"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.
With the U.S. “on pace to encounter more individuals on the southwest border than we have in the last 20 years,” as Homeland Security Secretary Alejandro Mayorkas said in a statement March 16, immigration at the U.S.-Mexico border has emerged as one of the toughest challenges facing the Biden Administration. Last week, President Biden put Vice President Kamala Harris in charge of “stemming” the flow of migrants, Biden was questioned about the immigration situation at his first official press conference, immigrant detention centers began to fill up once again, and lawmakers from both sides of the aisle made trips to the border to publicize the issue and propose solutions.
Biden’s attempts to address immigration may be new, but the issue is one that has dogged his predecessors for decades. Since the 1970s, Republicans and Democrats alike have tried to address undocumented immigration by constructing ever more draconian policies of border control, deportation and detention—border theater that grabs headlines and sometimes leads to short-term change, but never actually solves the problem.
There’s a reason why the U.S. government has failed for so many years to “control” the border: none of these policies have addressed the real reasons for migration itself. In migration studies, these are known as “push” and “pull” factors, the causes that drive migrants from one country to another.
Today, the countries sending the most migrants to the U.S.-Mexico border–especially the Central American countries of Guatemala, Honduras and El Salvador–are experiencing a combination of push factors that include poverty and inequality, political instability, and violence. And while the current situation may be unique, it is also deeply rooted in history.
Many countries in Central America have struggled with poverty since the time of independence from Spain in the early 19th century. While they are beautiful countries that are rich in culture and history, that colonial past has meant they have historically been home to large, landless, poor, rural populations, including many indigenous people of Mayan descent. In the years after Spanish control, they were typically ruled by small oligarchies that disproportionately held wealth, land and power, and their economies were primary export-dependent, which brought great riches to landowners but also exacerbated and perpetuated inequality and the poverty of the majority. Those dynamics have carried forward to today. More recently, climate change–in particular, drought and massivestorms–has forced the vulnerable rural poor out of the countryside.
. . . .
And while many Central Americans could indeed qualify for asylum based on their experiences of persecution, the previous administration made every effort to limit their ability to obtain it. Now the Biden Administration must decide whether to restore the asylum framework, which has become the only possible path to legal migration (as well as safety and security) for Central Americans and other migrants who—due to these combined push and pull factors—are desperate to come to the United States.
Given the complicated and deep-rooted reasons behind migration, lawmakers cannot control or “solve” the ongoing crisis at the border by simply pouring money and resources into ever more militaristic border theater. It’s no wonder that decades of such policies have done little to change the underlying dynamics.
Instead, if Americans are serious about changing the situation at the border, we need to address the push and pull factors behind Central American migration. We need to acknowledge the reality of the U.S. economy (in particular, that it demands immigrant labor to work low-wage jobs) and work to construct new legal frameworks that reflect that reality. We need to target financial and logistical support to encourage Central American countries to address the poverty and inequality that fuel migration, rather than cutting foreign aid, as the Trump Administration did. We need to do all we can to end the pervasive gang violence that pushes so many migrants out of their homelands. And of course, we must continue to evaluate our own historical and contemporary role in creating the longstanding problems that are pushing Central Americans to migrate.
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Read the rest of Julia’s article at the link. One key truth: many more Central American migrants would qualify for asylum and be legally admitted to our society under a fair application of our asylum laws directed and supervised by real expert judges who scrupulously enforce due process and best practices on a now biased, unfair, and dysfunctional system!
“Stemming the tide” might be neither realistic nor possible at this time. But, controlling it, managing it humanely and legally, and regularizing it, while lessening the “push” factors should be achievable.
It would, however, require bold actions:
Recognizing the primacy of humanitarian protection laws and insisting on due process in implementing them;
Putting experts in humanitarian situations, due process advocates, diplomats, labor economists, and demographers in leadership positions; and
Embracing much larger levels of legal immigration, particularly from Latin America.
Vice President Kamala D. Harris Vice President of the United States (Official Senate Photo)
Unfortunately for Vice President Harris and the rest of us who want humane, realistic immigration policies, there are reasons for our half-century of overall failure on the border.
Bloated government bureaucracies, powerful corporate interests, nativist politicians, and even foreign leaders are heavily invested in expensive and guaranteed to fail “uber enforcement” gimmicks. Failure basically creates a never-ending demand for more: more enforcement agents, “civil prisons,” jailers, deporters, cars, trucks, guns, boats, ammo, walls, fences, technology, courts, judges, prosecutors, lobbyists, “baby jails,” processing centers, foreign aid that goes largely into the pockets of corrupt leaders and their cronies, and a never-ending supply of underground, low-wage, politically neutered workers.
Additionally, we now have an entire political party with an agenda of overt institutionalized racism, dehumanization of the other, and fear-mongering White Nationalist myths driving its bogus populist narrative.
None of these “architects and enablers of border failure and institutionalized racism” are going “quietly into the night.” They will fight tooth and nail to defend their sinecures, profitable empires, and politically useful White Nationalist myths.
The politician who finally breaks the deadly cycle of failure and human misery at our border, while harnessing and realizing the positive power of human migration, will become a hero for future historians and undoubtedly merit a chapter in a new edition of Profiles in Courage.
Sadly, such recognition and adulation is likely to come long after she is gone from the scene. Long term vision and moral courage are not necessarily rewarded with short-term political popularity. Just ask the few Republicans who voted in accordance with the overwhelming, basically uncontested, evidence of Trump’s “high crimes and misdemeanors!”
That’s why it’s a tough challenge even for someone of Vice President Harris’s undoubted intelligence and abilities. It’s up to those of us who believe in a better America to keep her from getting sidetracked and co-opted by the vested interests of failure and White Nationalist myth-makers and purveyors.
Trump supporters and hangers-on boast the “success” of Trump’s immigration policies, demonstrated by the supposed drop in illegal entries. But this is merely an “out of sight, out of mind” approach to managing a very real problem. It was a giant sleight of hand which hid the actual number of people seeking entry into the U.S. Biden’s policies have pulled back the curtain and like so many other aspects of Trump’s administration, it is clear that the claims of success are nothing more than fantasies.
And yet the Biden administration is not off the hook. While it did agree to permit unaccompanied children to enter the U.S. despite the Title 42 ban, it did so following a preliminary injunction issued by a federal court last November. DHS continues to expel families, as well as single men and women, under the existing Title 42 order.
. . . .
Despite the clear moral and legal imperatives to stop Title 42 expulsions, the Biden administration is clearly worried that returning to pre-pandemic processing of asylum seekers will overwhelm the system. It is also clear that they fear a political backlash if critics are able to characterize the border as out of control.
Taking these final steps takes courage and political will. Those of us who support the rights of asylum seekers have to let the administration know that doing the right thing will not tarnish its reputation and that we will work even harder to ensure that making good on humane immigration policy is not political suicide.
Protecting asylum seekers is a woman’s issue of the first order. We must encourage and challenge both the administration and Congress to live up to U.S. obligations. We must turn out at the voting booth to support candidates and elected officials who act on behalf of asylum seekers. And we must push back, every way we can, against those who hope to weaponize the border in a callous effort to turn following the law into a political liability.
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Read Mary’s complete article at the link. Many thanks to Judge Alex Manuel of the ABA’s National Conference of the Administrative Law Judiciary for passing this along.
Surprisingly, “forced migration,” is exactly what it says it is: “FORCED migration” — not optional! As I have pointed out before: “We can diminish ourselves as nation (and are doing so), but it won’t stop human migration.”
Refugees come, because that’s what refugees do. They often come when the world is in crisis, because that’s one of the primary reasons why refugees flee. They seldom come in an orderly manner because flight to save your life doesn’t lend itself to “regularity.” How many Jews perished in Nazi-controlled areas before and during WWII waiting for visas that were never going to come?
And, what brings refugees to our borders actually has little to do with inane statements of politicos, bureaucrats, border cops, and the media. One of the main consequences of illegally “closing the border to asylum seekers” is that large numbers simply enter between ports of entry. Those who used to turn themselves in to the Border Patrol are encouraged by our short-sighted policies and unwillingness to follow our own laws just to keep on going.
We’d certainly do much better if we “canned” all the Trump-era illegal, racist nonsense, reopened border ports to asylum seekers, and encouraged them to apply there or in locations abroad. But, to make that happen we would also have to review their claims in a timely, fair, and humane manner — not “rocket science,” yet something that largely has eluded our nation, particularly since 2014.
It’s achievable. But not without much better leadership coming from experts who actually know how to deal with refugee situations in a humane and effective manner. Failed bureaucrats and grandstanding politicos, those who usually “drive the train heading for a wreck,” can’t do the job! That’s been proved time and again! Why do we insist on repeating all our mistakes? Cruelty and threats simply aren’t effective.
To emphasize Mary’s concluding point about women’s concerns, Jeff “Gonzo Apocalypto” Sessions and Neo-Nazi Stephen Miller made misogyny a focus of their vicious attack on people of color seeking asylum. It started with Sessions’s atrocious decision ignorantly and unlawfully targeting women refugees in Matter of A-B- and continued through Miller’s now-enjoined effort to unlawfully eradicate gender-based asylum grants. Never mind that women form the largest group of clearly identifiable refugees in the world and that femicide and violence against them driven by sexual antipathy and issues of control are rampant worldwide, particularly in the Northern Triangle.
But, a large problem here is that more than two months into the Biden Administration, Attorney General Merrick Garland has yet to repudiate Matter of A-B- and the other debilitating racist and misogynist “precedents” and grotesquely illegal anti-asylum policies of Sessions and Barr. Worse yet, he has neither stood up for the reinstatement of asylum laws and compliance with Constitutionally-required due process at the border, nor has he removed and replaced “his” Board of Immigration Appeals and taken steps to curb those of “his” Immigration “Judges” who are still engaged in furthering the Sessions/Barr White Nationalist, misogynist, anti-asylum agenda!
Interesting lack of action from a distinguished former Federal Judge who several months ago claimed great gratitude that his ancestors were given refuge from harm by the U.S. Is there some reason that those people of color and others now arriving at our borders and claiming legal protections under our laws are less deserving of fair, generous, and humane treatment?
Judge Garland’s View Of Proper Treatment of Women Seeking Asylum? Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
President Biden’s top advisers promise “long-needed systemic reforms” to address a backlog of more than 1 million asylum cases in the immigration court system, which often keeps people applying for asylum waiting years to resolve their cases. That could mean some big changes to how asylum cases are processed at the southern border.
The plan the Biden administration is considering to speed up the process would take some asylum cases from the southern border out of the hands of the overloaded immigration courts under the Department of Justice and instead handle them under the purview of the Department of Homeland Security, where asylum officers already process tens of thousands of cases a year, two people familiar with the discussions who were not authorized to speak about administration plans told NPR exclusively.
Those familiar with the discussions say one outcome could be discouraging unauthorized migration. That’s because those who can argue for a certain fear of persecution are able to gain temporary residence and often a work permit as they wait out their cases.
. . . .
Advocates say they welcome a more efficient system, provided changes are not used as a way to expedite removals as the Trump administration did.
Eleanor Acer of Human Rights First says there are a host of reasons to allow asylum officers to conduct the first set of interviews and reduce the numbers, but she says it’s important that applicants have a chance to appeal to the court before being removed.
