decision in the case through remand.4

Garland’s action restores the law to where it stood prior to June 11, 2018, but only for the time being. Proposed rules on the subject (which Garland referenced) are due by October 30, when they will first be subjected to a period of public comment. If final rules are eventually published, it will occur well into next year.

As we sigh in collective relief and celebrate the first steps towards correcting our asylum laws, let’s also take note of the imperfect place in which the case law stands at present.

As to domestic violence claims, the BIA’s 2014 decision in Matter of A-R-C-G- (which Matter of A-B- had vacated) has been restored as binding precedent.5 That decision was issued at a time when (as now) regulations addressing particular social groups were being contemplated by DHS and EOIR.6 While A-R-C-G- was an extremely welcome development, the Board used it to recognize a rather narrowly-defined group: “married women in Guatemala who are unable to leave their relationship.” In a footnote to the decision, the Board declined to address the argument of several amici (including UNHCR) that a particular social group may be defined by gender alone. Although A-R-C-G- led to many grants of asylum, some immigration judges relied on the limited scope of the group’s definition to deny claims involving slightly broader variations, in particular, where the victim was not legally married, but nevertheless in a domestic relationship that she was unable to leave. While the BIA reversed some of those denials in unpublished decisions, it declined to speak to the issue through binding precedent.

As to Matter of L-E-A-, Garland’s recent action returns us to the BIA’s original opinion in that case.7 While the decision acknowledged that families constitute particular social groups (a point that was not in dispute, having been universally recognized for some 35 years and stipulated to by DHS), the BIA still denied asylum by invoking a legally incorrect standard for establishing nexus that it has continued to apply in all family-based asylum claims.

For these reasons, the content of the forthcoming regulations will be extremely important in determining the future of asylum in this country. While a return to the test for social group cognizability expressed in the BIA’s 1985 precedent in Matter of Acosta tops most regulation wish lists, I will focus the discussion here on a couple of more specific items necessary to correct the shortcomings of Matter of A-R-C-G- and Matter of L-E-A-.

First, the regulations need to explicitly recognize that a particular social group may be defined by gender alone. In its 2002 Gender Guidelines, UNHCR identified women “as a clear example of a social subset defined by innate and immutable characteristics, and who are frequently treated differently than men,” and whose “characteristics also identify them as a group in society, subjecting them to different treatment and standards in some countries.”8 However, over the nineteen years since those guidelines were issued, the BIA has consistently avoided considering the issue.

The peril of defining gender-based groups in the more narrow manner employed by the BIA has been addressed by two distinguished commentators, who explain that such practice results in “constant re-litigating of such claims,” sometimes creating “an obstacle course in which the postulated group undergoes constant redefinition.”9 And of course, that is exactly what has happened here, as A-R-C-G- gave way to A-B-, which led to differing interpretations among different courts until Garland’s recent reset. The above-mentioned commentators further decried the “nitpicking around the margins of the definition” resulting from the narrow approach when the true reason for the risk of persecution to the applicant “is simply her membership in the social group of ‘women.’”10 Regulations recognizing gender alone as a particular social group would thus provide clarity to judges and asylum officers, eliminate the wastefulness of drawn out litigation involving “nitpicking around the margins,” and bring our laws into line with international standards.

But as L-E-A- demonstrates, recognition of a group alone does not guarantee asylum protection. In order for a group’s recognition to be meaningful, the regs must also address an ongoing problem with the BIA’s method for determining nexus, or whether persecution is “on account of” the group membership.

The BIA is accorded deference by Article III courts when it reasonably interprets immigration laws, provided that the meaning of the language in question is ambiguous. However, the “on account of” standard included by Congress in defining the term “refugee” is quite clear; its meaning is long established, and in fact, is not particular to immigration law.

