"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Led by a notorious insurrectionist, GOP cortège, in full regalia, heads into border battle against I-589-carrying “invaders” determined to exercise their rights under U.S. and international law. “Desperate people of color trying to do things the right way and threatening to invoke legal rights are the single greatest threat today to White Nationalist America,” said one cortège member! “Those seeking to use our laws as they were intended to gain the protection we promised, and then scheming to work hard, pay taxes, provide services, innovate, raise their families, enrich our culture, and contribute to the common good are an existential threat to American exceptionalism,” said one of the beclowned troupe! PHOTO: Public Domain
House Republicans, led by loudest maniac Jim Jordan, had high hopes of stealing some of President Joe Biden’s thunder after his historic surprise trip to Kyiv, Ukraine. “Oh, yeah,” you could hear them squeaking. “We’ll show him.” So in the best tradition of nativist, isolationist know-nothingism, they headed for the southern border to put on a show of hunting for the crisis of the hordes invading “our” country. What they got was … not that.
“As they rumbled along the entry port of San Luis, a dam along the Colorado River and more desolate sections of the U.S. border between Arizona and Mexico, though, their search came up empty,” a reporter on the scene described. “Hours later, immigration officials would spot a group crossing north, but it was long after Congress members had retired for the night.”
This was part of what they’re calling a “field hearing” by the House Judiciary Committee, explaining Jordan’s, ahem, leadership. (Seriously, they need to rethink having this guy as their mascot. Does anyone, could anyone, find this guy compelling?) The “convoy” included “more than a dozen congressional Republicans, a large contingent of staffers and a handful of reporters.” Having turned the trip into some kind of sick safari, the group thwarted their own goal.
“Jordan’s group was told that around 4,000 immigrants cross the U.S. border near Yuma each day, but its conspicuous presence thwarted the expedition’s goal of spotting immigrants attempting an unobtrusive entry.” You don’t say. They did spot a bus parked across the border, however. No one came out of it to make a run for the border.
No Democrats participated in what ranking committee Democrat Jerry Nadler called a “stunt hearing,” though he did say that some Democrats from the committee would go to the border next month to to “hear from the community and government officials on the ground.”
The big convoy also help put the lie to the GOP’s government spending obsession. This is the third trip to the border by some contingent of GOP House members in the new Congress, with Barely Speaker Kevin McCarthy having already gone to try to score points, as well as members of the Energy and Commerce Committee.
The Homeland Security Committee has what they’re calling a “border bootcamp” for Republican freshmen members, and the Oversight Committee has plans to go in the near future, too. That’s one way to stop illegal crossings: Just keep sending down convoys of GOP representatives to play border patrol.
All that’s pretty expensive. The GOP Judiciary Committee alone has requested $262,400 for travel this session. In 2022, with Democrats in charge of the committee, they spent $7,986.
When it comes to actual border policy rather than publicity and preening, they’ve got nothing. Or rather they’ve got an interparty fight, as Gabe Ortiz reported. Their first go at an immigration bill “was so extreme it derailed itself, after so-called moderates refused to sign on.”
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If the GOP were really serious about cutting wasteful spending, they could “ground” Jordan and his traveling White Nationalist circus!
Why would a Dem President curry favor for his border policies from an anti-democracy, White Nationalist, election-denying blowhard, eschewing the rule of law, human decency, and the expert advice of many who voted for him in the process? Got me on that one!
“The White House must be really proud of getting endorsements from guys like Jordan and Chad Wolf (a/k/a “Wolfman”),” one human rights wag reportedly quipped!
Democrats! Has there ever been a more frustrating party when it comes to human rights, backbone, and carrying out promises, not to mention using the brainpower and resources available to solve problems, rather than lamely “gimmicking” them? Honestly!🤯
In a (perhaps unexpectedly) shrewd move, House Judiciary Dems took a pass on this GOP clown show. It would be a good idea, however, for Dems to go to the border, without the Ringling Bros, Barnum & Bailey act, observe the human carnage caused by the wrong-headed (not to mention illegal) approach of the last two Administrations, and interact with some of those humans affected, including asylum seekers, local officials, residents, dedicated advocates, and NGO personnel. The latter two have been about the ONLY ones trying to uphold the rule of law and to inject some common sense and much needed humanity into this unnecessarily chaotic situation caused by our Government’s abandoning our legal and moral obligations toward those fleeing persecution — over two Administrations.
Legal asylum seekers from Central America might have thought that cruelty, illegality, and stupidity went out with the Trump Administration. They were wrong! Now Biden proposes to lawlessly “presume denial” of asylum — with no legal basis — and dump legal asylum seekers of color from his “disfavored nations” back into Mexico, whose asylum system is dysfunctional and where abusive treatment of asylum seekers has been well documented and recognized by a Federal Court! Women suffering from gender-based persecution are particular targets of this Administration’s campaign against humanity! Artist: Monte Wolverton Reproduced under license
Many groups issued immediate statements of outrage and protest at this cruel, lawless, and intellectually dishonest betrayal! I set forth two of them here:
From the American Immigration Council:
PRESS RELEASE
Department of Justice and Department of Homeland Security Release Details of Dangerous New Asylum Transit Ban
WASHINGTON, Feb. 21, 2023—Today, the U.S. Department of Justice and the U.S. Department of Homeland Security released a Notice of Proposed Rulemaking (NPRM) that will implement a new asylum transit ban—one of the most restrictive border control measures to date under any president. The policy will penalize asylum seekers who cross the border irregularly or fail to apply for protection in other nations they transit through on their way to the United States.
As described in the NPRM, the proposed asylum transit ban rule would all but bar asylum for any non-Mexican who crosses the U.S.-Mexico border between ports of entry, unless they had previously applied for—and been denied—asylum in another country before arrival.
Specifically:
The rule would apply to all non-Mexican migrants (except unaccompanied minors) who had not been pre-approved under one of the Biden administration’s parole programs, which are currently open only to certain nationals of 5 countries; pre-register at a port of entry via CBP One or a similar scheduling system (or arrive at a port of entry and demonstrate they could not access the system); or get rejected for asylum in a transit country.
During an asylum seeker’s initial screening interview with an asylum officer, the officer will determine whether the new rule applies to them. If so, they will fail their credible fear screening unless they can demonstrate they were subject to an exception such as a medical emergency, severe human trafficking, or imminent danger—which would “rebut the presumption” of ineligibility.
Migrants subject to the rule, who do not meet the exceptions above, would be held to a higher standard of screening than is typically used for asylum (“reasonable fear”). If a migrant meets that standard, they will be allowed to apply for asylum before an immigration judge—although the text of the proposed regulation is unclear on whether they would actually be eligible to be granted asylum.
Migrants who do not meet the credible or reasonable fear standard can request review of the fear screening process in front of an immigration judge.
Once the regulation is formally published in the Federal Register, the public will have 30 days to comment on the proposal. The administration is legally required to consider and respond to all comments submitted during this period before publishing the final rule, which itself must precede implementing the policy. Given the Biden administration’s expectation that the new rule will be in place for the expiration of the national COVID-19 emergency on May 11, and the potential end of the Title 42 border expulsion policy at that time, the timeline raises substantial concerns that the administration will not fulfill its obligation to seriously consider all comments submitted by the public before the rule is finalized.
Furthermore, the sunset date for the new rule, two years after it becomes effective, is after the end of the current presidential term—making it impossible to guarantee it will not be extended indefinitely.
In 2020, a Ninth Circuit Court of Appeals panel blocked the Trump administration’s asylum transit ban from being applied to thousands of asylum seekers who were unlawfully prevented from accessing the U.S. asylum process. The ban was later vacated by the D.C. District Court.
The American Immigration Council was a part of the Al Otro Lado v. Wolf class action lawsuit on behalf of individual asylum seekers and the legal services organization Al Otro Lado (AOL), which challenged the legality of the previous asylum transit ban as applied to asylum seekers who had been turned back at the U.S.-Mexico border.
Jeremy Robbins Executive Director American Immigration Council PHOTO: AIC websitel
The following statement is from Jeremy Robbins, Executive Director, The American Immigration Council:
“President Biden committed to restoring access to asylum while on the campaign trail, but today’s proposal is a clear embrace of Trump-style crackdowns on asylum seekers, many of whom are fleeing from globally recognized oppressive regimes. For over four decades, U.S. law has allowed any person in the United States to apply for asylum no matter how they got here. The new proposed rule would all but destroy that promise, by largely reinstating prior asylum bans that were found to be illegal.
“Not only is the new asylum transit ban illegal and immoral, if put into place as proposed, it would create unnecessary barriers to protection that will put the lives of asylum seekers at risk. While the rule purports to be temporary, the precedent it sets—for this president or future presidents—could easily become permanent.
“For generations, the United States has offered a promise that any person fleeing persecution and harm in their home countries could seek asylum, regardless of how they enter the United States. Today’s actions break from his prior promises and threaten a return to some of the most harmful asylum policies of his predecessor—possibly forever.”
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For more information, contact:
Brianna Dimas 202-507-7557 bdimas@immcouncil.org
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From the Lutheran Immigration & Refugee Services:
FOR IMMEDIATE RELEASE
February 21, 2022
Contact: Tim Young | tyoung@lirs.org
Washington, D.C. – In preparation for the end of Title 42 asylum restrictions, the Biden administration announced a new proposed rule severely limiting asylum eligibility for those who did not first seek protection in a country they transited through to reach the United States, or who entered without notifying a border agent. The proposed rule will be subject to a 30-day period of public comment before it can take effect.