“The massive backlog must be dealt with,” she said. “But the answer to that problem is not to deprive asylum seekers of due process and a fair hearing, or to weaponize the asylum process to try to deter other people from seeking U.S. protection.”
The Biden administration has already ended two of the Trump administration’s programs, the Prompt Asylum Case Review and the Humanitarian Asylum Review Program, that were designed to quickly return Mexican and Central American asylum seekers suspected of having invalid claims.
Department of Homeland Security officials declined to discuss plans to shift border cases to the asylum division.
But an administration official said last week they are now working on a number of policies and regulations to create “a better functioning asylum system.”
That includes establishing refugee processing in the region and strengthening other countries’ asylum systems.
Biden also resurrected the Central American Minors program that reunited children with parents who are in the United States legally.
The Biden administration is now seeking to “pick up the pieces” after the Trump administration, with a different set of policies that abide by U.S. law but also international obligations, Meissner said.
“We need to have access to asylum,” Meissner said, “but it needs to be done in a way that can be prompt and fair, not in a way that leads to waits of years and years and court backlogs.
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Read the complete article at the link.
Why it could work:
Granting relief at the lowest level of the system is cost effective;
It’s easier to hire, train, and assign Asylum Officers than Immigration Judges;
Immigration Court time should be reserved for those cases where there is a real issue as to whether relief can be granted.
Why it probably won’t work:
Leadership is critical. Right now, there are only a few experts in government with the knowledge, proven leadership ability, organizational skills, and courage to lead this program.
Two obvious names that come to mind are Judge A. Ashley Tabaddor, currently USCIS Chief Counsel, and Judge Dana Leigh Marks, one of the “founding mothers” of U.S. asylum law and pioneer of the well-founded fear standard. Both are past Presidents of the NAIJ. Neither has yet been tapped for this assignment.
By contrast, there are a number of experts in the private/NGO sector who could lead this effort. Obvious choices would be Judge Paul Grussendorf, former Immigration Judge, Asylum Officer, UN Representative, and professor; Professor Karen Musalo, Director, Center for Refugee & Gender Studies, UC Hastings Law; Eleanor Acer, Senior Director, Refugee Protection, Human Rights First (quoted in this article); Professor Michele Pistone, Creator and Founder of the VIISTA asylum training program at Villanova Law; Professor Phil Schrag, Co-Director of the CALS Asylum Clinic at Georgetown Law and author of Baby Jails and the upcoming release The End of Asylum; Michelle Mendez, Director, Defending Vulnerable Populations at CLINIC; or Judge Ilyce Shugall of our Round Table. But, nobody of that caliber has been tapped either.
Without creative, dynamic, expert leadership, and a different approach to personnel, the program will be yet another bureaucratic failure. In case nobody has noticed, after four years of never ending abuse, gross mismanagement, and intentional misdirection by the Trump kakistocracy, the USCIS Asylum & Refugee program is also in shambles — demoralized, disorganized, leaderless, incredibly backlogged. An obvious untapped source is retired Asylum Officers and Adjudicators who could be brought back on a limited-term basis, intensively trained by experts from a “Better EOIR,” and who often are in a position to travel frequently and on short notice.
It’s not about deterrence. Already, this article speaks of “possible deterrent effect.” WRONG!The purpose of an asylum adjudication system is to provide fair, timely, generous adjudications of asylum eligibility in accordance with the letter and spirit of the Refugee Act of 1980, the U.N. Convention and Protocol on which it is based, and the due process clause of our Constitution. We have never had such a system, which inevitably would be more orderly and efficient, but also result in many more grants.
The main reason why we don’t currently have a functioning asylum system, and never have had the system that asylum seekers need and deserve, is that the system is at the mercy of a bogus Executive-controlled “court” system that time and time again has been compromised by politicos seeking who use it as an enforcement tool rather than an independent court of justice.
In 2014, the last year that I taught Refugee Law & Policy at Georgetown Law I “graded” the U.S. Asylum system at “B-.” Not as good as it should be, but not as bad as it could be.
Now I’d give it an “F.” Completely dysfunctional, highly arbitrary, and a tool of institutionalized racism and White Nationalism.
The system is ineffective as a deterrent. There is no known basis to believe that quick and often arbitrary and wrongful “rejections” are an effective deterrent. That’s particularly true because rejections are seldom explained in a reasonable, understandable manner. So, to the extent that there is a “message” it’s that you got the wrong officer or the wrong judge on the wrong day or that the U.S. legal system is inherently unfair and should be avoided by hiring a smuggler to get you to the interior of the U.S. where, as a practical matter, you have a better chance of obtaining “de facto refuge.”
The only “efficiency and leverage” that comes from the Asylum Officer system is in quickly identifying and consistently granting a substantial number of applications. That, and only that, does actually relieve the Immigration Court system of unnecessary cases. Otherwise, “non-grants” still have to go to the Immigration Courts for de novo review. I probably granted the majority of asylum cases “referred” from the Asylum Office. That leaves plenty of room to believe that a better trained and operated system with some positive guidance and effective supervision by better Immigration Judges and a truly expert BIA would achieve substantially higher grant rates and higher efficiency at the Asylum Office, thereby keeping many cases out of court and speeding the process for asylees to obtain permanent residence and eventually U.S. citizenship!
Some assumptions appear invalid. This article also repeats the unproven assumption that a fair, just, and efficient asylum system would result in rejection of the majority of cases. I doubt that.
Prior to the Trump disaster, approximately 75-80% of asylum applicants at the Southern Border passed “credible fear.” That the majority of them never achieved asylum was due less to the lack of merit in their claims than to factors such as: 1) lack of a system to match asylum seekers with qualified counsel; 2) wrong-headed anti-asylum precedents from the BIA that were specifically directed against asylum seekers from Latin America — basically institutionalized racism in the guise of “enforcement;” 3) poor selection, training, and motivation of Immigration Judges some of whom simply did not treat asylum seekers fairly, nor were they given any incentive to do so.
I granted asylum or other protection to many refugees from the Northern Triangle. I probably could have granted twice that number had the BIA precedents actually fairly and reasonably interpreted asylum law to specifically cover gender-based claims and claims arising from persecution by gangs basically operating “in lieu of government authorities” in most of the Northern Triangle.
Additionally, an honest interpretation of the CAT by the BIA would have allowed life-saving protection to be extended to many others who lacked nexus but had a high probability of torture with Government acquiescence upon return. I believe that a return to the original Acosta-Kasinga line of asylum analysis and adoption of proper CAT interpretationsalong the lines set forth by the (exiled) dissenting judges in Matter of J-E- would result in grants of some type of protection (asylum, withholding, or CAT) in the majority of Southern Border cases coming from the Northern Triangle that passed credible fear or reasonable fear.
Asylum, along with refugee status, is a key form of legal immigration to the U.S. There is absolutely nothing wrong with that. It’s NOT a “loophole.” It’s the law! Studies by groups of experts such as CMS have shown the huge benefits that refugees confer on the U.S. I have no reason to believe that asylum seekers as a group are any different.
As long as we keep treating the reality of human migration and the strengths and humanity of asylum seekers as a negative rather than a positive, we will continue to fail, as we have for decades, to fully comply with either our own laws or international conventions.
A broken, dysfunctional, unfair EOIR will continue to drag American justice down. There must be de novo review of denials by EOIR and far, far more competent review and direction in the review of credible fear denials by EOIR. A better BIA could actually set binding precedents on “credible fear” and “reasonable fear.”
Currently, EOIR is incapable of producing either consistently fair results (particularly for asylum seekers) or the inspired legal scholarship and leadership for the asylum system to be functional and held accountable. It’s going to require all new leadership, an all new BIA, elimination of all of the Trump-eraprecedents that impede fairness for asylum seekers, new merit-based selection criteria for Immigration Judges, professional administration from judicial experts, and an immediate slashing of the largely self-created “backlog” of 1.3 million cases by closing and removing from the docket every case more than a year old that doesn’t relate to a priority (most are folks who would be covered by Biden’s legalization program anyway; many are eligible for relief that USCIS could grant) to get EOIR in a position to provide the necessary legal guidance and system accountability for the Asylum Office. The absurdist notion that we could or would want to remove every one of the 10-11 million undocumented residents (many performing essential services that propped us up through the pandemic) is one of the “big lies” that has prevented rational reforms of our immigration system.
In plain terms, EOIR needs an immediate “rebuild” with a new progressive, humanitarian judiciary of experts. There is no early indication that Judge Garland either understands that “mission-critical” need or has a plan for achieving it.
As we say in the business the “devil is in the details.” Right now, I can see neither the details nor theleadership in place or “in the pipeline” to solve the debilitating problems in our asylum system that actually are undermining the entire U.S. justice system.
Biden could fix it. But, I wouldn’t count on it. That means that the only real fix in the offing will be for the NDPA to force the Administration to “get it right” through aggressive, never-ending litigation as well as continuing to seek better legislators. Highly inefficient. Yet, sometimes it’s the only way to get the attention of those in power.
If nothing else, we’ll continue to make an important historic record of the cruelty and stupidity with which the current asylum system is being administered. It doesn’t have to be this way. We can always choose to follow our “better angels.” It just takes the courage and the good judgement to get the right folks in the right jobs to make it happen.
The answer to the question posed is actually simple. As of today, DHS Enforcement and politicos at the DOJ “own” the so called Immigration “Courts” lock, stock, and barrel!
That’s an overt violation of the clear Fifth Amendment requirement that those whose lives and property are at stake be judged by a fair and impartial adjudicator — by definition one who is an expert in asylum law, human rights, and has demonstrated the ability to conduct fair hearings.
That’s also bad news for the Hispanic Community, because for the last four years those wholly owned “courts” have been operating with a clear bias against the civil and human rights of people of color, with Hispanic migrants and asylum seekers being a particular target — one that has adversely affected, even terrorized, Hispanic communities throughout the U.S. Hispanics are also grossly underrepresented among the “Immigration Judiciary” at both the trial and appellate levels, as well as on the Article III Bench — despite there being scores of Hispanic and other lawyers of color out here who would be head and shoulders above many of those currently holding these critical “life or death” judgeships!
The real questions are:
1) What can we do about it, and
2) How can we get Judge Garland and others in the Administration to listen, put an end to “Dred Scottification,” and get started on the task of bringing due process and fundamental fairness to a totally dysfunctional and dangerously biased system?
Tune in on April 7 to join the dialogue on how we can finally force the U.S. Government to make good on its unfulfilled, even mocked, Constitutional promise of due process for all persons!
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
The Republican senator Ted Cruz has drawn criticism for taking a trip to America’s southern border as the conservative Texan politician once again became the butt of internet jokes and memes.
In the style of a wildlife documentary, Cruz captured his experience with the help of professional photographers and shared his recent journey to the US-Mexico border Thursday night on social media, where he aimed to shed light on what Republicans have dubbed a crisis.
Sporting a dark green fishing shirt and matching baseball cap with the Texas flag, Cruz spoke at a press conference where he sought to paint a dramatic picture of his experience: “On the other side of the river we have been listening to and seeing cartel members – human traffickers – right on the other side of the river waving flashlights, yelling and taunting Americans, taunting the border patrol.”