The Supreme Court referenced this standard last year in a non-immigration case, Bostock v. Clayton County. The Court explained that the test

incorporates the “‘simple’” and “traditional” standard of but-for causation…. That form of causation is established whenever a particular outcome would not have happened “but for” the purported cause….In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.11

In a 2015 decision, the U.S. Court of Appeals for the Fourth Circuit applied this exact test in the asylum context to conclude that persecution was on account of family, determining that the petitioner’s “relationship to her son is why she, and not another person, was threatened with death if she did not allow him to join Mara 18.”12 But for some reason, the BIA has felt entitled to reject this established standard outside of the Fourth Circuit in favor of its own excessively restrictive one.

Had the proper test for nexus been employed in L-E-A-, asylum would have been granted. Under the facts of that case, once the familial relationship is removed from the equation, the asylum-seeker’s risk ceases to exist. However, the BIA instead imposed an incorrect test for nexus requiring evidence of an “animus against the family or the respondent based on their biological ties, historical status, or other features unique to that family unit.”13

As a former circuit court judge, Garland is particularly qualified to recognize the error in the Board’s approach, as well as the need to correct its course. The problem is compounded by the particular composition of the BIA at present. For example, of the ten immigration judges who were promoted to the BIA during the Trump administration, nine denied asylum more than 90 percent of the time (with the tenth denying 85 percent of such claims). Three had an asylum denial rate in excess of 98 percent.14

This matters, as those high denial rates were achieved in part by using faulty nexus determinations to deny asylum in domestic violence claims, even before the issuance of Matter of A-B-. This was often accomplished by mischaracterizing the abuse as merely personal in nature, referencing only the persecutor’s generally violent nature or inebriated state. The analysis in those decisions did not further examine whether gender might also have been one central reason that the asylum seeker, and not someone else, was targeted.

One BIA Member appointed under Trump recently found no nexus in a domestic violence claim by concluding that the persecutor had not targeted the asylum seeker because of her membership in the group consisting of “women,” but rather because she was his woman. There is no indication in the decision that the Board Member considered why the persecutor might view another human being as belonging to him and lacking the same rights he seems to enjoy. Might it have been because of her gender?

Without a correction through published regulations, there is little reason to expect different treatment of these claims moving forward. Let’s hope that the Attorney General views his recent action as only the first steps on a longer path to a correct application of the law.

Copyright 2021, Jeffrey S. Chase. All rights reserved.

Notes:

Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) (“A-B- III”); Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021) (“L-E-A- III”).

27 I&N Dec. 316 (A.G. 2018) (“A-B- I”).

27 I&N Dec. 581 (A.G. 2019) (“L-E-A- II”).

28 I&N Dec. 199 (A.G. 2021) (“A-B- II”).

26 I&N Dec. 388 (BIA 2014).

The regulations under consideration at that time were never issued.

27 I&N Dec. 40 (BIA 2017) (“L-E-A- I”).

UNHCR, Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees (May 2002) at para. 30.

James C. Hathaway and Michelle Foster, The Law of Refugee Status, Second Edition (Cambridge University Press, 2014) at 442.

Hathaway and Foster, supra.

Bostock v. Clayton County, 140 S.Ct. 1731, 1739 (2020).

Hernandez-Avalos v. Lynch, 784 F.3d 944, 950 (4th Cir. 2015).

L-E-A- I, supra at 47.

See TRAC (Transactional Records Access Clearinghouse) Immigration Judge Reports https://trac.syr.edu/immigration/reports/judgereports/.Republished with permission.

*************************

Without progressive intervention, this is still headed for failure @ EOIR! A few things to keep in mind.