The new rule mirrors a transit asylum ban first implemented under the Trump administration, which was ultimately struck down by federal judges in multiplecourts. The Immigration and Nationality Act (INA) provides that people seeking protection may apply for asylum regardless of manner of entry, and does not require them to have first applied for protection in another country.
Krish O’Mara Vignarajah CEO Lutheran Immigrantion & Refugee Service
In response to the proposed asylum eligibility rule, Krish O’Mara Vignarajah, President and CEO of Lutheran Immigration and Refugee Service, said:
“This rule reaches into the dustbin of history to resurrect one of the most harmful and illegal anti-asylum policies of the Trump administration. This transit ban defies decades of humanitarian protections enshrined in U.S. law and international agreements, and flagrantly violates President Biden’s own campaign promises to restore asylum. Requiring persecuted people to first seek protection in countries with no functioning asylum systems themselves is a ludicrous and life-threatening proposal.
While the Biden administration has launched a smartphone app for asylum appointments and expanded a temporary parole option for an extremely limited subset of four nationalities, these measures are no substitute for the legal right to seek asylum, regardless of manner of entry. It is generally the most vulnerable asylum seekers who are least likely to be able to navigate a complex app plagued by technical issues, language barriers, and overwhelming demand. Many families face immediate danger and cannot afford to wait for months on end in their country of persecution. To penalize them for making the lifesaving decision to seek safety at our border flies in the face of core American values.
We urge the Biden administration to reverse course before this misguided rule denies protection to those most in need of it. Officials must recognize that decades of deterrence-based policies have had little to no impact in suppressing migration. Instead, they should focus on managing migration humanely through expanded parole programs, efficient refugee processing in the hemisphere, and an equitably accessible asylum system.”
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Lest anyone believe the absolute BS coming from the Biden Administration that they “had no choice” and that this “wasn’t the choice they wanted,” here’s an article setting forth the many southern border solutions that the Administration ignored or was too incompetent to carry out in their dishonest, immoral pursuit of the anti-asylum “vision” of Stephen Miller and other White Nationalists.
💡💡”There’s many things Biden could do. We published a resource called “Forty-Two Border Solutions That Are Not Title 42.” We could have done 142,” says immigration expert Danilo Zak in The Border Chronicle! The Biden Administration has ignored, failed, or is prepared to shrug off most of them!🤯
Danilo Zak Associate Director of Policy and Advocacy Church World Service PHOTO: The Border Chronicle
Zak was interviewed by Melissa Del Bosque of The Border Chronicle:
There are many changes that the Biden administration and Congress could make to alleviate suffering at the southern border. Immigration policy expert Danilo Zak recently published a report that offers several solutions, from rebuilding the refugee resettlement program to expanding nonimmigrant work visas to more countries in the Western Hemisphere.
Zak, formerly of the National Immigration Forum, is Associate Director of Policy and Advocacy for the nonprofit Church World Service. He spoke with The Border Chronicle about the increase of forcibly displaced people in the Western Hemisphere and the current situation at the border. “For many, there is no line to get into—no ‘right way’ to come to the U.S.,” Zak says.
Melissa Del Bosque Border Reporter PHOTO: Melissadelbosque.com
Notably, better, more robust, use of Refugee Programs established by the Refugee Act of 1980 is among Zak’s “top three.” This is something that I have been “touting” since Biden was elected, but where the Administration has failed to meet the challenge.
And, contrary to what the Administration and others might say, there is nothing unachievable about using refugee programs to deal with emergency humanitarian situations. Also, with respect to cases taking forever to process, no need for that nonsense. It’s a matter of poor bureaucratic execution rather than a defect in the legal authority.
The Refugee Act of 1980 (“RA 80”) is basically a modified version of the “emergency parole, resettle with NGOs, and petition Congress to adjust status” that was used on an ad hoc basis to resettle Indochinese refugees and others on an emergency basis prior to the RA 80. Except, that the criteria, resettlement mechanisms, and adjustment process were all “built in” to the statute. Consequently, although Congress was to be consulted in advance, that process was designed to run smoothly, efficiently, and on an emergency basis if necessary.
While “Congress bashing” is now a favorite pastime of the Executive, Judiciary, and media, in 1980 Congress actually provided a mechanism to regularize the processing of type of refugee flows now facing the U.S. The statutory flexibility and the legal tools to deal with these situations are in RA 80.
A subsequent Congress even added the “expedited removal” and “credible fear” process so that initial asylum screening could be conducted by expert Asylum Officers at or near the border and those “screened out” would be subject to expeditedremoval without full hearings in Immigration Court. Clearly, there was never a need for the Title 42 nonsense for any competent Administration.
Basically, if an Administration can run a large-scale parole program, which the Biden Administration did for Afghanistan and is doing now for Cuba, Nicaragua, Venezuela, and Haiti, it can run a legal refugee program beyond our borders, even in a “country in crisis” if necessary.
The idea that a statutory scheme specifically designed to have the flexibility deal with future mass refugee situations couldn’t be used to deal with the current humanitarian situation in the Western Hemisphere is pure poppycock!
Also unadulterated BS: The Biden Administration’s proposal to make the “end of asylum” at the southern border “temporary,” for two years! In 2025, the Biden Administration might not even be in office. If there is a GOP Administration, you can be sure that the demise of asylum at the border will become permanent, with or without legislation.
Also, what would be an Administration’s rationale for resuming asylum processing at the southern border in two years. Surely, there will be some other “bogus border crisis” cooked up to extend the bars. And, if there is no such crisis, the claim will be that the bars are “working as intended” so what’s the rationale for terminating them.
The argument that complying with the law by fairly processing asylum seekers regardless of race, ethnicity, religion, or manner of arrival, as the law requires, might actually encourage people to apply for protection will always be there — hanging over cowardly politicos afraid of the consequences of granting protection. Fact is, the current Administration has so little belief in our legal system and their own ability to operate within in, and so little concern for the human lives involved, that they are scared to death of failure. That’s not likely to change in two years — or ever!
Ethics Prohibited Beyond This Point! “The naked self-interest was so rampant that Trump’s West Wing could be considered a nudist colony where decency was shed instead of clothing.” CREATIVE COMMONS.
Documents seized from Donald Trump’s Florida home (credit: Department of Justice)
Sometimes we write a lot of words on Steady. Today will be an exception. Because for all that there is to say, for all that needs to be said, for all that an accounting for history requires we say, the general sentiments are quite simple:
They knew. They all knew.
It was clear to anyone who had an ounce of appreciation for what the job of the presidency entails, to anyone who respected the constitutional order of our government, to anyone who worried about the health and safety of this nation, to anyone with a moral compass, to anyone who prizes the common sense of purpose that great leaders can summon, that Donald J. Trump had no business anywhere near the presidency.
Now, as he melts down in the face of a serious criminal investigation, as we see pictures of how he stored classified material and his utter disregard for our nation’s most sensitive secrets, as we are left to wonder what he was up to and what damage was done, we should recognize that we would not be where we are today without his enablers, apologists, and hangers-on.
They heralded his outrageousness in a chorus of sycophancy.
They feted his vileness.
They viciously attacked those who pointed out the obvious, that Trump was mentally, emotionally, intellectually, morally, and constitutionally unfit for his office.
And who are they? They are the Republican politicians, the so-called serious ones who expressed their concerns in private even as they used Trump to achieve their desired tax cuts and judges. They are the members of his administration — senior and junior — who jockeyed to maximize their career benefit at the expense of doing the necessary work for the American people. They are the lawyers who twisted themselves into pretzels to try to legalize his inherent lawlessness. They are the media personalities who saw Trump as a printing press for their accrual of wealth and power. They are the capitalists who put corporate earnings ahead of the well-being of the nation.
While Trump’s voters were primed with a toxic stew of hatred, bigotry, and divisiveness, the small cabal playing the inside game didn’t bother with the MAGA hats. They were too busy trading access for favors. The naked self-interest was so rampant that Trump’s West Wing could be considered a nudist colony where decency was shed instead of clothing.
But make no mistake…
In their cowardice, they knew.
In their cynicism, they knew.
In their contempt, they knew.
In their rationalizations, they knew.
In their acquittals of his conduct, even for impeachment, they knew.
They knew when they could have stopped him — before he became president, and once he was president.
But they didn’t stop him. And with their inaction, they encouraged him.
As the Trump bubble begins to pop, all these people who knew what he was all along will likely scurry like cockroaches when the lights go on. They will make all sorts of excuses for their complicity. They will gaslight, lie, and try to rewrite history. You can already see it in many of their so-called tell-all books. Except what they are telling is only the story they want people to hear. It is not the truth.
The truth is that they don’t dare say what we all know. They knew.
Note: If you are not already a subscriber to our Steady newsletter, please consider doing so. And we always appreciate you sharing our content with others and leaving your thoughts in the comments.
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Throughout history, despots and would-be despots have surrounded themselves with motley crews of sycophants, toadies, and retainers. Trump has excelled at it!
The Dehumanizing Work of Immigration Law is an analysis piece authored by immprof Jennifer M. Chacón (Berkeley) for the Brennan Center for Justice. It was part of a series of articles examining the “punitive excess that has come to define America’s criminal legal system.”