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Despite his claims that the border situation is a direct result of the Biden administration’s immigration policies, residents in the Rio Grande Valley have said no such crisis exists. In fact, the number of border crossings under the Biden administration largely mirror those under the former Trump administration. Cruz was accompanied by 18 other Republican senators including John Cornyn, Susan Collins and Lindsey Graham.
After claiming he ran into heckling cartel members and saw a dead body floating in the Rio Grande, Cruz was derided by many, including the former congressman Beto O’Rourke who said:“You’re in a border patrol boat armed with machine guns. The only threat you face is unarmed children and families who are seeking asylum (as well as the occasional heckler).”
. . . .
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Read more at the link about the GOP’s complete farce — while much more courageous individuals, asylum seekers, are forced to risk their lives because the U.S. is incapable of administering our own asylum laws in a fair, responsible, and competent manner. Cruz & co apparently view this as a “photo op.” Actually, it’s a human tragedy for which history will hold Cruz and his racist party largely responsible, even if the voters fail to do so.
The best solution is to hire experts from the private/NGO/academic sectors; build a functioning asylum and refugee system that will process applicants fairly, generously, predictably, and efficiently; reopen legal ports of entry; establish a robust “on site” refugee program for the Northern Triangle; and work with the international community to alleviate the causes of forced migration. Figure out how new arrivals who qualify for legal status can help rebuild our economy moving forward. Develop a humane program for returning those who don’t qualify without endangering their lives, health, and safety.
An absolutely essential part of the solution is a new, “reimagined” EOIR, staffed with real judges who are experts in asylum, human rights, and due process. An EOIR that will “through teamwork and innovation, be the world’s best courts, guaranteeing fairness and due process for all.” Judge Garland, where are you in American justice’s hour of dire need?
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Imperfect as our current laws may be, they cover all of the foregoing. What we really need to do is follow our own laws with common sense, humanity, and a sense of urgency!
What we don’t need is more inane walls, more border enforcement directed against asylum seekers, and more cruel and illegal schemes to return refugees to back to danger without any due process. And, we certainly don’t need any more photo ops from Cruz and his GOP cronies.
The Democratic senator has spent years calling for more public defenders and fewer corporate attorneys getting federal judgeships. Now Joe Biden agrees.
For years, Sen. Elizabeth Warren (D-Mass.) has been a lonely voice in the Senate on the need to put people with all kinds of different legal backgrounds into lifetime federal judgeships.
“We face a federal bench that has a striking lack of diversity,” she said at a 2014 event on this topic, hosted by Alliance for Justice, a progressive judicial advocacy group. “President Obama has supported some notable exceptions but … the president’s nominees have thus far been largely in line with the prior statistics.”
Warren wasn’t talking about diversity in terms of demographics like race or gender; Obama made history on those fronts with his judicial nominees. She was talking about the problem with presidents and senators ― in both parties ― routinely picking corporate attorneys and prosecutors who went to Ivy League schools to be federal judges.
If you want the nation’s courts to reflect the people they serve, Warren has argued, we need judges who have been public defenders and civil rights attorneys, people familiar with the legal needs of everyday Americans who may be living on low incomes or otherwise marginalized. A diversity of legal professionals on the federal bench means more informed decisions on issues related to economic justice and civil rights.
At last, the times are catching up with Warren.
President Joe Biden is signaling he’s ready to make professional diversity central to his judicial selection process. He hasn’t nominated anyone yet, but White House counsel Dana Remus wrote to Democratic senators in December urging them to recommend court picks to the White House as soon as possible, and said that Biden is “particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.”
Top Democrats in the House are putting a spotlight on the issue too, even though they don’t have a say in confirming federal judges.
“Unfortunately, we have a lot of work to do when it comes to judicial diversity,” House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) said in a Thursday subcommittee hearing on this subject. “There are ways in which the federal judiciary of 2021 looks uncomfortably similar to the federal judiciary of 1921 … Somehow, despite all our progress, today’s federal judges remain, for instance, overwhelmingly male, white, former prosecutors or corporate lawyers who went to a handful of law schools.”
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Read the complete article at the link.
Biden is “particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.”
That’s basically a description of scores of immigration/human rights experts out here in the New Due Process Army (“NDPA”). Yes, they should be a primary source of appointees to the Article III Judiciary! Absolutely! But, they should also be appointed to the BIA and the Immigration Courts — now!
At present, the Immigration Courts are “administrative courts,” not part of the Article III Judiciary; therefore, Senate confirmation isn’t necessary. They are “administered” by a now “evil-clown-like” 🤡🦹🏿♂️ DOJ bureaucracy called “EOIR.” We need to get the right progressive scholars and “disciples of due process” on the Immigration Bench — immediately, without further delay!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Immigration Courts are one of most powerful tools in American law. Also, Constitution be damned, until we get a long overdue Article I independent Immigration Court, they are completely controlled by the AG — Judge Merrick B. Garland. This is a big, big deal — nearly 600 judgeships, almost the size of the entire U.S. District Court system, are at stake!
Sessions and Barr quickly figured: Why not aggressively weaponize EOIR to undermine American democracy, institutionalize racism and misogyny, and promote White Nationalist authoritarianism? And, that’s exactly what they did — to the max. Using EOIR judgeships to reward some of their unqualified, white, nativist buddies in the process was an “added bennie.”
G. Reaper Approaches ICE Gulag With “Imbedded Captive Star Chamber” Run By EOIR, For Their “Partner” Reaper Image: Hernan Fednan, Creative Commons License
Even the totally incomprehensible incompetence with which they administered EOIR fulfilled their “negative dream.” Dysfunctional Immigration Courts became an important tool for debilitating the entire U.S. justice system and “Dred Scottifying” (dehumanizing) persons of color before the law.
Those with compelling cases for relief, many pending for years, were shuffled off to the end of the docket. Or, if they did get a hearing, incompetent or compromised “judges” at the trial and appellate levels often arbitrarily denied their claims for bogus reasons. This disgraceful mess of a “court” actually penalized those with strong cases for relief — many who should have been done and joined our society years ago instead linger in the largely self-created EOIR “backlog” of 1.3 million cases. Or, theyare condemned to endless litigation to vindicate their rights in a system intentionally rigged against them.
“Justice” Star Chamber Style
Looking for the underpinning for the idea that people of color have reduced rights to vote, political participation, and that their lives don’t really matter? Look no further than the ongoing “Dred Scottification” of asylum applicants and other people of color in Immigration Court, now enshrined in a number of bogus “precedents” issued by White Nationalist AGs and their wholly-owned BIA!
BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
And, their job was “easy as pie” following the indolent stewardship of their Dem predecessors. When the latter finally got around to filling judicial vacancies at EOIR, every couple of years, they handed them out almost exclusively to government “insiders” — like they were “length of service” pins! Better-qualified progressive, due-process-oriented, experts, scholars, advocates, and others in the private/NGO/academic sector — folks who actually could have brought badly needed professionalism, excellence, and order to a system careening out of control — were basically “shut out” by the Dems. Interesting way to reward your potential allies!
The Dems’ “diverse recruiting program” for the Immigration Judiciary was to advertise the positions for about 10 minutes on the “insider online bulletin board” known as “USA Jobs.” Then, after an average two-year long, excruciatingly wasteful and mindless “Rube Goldberg-designed evaluation” by layer after layer of bureaucrats — few, if any of them actual sitting Immigration Judges — participating, in most cases they basically just selected “the next ICE prosecutor, EOIR staffer, or OIL litigator up.” But, the “beauty” of this system is that with so many layers of bureaucracy involved, nobody could be held accountable for the actual selections! Talk about a “finger-pointers’ dream.”
Oh yeah, and of course there was no room for public input and/or participation in this process. Some of the newly anointed judges actually had rather less-than-stellar reputations in the immigration community at large. Many would have drawn blank stares if mentioned to a panel of acknowledged immigration and human rights experts. Few were “household names,” except perhaps in a negative sense. No matter to the Obama folks!
During the Obama Administration, I attended a so-called “training-session” at an Immigration Judge Conference — this was “in person,” although for a number of years we got “home-video grade” training CDs. There, curiously, one of these “newbies” was selected to “educate” a group of us, many of us with decades of experience in the field and some with actual teaching credentials under their belts. Our “instructor” referred to the Government as “us,” to the respondent and counsel as “them,” and bragged that “our big wins from OIL” would make it easier to deny asylum.
Other “instructors” parroted cringingly mind boggling mis-statements of asylum law — apparently designed to fit into OIL’s preferred litigation positions. And, incredibly, this was with the “founding mother” of U.S. Asylum Law, Judge Dana Leigh Marks, who had argued and won the landmark “well-founded-fear” case INS v. Cardoza-Fonseca before the Supremes, effectively muzzled and holding her head in the audience.
In 21 years on the bench, during “EOIR training,” I was lectured to by a variety of BIA Attorney Advisors, OIL Attorneys, politicos, DHS Officials, State Department Officials, Ethics Officers, stress managers, and an occasional NGO advocate. Never, did I get to hear my colleague Judge Marks’s views on the development of asylum law since Cardoza. Sure, that didn’t stop us from carrying on a dialogue elsewhere, as we did. But, we were pretty much “on the same page.” The folks who needed to hear what Judge Marks had to say didn’t.
Hon. Dana Leigh Marks U.S. Immigration Judge San Francisco Immigration Court Past President, National Association of Immigration Judges
And, we wonder why Dems inevitably screw up immigration law, and end up defending highly regressive actions and “designed to fail” policies — try “baby jails,” indefinite detention, and non-English-speaking toddlers “representing themselves” in Immigration Court. I kid you not! Each of the foregoing were things that the Obama DOJ vigorously advanced and defended before Federal Courts!🤮
Will Judge Garland figure it out before it’s too late? Or, as his Obama predecessors did, will he fritter away his time with “more sexy,” but actually far less important initiatives and lofty ideals that will be effectively undermined by failing to create a progressive, expert, well functioning, professional Immigration Judiciary.
Judge Merrick B. Garland, U.S. Attorney General Official White House Photo Public Realm
Racial justice, equal justice, and due process for all persons in America start in the Immigration Court. And, right now they are dying there! If Judge Garland doesn’t pay attention, grasp the moment, aggressively clean house, and take the long overdue, radical, courageous actions to build a better Immigration Judiciary, the whole U.S. justice system might well come crashing down upon him! And, he will have only himself to blame!
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever! A Better EOIR for A Better Federal Judiciary! A Better Federal Judiciary For A Better America! Not rocket science! But, it does require vision, recognition of the problem, and the courage to solve it!
CELEBRATING WOMEN’S HISTORY MONTH WITH THE BOYS FROM THE EIGHTH CIRCUIT!
Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
PANEL: SMITH, Chief Judge, ARNOLD and STRAS, Circuit Judges.
OPINION BY: Judge Arnold
Because you have to “see it to believe it” that these three guys actually graduated from law school and got promoted to the Federal Judiciary, the opinion is set forth in full here:
United States Court of Appeals For the Eighth Circuit ___________________________
No. 20-2248 ___________________________
Yeemy Guatemala-Pineda
lllllllllllllllllllllPetitioner
v.