- Former Attorney General, the late Janet Reno, ordered the same regulations on gender-based asylum to be promulgated more than two decades ago — never happened!
- The proposed regulations that did finally emerge along the way (long after Reno’s departure) were horrible — basically an ignorant mishmash of various OIL litigation positions that would have actually made it easier for IJs to arbitrarily deny asylum (as if they needed any invitation) and easier for OIL to defend such bogus denials.
- There is nobody currently at “Main Justice” or EOIR HQ qualified to draft these regulations! Without long overdue progressive personnel changes the project is almost “guaranteed to fail” – again!
- Any regulations entrusted to the current “Miller Lite Denial Club” @ the BIA ☠️ will almost certainly be twisted out of proportion to deny asylum and punish women refugees, as well as deny due process and mock fundamental fairness. It’s going to take more than regulations to change the “culture of denial” and the “institutionalized anti-due-process corner cutting” @ the BIA and in many Immigration Courts.
- Garland currently is mindlessly operating the “worst of all courts” — a so-called “specialized (not) court” where the expertise, independence, and decisional courage is almost all “on the outside” and sum total of the subject matter expertise and relevant experience of those advocating before his bogus “courts” far exceeds that of the “courts” themselves and of Garland’s own senior team! That’s why the deadly, embarrassing, sophomoric mistakes keep flowing into the Courts of Appeals on a regular basis.
- No regulation can bring decisional integrity and expertise to a body that lacks both!
- Any progressive who thinks Garland is going to solve the problem @ EOIR without “outside intervention” should keep this nifty “five month snapshot of EOIR under Biden” in mind:
  - Progressive judges appointed to BIA: 0
  - Progressive judges appointed to Immigration Court: 0
  - Progressives installed in leadership positions @ EOIR permanently or temporarily: 0
  - Billy Barr Selected Immigration Judges Appointed: 17
  - “Miller Lite” holdover individuals still holding key positions @ EOIR: many (only two removed to date)
  - Number of BIA precedents decided in favor of respondent: 2
  - Number of BIA precedents decided in favor of DHS: 9

That’s right, folks: Billy Barr and Stephen Miller have had more influence and gotten more deference from Garland at EOIR than have the progressive experts and advocates who fought tirelessly to preserve due process and to get the Biden Administration into office. How does that a make sense?

“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color — Finally vacating two grotesquely wrong anti-female, anti-asylum precedents hasn’t ended the “Miller Lite Unhappy Hour” for migrants and their advocates at Garland’s foundering DOJ!

Progressives, advocates, and NGOs must keep raising hell until we finally get the “no-brainer,” long overdue, obvious, personnel, legal, structural, institutional, and cultural changes at EOIR that America needs! Waiting for Judge Garland to get around to it is like “Waiting for Godot!” Perhaps worse — I don’t recollect that anyone died waiting for Godot!

🇺🇸Due Process Forever! The BIA Denial Club, Never!🏴‍☠️

PWS

06-22-21

⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮

Judge Merrick Garland — Attorney General Hon. Merrick B. Garland — Are these really what “A” papers looked like when he was at Harvard Law? If not, how come it’s now “good enough for government work” when it’s only the lives of the most vulnerable among us at stake?”
Official White House Photo
Public Realm

Dan Kowalski forwards these two 2d Circuit reversals on basic “bread and butter” issues: 1) mental competency (BIA unable or unwilling to follow own precedent); 2) credibility; 3) corroboration; 4) consideration of testimony and evidence:

https://www.ca2.uscourts.gov/decisions/isysquery/85d225f1-0b15-44a9-8890-80f9027d12b5/3/doc/18-1083_so.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/85d225f1-0b15-44a9-8890-80f9027d12b5/3/hilite/

https://www.ca2.uscourts.gov/decisions/isysquery/57161a21-b70c-4b36-9a38-ff6a88d12453/14/doc/19-1370_so.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/57161a21-b70c-4b36-9a38-ff6a88d12453/14/hilite/

*********************

These aren’t “cases of first impression,” “Circuit splits,” complex questions involving state law, unusual Constitutional issues, or difficult applications of treaties or international law. No, these are the “basics” of fair, competent adjudication in Immigration Court. Things most law students would get correct that IJs and BIA Appellate Judges are getting wrong on a daily basis in their “race to deny.”