In her article, Chacón acknowledges that “our immigration laws are exceptionally harsh in ways that frequently defy common sense.” She notes that for many migrants “the notion that there is a ‘right way’ to immigrate is just not true.” Moreover, “our country has not always honored its own legal processes when immigrants are doing things ‘the right way.’” And, for those “long-time lawful permanent residents who have contact with the criminal legal system are often denied the chance to do things ‘the right way.’”
“Again and again,” Chacón writes, “notions of the rule of law are invoked to justify the sundering of families and communities that would, in other circumstances, seem unthinkable.”
Jennifer elegantly articulates a theme that echoes what “Sir Jeffrey” Chase and I often say on our respective blogs: It’s all about gratuitous cruelty and intentional dehumanization of “the other” — primarily vulnerable individuals of color!
But, it need not be that way! Undoubtedly, the current legislative framework is outdated, unrealistic, and often self-contradictory. Congress’s failure to address it with bipartisan, humane, common sense, practical reforms that would strengthen and expand our legal immigration system is disgraceful.
But, there are plenty of opportunities even under the current flawed framework for much better interpretations of law; more expansive, uniform, and reasonable exercises of discretion; creation and implementation of best practices; advancements in due process and fundamental fairness; drastic improvements in representation; improved expert judging; rational, targeted, “results-focused” enforcement; promoting accountability; and teamwork and cooperation among the judiciary, DHS, and the private/NGO/academic sectors to improve the delivery of justice and make the “rule of law” something more than the cruel parody it is today.
Historically, as Jennifer points out, courts have often aided, abetted, and sometimes even disgracefully and cowardly encouraged lawless behavior and clear violations of both constitutional and human rights. But, it doesn’t have to be that way in the future!
Folks like Trump, Miller, Sessions, Barr, Wolf, “Cooch,” Hamilton, McHenry, et al spent four years laser-focused on banishing every last ounce of humanity, fairness, truth, enlightenment, kindness, compassion, reasonableness, efficiency, rationality, equity, public service, racial justice, consistently positive use of discretion, practicality, and common sense from our immigration and refugee systems.
Biden and Harris promised dynamic change, improvement, and a return to a values-based approach to immigration. Once in office, however, they have basically “gone Miller Lite” —preferring to blame and criticize the Trump regime without having a ready plan or taking much positive action to bring about dynamic systemic improvements. In fact, as pointed out by Jennifer, Garland and Mayorkas have continued to apply, defend, and to some extent rely on the very vile policies they supposedly disavowed. Talk about disingenuous!
Drastic improvements in the current system are “out there for the taking,” with or without Congressional assistance. But, the will, skill, and guts to make the “rule of law” something other than an intentionally cruel, failed “throw away slogan” appears to be sorely missing from Biden Administration ldeadership!
Maybe, the beginning of Jennifer’s essay “says it all” about the abject failure of Garland and others to “get the job done:”
During his confirmation hearing to be attorney general, when asked about the Trump administration’s policy of separating children from their parents at the U.S.–Mexico border, Merrick Garland repudiated the policy, stating “I can’t imagine anything worse.”
Yet, now that he is confirmed, Attorney General Garland presides over an agency that represents the U.S. government in court arguing every day that parents should be separated from their children, brothers from sisters, grandchildren from grandparents.
Obviously, that’s the problem! Garland actually “can’t imagine” the human impact of government-imposed family separation! Nor can he “imagine” what it’s like to be caught up in his unfair, biased, and broken Immigration “Courts” as a party or a lawyer. The “retail level” of our justice system “passed him by” on his way to his judicial “comfort zone.”
“Justice” Star Chamber Style — “AG Garland ‘can’t imagine’ what it’s like to be caught up in the dysfunctional, abusive, and unfair ‘court system’ that he runs!”
Unless and until we finally get an Attorney General who has either experienced or has the actual imagination necessary to feel the daily horrors and indignity that our unnecessarily broken immigration justice system inflicts on real human beings, American justice and human values will continue to spiral downward! ☠️🤮
And, there will be no true racial justice in America without justice for immigrants!
“A federal court ruled that tworules issued by the Trump administration restricting — and in some cases eliminating — access to work authorization for asylum seekers were illegally issued and are therefore invalid.
More than a year ago, a group of nearly 20 asylum seekers along with three organizations sued the Department of Homeland Security (DHS) challenging these rules. The individual asylum seekers include transgender women, parents with small children, and children and adults who fled political persecution, gender-based violence, or gang and drug-cartel violence. The rules prevented or delayed their access to a work permit. The organizational plaintiffs — AsylumWorks, the Tahirih Justice Center, and Community Legal Services in East Palo Alto — argued that the rules derailed their missions to provide employment assistance and legal and social services to asylum seekers.
The National Immigrant Justice Center, Quinn Emanuel Urquhart & Sullivan, LLP, the Center for Gender & Refugee Studies, Kids in Need of Defense, and Tahirih Justice Center provided counsel in the case.
Plaintiffs challenged the substantive provisions that drastically curtailed access to work authorization, and they argued that the rules were invalid because purported Acting DHS Secretary Chad Wolf issued them even though he was not lawfully installed as DHS Secretary. The rules took effect in August 2020 and were partially enjoined by a different court in September 2020, but that decision left many of the rules’ harmful provisions in place. Despite these ongoing harms and despite a change in administration, the government dragged its feet arguing that the rules should remain in place “for the time being” to allow “developing administrative actions” to resolve the case.
The U.S. District Court for the District of Columbia refused to entertain these delay requests, and rejected the government’s “interpretative acrobatics” to justify Mr. Wolf’s purported authority to engage in rulemaking. Instead, the court followed numerous other courts around the country and concluded that “Wolf’s ascension to the office of Acting Secretary was unlawful.” The court also rejected the Biden administration’s attempt to ratify one of the rules in question, reasoning that the ratification “did not cure the defects … caused by Wolf’s unlawful tenure as Acting Secretary.”
Reflections from Counsel and Organizational Plaintiffs:
“The ability to earn an income is critical to asylum seekers’ ability to survive in the United States as they pursue protection from persecution,” said Keren Zwick, director of litigation at the National Immigrant Justice Center. “The court’s decision recognizes that the government cannot neglect to fill a cabinet position with a Senate-approved candidate for 665 days and then rely on unvetted, temporary officials to strip asylum seekers of access to a livelihood in the United States.”
“The court got it right,” said Annie Daher, senior staff attorney at the Center for Gender & Refugee Studies. “People seeking asylum should be treated with dignity and fairness as they pursue their legal claims. Access to work permits allows asylum seekers to provide for their families, obtain vital legal representation, and ultimately find safety and security in the United States. Today’s ruling will make a life-saving difference for our plaintiffs and for all people who turn to this country for refuge.”
“Children seeking asylum often need a USCIS-issued ‘employment authorization’ document as their only form of photo ID, to access education and other services critical to their stability and well-being during the asylum process,” said Scott Shuchart, senior director, legal strategy, at Kids in Need of Defense. “The court correctly restored access to these important documents for, potentially, thousands of unaccompanied children who will now have the opportunity to build a more secure life in the United States as they pursue lifesaving protection.”
“The right to work is an essential component of humanitarian protection,” said Joan Hodges-Wu, executive director and founder of AsylumWorks. “Work is not only imperative to economic survival; it also represents a means for asylum seekers to maintain personal dignity and self-respect during the long and protracted legal process. The court took a critical step toward upholding the rights of asylum seekers by vacating illegally-issued rules created to deter individuals and families seeking safety from harm. We applaud the court’s decision and look forward to continuing our work to help asylum seekers prepare for and retain safe, legal, and purposeful employment.”
“This decision restores the critical ability of countless survivors of gender-based violence to work, and thus be independent and provide for their families, while their asylum applications are pending—a process that often takes many years,” said Richard Caldarone, senior litigation counsel at the Tahirih Justice Center. “It also makes clear that the government remains obligated to promptly decide survivors’ requests for work authorization rather than leaving them in bureaucratic limbo for months or years. The decision takes arbitrary and punitive restrictions on work permanently off the books. We applaud the court’s decision and look forward to its immediate implementation.”
“We are thrilled that our motion for summary judgment was granted. This decision will have an enormous impact on our clients and so many other asylum seekers who come to this country seeking safety and justice,” said Christina Dos Santos, the Immigration Program director at Community Legal Services in East Palo Alto. “The Trump-era rules were punitive and cruel to asylum seekers, preventing them from receiving the right to work, potentially for years, as they waited to have their cases heard in our backlogged immigration court system. We have seen first hand how these policies forced asylum-seekers and their families into poverty and destitution. A resolution was urgently needed. We applaud the court’s decision.””
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Garland’s poor judgement, legally deficient, ethically questionable defenses of illegal and inhumane Trump-era immigration policies continue to astound! Also, the inane maneuvers conducted by Mayorkas, presumably with Garland’s approval, attempting to illegally “ratify” one of these rules is simply disgraceful! Chief Judge Beryl A. Howell strongly and correctly rejected this flailing waste of Government resources in her opinion.
Chief Judge Howell’s decision describes a compendium of some of the most egregious evasions of rules and wasteful attempts to paper them over, by both the Trump and Biden Administrations, that can be imagined. It’s an appalling example of the failure of Biden’s “good government” pledge! Inflicting this utter nonsense on the Federal Courts and on individuals fighting for their lives and rights, and stretching the resources of their pro bono lawyers, is on Garland! It’s inexcusable!