Merrick B. Garland, Attorney General of the United States1
lllllllllllllllllllllRespondent ____________
Petition for Review of an Order of the Board of Immigration Appeals ____________
Submitted: February 17, 2021 Filed: March 26, 2021 ____________
Before SMITH, Chief Judge, ARNOLD and STRAS, Circuit Judges. ____________
ARNOLD, Circuit Judge.
After Yeemy Guatemala-Pineda entered the United States unlawfully, she applied for asylum so she wouldn’t have to return to her home country of El Salvador.
1Merrick B. Garland is serving as Attorney General of the United States, and is substituted as respondent pursuant to Federal Rule of Appellate Procedure 43(c).
She feared that if she returned there gangs would persecute her because of her religious activities. After a winding course of immigration proceedings that began more than ten years ago, the Board of Immigration Appeals ultimately denied her request for asylum. We deny the petition for review since we think substantial evidence supports the BIA’s decision.
Guatemala-Pineda, whom we will call Pineda as her real name is Yeemy Michael Pineda, attempted to enter the United States in 2010 at age 22 but was apprehended by immigration authorities and charged with being inadmissible as an alien without proper documentation. See U.S.C. § 1182(a)(7)(A)(i)(I). She conceded that the charge was true but applied for asylum, which protects, among others, refugees present in the United States who are unable or unwilling to return to their home country because they have a well-founded fear that others will persecute them on account of their religion. See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). Pineda testified before an immigration judge that she was a practicing Christian who had participated in a church project of door-to-door evangelization that specifically targeted gang members. She related that a handful of gang members had at one time “cornered” and “grabbed” her during a church function and tried to recruit her to their gang, explicitly telling her that they did not want to see her working with the church. Though they also threatened to “take [her] by force” and find her wherever she went, they did not otherwise physically harm her.
After that incident Pineda stopped attending church, opting instead to participate in religious services at other people’s homes. During one of these home services, Pineda testified, gang members appeared outside and demanded that the group stop singing. She believed they were the same gang members who had threatened her before; they specifically called her by name and said they were “coming for” her. Two weeks later, at another home gathering, gang members again appeared outside, announced they were armed, and demanded that she come outside
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or “they were going to get” her. The people inside threw themselves on the ground and waited about two hours until the gang members departed.
At that point, Pineda testified, she obtained a job selling clothes in San Salvador, which was about ninety minutes from her home. She explained that gang members did not bother or threaten her while at work, though one time she had to crouch down when she heard gunshots directed toward another person.
The immigration judge concluded that, even though Pineda had not demonstrated past persecution, she did have a well-founded fear of future persecution, and so granted her application for asylum. When the government appealed to the BIA, the BIA remanded the case to the immigration judge to consider, among other things, whether Pineda could reasonably relocate within El Salvador to avoid future persecution. On remand, Pineda testified that, if forced to return to El Salvador, she would return to her mother’s house because she had no other place to go. She noted that her entire family lives in the same city and that she could not relocate to another city as a single Christian woman. She also elaborated on her time working in San Salvador, explaining that she commuted alone and worked three to five days a week for a few months before leaving for the United States. Pineda also testified that, though she did not experience difficulties from gang members in San Salvador or while commuting, thieves did steal her paycheck three or four times and her cell phone twice, often while she was riding on a bus.
Pineda also presented testimony from an expert on Central American gangs. He testified that El Salvador is “the most violent country in the world for women” and that four things put Pineda “at not only high but very predictable risk” of harm should she return to El Salvador: her religious practices and activities, her past refusal to comply with gang demands, her flight from El Salvador to escape gang threats, and the ability of gangs to learn of her return. Further, he opined, Pineda would be at high risk anywhere in El Salvador because she is a young, single woman with no
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protective family network, making “internal relocation a very, very difficult proposition.”
The immigration judge again granted Pineda’s request for asylum, concluding that she had carried her burden to show that internal relocation was unreasonable, as “[s]he is a young single woman returning to a country the size of Massachusetts where abuse and violence against women is one of the principal human rights problems.” The judge acknowledged that Pineda had worked in San Salvador for three months without interference from gangs but pointed out that during that time she had been robbed of her paycheck or cell phone at least five times and “did not proselytize in the streets.” In sum, there were simply no other parts of the country “that are any better than the area that gave rise to [Pineda’s] original claim.” On appeal, however, the BIA pointed out that Pineda was able to avoid gang persecution while working in San Salvador. It also noted that, even though Pineda was the victim of crimes during her commute, it was unclear whether she could have avoided these and similar crimes by moving to San Salvador instead of commuting from her hometown. The BIA therefore remanded for the immigration judge “to reconsider the overall reasonableness of any relocation by the respondent throughout El Salvador.”
On remand, Pineda’s case was assigned to a different immigration judge. The new judge concluded, after receiving additional arguments from the parties and what he termed “extensive country condition evidence,” that Pineda had failed to shoulder her burden to show that she could not relocate elsewhere in El Salvador since she was able to avoid gang persecution while working in San Salvador. The BIA upheld that determination.
In her petition for review from that holding, Pineda challenges the determination that she failed to show she could not safely relocate to another part of El Salvador. We review both the BIA’s decision and the immigration judge’s decision to the extent the BIA adopted the findings or reasoning of the immigration judge. See
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Degbe v. Sessions, 899 F.3d 651, 655 (8th Cir. 2018). We will uphold the decision so long as substantial evidence supports it. See Cinto-Velasquez v. Lynch, 817 F.3d 602, 607 (8th Cir. 2016). When applying that “extremely deferential” standard, we will not reverse “unless, after having reviewed the record as a whole, we determine that it would not be possible for a reasonable fact-finder to adopt the BIA’s position.” See Eusebio v. Ashcroft, 361 F.3d 1088, 1091 (8th Cir. 2004).
Since Pineda does not contend that she has shown past persecution, she must show she has a well-founded fear of future persecution to prevail. See 8 U.S.C. § 1101(a)(42)(A); see also 8 C.F.R. § 1208.13(b). But “[a]n applicant does not have a well-founded fear of persecution if the applicant could avoid persecution by relocating to another part of the applicant’s country of nationality.” 8 C.F.R. § 1208.13(b)(2)(ii). Because Pineda has not demonstrated past persecution, and the gangs she fears are not government or government sponsored, she bears the burden to show that relocation would not be reasonable. See id. § 1208.13(b)(3)(i). In these circumstances relocation is presumed to be reasonable. See id. § 1208.13(b)(3)(iii).
We hold that substantial evidence supports the BIA’s determination that Pineda could relocate to another part of El Salvador if forced to return. We believe that a reasonable factfinder could give substantial weight to the lack of gang harassment Pineda suffered while working in San Salvador for a number of months. Even if gangs generally have significant reach throughout the country and are able to locate people like her quickly, as Pineda maintains, the fact that they did nothing to her for months as she worked in San Salvador is hard to overlook. And even though the first immigration judge to preside over Pineda’s proceedings found that internal relocation would not be reasonable, that does not necessarily mean that substantial evidence did not support the second immigration judge’s decision. It might just go to show that the reasonableness of relocation in this case is one on which reasonable people could disagree.
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To bolster her case, Pineda emphasizes that she suffered other serious harm in San Salvador when she had paychecks and cell phones stolen from her. Pineda is right that, to prevail, she need not show that she suffered other serious harm on account of a protected ground, such as religion. See Hagi-Salad v. Ashcroft, 359 F.3d 1044, 1048 n.5 (8th Cir. 2004). But that other harm must rise to “the severity of persecution” for her to carry the day. Id. “Persecution is an extreme concept,” involving things like death or the threat of death, torture, or injury to one’s person or freedom. See De Castro-Gutierrez v. Holder, 713 F.3d 375, 380 (8th Cir. 2013). Pineda did not describe anything that occurred to her during her commutes to and from San Salvador or her employment there that approaches this high standard.
We therefore conclude that substantial evidence supports the BIA’s determination, considering that Pineda worked for months in San Salvador without trouble from gangs. Though we recognize that Pineda’s expert opined that she was at risk, we think the BIA did not unreasonably focus on there being no evidence that she was persecuted during the months she worked in San Salvador. We have upheld a decision on this kind of question based on less, as, for instance, where an asylum seeker had stayed in another part of a country without being harmed for five weeks. See Molina-Cabrera v. Sessions, 905 F.3d 1103, 1106 (8th Cir. 2018).
Though we sympathize with Pineda’s subjective fear of returning alone to a different part of El Salvador, we cannot say that the BIA’s relocation determination is unsupported by substantial evidence. Because we uphold this portion of the BIA’s decision, we do not consider whether substantial evidence supported the BIA’s conclusion that the government of El Salvador was unwilling or unable to control the gangs that Pineda feared.
Petition denied.
______________________________
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***************************
No, it’s not, as Judge Arnold disingenuously claims “something on which reasonable people could disagree.” No reasonable adjudicator qualified in asylum law and due process could reach this ridiculously wrong result!
Naturally, not understanding asylum law (why would that be a requirement for an Article III Judge, just because it’s probably the #1 and certainly most hotly contested topic in Federal Civil Litigation these days), Judge Arnold and his “boys club” out on the Great Plains fail to give this credible respondent “the benefit of the doubt” to which she is entitled under UNHCR guidance.
Indeed, as I used to tell my former BIA colleagues, usually to little avail before launching another dissent, “if reasonable people could differ, the result should be clear — the respondent wins because she gets ‘the benefit of the doubt.’” Sadly, even at a time when the BIA functioned at a much much higher level than it does today, it was the Immigration Judge and immigration enforcement who often in practice got the “benefit of the doubt” from many of my former colleagues, not the asylum applicant.
As my friend Dan Kowalski over at LexisNexis Legal Community summed up: “Proves the point that ‘the only true refugee is a dead refugee.’” Unlike the various BIA Judges and Circuit Judges involved in this deadly travesty, Dan actually understands asylum law, due process, and human values.
One might fairly ask the question of why “practical scholars” like Dan are on the “outside” and lesser talents are on the Federal Bench at all levels? The answer has much to do with why there is an “institutionalized racism crisis” in today’s American justice system. “Trial By Ordeal,” really isn’t that great a “look” for 21st Century American Justice! (Any more than is institutionalized racism and “The New Jim Crow”).
Dan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)
Conveniently, this “gang of three” CJs showed little real understanding of 8 C.F.R. 208.13 as it existed at the time of the BIA’s second decision, which states:
adjudicators should consider, but are not limited to considering, whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties. Those factors may, or may not, be relevant, depending on all the circumstances of the case, and are not necessarily determinative of whether it would be reasonable for the applicant to relocate.
Just on the information regurgitated in their opinion, Ms. Guatemala-Pineda showed by expert witness testimony and by her own credible testimony and experiences that there is no “reasonably available relocation alternative” in El Salvador. There clearly is “ongoing civil strife” in El Salvador. And, anyone with even minimal knowledge of the country would know that (to put it charitably) the “administrative, economic, and judicial infrastructures” are somewhere in the zone between dysfunctional to non-existent. She also credibly pointed out why it would not be reasonable under the circumstances to require her to leave her mother’s home and move to San Salvador.