Don’t kid yourself! For every one of these “caught and outed” by Circuit Courts, dozens are wrongly railroaded out of America because they are unrepresented, can’t afford to pursue judicial review in the Article IIIs, or are duressed and demoralized by unconstitutional detention and other coercive methods applied by the “unethical partnership” between EOIR and ICE enforcement.

Others have the misfortune to be in the 5th Circuit, the 11th Circuit, or draw Circuit panels who are happy to “keep,the line moving” by indolently “rubber stamping” EOIR’s “Dred Scottification” of “the other.” After all, dead or deported (or both) migrants can’t complain and don’t exercise any societal power! “Dead/deported men or women don’t talk.”☠️⚰️ But, members of the NDPA will preserve and tell their stories of unnecessary human suffering and degradation for them! We will insure that Garland, Monaco, Gupta, and others in the Biden Administration who ignored their desperate moans and tortured screams in their time of direst need are held accountable!🤮

Unfortunately, these decisions are unpublished. They should be published! It’s critically important that the daily gross miscarriages of justice @ EOIR be publicly documented, citable as precedent, and serve as a permanent record of perhaps the most unconstitutional and corrupt episode in modern American legal history.

It’s also essential to keep the pressure on Garland and his so far feckless lieutenants to fix the problem:

Remove the Trump/Miller holdovers @ EOIR;
Prune out the “go along to get along” deadwood;
Rescind the improper hiring of 17 “Billy the Bigot” judicial selections (including the one absurdist selection by “AG for a Day Monty Python” — talk about a “poke in the eyes with a sharp stick” to progressives);
Bring in top notch progressive practical scholars as leaders and REAL judges at both the appellate and trial levels of EOIR – NOW;
Make the “no brainer” changes to eradicate Trump-era unethical, xenophobic “precedents” and inane “rules” and establish due process and fundamental fairness, including, of course, racial and gender equity in decision making.

So far, Garland has pretended that the “Culture of Denial” flourishing under his nose at HIS EOIR doesn’t exist! It does exist — big time — and it continues to get worse, threaten more lives, and squander more resources every day!

Due process (not to mention simple human decency) requires bold, immediate ACTION. Garland’s continued dawdling and inaction raises the issue of what is the purpose of an Attorney General who allows his “delegees” (basically Stephen Miller’s “judges”) to violate due process every day! There is no more important issue facing the DOJ today. Garland’s silence and inaction raise serious questions about his suitability to serve as the American public’s top lawyer!

🗽⚖️🧑🏽‍⚖️Due Process Forever!

PWS

05-24-21

Here are the redacted decisions:

🇺🇸 Due Process Forever!

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It’s past time for a better, more realistic, more human, and “robustly humane” approach to human migration!😎 One that focuses on the long-term welfare of children and society, NOT short-term mythical “enforcement goals” or fears!

🇺🇸Due Process Forever!

PWS

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Cindy Carcamo reports for the LA Times:

🇺🇸 Due Process Forever! Garland’s dysfunctional, biased, leaderless, soul-less, ethically challenged EOIR, never!

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Roberto Blum reports from Houston, TX:

🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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From Tasha Moro, Communications Director @ Justice Action Center:

🇺🇸 Due Process Forever!

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MarIa Sacchetti reports for WashPost:

🇺🇸 Due Process Forever!

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🇺🇸Due Process Forever!

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Maria Sacchetti & Sean Sullivan report for WashPost:

🇺🇸Due Process Forever!

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🇺🇸 Due Process Forever!

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Diaz-Rodriguez v. Garland, 9th Cir., 09-10-21, published

Here’s the opinion:

🇺🇸Due Process Forever!

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Daniel Paz writes in Newsweek:

Tell the Biden Administration and Judge Garland that we need progressive reforms, now! EOIR would be a great starting place!

🇺🇸Due Process Forever!

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The latest from the Hon. “Sir Jeffrey:”

🇺🇸Due Process Forever! The BIA Denial Club, Never!🏴‍☠️

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