Has Alfred E. Neumann been “reborn” as Judge Merrick Garland? PHOTO: Wikipedia Commons
Congrats to my good friend Joan, AsylumWorks, the Tahirih Justice Center, and all the other great NGOs who are “taking it to” Garland and and his flailing Justice Department as well as to Mayorkas and his lousy, inept, illegal gimmicks being used to “shore up” grotesquely cruel and unfair Trump policies that Biden & Harris were elected to change! Gotta wonder what Ur Mendoza Jaddou and other folks who were supposed to “just say no” to these disgraceful policies are doing over at DHS!
Here’s what Joan said about the case:
WE WON! 🗽 The court ruled in AsylumWorks’ favor and struck down a series of Trump era rules that significantly delayed – and in many cases outright denied – work permits for asylum seekers.Today, justice prevailed.
🇺🇸Due process Forever!
Best,
—
Joan Hodges-Wu, MA, LGSW
Founder & Executive Director | AsylumWorks
Justice DID indeed prevail! That’s thanks to you, Joan, your fellow NGOs, and some great pro bono lawyers who showed that despite campaign promises, true “justice” for all persons under our Constitution resides elsewhere than at our flawed and failing Department of “Justice” under Garland’s uninspired and often tone deaf “leadership.”
“Today, a federal district court judge in Oakland, California, approved a final settlement in the case of Vangala v. USCIS, providing relief to over sixty thousand applicants for humanitarian immigration benefits. The lawsuit, filed on November 19, 2020, against U.S. Citizenship and Immigration Services (USCIS), challenged an agency policy adopted under the Trump administration specifically targeting humanitarian benefits for survivors of domestic violence and human trafficking and asylum seekers. Under the policy, USCIS rejected applications that left any question in the application unanswered, even where the question was not applicable—for example where the applicant failed to include a response for middle name because they have no middle name. Additionally, USCIS rejected applications where the applicant wrote “none” or “not applicable” instead of “N/A.”
The lawsuit was filed by Northwest Immigrant Rights Project (NWIRP), the National Immigration Litigation Alliance (NILA), and the Van Der Hout law firm, on behalf of three applicants who sought to represent a nationwide class of individuals whose applications were rejected under the policy. They alleged that the policy was nothing more than a pretextual basis for denying applicants the opportunity to obtain humanitarian benefits provided by Congress.
On December 22, 2020, the agency agreed to suspend the policy, and the parties then entered settlement discussions to address the tens of thousands of applications that USCIS previously rejected. The U.S. district court adopted and approved the final settlement agreement on July 20, 2021.
Under the settlement agreement, USCIS will accept the original submission date of the more than sixty thousand applications it has identified as having been rejected under the policy. USCIS will send notices to these applicants explaining the steps they can take to ensure that their applications for humanitarian benefits are recorded as having been filed as of the date they were originally submitted. Without this relief, these applicants not only would suffer the delays caused by USCIS’ rejection of their applications, but many applicants or their family members would be rendered ineligible because they were unable to file the required forms by timelines specified in the statute.
In addition, the settlement agreement prevents the agency from adopting a similar rejection policy with respect to other immigration forms unless authorized by statute or lawfully implemented through regulations.
“It was an outrageous policy clearly aimed to impede individuals from obtaining the humanitarian benefits that Congress has provided,” said Matt Adams, Legal Director for NWIRP. “It aptly demonstrates the Trump administrations’ utter disregard of the law.”
“USCIS’ rejection policy served no legitimate purpose,” said Mary Kenney, Deputy Director for NILA. “Tens of thousands of applicants will now, finally, be able to move forward with applications that the agency should have accepted in 2020.”
The settlement agreement is here and order approving the settlement agreement can be found here.
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Media contacts:
Trina Realmuto, National Immigration Litigation Alliance
Cruelty, stupidity, illegality, wasting Government resources! So, what else is new about the Trump kakistocracy’s immigration policies and procedures? Wonder why all immigration agencies are running out of control backlogs? Don’t blame the victims — the migrants exercising their legal rights!
In direct contravention of the intent of Congress in structuring DHS so that the “customer services” to migrants and their families would be separate, and no longer subordinate to, immigration enforcement, the Trump kakistocracy turned USCIS into a semi-useless branch of their corrupt, yet inept, White Nationalist enforcement agenda. So incompetent and inappropriate were Trump’s actions that his lackeys managed to “repurpose” USCIS, once one of the few self-sustaining independently funded agencies within Government, into a deficit promoting, bankrupt, money pit.
And, it was a cesspool that failed miserably in its primary mission of serving those seeking legal immigration status, their families, and their employers. A primary reason why the Biden Administration is having difficulties with immigration and human rights is the illegal eradication by the Trump regime of the U.S. legal immigration system, particularly our refugee and asylum systems.
That leaves those suffering from persecution and torture in need of legal protection with no choice but to use the “extralegal system.” Far from their stunningly false claim to have “enhanced” immigration enforcement, the GOP nativists have also destroyed rational, practical, targeted enforcement with their nonsense. Don’t let them get away with blaming the Biden Administration and the victims of their cruel and often illegal behavior which produced the results that many of us predicted!
The next time you hear Ted Cruz, Tom Cotton, or some other GOP nativist restrictionist disingenuously blabbering on about “rewarding lawbreakers” or “doing it the right way,” remember that largely because of them and the Trump regime, America has no functional immigration system for refugees, asylees, or any other type of legal immigrants, nor do we have a functioning Immigration Court system!
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify information on the relevant government websites and with colleagues as best you can.
EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, February 5, 2021. NYC non-detained remains closed for hearings.
CBS: Another federal judge on Friday ruled that Chad Wolf was likely unlawfully appointed to his position at the helm of the Department of Homeland Security (DHS), issuing a decision that blocked a set of broad asylum limits slated to take effect Monday.
WaPo: The U.S. Court of Appeals for the 4th Circuit said the administration’s policy undermines the national resettlement program created four decades ago by Congress.
WaPo: President-elect Joe Biden plans to nominate federal judge Merrick B. Garland, a Democratic casualty of the bitter partisan divide in Washington, to be the next attorney general, tasked with restoring the Justice Department’s independence and credibility, according to people familiar with the decision.
Law360: Democratic victories in Georgia’s heated Senate runoffs gave the party a slim majority in Congress, but without enough votes to end a filibuster.
WaPo: More than 2,500 detainees, most with no serious criminal history, have given up their cases since March, according to records from the Transactional Records Access Clearinghouse, a research group at Syracuse University. Those records also show that detainees put in deportation proceedings in July 2020 were twice as likely to opt for voluntary departure than those from a year before.
WaPo: Over 170 new applicants have become the first individuals in several years to win approval to the Obama-era Deferred Action for Childhood Arrivals program for immigrants brought to the U.S. as young people, the U.S. government revealed in a court filing Monday.
Guardian: US federal prosecutors have filed motions saying the Honduran president, Juan Orlando Hernández, took bribes from drug traffickers and had the country’s armed forces protect a cocaine laboratory and shipments to the US.
NY: This year, Governor Cuomo will continue to support the Liberty Defense Project to keep fighting for immigrants seeking a better life for themselves and their families. New York’s strength, character, and pride are found in the diversity and rich culture that makes us the Empire State.
A federal district court in California preliminarily enjoined the government from implementing, enforcing, or applying the 12/11/20 final rule, “Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review.” (Pangea Legal Services, et al. v. DHS, et al., 1/8/21) AILA Doc. No. 21011107
EOIR issued a memo (PM 21-13) updating and replacing OPPM 17-01, Continuances, to account for legal and policy developments subsequent to its issuance. The memo provides a non-exhaustive list of legal and policy principles as an aid to adjudicators considering common types of continuance requests. AILA Doc. No. 21011101
Law360: The U.S. Supreme Court on Monday threw out a Ninth Circuit ruling that detained asylum seekers who clear an initial fear screening must be given a prompt bond hearing, sending the case back to the appeals court for reconsideration.
SCOTUSblog: The case asks whether a grant of Temporary Protected Status authorizes eligible noncitizens to obtain lawful-permanent-resident status if those noncitizens originally entered the United States without being “inspected and admitted” – a term of art referring to lawful entry and authorization by an immigration officer.
ImmProf: There are four immigration related cases set to be considered, with three being petitions by the government (more SG petitions on distinct immigration issues than one would usually expect in the course of an entire year), and the other involving a case in which the SG is agreeing that certiorari is appropriate (also a rare position for the SG). The SG’s position in each of these cases shows an unusual aggressiveness towards the role of the Supreme Court.