Forcing someone to commute to a job 90 minutes away, for 3-5 days per week work, in what is perhaps the most dangerous city in the country, during which she already suffered “three or four paycheck robberies and a cell phone robbery” in about three months — that’s a total of five robberies” in a relatively short span — is by no means a “reasonable internal relocation alternative” based on all relevant factors!
Additionally, that she felt unable to proselytize in accordance with her religious beliefs in San Salvador also indicates that relocation there is unreasonable. Freedom to carry out reasonable religious commitments without fear of harm is a fundamental human right.
Very interesting to compare how GOP Circuit Judges treated very clear interference with Ms. Guatemala-Pineda’s ability to fulfill her religious beliefs in this case with how many GOP judges in the U.S. swoon over every minor interference with right wing religious beliefs — even those grounded in obvious bigotry — in the U.S. Here, by contrast, the GOP Circuit Judges fobbed off the interference with Ms. Guatemala-Pineda’s evangelical activities — at one point she felt unable to worship publicly at her church — as of no particular concern.
Not to mention that Ms. Guatemala-Pineda’s expert confirmed that:
El Salvador is “the most violent country in the world for women” and that four things put Pineda “at not only high but very predictable risk” of harm should she return to El Salvador: her religious practices and activities, her past refusal to comply with gang demands, her flight from El Salvador to escape gang threats, and the ability of gangs to learn of her return. Further, he opined, Pineda would be at high risk anywhere in El Salvador because she is a young, single woman with no protective family network, making “internal relocation a very, very difficult proposition.”
In plain terms, it’s only a matter of time before Ms. Guatemala-Pineda is persecuted, seriously harmed, or killed if returned to El Salvador. But, her life, as a woman of color, is obviously of little concern to the “gang of three.”
Let’s look at it another her way. Suppose we were tell Judges Smith, Arnold, and Staus that they had to relocate in a way that meant every third or fourth paycheck would be stolen and that they would be robbed of their cellphone every three months, with no recourse to a functioning police system. (Note that these dudes would be much better able to absorb such losses of income and expensive property than Ms. Guatemala-Pineda.) Or, that we were going to relocate their cushy ivory tower jobs to a place where they would be required to commute 90 minutes by public transportation every day. Or, that they might occasionally have to get down behind the bench to avoid rampant gunfire. Or, that they no longer could worship at their church of choice or openly engage in religious activities in their communities, but must limit themselves to “in-home worship” — not just during the pandemic, but permanently. Or, they had to live in a place where “GOP-Judiciacide” was at the highest level in the world and the police offered little or no protection, indeed were often involved themselves in abuse and killings of judges or turned a blind eye to the perpetrators.
Think our “tone-deaf group of guys in robes” would take a different view of “reasonable” if they put themselves in Ms. Guatemala-Pineda’s place and it were happening to them? You betcha!
A few other things to note about this gross miscarriage of justice:
Two panel members were appointed by Bush II, one by Trump;
Ms. Guatemala-Pineda originally won her case before the Immigration Judge, who after hearing all the evidence and carefully considering relocation found that Ms. Pineda has shown that there was no “reasonably available relocation alternative” in El Salvador;
The BIA baselessly remanded the case on ICE’s appeal to a new IJ to get the “preferred result” — a denial of relief and potential death sentence for a woman of color (See, e.g., Jeff “Gonzo Apocalypto” Sessions & Matter of A-B-);
In a functioning system staffed by asylum experts, this case could easily have been granted at the Asylum Office rather than kicking around the dysfunctional EOIR system for a decade — two merits hearings before the IJ — two appeals to the BIA — and Circuit Court review — all to REACH A CLEARLY INCORRECT AND UNJUST RESULT THAT NO TRUE ASYLUM EXPERT I KNOW WOULD AGREE WITH!
And, we wonder why EOIR has more than doubled the number of IJs yet still almost tripled their uncontrolled backlog to a mind-boggling 1.3 million cases! Ten years to turn an easy asylum grant into a denial (yet other cases are rushed through to denial on an assembly line without any real deli]beration or analysis) might give us a hint of why the system is totally dysfunctional and completely unfair (not to mention patently unconstitutional)!
Since EOIR is known for its incompetent record keeping, I’m willing to bet that there are thousands, perhaps hundreds of thousands, of additional “lost in space” files, warehoused somewhere that are simply “off docket” and unaccounted for.
Cases like this aren’t “academic exercises” — the judicial attitude that “screams off the pages” of this gross miscarriage of justice. They have real life, potentially deadly consequences for real humans beings, the most vulnerable of human beings, like Ms. Guatemala-Pineda. She has the same right to live as do the Circuit Judges, the BIA Judges, and the second Immigration Judge who got her case wrong!
After a decade, this monstrosity is the best our “justice system” can offer? Gimme a break! I think I could choose any three students over at the CALS Asylum Clinic at Georgetown Law who would run circles around the cavalier analysis of these three supposedly “senior jurists” in this case! Cases like this basically are indictments of our Article III system, not to mention the ongoing mockery of justice at EOIR.
The anti-asylum, anti-immigrant bias, incompetent adjudication, and systemic mis-management at EOIR are of monumental proportions! The gross inconsistencies, lack of overall immigration, human rights, sensitivity to racial justice, and “practical due process” expertise at the appellate level of the U.S. Courts and particularly at the Supremes is very disturbing and threatens the very existence and legitimacy of our legal system.
Judge Garland has the power to start fixing this, today! He must vacate all the bogus Trump-era anti-immigrant precedents; toss the entire BIA, and replace them with real judges who possess the required subject matter expertise and overriding commitment to due process and fundamental fairness; establish merit-selection criteria for Immigration Judges honoring experience representing asylum applicants in court, immigration knowledge, human rights expertise, commitment to due process for individuals under law, sensitivity to racial justice, and demonstrated practical problem solving experience.
Then, apply those criteria to new Immigration Judge selections as well as to retention decisions for all current Immigration Judges. And, for Pete’s sake, “can” the incompetent bureaucracy and get some real professionals in there who can run an independent court system — starting with a functioning nationwide e-filing system and some competent judicial training as well as assisting IJs in managing their own dockets rather than constantly interfering and trying to “micromanage” from Falls Church and the 5th Floor of the DOJ (a process known as “Aimless Docket Reshuffling,” honed by the Trump kakistocracy @ DOJ).
When you’re done, Judge Garland, you’ll have: 1) many fewer bad decisions heading off the the Courts of Appeals; 2) a functioning Immigration Judiciary of experts who can help keep order and provide helpful expert guidance to the rest of the now out of control system; and 3) a great source of “battle trained and proven” well-qualified, progressive judicial talent who can change the trajectory of the now often moribund (yeah, even some of the younger Trump appointees are basically “brain dead,” so the term fits) and dilatory Article III Judiciary and who are also available to fill other high-level policy positions with competence, common sense, and humanity.
You’d also go down in history as a judge who got out of the ivory tower and actually solved pressing problems, implemented our Constitution, and built a better, fairer court system that made a difference in human lives and the future of our nation. Perhaps, even something like “thorough teamwork and innovation, built the world’s best courts guaranteeing fairness and due process for all.” That’s quite a legacy for future generations.
I can only hope Judge Garland finally pays attention to what’s happening across the river in Falls Church and takes immediate action to end the deadly and debilitating clown show 🤡🦹🏿♂️ @ EOIR. Otherwise, I fear he will find himself buried in immigration litigation and his tenure mired in the muck of responsibility for grotesque racial injustice and “running” the worst, most incompetent, unfair, and blatantly unconstitutional “court” system in America!
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever! Hey Hey, Ho Ho, The Deadly EOIR Clown Show ☠️🤡 Has Got to Go!
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
Hey, maybe next year, we could all celebrate Women’s History Month with some decisions incorporating serious scholarship by progressive women judges that actually recognize, honor, and institutionalize relief from the unfair struggles faced by refugee women and people of color.
Leon Krauze in the WashPost tells us what’s really happening at the border. WARNING: It has little to do with the myths and false narratives being peddled by the GOP, the Administration, and the media.
The current emergency at the border has found the U. S. media at its most solipsistic. Coverage seems more focused on whether the emergency should be called “a crisis” (it should) and what the political fallout for the Biden administration will be. With few exceptions — like the remarkable work of MSNBC’s Jacob Soboroff or Politico’s Sabrina Rodriguez — many news outlets seem utterly uninterested in the stories of the migrants themselves.
This is wrong because it fails to provide one crucial piece of the puzzle: the very concrete context of human suffering.
. . . .
This by no means excuses the stories of anguish and confinement that have emerged over the last few weeks from within the facilities set up by the Biden administration to deal with the number of young migrants crossing the border, nor does it absolve the president himself from delivering on his promise of a humane immigration system, diametrically opposed to Trump’s cruel policies, designed in collaboration with unapologetic racist xenophobes like Stephen Miller.
The Biden administration can and should do better. But the current debate cannot ignore the very concrete despair facing thousands of immigrant families who, under the direct threat of violence or abuse, chose to push their young children to the United States, in search of safety.
If the alternative was famine, gang violence, kidnapping, rape or sexual slavery, wouldn’t you bet it all on the journey north? If more people understood this, the political debate and the coverage surrounding the crisis would be much more empathetic and we would get closer at delivering concrete, humane solutions.
Now, let’s hear more “simple truth” from Suzanne Gamboa over at NBC News:
Suzanne Gamboa, Political Editor, NBCLatino, NBC NewsDate: October 21, 2013 Place: Washington, DC Credit: Maria Patricia Leiva/OAS Creative Commons License
America’s immigration impasse — an endless loop across different administrations — is largely self-inflicted, because Congress has repeatedly failed to acknowledge one simple thing: Immigration happens.
Accordingly, immigration laws must be continually adjusted, reformed and revised, experts say.
“People will always want to come to the U.S., and the U.S. will always need people,” said former Commerce Secretary Carlos Gutierrez, who was a top immigration adviser to President George W. Bush.
Until there is a system that allows enough legal immigration to meet the economy’s needs, there will be illegal immigration, Gutierrez said.
“That’s just part of how our economy is set up. It’s part of demographics,” Gutierrez said. “Our birthrate is not high enough to be able to fill the needs of our economy.”
The coronavirus pandemic reinforced the importance of immigrant labor to the American economy, including labor by the undocumented.
All of those people and many other immigrants, including young immigrants — often called “Dreamers” based on never-passed proposals in Congress called the DREAM Act — will play a key role in helping the economy recover from its pandemic bust.
But immigration requires periodic calibration, and the economics and the changing patterns are lost in the politics.
“People are going to move — as they are all around the world — where they think they can find places to better feed their children. That’s the bottom line, and that’s the history of migration to the United States,” said Luis Fraga, director of the Institute for Latino Studies at the University of Notre Dame.
. . . .
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Everyone should read the rest of the stories at the above link.