The BIA found that IJs may find a document to be fraudulent without forensic analysis if it contains obvious defects or readily identifiable hallmarks of fraud, and the party submitting the document is given an opportunity to explain the defects. Matter of O-M-O-, 28 I&N Dec. 191 (BIA 2021) AILA Doc. No. 21010801
The court held that a conspiracy or attempt to commit fraud or deceit involving over $10,000 in intended losses is an aggravated felony, and remanded to determine whether petitioner’s convictions under 18 USC §1037(a) reflected over $10,000 in intended losses. (Rad v. Att’y Gen., 12/21/20) AILA Doc. No. 21010500
The court reversed the district court opinion and disagreed with CA6 and CA9 interpretations of the statute, by holding that a grant of TPS does not constitute an “admission” into the United States under INA §1255. (Sanchez v. Wolf, 7/22/20) AILA Doc. No. 21011100
The court upheld the BIA’s denial of petitioner’s motion to reopen based on changed country conditions in Somalia, finding that the BIA did not fail to consider al-Shabaab’s increase in power or ISIS-Somalia’s emergence and growing violence from 2011 to 2018. (Mohamed v. Barr, 12/23/20) AILA Doc. No. 21010502
The court held that the Vietnamese petitioner had waived review of the BIA’s discretionary denial of asylum relief, and that his proposed social group comprised of “known drug users” was not legally cognizable because it lacked particularity. (Nguyen v. Barr, 12/21/20) AILA Doc. No. 21010503
The court reversed an injunction of PP 9945, which requires IV applicants to demonstrate acquisition of health insurance or ability to pay for future healthcare costs. The court found the proclamation within the president’s executive authority. (Doe, et al., v. Trump, et al., 12/31/20) AILA Doc. No. 21010436
President Trump issued a memorandum directing the Secretary of State to assess whether to classify Antifa as a terrorist organization under 8 USC §1182(a)(3)(B)(vi), and to take steps to consider listing Antifa in 9 FAM 302.5-4(B)(2)(U), Aliens Who Are Members of an Identified Criminal Organization. AILA Doc. No. 21010635
USCIS provided additional updates about lockbox operations, noting that applicants may face delays of four to six weeks in receiving receipt notices for some applications and petitions filed at a USCIS lockbox facility. Delays may vary among form types and lockbox locations. AILA Doc. No. 20121534
I sure hope that Judge Garland and Secretary-Designate Mayorkas are paying close attention!
Because unless they take some immediate forceful action to disable the “regime’s immigration kakistocracy” and make the radical bureaucratic changes necessary to regain control, their “dream jobs” are going to turn into “Nightmare on Elm Street” overnight!
Human rights are being violated and taxpayer funds (in an already “over budget” USG) are being poured down thetoilet 🚽by the minute by the out of control, maliciously incompetent kakistocrats at EOIR, DHS, and in the SG’s Office to name just a few of the most obvious “national disgraces” that need an immediate fix!
The defeated anti-American, neo-Nazi regime was “not normal” and neither Garland nor Mayorkas can afford to treat the wreckage of democracy and human decency and those who did the regime’s bidding at DOJ and DHS as “acceptable” for another minute!
Pangea Legal Services v. DHS (“Pangea II”), N.D. CA (USD Judge James Donato), 01-08-21
KEY QUOTE:
Wolf has not spent his time idly at DHS. During his relatively brief tenure, he has attempted to suspend the Deferred Action for Childhood Arrivals (DACA) program, and impose administrative fees for immigration services and eliminate fee waivers, among other actions. These efforts resulted in several lawsuits in federal courts across the United States, each of which challenged Wolf’s rulemaking authority on the same grounds presented by plaintiffs here. In all of these cases, the district courts have concluded that Wolf was not a duly authorized Acting Secretary, and that his actions were a legal nullity. See Batalla Vidal v. Wolf, No. 16-CV-4756 (NGG) (VMS), 2020 WL 6695076, at *9 (E.D.N.Y. Nov. 14, 2020); Nw. Immigrant Rights Project v. United States Citizenship & Immigration Servs., No. CV 19-3283 (RDM), 2020 WL 5995206, at *24 (D.D.C. Oct. 8, 2020); Immigrant Legal Res. Ctr. v. Wolf, No. 20-CV-05883-
United States District Court Northern District of California
Case 3:20-cv-09253-JD Document 66 Filed 01/08/21 Page 7 of 14
JSW, 2020 WL 5798269, at *7 (N.D. Cal. Sept. 29, 2020); Casa de Maryland, Inc. v. Chad F. Wolf, Case No. 8:20-cv-02118-PX, 2020 WL 5500165, at *23 (D. Md. Sept. 11, 2020).3
This Court is now the fifth federal court to be asked to plow the same ground about Wolf’s authority vel non to change the immigration regulations. If the government had proffered new facts or law with respect to that question, or a hitherto unconsidered argument, this might have been a worthwhile exercise. It did not. The government has recycled exactly the same legal and factual claims made in the prior cases, as if they had not been soundly rejected in well-reasoned opinions by several courts. The government initially appealed two of these decisions, both of which it later voluntarily dismissed, and appears to have only one appeal pending. In the main, the government contents itself simply with saying the prior courts were wrong, with scant explanation. See, e.g., Pangea Dkt. No. 48 at ECF p. 11 (“the various courts that have embraced this argument are mistaken”); Immigration Equality Dkt. No. 37 at 14 (same).
This is a troubling litigation strategy. In effect, the government keeps crashing the same car into a gate, hoping that someday it might break through. To be sure, one court decision alone does not necessarily close the door to any further cases or arguments along similar lines. Our common law system contemplates that more than one judicial examination of facts and issues is often merited. But our system has no room for relitigating the same facts and law in successive district court cases ad infinitum. That is what the government is doing here. The Court took pains at oral argument to discuss this with counsel for the government, and specifically asked how their arguments here are in any way different from the ones made and rejected in the preceding cases.4 Counsel responded mainly with a disparaging comment to the effect that the other district courts had shirked from working their way through the record. That is untrue. Each of the prior decisions conducted a painstaking analysis of the facts with respect to the Acting Secretary
3 The Government Accountability Office (GAO) has also found that Wolf’s appointment was invalid under the Homeland Security Act. See Matter of Dep’t of Homeland Security, Gov’t Accountability Office (Aug. 14, 2020), https://www.gao.gov/assets/710/708830.pdf, at 2.
4 Attorney August Flentje at DOJ handled this portion of the government’s argument at the hearing.
United States District Court Northern District of California
Case 3:20-cv-09253-JD Document 66 Filed 01/08/21 Page 8 of 14
position at DHS, with full attention to the unprecedented efforts to validate Wolf’s claim to the job, irrespective of governing law and procedures.
A good argument might be made that, at this point in time, the government’s arguments lack a good-faith basis in law or fact. But the Court need not reach that conclusion to reject those arguments yet again. The Court’s independent review of the record indicates that Batalla Vidal, 2020 WL 6695076, which is the latest decision before this order, correctly identified and analyzed the salient points vitiating Wolf’s claim of rulemaking authority, and the Court agrees with it in full.
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Wolf’s continuing impersonation of a Cabinet Officer and Barr’s knowingly illegal, ultra vires approval of clearly unlawfully promulgated regulations that actually threaten the lives of bona fide asylum seekers should be dealt with as criminal offenses after Jan. 20, 2021. Every Government official who participated in this travesty, as well as the unethical DOJ officials and their supervisors who were involved in the frivolous and unethical “defense” of this clearly unlawful, and invidiously motivated, action should be removed from Federal Service. Clearly, prosecutions should be explored against racist mastermind “human rights criminal” Stephen Miller.
As the regime of treason and insurrection comes to an end, those who knowingly helped further its gross illegalities should be held fully accountable under the law. Criminals have no right to government lawyers to defend their scofflaw behavior in civil actions like this!
The EOIR Clown Show 🦹🏿♂️🤡 must go! But, there also must be some accountability for those who abused their government positions and violated their oaths of office to illegally inflict harm and suffering on the most vulnerable among us.
We have seen a serious breakdown of legal ethics and bar policing responsibility at all levels of the Federal Government during the regime. That breakdown extends to Federal Judges all the way up to the indolent Supremes who have consistently failed to hold U.S. Government attorneys (including, specifically, the highly unethical former Solicitor General and his staff) accountable for their unethical behavior in engaging in frivolous civil litigation, advancing “bad faith” defenses for clearly illegal actions, seeking unjustified stays, manufacturing and arguing clear “pretexts” for unconstitutionally discriminatory Executive actions, failing to do even minimal “due diligence,” putting forth factually erroneous and misleading arguments, and allowing the government to abuse, harass, and waste the time of private counsel for improper purposes.
This case also reinforces the absolute necessity of nationwide injunctive relief against Government abuses like this. The “solicitation” of cases challenging and improperly narrowing this necessary form of relief, a corrupt project of the Federalist Society and the former Solicitor General, should raise serious questions of the judicial qualifications of the two “GOP Justices” who recently engaged in this form of rancid, immoral, and legally defective political pandering in their “separate opinion.” Better Justices for a Better America!
What really held the American legal system together for the last four perilous years was the tenacity of lawyers, many of them arguing Immigration or human rights cases pro bono, and the legal scholarship and courage of some U.S. District Judges who stood tall even in the face of a spineless and complicit Supremes’ majority that all too often failed to support them and could barely move fast enough to give a patently lawless, corrupt, racist, treasonous, and clearly unqualified President and his neo-Nazi minions carte blanch to abuse humanity and “Dred Scottify” persons of color. Leadership, moral courage, and integrity count. But for Sotomayor, Kagan, Breyer, and the late RBG, the Supremes came up disastrously short of fulfilling their Constitutional rule in far, far too many cases, and innocent people suffered and died because of it. This is simply unacceptable in our highest level judges.
It’s high time for law schools to reexamine and beef up obviously inadequate ethical training, for a review of the failure of basic ethics throughout Government, and for review and reform of the scurrilous and unacceptable abdication of ethical norms and responsibilities by Federal Judges at every level of our floundering and failing Federal legal system. Criminals like Wolf and Miller and clowns like EOIR officials violate the laws and degrade humanity because they have every reason to believe they will get away with it. They must be held accountable if we want the abuses that came close to destroying our democracy this week to be stopped!
Dumping Asylum Seekers in Honduras Artist: Monte Wolverton Reproduced under licenseAmanda Holpuch Reporter The Guardian
Erika Pinheiro, Litigation & Policy Director, Al Otro Lado, speaks at TEDSalon: Border Stories, September 10, 2019 at the TED World Theater, New York, NY Photo: Ryan Lash / TED, Creative Commons License
Amanda Holpuch reports from the Gulag for HuffPost:
. . . .
The Centers for Disease Control and Prevention (CDC) bars asylum seekers and refugees from the US under an order called Title 42. People who attempt to cross the border are returned, or expelled, back to Mexico, without an opportunity to test their asylum claims. More than 250,000 migrants processed at the US-Mexico border between March and October were expelled, according to US Customs and Border Protection data.
The situation is dire. Thousands of asylum-seekers are stuck at the border, uncertain when they will be able to file their claims. The camps they wait in are an even greater public health risk that before.
Outside the border, Al Otro Lado has fought for detained migrants to get PPE and medical releases. Prisons are one of the worst possible places to be when there is a contagious disease and deaths in the custody of US immigration authorities have increased dramatically this year. They have also provided supplies to homeless migrants in southern California who have been shut out of public hygiene facilities.
Pinheiro said there will be improvements with Trump out of office, but some of the Biden campaign promises to address asylum issues at the border will be toothless until the CDC order is revoked. It’s a point she plans to make in conversations with the transition team.
A prime concern for advocates about the Biden administration is that it will include some of the same people from Barack Obama’s administration, which had more deportations than any other president and laid the groundwork for some controversial Trump policies.
While it is a worry for Pinheiro, she has hope that the new administration will build something better. “I would hope a lot of those people, and I know for some of them, have been able to reflect on how the systems they built were weaponized by Trump to do things like family separation or detaining children,” she said.
Family separation, which has left 545 children still waiting to be reunited with their parents, was a crucial issue for many voters and Pinheiro hopes that energy translates to other immigration policies.
“How did you feel when your government committed the atrocity of family separation in your name?” Pinheiro said. “The next step is really understanding that similar and sometimes worse atrocities are still being committed in the name of border security and limiting migration.”
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Read the complete article at the link.
I totally agree with Erika Pinheiro that there is no excuse for the continuing violations of our Constitution, statutes, international obligations, and simple human decency. The regime’s policies are nothing more than “crimes against humanity” thinly disguised as “law enforcement,” “national security,” and “public health” (from a regime whose “malicious incompetence,” cruelty, and callous intentional undermining of medical advice during the pandemic have contributed to the unnecessary deaths of tens of thousands of Americans).
Even more disgracefully, the Supremes and other Federal Courts have failed in their Constitutional duty to stand up to the abusers and hold the regime’s scofflaw “leaders” (to where, one might ask?) accountable. What’s the purpose of life-tenured judges who lack the training, wisdom, ethics, and most of all courage to enforce the legal and human rights of the most vulnerable against lawless, dishonest, and fundamentally cowardly “Executive bullies” hiding behind their official positions? Not much, in my view! There are deep problems in all three branches of our badly compromised and ailing Government!
I have also spoken out on Courtsideagainst the dangers of putting the same failed Dem politicos who thoroughly screwed up immigration policy, and particularly the Immigration Courts, back in charge again. I agree with Erika’s hope that some of them have gained wisdom and perspective in the last four years. But, why rely on the hope that those who failed in the past have suddenly gotten smarter, when there are “better alternatives” out there ready to step in and solve the problems?
Why not put in place some talented new faces from the NDPA with better, more progressive ideas, tons of dynamic energy, and the demonstrated willingness and courage to stand tall against bureaucratic tyranny? Give them a chance to solve the problems! Erika looks like one of those who should be solving problems and implementing better immigration policies “from the inside” in the Biden-Harris Administration!
The “deterrence only paradigm” that has driven our border enforcement policies over the past half century has been a demonstrable failure, both in terms of law enforcement and the unnecessary and unjustifiable human carnage that it has caused. Why keep doing variations on discredited policies and expecting better results?
We know that ugly, racist rhetoric, jailing families and kids in punitive conditions, weaponizing courts as enforcement tools, suspending the rule of law, denying hearings, and even summarily, illegally, and immorally returning asylum seekers to death won’t stop folks from fleeing unbearable conditions in their native countries! They will continue to seek protection in America, even in the face of predictable abuses, life-threatening dangers, and little chance of success in a system intentionally “gamed” to mistreat and reject them while denying their humanity.
Desperate people do desperate things. They will continue to do them even in the face of inhuman abuses inflicted by those whose better fortunes in life have not been accompanied by any particular compassion, understanding of the predicament of others, or recognition of an obligation to abjure the power to bully and torment those less fortunate in favor of addressing their situations in a fair, reasonable, and humane manner.
Human migration is far older than nation states, zero tolerance, baby jails, family incarceration, biased judging, national selfishness disguised as “patriotism,” and border walls. It has outlasted and outflanked all of the vain attempts to artificially suppress it by force and gimmicks. It’s time for some policies that recognize reality, see its benefits, and work with the flow rather than futilely in opposition to it.
It’s past time to look beyond the failures of yesterday to progressive solutions and new leadership committed to solving problems while enhancing justice, respecting human dignity, and enhancing human rights (which, in the end, are all of our rights)!
Due Process Forever!⚖️🗽🇺🇸 Same old, same old never!
Knightess of the Round TableHon. Ilyce Shugall U.S. Immigraton Judge (Retired)Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
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Thanks to our friends Steve Schulman 😇 and Michael Stortz 😇 at Akin Gump for their truly outstanding pro bono assistance on this brief.Couldn’t do it without you!😎
Such an honor to be “fighting the good fight” for due process and fundamental fairness with my colleagues on the Round Table🛡⚔️👩⚖️🧑🏽⚖️👨🏻⚖️. We have made a difference in the lives of some of the most vulnerable and deserving among us. 🗽We have also helped educate the Federal Courts and the public on the ugly realities of our failed, unjust, and totally dysfunctional Immigration “Courts” ☠️🤡🦹🏿♂️, modern day “Star Chambers” ☠️⚰️😪that have become weaponized appendages of “White Nationalist 🤮🏴☠️⚰️👎🏻 nation.”
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleBIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
⚖️🗽Due Process Forever!
Happy New Year! 🍾🥂🎉Looking forward to Jan. 20 and the end of the kakistocracy!👍🏼⚖️🗽😎🇺🇸
President-elect Biden has promised a broad array of reforms that would impact refugees, asylum seekers, and other forced migrants. He has indicated he will restore Temporary Protected Status, place a moratorium on deportations, and end prolonged detention and for-profit detention centers. These are all crucially important to the safety and security of migrants and their families in the United States and other countries, especially in the Western Hemisphere. President-elect Biden has also promised to end the Trump administration’s policy of making asylum seekers “remain in Mexico” while awaiting hearings in U.S. immigration court.
However, in recent weeks, a flawed and fatalistic view of migration to the U.S. southern border has taken hold in some media accounts and reports. It goes like this: President Trump’s Remain in Mexico (or MPP) policy has created a logistical and humanitarian crisis at the southern U.S. border that, despite President-elect Biden’s promises, will be very difficult to undo. Further, a combination of pull and push factors (especially in the wake of hurricanes in Central America) will lead to increased migration to the southern U.S. border this spring such that President-elect Biden will have little choice but to keep the border sealed under an order from the Centers for Disease Control and Prevention (CDC), as he attempts to deal with COVID-19 in border states and fulfill other immigration policy promises—including uniting families the Trump administration ripped apart two years ago.
There are several problems with this line of argument, many of which are addressed in this report. Most fundamentally, keeping the border sealed and migrants waiting in Mexico will perpetuate serious abuses. Family separations and other violations of human rights, as well as violations of U.S. law, will continue to occur under a Biden administration that does not implement new policies at the border. Recently, MPP and the CDC border closure have exacerbated smuggling and trafficking at the border, as well as other forms of abuse against migrants. For example, the CDC order has led to the repatriation of Nicaraguan dissidents as well as the return of a sexually abused Guatemalan child. It has also led asylum seekers to try to cross undetected in remote desert areas. Further, unwinding MPP and allowing asylum seekers to ask for protection at the border is not only the right thing to do, but also feasible with the proper planning. Indeed, it presents the incoming administration with an opportunity to rethink migration management, especially for those seeking asylum, and to implement a new screening process that is both more humane and more efficient.
President-elect Biden has invoked President Franklin Delano Roosevelt—healer, rebuilder, and practical problem solver—as a model. During World War II, Roosevelt planned and devoted significant resources to resolving the largest displacement crisis the world had ever known. This planning was part of an effort to ensure that what happened in 1939 to the S.S. St. Louis—a ship of asylum-seeking Jews turned away by the United States and other countries—would not occur again.