Degrading Ourselves As A Nation Won’t Stop Human Migration
By Judge (Ret) Paul Wickham Schmidt
“Courtside” Exclusive
March 26, 2021
Notwithstanding the endlessly disingenuous and self-centered alarmist rhetoric coming from all directions on the border mess, often mindlessly regurgitated by the press (not just Fox News), the real “crisis” involves the human lives at stake and the unnecessary human misery we are causing by failing to establish, professionally staff, and fairly and competently operate the legal refugee and particularly asylum systems required by law. This “due process crisis” actually has devastating and debilitating practical effects, starting with the dysfunctional immigration, refugee, and asylum system and the beyond dysfunctional Immigration Courts.
Heck, we don’t even pretend to comply with Constitutionally-required due process of law for asylum seekers who present themselves to us seeking life-saving refuge. Most of those who show up at legally-established border ports are told that the border is “closed” and that there is no way for them to apply. OK, so they attempt to cross between ports and immediately present themselves to the Border Patrol. But, they also are told there is no way to apply and are orbited back to some of the most dangerous countries in the world without any process whatsoever, let alone due process of law. Who are we kidding with all our dishonest pontificating about “the rule of law?”
It’s a strange way to implement the statutory command that any foreign national “irrespective of . . . status, may apply for asylum,” along with a constitutional guarantee that “No person shall . . . be deprived of life, liberty, or property without due process of law.” Gee, you don’t even need one of those fancy Ivy League law degrees to understand that language. You just have to be able to read, comprehend, and act.
What you do have to do to get where we are today is to view asylum seekers and other migrants (predominantly people of color) as less than human — “non-persons” in a constitutional sense. It’s what some of us call “Dred Scottification of the other” and it has accelerated over the past four years — not just in immigration.
The whole idea of a “court system” being run by the Executive who also is the chief of enforcement is beyond constitutionally preposterous. It’s a “negative tribute” to the Supremes and other Article III life-tenured judges who have grown so distant from their own humanity and immigration stories as to become willfully blind to the ongoing farce that constitutes “justice” and “due process of law” for asylum seekers and other immigrants in the U.S.
Today’s nearly non-existent “asylum system” is a deadly and illegal “catch 22,” with the Supremes sitting in their marble palace refusing to do the primary task that justifies their continued existence: enforce the Constitution against Government misbehavior and in favor of the “little guys” and the “vulnerable.” No thanks, not up to the job!
The real tragedy is that there are plenty of folks out here with the knowledge, integrity, courage, and ability to establish a legal system that would actually comply with out laws, our Constitution, and further offer the hope of constructively addressing some problems before refugees arrive at our borders. But, they remain “benched,” even by the Biden Team. So the “good guys”are going to keep attacking the corrupt and broken system in court and at the polls for as long as it takes to get some course correction — years, decades, centuries — ask most African Americans how long it takes to achieve the true justice that America promises to all, but historically has only delivered to some.
In the long run, a fair system would undoubtedly accept many more legal refugees and asylum seekers. That’s what happens in refugee situations — it’s the core of what we call “forced migration” — when you sign on to international conventions intended to prevent the “next holocaust,” and you fairly and humanely apply the rules meant to protect refugees and those who face torture. And, as they have in the past, the overwhelming number of refugees and asylees, like the overwhelming majority of immigrants (essentially all of us, except Native Americans) will adapt, fit in, and contribute to the health, wealth, and future of our nation. They will change, but so will we — ultimately for the better!
Sure, America wouldn’t be as white, “Christian” (to the extent that adherence to a nominal Christian denomination, rather than actually performing Christ’s extremely difficult, self-sacrificing, risky, compassionate mission, defines Christianity), and nominally heterosexual as it was when White Nationalist myths and whitewashed history ruled the roost. But, it would be a better nation — one that actually has a chance of prospering, realizing the full potential of all its residents, and leading the world in the 21st century. A nation that could devote more human, natural, and monetary resources to building and exporting greatness, rather than to an endless stream of cruel, inhuman, stupid, and wasteful enforcement and deterrence gimmicks.
Bottom line, folks are going to come to America, as they have throughout history. Some will stay, some won’t. But, come they will, unless and until those like Trump and the GOP create such a mess that our own people start fleeing to foreign shores. Immigration, regardless of status, is a sign of strength. Xenophobia a sign of fatal weakness.
Our real choice isn’t whether we want to “close” borders, bar refugees, and abuse children as the Cottons, Cruzes, Millers, and Hawleys advocate. It’s whether we create a robust, orderly, rational legal system to screen, regulate, and distribute the inevitable flow or whether, as we have for the past decades, we force millions to reside and work underground — part of an “extralegal” or “black market” system that pols of both parties and those who profit from that underground system have created.
Sprawling mismanaged enforcement bureaucracies, dysfunctional “courts,” armies of publicly-paid lawyers defending the indefensible, for-profit civil prisons, big agriculture, hospitality giants, loads of upwardly mobile professionals who need child care to pursue careers, communities that live off of marketing ethnic culture, meat packing conglomerates, architects and construction firms who are “building America,” even news media fixated on hyping the problem rather than fixing it (see, e.g., yesterday’s Biden press conference), the list of those who profit from a talented, hard working, reliable, loyal, yet politically and socially disenfranchised, workforce is endless.
Even the GOP’s “Cotton-Cruz crowd” benefits from having an imaginary enemy to rant and rail and gin up hate against — safe in the knowledge that the tanking of our economy, upheaval of society, and possible threat to their privilege that would result from realizing their disingenuous call to boot the entire undocumented population will never happen. Their kids and grandkids can continue to reap the privilege that comes from exploiting an essential, yet politically neutered, workforce. It’s really more about institutionalizing racism to maintain economic and political power over the eventual non-white majority that drives their bogus and ugly narratives.
We can degrade ourselves as a nation, but it won’t stop human migration!
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever! It’s a vision based on a written promise, not a “pipe dream!”
“Petitioner Wilber Agustin Acevedo Granados (“Acevedo”), a native of El Salvador, petitions for review of the decision by the Board of Immigration Appeals (“BIA”) affirming an order of removal and the denial by the Immigration Judge (“IJ”) of Acevedo’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Acevedo’s petition is based on his fear that, if returned to El Salvador, he would face persecution or torture on account of his membership in a particular social group, defined based on his intellectual disability. The BIA rejected Acevedo’s claims on the ground that the proposed group definition was not cognizable. The BIA held that Acevedo’s proposed social group was not sufficiently particular, finding that the terms “intellectual disability” and “erratic behavior” rendered the proposed group “amorphous, overbroad, diffuse,[and]subjective.” The BIA further determined that the group was not a “meaningful social unit, distinct from the larger population of mentally ill individuals” in El Salvador. We conclude that the agency misunderstood Acevedo’s proposed social group, and thus grant the petition for review with respect to the claims for asylum and withholding of removal. The BIA and IJ treated the term “intellectual disability” as if it were applied by a layperson. Instead, that term as used in Acevedo’s application referred to an explicit medical diagnosis with several specific characteristics. Recognized that way, the clinical term “intellectual disability” may satisfy the “particularity” and “social distinction” requirements necessary to qualify for asylum and withholding of removal. However, because the IJ did not recognize the proposed social group before her, we remand to the agency for fact-finding on an open record to determine if the group is cognizable.”
[Hats off to Prof. Evangeline Abriel and her Certified Law Students Keuren A. Parra Moreno (argued) and Jared Renteria (argued)!]
2) 8th Cir. — BIA Goofs On “Aggravated Felony” Analysis
“In May 2017, an Immigration Judge (IJ) determined that Lopez-Chavez is ineligible for cancellation of removal because his 2006 federal conviction for illegal reentry in violation of 8 U.S.C. § 1326 qualifies as an aggravated felony. The Board of Immigration Appeals (BIA) affirmed the IJ’s ruling and dismissed Lopez-Chavez’s administrative appeal the following year. The question now before the court is whether Lopez-Chavez’s 2006 conviction qualifies as an aggravated felony under the INA, thus making Lopez-Chavez statutorily ineligible for cancellation of removal. We hold that it does not. … Because Lopez-Chavez’s 2003 Missouri marijuana conviction is not a categorical match for the corresponding federal offense in 8 U.S.C. § 1101(a)(43)(B), the 2006 conviction for illegal reentry under § 1326 does not qualify as an aggravated felony under § 1101(a)(43)(O). Accordingly, Lopez-Chavez is not statutorily ineligible for cancellation of removal. See 8 U.S.C. § 1229b. We grant the petition for review, vacate the BIA’s order, and remand for proceedings consistent with this opinion.”
“[T]o decide whether his 2018 conviction renders him removable, we need to determine whether we can parse MMB-Fubinaca from those other drugs; we decide that by determining whether Penalty Group 2-A is divisible. The government says it’s divisible, Alejos-Perez says not. … Because the government has not shown that the modified categorical approach is called for, we apply the categorical approach. … Because Penalty Group 2-A is not a categorical match, we must identify the appropriate result. … Once it’s clear that Penalty Group 2-A is not a categorical match to its federal counterpart, AlejosPerez “must also show a realistic probability . . . that the State would apply its statute to conduct that falls outside the generic definition of the crime” under federal law. We are unable to resolve that issue, because the BIA didn’t address it, and we can “only affirm the BIA on the basis of its stated rationale for ordering an alien removed from the United States.” … We thus remand for consideration of whether Alejos-Perez has shown a realistic probability that Texas would prosecute conduct that falls outside the relevant federal statute.”
Significantly, the 5th Circuit’s rejection of the BIA’s analysis was written by very conservative Circuit Judge Jerry Smith, a Reagan appointee. Judge Smith wrote the majority opinion upholding the legally questionable injunction against President Obama’s “DAPA Program” — something many scholars believe to have been a entirely legitimate exercise of prosecutorial discretion. (The case later was lamely affirmed w/o opinion by an evenly divided Supremes.)
Even conservative Federal Judges not known for sympathy to immigrants and their legal rights appear to have grown weary of the BIA’s consistently sloppy attempts to rule against foreign nationals, regardless of the merits. This is the second rejection by the normally reliably pro-Government 5th Circuit in the last several weeks!
Ironically, one (former) Federal Judge who appears not bothered by the BIA’s defective jurisprudence is the current Attorney General, Judge Garland. He’d better get himself a “tomato resistant”🍅 raincoat to wear at work. This is just the beginning. His reputation and credibility will diminish every day that he fails to replace the BIA with competent jurists who will give migrants the fair and impartial treatment that our Constitution demands, but the DOJ’s “captive court” constantly fails to deliver!
And, leaving aside the legal ineptitude, there can be no excuse for the stunning level of dysfunction and incompetence in how one of the nation’s largest so-called “court” systems is administered by EOIR under DOJ. No tribunal in America issues more potential “death sentences” with less due process! Not exactly what Mies Van Der Rohe had in mind when he famously said “the less is more.”
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Poor “Belly-Up Eyore.” He was forlornly, and apparently vainly, hoping to be “put out to pasture” after Judge Garland took over the helm at DOJ. Such high expectations!
But, he is already exhausted again by all the continuing “calls to duty on Courtside” after just 22 days of Judge Garland’s “where’s Falls Church” approach to the ongoing EOIR disaster/travesty! Judge, here’s the key; just think like it wereyour children or grandchildren, actual human beings, being orbited into the abyss without much attention to the law, our Constitution, common sense, or human decency! Maybe starting each day with a briefing on each Article III case that was wrongly decided in your name by the BIA and a live reading of each outrageous media story about disorder in your Immigration Courts would help raise your consciousness? Maybe you should speak with a few of the “customers” of your “courts” that put public service last. Men, women, children, and their lawyers are being abused out there every day by EOIR and you are legally and morally responsible.