During his first week in office, President-elect Biden should issue an executive order on border asylum policy that departs dramatically from that which President Trump put forth during his first week. President Biden’s executive order should give asylum seekers access to the border and provide for cooperation with border states and shelters to safely and humanely receive asylum seekers. It should allocate resources to alternatives to detention, including case management, and to improved adjudication of asylum claims in immigration courts, especially through provision of legal services. It should also commit to ending practices associated with expedited removal of asylum seekers that have resulted in abuses, and to the use of parole to unwind MPP. Finally, through revocation of Trump administration decisions, regulations, and policies, as well as through settlement of lawsuits and the withdrawal of appeals to federal courts regarding these policies, the executive order should commit to restoring asylum eligibility to those who have fled persecution but have been denied or prevented from obtaining protection.
In taking such action, President-elect Biden would be fulfilling not only his campaign promises but the commitment he made when he voted for Senate passage of the Refugee Act of 1980. That law, supported by large majorities of both parties, promised to ensure fair access to asylum at the border.
This report shows why it is imperative that the Biden administration do this rather than keep us mired in a policy framework that does not work and that has led to a cycle of crises. It does so by looking back to a momentous time of transition about thirty years ago. With the Cold War ending, the United States had to rethink its assumptions about who merited refugee status. Only a handful of refugee resettlement slots in the U.S. Refugee Program were allotted to Central Americans, and the United States had not yet developed clear procedures for effectively handling asylum seekers at the southwestern border. Rather than acknowledge the forces pushing people northward, U.S. policymakers adopted a paradigm that was focused primarily, if not exclusively, on deterrence. This is a paradigm that we are still in today.
At different points over the past thirty years, humanitarian and constructive policies have tempered the harshness of this paradigm, and such policies have also brought benefits in terms of cost and efficiency. These policies need to be adapted and scaled up. But they also need to be placed within a welcoming framework that does not presume asylum seekers are a threat. Instead of devoting tremendous resources to a futile and rights-violating attempt to block those already on the move, we have to try to better understand the drivers of migration, which, for Central Americans, include corruption, poverty, insecurity, and violence.We must devote resources instead to humanely receiving asylum seekers and adjudicating their claims fairly. We also have to stop assuming that the best place to manage admissions of all Central Americans seeking protection is at the border.
The Deterrence Paradigm
The deterrence paradigm has been implemented repeatedly using the same counterproductive strategies.
. . . .
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Read the rear of Yael’s article at the link.
👍🏼👍🏼👍🏼👍🏼👍🏼⚖️🗽🇺🇸
Folks like my Round Table 🛡⚔️ colleague Judge Paul Grussendorf and I have been “preaching” for an abandonment of the unlawful, inhumane, incredibly wasteful, and demonstrably ineffective “deterrence paradigm.”
The skill set to establish a lawful, better, humane, efficient asylum system, consistent with our Constitutional, statutory, and international obligations is out there, mainly in the private/NGO/academic communities. I/O/W the “practical scholars, litigators, and advocates” in the NDPA.
It’s a just a question of the incoming Biden/Harris Administration getting beyond the “enforcement only” mentality, personnel, and White Nationalist nativist thinking that currently infects the entire USG immigration bureaucracy, at all levels. Replace the current failed leadership with experts from the NDPA and empower them to work with other experts in the private sector to institute a better system that would be no more costly, likely less, than the current “built to fail” abominations that not only waste resources but destroy human lives and are an ugly stain on our national conscience!
I also appreciate Yael’s recognition of the pressing and compelling need to “end the Clown Show 🤡🦹🏿♂️☠️@ EOIR:”
Immigration Court Reform
EOIR policies during the Trump administration have been at odds with principles of due process and judicial independence. These include the imposition of numeric case completion quotas and docket management policies that deprive asylum seekers of procedural protections; appointment of judges who almost exclusively come from prosecutorial backgrounds (especially working at DHS and in law enforcement); promotion to permanent positions on an expanded BIA of judges with asylum denial rates much higher than the national average; and procedures that limit the ability of claimants to effectively appeal their cases. The Biden administration should conduct an urgent review of EOIR hiring practices and immigration court procedures and develop recommendations for regulatory or structural changes consistent with the protection needs of asylum seekers.
The critical “urgent review” should be done by a “Team of Experts from the NDPA” brought in on an immediate temporary basis, if necessary, in accordance with Federal Personnel Rules, to replace the current Senior “Management” @ EOIR as well as the entire BIA. There’s no better way to fix the system than to take over management, restore fairness and order, and get inside the current disastrous mess @ the Clown Show 🤡🦹🏿♂️! Importantly, the “Team of Experts” with effective operational control could immediately begin fixing (and conversely stop aggravating and creating) the glaring problems while putting the structure and personnel in place for long-term reforms.
Lives ☠️⚰️ are at stake here! We need ACTION, not merely study and evaluation. “Fixing the system on the fly” may be challenging, but it’s perfectly within the capabilities of the right team of NDPA experts! Dems often prefer study and dialogue to effective actions. As Toby Keith would say: We need “a little less talk and a lot more action.”
Trump has brought impunity to the highest office in the land, wielding a wrecking ball to the most precious windowpane of all – American democracy.
The message? A president can obstruct special counsels’ investigations of his wrongdoing, push foreign officials to dig up dirt on political rivals, fire inspectors general who find corruption, order the entire executive branch to refuse congressional subpoenas, flood the Internet with fake information about his opponents, refuse to release his tax returns, accuse the press of being “fake media” and “enemies of the people”, and make money off his presidency.
And he can get away with it. Almost half of the electorate will even vote for his reelection.
A president can also lie about the results of an election without a shred of evidence – and yet, according to polls, be believed by the vast majority of those who voted for him.
Trump’s recent pardons have broken double-pane windows.
Not only has he shattered the norm for presidential pardons – usually granted because of a petitioner’s good conduct after conviction and service of sentence – but he’s pardoned people who themselves shattered windows. By pardoning them, he has rendered them unaccountable for their acts.
They include aides convicted of lying to the FBI and threatening potential witnesses in order to protect him; his son-in-law’s father, who pleaded guilty to tax evasion, witness tampering, illegal campaign contributions, and lying to the Federal Election Commission; Blackwater security guards convicted of murdering Iraqi civilians, including women and children; Border Patrol agents convicted of assaulting or shooting unarmed suspects; and Republican lawmakers and their aides found guilty of fraud, obstruction of justice and campaign finance violations.
It’s not simply the size of the broken window that undermines standards, according to Wilson and Kelling. It’s the willingness of society to look the other way. If no one is held accountable, norms collapse.
Trump may face a barrage of lawsuits when he leaves office, possibly including criminal charges. But it’s unlikely he’ll go to jail. Presidential immunity or a self-pardon will protect him. Prosecutorial discretion would almost certainly argue against indictment, in any event. No former president has ever been convicted of a crime. The mere possibility of a criminal trial for Trump would ignite a partisan brawl across the nation.
Congress may try to limit the power of future presidents – strengthening congressional oversight, fortifying the independence of inspectors general, demanding more financial disclosure, increasing penalties on presidential aides who break laws, restricting the pardon process, and so on.
But Congress – a co-equal branch of government under the Constitution – cannot rein in rogue presidents. And the courts don’t want to weigh in on political questions.
The appalling reality is that Trump may get away with it. And in getting away with it he will have changed and degraded the norms governing American presidents. The giant windows he’s broken are invitations to a future president to break even more.
Nothing will correct this unless or until an overwhelming majority of Americans recognize and condemn what has occurred.
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Read Reich’s full article at the link.
As I have mentioned, the lack of accountability could be a problem for the Biden-Harris Administration. And, 74 million voters who pulled the lever for an overtly corrupt, anti-American, racist, clown is an even bigger obstacle to the future of our nation.
On the other hand, although he was a “minority President” from the git go, Trump had nothing but contempt for the majority of us who didn’t favor his maliciously incompetent and divisive policies; he completely disregarded both truth and the common good.
Biden and Harris start with something that Trump never had — the support of a clear majority of 7 million plus voters. So, if they govern wisely, humanely, and in the public interest they could succeed in saving our nation from the 74 million who joined Trump’s war against American democracy. And despite their short-signtedness and intransigence, the 74 million and their families in Trumpland will get the benefits of better government in the public interest. Sometimes, you have to save folks in spite of themselves.
If the policies of decency, honesty, courage, and governing in the public interest work, it could create a longer-term governing majority. If not, it will still be worth a shot at saving our democracy. Another Administration of Trump and his minority minions would be the end of our democracy anyway —the majority of us have little to lose by giving it our best shot with the Biden Harris Team!
Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings LawBlaine Bookey Legal Director Center for Gender & Refugee Studies @ Hastings Law Photo: CGRS website
Groups Challenge Trump Administration Rule Gutting Asylum
Thursday, December 24, 2020
Four immigrant rights organizations – Pangea Legal Services, Dolores Street Community Services, Inc., Catholic Legal Immigration Network, Inc. (CLINIC), and Capital Area Immigrants’ Rights Coalition – have requested a temporary restraining order in a lawsuit challenging a sweeping new rule that will eviscerate access to protection for people seeking refuge in the United States. Set to take effect on January 11, 2021, the rule completely transforms the asylum process, severely limiting the availability of asylum and related protections to individuals fleeing persecution or torture. The plaintiff organizations are represented by the Center for Gender & Refugee Studies, the Harvard Immigration and Refugee Clinical Program, and the law firm of Sidley Austin LLP.