You can’t lead the fight for racial justice in America while running a bogus court system that denies and mocks it on a daily basis!
Hon. Merrick B. Garland Attorney General of The United States & Eyore’s Boss, Official White House Photo Public Realm
Vivian Ho Journalist The Guardian PHOTO: Wikipedia
Vivian Ho in The Guardian:
. . . .
The number of people seeking to enter the US has risen in recent months. Joe Biden has kept in place a restrictive Trump-era public health order that barred entry to migrants arriving at the border without prior authorization, essentially ensuring that no new asylum claims have been processed at points of entry for more than a year. But the pandemic, cartels and extreme climate events have created conditions so desperate that many migrants are willing to take grave risks.
“Our border policy is set to create really dangerous situations for people to deter people from migrating,” said Erika Pinheiro, the litigation and policy director at the immigrant legal aid organization Al Otro Lado. “But it doesn’t deter migration, it just leads to more deaths, whether it’s an overheated tractor trailer or an SUV crash.”
. . . .
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Read the complete article at the above link.
What if rather than recycling and mindlessly doubling down on proven to fail “enforcement only” policies (that also happen to be expensive), we ran an honest legal system that fairly, timely, and orderly granted refuge to those who qualify under correct, generousinterpretations of protection laws and dealt in a fair and humane manner with those who don’t qualify?
I’m not saying we don’t need more comprehensive immigration reform. In particular, we need the legalization program, a much larger and more rational legal immigration system, and an independent, Article I Immigration Court, staffed by real, expert judges, for starters.
But, in the meantime, since the GOP has shown no interest whatsoever in reasonable legislative changes, we could do a much, much better job of administering the current laws in an efficient, reasonable, and humane way that would further the national interest, rather than undermining it.
It won’t happen, however, without bringing in a better team from outside the existing bureaucracy. The longer the Biden Administration waits to replace the dysfunctional bureaucracy with experts who can solve problems and rationalize this system, the more difficult the task becomes.
For example, there are only a handful of folks in the current bureaucracy who understand the problems and the potential solutions as well as Erika Pinheiro. As long as folks like Erika are on the “outside” fighting to block misguided policies and get the attention of those in charge, our border and immigration policies generally will remain a mess as they been for decades before launching into “free fall” under the malicious incompetence of the past four years!
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
It’s possible to view today’s announcement that Vice President Kamala Harris has been put in charge of the Biden Administration’s “border strategy” as a bright spot. But, unfortunately, not necessarily.
Vice President Kamala Harris Official Senate Photo Public Realm
Talk about a “strategic alliance” with sending countries like El Salvador, Guatemala, Honduras, even Mexico, all with exceptionally poor human rights records and huge official corruption problems, sounds like it could be more “Trump Lite,” inhumane and ultimately ineffective enforcement, rather than an innovative, enlightened humanitarian response.
In other words, Harris and Biden could well repeat, in some manner, the Trump“policy” of trying to insure that asylum seekers die in their home countries, die on the way, or get held in cages somewhere south of the border outside the “normal interest zone” of the American media and grandstanding US politicos.Disturbingly, there was no initial recognition that “wooden cliches” like “enforcing the law” actually means recognizing the legal right of individuals to leave their countries and seek asylum elsewhere, as well as a fair, humane, timely, and competent system for processing asylum claims that respects human dignity.
We don’t meet any of those criteria right now (nor do any of the “partner countries” listed above). Worse yet, the folks who understand and have ideas on how we might get to where we need to be are consigned to the “outside” — trying to correct errors through litigation and the media — rather than being actively engaged in solving problems. Not a good approach for an Administration that claims to believe, as I do, that good government can and should serve the public interest by relying on experts and the “best and brightest” to solve problems.
So, anyone in the NDFPA who has connections to the Harris camp had better use them in attempting to insert some truth and enlightened thinking into what is typically a grim, tone deaf, and ineffective USG response. Otherwise, we’re likely to see a variation of “same old, same old,” which is why we continue to fail to deal with a pressing, recurring human issue in a legal, humane, informed, and courageous way. I/O/W, “business as usual” in a bankrupt system, just with a different “spin.”
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19 & Closures
Note: Policies are rapidly changing, so please verify information with the government and colleagues.
EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, April 16, 2021. (It is unclear when the next announcement will be. EOIR announced 4/16 on Fri. 3/5, 3/19 on Wed. 2/10, 2/19 on Mon. 1/25, 2/5 on Mon. 1/11, and 1/22 on Mon. 12/28.) There is no announced date for reopening NYC non-detained at this time.
Pew: To better understand the existing U.S. immigration system, we analyzed the most recent data available on federal immigration programs. This includes admission categories for green card recipients and the types of temporary employment visas available to immigrant workers. We also examined temporary permissions granted to some immigrants to live and work in the country through the Deferred Action for Childhood Arrivals and Temporary Protected Status programs.
TRAC: As of the end of President Biden’s first full month in office, the number of individuals arrested by ICE and booked into civil immigrant detention fell sharply from 5,119 ICE book-in arrests during January 2021 to just 1,970 during February 2021. According to the latest ICE figures, this was a drop of 62 percent just in a single month.
NPR: The U.S. government had 4,276 unaccompanied migrant children in custody as of Sunday, according to a Department of Homeland Security document obtained by NPR. The children are spending an average of 117 hours in detention facilities, far longer than the 72 hours allowed by law.
NBC: Restrictions on what border agents can share with the media were passed down verbally, say officials. Some have released videos of the border surge anyway. See also How Border Patrol Manipulates Media.
CNN: Senate Majority Whip Dick Durbin said Sunday that he thinks he is “close” to securing the Republican votes needed to overcome a Senate filibuster to advance a key immigration measure that would provide a pathway to citizenship for undocumented immigrants who were brought to the United States as children.
USCIS: USCIS stopped applying the Public Charge Final Rule to all pending applications and petitions on March 9, 2021. USCIS removed content related to the vacated 2019 Public Charge Final Rule from the affected USCIS forms and has posted updated versions of affected forms. See also Withdrawal of USCIS Proposed Rule on Affidavit of Support Requirements.
Law360: The House on Thursday approved two major immigration proposals that would provide a path to lawful status and eventual citizenship for several million “Dreamers” brought to the country as children and farmworkers working without authorization in American agriculture.
The court vacated and remanded the BIA’s decision affirming the IJ’s adverse credibility determination, finding that alleged discrepancies between the petitioner’s interview account and his hearing account failed to support the adverse credibility finding. (Cuesta-Rojas v. Garland, 3/15/21) AILA Doc. No. 21031737
Where the petitioner cited two post-2006 events as evidence of changed country conditions, the court held that the BIA’s failure to assess whether those changes were sufficient was arbitrary and capricious, and reversed the BIA’s denial of his motion to reopen. (Lucaj v. Wilkinson, 3/10/21) AILA Doc. No. 21031732
Law360: The First Circuit on Wednesday refused to disturb a Massachusetts federal court’s decision denying bail to several immigration detainees convicted of violent crimes, finding that it was reasonable to decide the detainees still belonged behind bars in the midst of the COVID-19 pandemic.
Where the Guatemalan petitioner’s Notice to Appear (NTA) was delivered in English, the court rejected her argument that the NTA violated her due process rights because it did not detail in her native language the consequences of failing to attend her proceeding. (Lopez v. Garland, 3/12/21) AILA Doc. No. 21031733
Law360: The Seventh Circuit on Monday squashed an attempt by 14 states led by Texas to revive the Trump administration’s public charge policy, which penalizes immigrants for using certain public benefits, after the Biden administration decided not to defend it.
The court held that the categorical approach does not require a petitioner seeking cancellation of removal to show that there is a realistic probability the state prosecutes people for the conduct that makes the state offense broader than the federal offense. (Gonzalez v. Wilkinson, 3/9/21) AILA Doc. No. 21031738
The court held that the BIA did not err in determining that the petitioner’s conviction for second-degree felony assault in Minnesota was a particularly serious crime barring statutory withholding of removal and Convention Against Torture (CAT) relief. (Jama v. Wilkinson, 3/11/21) AILA Doc. No. 21031739
The court remanded petitioner’s Convention Against Torture (CAT) claim to the BIA for reconsideration in light of the fact that the IJ took judicial notice of, and relied upon, DOS’s Country Report, yet the BIA’s decision did not take it into account. (Aguilar-Osorio v. Garland, 3/15/21) AILA Doc. No. 21031744
The court held that the BIA did not abuse its discretion in denying the petitioner’s motion to reopen after determining that the petitioner had failed to present evidence demonstrating that country conditions in Mexico had changed since his 2003 removal order. (Rodriguez v. Garland, 3/15/21) AILA Doc. No. 21031741
The court held that substantial evidence supported the BIA’s determination that the Salvadoran petitioner had failed to establish past harm rising to the level of persecution, and concluded that her proposed social groups were not cognizable. (Villegas Sanchez v. Garland, 3/11/21) AILA Doc. No. 21031740
The court held that Matter of G-G-S- was not arbitrary or capricious, and that BIA applied the correct legal standard in determining that petitioner’s convictions were for particularly serious crimes rendering him ineligible for withholding of removal. (Birhanu v. Wilkinson, 3/9/21) AILA Doc. No. 21031745
Law360: A federal judge on Thursday ordered U.S. Immigration and Customs Enforcement to facilitate vaccinations of immigrants detained at the agency’s Buffalo Service Processing Center in upstate New York.
Law360: Three nonprofit organizations have sued Arizona’s attorney general in federal court seeking the cancellation of an agreement requiring the state’s input in federal immigration policies, saying the Trump administration official who made the arrangement lacked the authority to do so.
ASISTA: Safe Horizon and ASISTA File Lawsuit Against USCIS and DHS, Seeking Information on Policy Change Making it More Difficult for Victims of Serious Crime to Obtain Relief Under the U-Visa Program.
On March 11, 2021, HHS ORR and ICE and CBP signed a Memorandum of Agreement (MOA) regarding consultation and information sharing in matters relating to unaccompanied children. The April 13, 2018, MOA among the agencies dealing with UAC matters has been terminated. AILA Doc. No. 21031235
Law360: U.S. Citizenship and Immigration Services will no longer rule out petitions for special status from mistreated youth based on state courts’ failure to assess whether they have ties to gangs, a policy change stemming from a class settlement last year.