“Published in the waning hours of the Trump administration, this rule marks its most far-reaching attempt to end asylum yet, and a death knell to our country’s longstanding commitment to offer safe haven for the persecuted,” said Jamie Crook, Director of Litigation at the Center for Gender & Refugee Studies. “The rule violates our laws, flouts our treaty obligations, and upends decades of legal precedent. If the mammoth rule is permitted to take effect, it will result in people being deported to face persecution, torture, and even death in their home countries.”
The rule deprives asylum seekers of any semblance of due process, imposing many barriers to relief before they even have the opportunity to present their case in immigration court. Among its numerous harmful provisions, the rule allows judges to deny an asylum application without holding a hearing. The rule also establishes 12 new “discretionary” factors that will bar many asylum seekers from life-saving protection. These include a de facto bar to asylum for applicants who pass through another country en route to the United States, effectively codifying and expanding the Trump administration’s third country transit bar, which the courts have already struck down as unlawful.
For those who are able to get their case before a judge, the new rule radically redefines who qualifies as a “refugee,” distorting the law so thoroughly that adjudicators can deny relief to virtually all applicants. The rule explicitly excludes from protection survivors of gender-based violence, children and families targeted by gangs, and people fleeing other abhorrent abuses. It also redefines “persecution” in such a way that judges will be directed to deny asylum even to individuals who have been detained and threatened with death due to their beliefs.
“Despite its enormous scope, the administration rushed this rule through the regulatory process without regard for its life-or-death implications for asylum seekers,” said Sabrineh Ardalan, Director of the Harvard Immigration and Refugee Clinical Program. “The administration chose to brush aside nearly 90,000 public comments raising serious concerns with the proposed rule.”
The plaintiffs in this lawsuit are nonprofit organizations that provide immigration legal services and have previously come together to stop other Trump administration attempts to erect unlawful barriers to asylum. They contend that the new rule will make it far more difficult to assist asylum-seeking clients and cause serious harm to the immigrant communities they serve.
The plaintiffs have asked the U.S. District Court for the Northern District of California to issue a permanent nationwide injunction to prevent the rule from taking effect, arguing that the rule violates the Immigration and Nationality Act, the Administrative Procedures Act, the Due Process Clause of the U.S. Constitution, and the United States’ duty under international law not to return people to persecution or torture. On Wednesday the plaintiffs requested a temporary restraining order to immediately halt implementation of the rule while the court considers the case.
The plaintiffs also argue that the rule is procedurally invalid, as it was co-issued by Acting Department of Homeland Security Secretary Chad Wolf, whom multiplecourts have declared was unlawfully appointed to his position and lacks the authority to promulgate such a rule.
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Speeding up executions, killing and torturing the most vulnerable humans, denying COVID relief to desperate Americans, issuing corrupt pardons to murderers, fraudsters, cronies, and dishonest politicos, plotting treason against the USG — that’s how the regime and its sycophants have spent their waning days.
Despite the obvious desire to move on and avoid dealing with the crimes and overt corruption of the defeated regime, it will be difficult for the Biden-Harris Administration to avoid questions of accountability for the worst President, worst regime, and worst major party in U.S. history. Honestly coming to grips with the past is often a prerequisite for a better future.
Jacob Soboroff NBC Correspondent Jacob Soboroff at the ABC News Democratic Debate National Constitution Center. Philadelphia, PA. Creative Commons License
Jacob Soboroff reports for NBC News:
Inside the effort to provide mental health care to migrant families
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Seneca Family of Agencies provides mental health care to migrant families separated by the Trump administration. NBC News’ Jacob Soboroff reports on the obstacles faced by the nonprofit in locating families.
Jacob and his terrific NBC News colleague Julia Edwards Ainsley have been at the forefront of exposing the irreparable human carnage and lasting trauma caused by the regime’s unlawful, racist, White Nationalist immigration policies (some of which were unconscionably “greenlighted” by an immoral and irresponsible Supremes GOP majority that views themselves and their rotten to the core, inhumane, right-wing ideology as above the needless human suffering they further and encourage).
The “perps” like,”Gonzo” Sessions, Grauleiter Miller, Kirstjen Nielsen, “Big Mac With Lies” McAleenan, Noel Francisco, Rod Rosenstein, et al, walk free while the victims continue to suffer and others, like the Christ-like folks at Seneca Family of Agencies, are left to pick up the pieces! How is this “justice?”
Our national policies have truly abandoned Christ’s values of self-sacrifice, mercy, generosity in spirit and deed, courage in the face of oppression, human compassion, justice, and assistance for the most vulnerable among us under the perverted and immoral “leadership” of a man and his party without humane values or respect for truth who stand for absolutely nothing that is decent in the world.
As Americans suffer and die from the pandemic he mocked, downplayed, and mishandled; unemployed Americans are dissed and shortchanged by his party of underachieving, out of touch fat cats, liars, cowards, and truth deniers; asylum seekers needlessly suffer in squalid camps in Mexico; refugees scorned, unlawfully and immorally abandoned and abused by the world’s richest country face persecution, torture, despair, and death; and non-criminals rot in DHS’s “New American Gulag,” the immoral Grifter-in-Chief lives it up at taxpayer expense for one last Christmas at his Florida resort; fumes about a fair and square election that he lost big time; savors a rash of holiday executions; delays bipartisan COVID relief; ferments treason against our republic; and pardons a wide range of scumbags, felons, war criminals, family members, cronies, fraudsters, and other totally undeserving characters.
But, there is hope for our world at Christmas: 27 days and counting to the end of the kakistocracy, expulsion of the unqualified con-man and his motley crew of criminals and cronies, and the ascension of a real President and Vice President, Joe Biden and Kamala Harris, to lead us, and perhaps our world, out of the current mess to a kinder, brighter future. That might be the best present of all this Christmas.
Dan Kowalski reports from LexisNexis Immigration Community:
Lawsuits Challenge Massive “End of Asylum” Rule
1. Pangea Legal Services, et al. v. DHS et al. – “[T]he Center for Gender & Refugee Studies, the Harvard Immigration and Refugee Clinical Program, and Sidley Austin LLP filed suit today challenging the mammoth asylum rule in the Northern District of California on behalf of organizational plaintiffs Pangea Legal Services, Dolores Street Community Services, Inc., CLINIC, and CAIR Coalition. The complaint challenges all substantive and procedural merits related issues (it does not challenge the changes to credible fear).” – Blaine Bookey, Legal Director, Center for Gender & Refugee Studies, University of California Hastings College of the Law
2. Human Rights First v. Wolf – “Human Rights First, alongside counsel at Williams & Connolly, filed a lawsuit challenging the Trump administration’s sweeping new anti-refugee regulation, which will gut protections for those seeking asylum and make it virtually impossible for refugees to secure asylum in the United States.
The lawsuit, filed in the United States federal district court in Washington, D.C., asks the court to intervene and stop the government from enforcing the rule, which is scheduled to take effect on January 11, 2021.
“This rule seeks to end asylum in the United States as we know it. Over the past four years, this administration has employed an array of tools in the hope of dismantling the legal protections Congress provided for refugees and asylum seekers,” said Hardy Vieux, Human Rights First’s senior vice president, legal. “Human Rights First is heading back to federal court to dash that hope. And to affirm that Congress sought to protect people fleeing persecution, not demonize them incessantly, even in the waning days of an administration long consumed with denying protection to those most in need of it. This holiday season, and every season, we shall continue to exalt the rule of law.”
Human Rights First v. Wolf et. al. challenges the Department of Homeland Security and Department of Justice’s rule, rammed through in the waning days of the Trump administration. The complaint in Human Rights First v. Wolf et. al. can be found here.
Human Rights First, an organizational plaintiff in the suit, argues that the rule violates the Immigration and Nationality Act (INA), the Administrative Procedure Act, international law, and the United States Constitution. In its complaint, Human Rights First argues, “If allowed to stand, the rule will eviscerate the ability of noncitizens fleeing persecution to obtain asylum and related relief in the United States. The United States will instead send refugees back to countries where they face persecution, torture, and possible death—the very outcome Congress expressly designed the INA to avoid.”
The rule, which fundamentally rewrites United States asylum law, will illegally render the majority of asylum seekers ineligible for asylum while tilting every phase of the asylum process in favor of denial and deportation. The rule also upends the procedures for asylum adjudication, further limiting procedural protections for refugees seeking protection in the United States.
The United States government is attempting to make it impossible for our asylum-seeking clients to secure protection. Many of Human Rights First’s clients who have already been granted asylum would, under the rule, be denied protection. One Human Rights First asylum-seeking client stated, “[I]t really disappoints me to learn that the United States, a country [I] have looked up to as a beacon of freedom, is trying to put people like me in harm’s way. I fear for my safety.”
Through this lawsuit, Human Rights First is standing up for the rights of asylum seekers like our clients. Human Rights First’s comments this past summer opposing the draft rule are here.
Human Rights First provides pro bono legal representation for refugees seeking asylum in the United States, in partnership with volunteer lawyers at many of the nation’s leading law firms. Our refugee clients have fled persecution in Cameroon, China, Cuba, El Salvador, Guatemala, Eritrea, Honduras, Iraq, Nicaragua, Syria, Venezuela, and other countries where their lives and freedom are at risk.’
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Thanks to all the NDPA heroes involved in this effort!
Hey hey, ho ho, the EOIR Clown Show 🤡🤮 has got to go!
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