EOIR issued a policy memo (PM 21-16) rescinding and cancelling PM 20-01, Case Processing at the Board of Immigration Appeals. Upon this rescission, the BIA returns to the case management system established by regulation that was effective on 9/25/02 to manage the Board’s caseload. AILA Doc. No. 21031748
Advance copy of USCIS and EOIR interim final rule further delaying until 12/31/21 the effective date of the final rule “Security Bars and Processing” (85 FR 84160) which had been scheduled to become effective on 3/22/21. Public comment is also sought on whether the rule should be revised or revoked. AILA Doc. No. 21031930
Advance copy of USCIS final rule extending the expiration date of the temporary final rule on interpreters at asylum interviews published at 85 FR 59655, which was originally scheduled to expire on 3/22/21, for 180 days. The final rule will be published in the Federal Register on 3/22/21. AILA Doc. No. 21031932
CBP issued a notification of the continuation of temporary travel restrictions limiting travel of individuals from Mexico into the United States at land ports of entry along the United States-Mexico border through 4/21/21 due to COVID-19. (86 FR 14813, 3/19/21) AILA Doc. No. 21031934
USCIS notice extending the designation of Syria for TPS for 18 months, from 3/31/21 through 9/30/22, and redesignating Syria for TPS for 18 months, effective 3/31/21 through 9/30/22. (86 FR 14946, 3/19/21) AILA Doc. No. 21012930
Check out item #7 under “Top News,” the story from the WashPost of Agnes Lee, the new Editor-in-Chief of the Georgetown Law Journal. In addition to being a brilliant and accomplished student, she happens to be an undocumented resident of the U.S. Congrats to Agnes, the Law Journal, and the entire Georgetown Law community!
⚖️Shout Out for Georgetown Law Students:
Of course, never missing an opportunity to “self-promote,” I heartily encourage current Georgetown Law students who wish to learn and engage in active dialogue about immigration, social justice, and racial justice in America today, as well as to pick up pointers on how to actually practice law, to register for my “compressed semester, 2-credit course Immigration Law & Policy” to be given this June (in person, and virtual options).
Thanks to the great group of students, it’s always a lively, engaged, and diverse group researching, presenting, and discussing perhaps the most important (and misunderstood) current topic for America’s and the word’s future — one on which, sad to say, the myths, false narratives and misinformation are rampant, spreading even as I write this.
While I provide an outstanding “practice oriented” text, the class topics, abundant study questions, a challenging but very “doable” final exam, along with the inevitable anecdotes and “war stories” from my nearly 50-year career, the students actually control the substance though their own research on current and historical events and sharing of personal experiences with the immigration system (everybody has some, whether they realize it or not). It’s also a chance to “network and bond” with a group of wonderful colleagues who can “be there for you” throughout your careers.
Indeed, I hope to put together a panel of “young superstars”🌟 of the New Due Process Army,🌟 including former students/and or court interns, who can share their career experiences on “why they chose to make a difference in human lives and how they have accomplished it.” Additionally, one of the best “up and coming” minds in the business, my friend Professor Cori Alonso Yoder, currently a Visiting Professor at Georgetown Law, has offered to meet with the class to share some of her knowledge and real life experiences with “Life-saving 101.” So, it should be a vibrant an exciting month. Don’t miss it!
Also, despite the seriousness of the topic, we always have some fun doing it!
Also, remember, NDPA superstar🌟 Liz Gibson, of “The Gibson Report,” is one of my former Georgetown Law students, a CALS Asylum Clinic veteran, a former Arlington Immigration Court intern, a former Judicial Law Clerk at the NY Immigration Court, and an alum of the prestigious Immigrant Justice Corps! In a relatively short time, Liz has used her skills, knowledge, and training to make a lifetime’s worth of “real life positive impact” on the lives and futures of our fellow humans!
Anna Marie Gallagher, Esquire Executive Director CLINIC PHOTO: CLINIC website
I wake every morning to follow news of our sisters and brothers, thinking especially of the children, who have set out from places like El Salvador, Guatemala, Honduras, Venezuela, Cuba, Nicaragua and Haiti–even as far as Cameroon and the Democratic Republic of the Congo–to seek protection at our doorstep. My heart aches for them and I pray for their safety.
Today’s readings remind us of our obligation, as followers of Christ, to speak the truth and follow the light. The truth is that people are suffering, both young and old, and desperately seeking safety and welcome in our country. Yet U.S. authorities and policies are often hostile to receiving them. Their arrival at our doors is deemed a “crisis.” As followers of Christ, we must and we will stand up, act bravely and generously, to speak the truth and welcome them.
The real crisis is not at the border, but within the families forced to make the difficult decision to leave, and in the hearts of those who refuse to follow Jesus’ light. We, as Christians, must walk in the path of light as Jesus instructs, and do the right thing. We must make room at our table and remember that we all belong to each other. We must take Jesus’ words to heart and remember to love the mother, the father and the child at the border as if they were our own.
This is not a crisis for us, although it certainly is for the men, women, and children who are fleeing. For us it is an opportunity to act out our faith precisely as Jesus taught.
As these sojourners leave their homes in search of safety, they may repeat a prayer similar to this: “Even though I walk in the dark valley I fear no evil; for you are at my side.” The rhythm of the words and their meaning must comfort them, knowing that God is their companion. What happens when they arrive here is up to us. We could look to God and ask what He would do, but we already know the answer.
Anna Gallagher is Executive Director of the Catholic Legal Immigration Network, Inc. (CLINIC).
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Unfortunately, too many folks promote a bogus picture of what’s at stake at our border. The “alternatives” they trumpet are basically increasing family separation and suffering in Mexico or somewhere else as pointed out in this Politico article by Jack Herrera:
The result is a new form of family separation — but instead of happening at the hands of federal agents in American government facilities, it’s taking place, family by family, in camps like the one Janiana lives in. The fact that minors won’t be expelled like everyone else has rapidly spread by word of mouth across the length of the border. And while many families choose to stick together, the pressure to separate weighs heaviest on the most vulnerable — families who fear death, whether from persecutors who have followed them to the border, or from extreme hunger.
For Janiana, the possibility of being sent back to Honduras reads as a death sentence. She shows me the scars from her torture at the hands of a powerful gang back home that her family got on the wrong side of. Fearing further reprisals, Janiana fled with her sister’s children, a teenage nephew and teenage niece as well as the niece’s several-month-old son. The children haven’t been reconnected with their mother yet, who successfully entered the U.S. to begin the process of claiming asylum in 2019, before the pandemic. Staying in Mexico, Janiana says, was never an adequate long-term solution and increasingly feels intolerable. She says the family already tried to make a new life in the southern state of Oaxaca, but danger pursued them there, where her nephew was murdered.
Today, Janiana says her only hope is that the U.S. will begin to accept asylum seekers again, especially as the country gets a better hold over the pandemic. At the moment, she says with resignation, “all we can do is wait.” Though there is one painful exception on her mind: If she were somehow able send the baby across alone, he might be allowed to stay.
“It breaks my heart to even think about it,” she says.
Why not get the trained Refugee Officers, Asylum Officers, Immigration Judges, ORR child services officers, and pro bono lawyers in place to comply with our legal obligations in a robust, timely, fair, and efficient manner?
Why not put experts, like Wendy Young of Kids in Needs of Defense, who understand how our system should work in charge of the welfare of the children? Why not put someone who understands the practical and legal needs at the border, like former Immigration Judge Ilyce Shugall, in charge of the Immigration Court response? Why not put someone like retired Judge Paul Grussendorf, who has also been an Asylum Officer and a UNHCR representative, in charge of the Asylum Office response? Why not put retired Assistant Chief Immigration Judge Robert Weisel, who worked with the UNHCR after retirement, in charge of coordinating the response with NGOs and the private sector?
Yes, the Trump regime definitely left a dismantled and dysfunctional immigration bureaucracy and structure behind. But, just repeating that time after time sounds more like an excuse than a plan or a solution.
Sure, it won’t happen overnight. But, it won’t happen at all without different folks in charge at the “retail level.” I see little evidence of any progress on a real long-term plan and the short-term response is also an unnecessary mess, given that the Biden Team has had more than four months since the election to get a new structure and new personnel in place.
While there are a few “bright spots,” like Michelle Brané and Katie Tobin, I sincerely doubt that the group in charge right now is capable of solving the practical problems in rebuilding and improving our asylum and immigration systems. Nowhere is that more obvious than at EOIR, where the dysfunctional “clown show” 🤡 stumbles on, for no apparent reason.
Many of us keep trying, to no avail, to warn Judge Garland that he literally is sitting on a powder keg with the fuse lit and burning.💣 I guarantee that the next “manufactured crisis” will be when the current group of asylum cases coming from the border hit the broken, dysfunctional, ridiculously and unnecessarily backlogged, grotesquely mismanaged, ill-prepared, and anti-asylum-biased “Immigration Courts.” Waiting for the inevitable disaster, rather than bringing in a new “A Team” from the NDPA to start solving the problems now, is a monumental mistake by Judge G.
Why not fix the system to run the way it should, rather than spreading myths, throwing spitballs, and ignoring the unfolding human tragedy that can’t be solved with draconian enforcement and lame “don’t come” messages directed at forced migrants fleeing for their lives?
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)Gabe Gutierrez NBC News Correspondent Atlanta, GA
Reminds me of the essay I recently posted from my friend, Don Kerwin at CMS:
The number of unaccompanied children and asylum-seekers crossing the US-Mexico border in search of protection has increased in recent weeks. The former president, his acolytes, and both extremist and mainstream media have characterized this situation as a “border crisis,” a self-inflicted wound by the Biden administration, and even a failure of US asylum policy. It is none of these things. Rather, it is a response to compounding pressures, most prominently the previous administration’s evisceration of US asylum and anti-trafficking policies and procedures, and the failure to address the conditions that are displacing residents of the Northern Triangle states of Central America (El Salvador, Guatemala, and Honduras), as well as Venezuela, Cuba, Haiti, and other countries…
The real immigration crisis is not at the border, but in the failure to respond effectively to the conditions driving forced migration, to establish orderly and viable legal immigration policies, to legalize the increasingly long-tenured undocumented population, and to reform and invest sufficiently in the US asylum and immigration court systems.
Donald M. Kerwin Executive Director Center for Migration Studies
It also echoes the words of veteran journalist Marc Cooper, posted by my friend Dan Kowalski over on LexisNexis Immigration Community:
When I was in Mexico reporting on the exodus, I would talk with dozens of migrants who were just a an hour or two away from starting their trek and, to a person, not one of them said they paid any attention to new US laws and regs as they were determined to cross no matter what. And no matter the sacrifices.
Dan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)
Even the WashPost editorial page writers “get” the reality of human migration in a way the nativist fear-mongers never will:
Yet despite fearmongering by Republicans, the current influx is neither a public health emergency nor a national security threat. The vast majority of those allowed to enter the country will join relatives here while their asylum claims plod along. That wait is too long — it can stretch to three years or more — and the administration insists it will shrink the backlog. It has also earmarked $4 billion in aid from the pandemic relief bill for Central America — with strings attached to prevent its misuse — to attack the conditions that make life miserable there and drive migrants to seek refuge in this country.
Dumping Asylum Seekers in Honduras Artist: Monte Wolverton Reproduced under license
Still, sadly, facts and reality seem largely irrelevant here.
Despite denials from Secretary Mayorkas, the Biden Administration appears to be believing Kevin McCarthy’s BS on some level.
Thursday, the Administration basically negotiated a “lite version” of Trump’s “Let ‘Em Die in Mexico” — essentially trading AstroZenica vaccine (which wasn’t approved for use in the U.S. anyway) for Mexico’s agreement to step up harsh enforcement measures against migrants crossing their Southern Border and to warehouse families arbitrarily rejected without due process by the U.S. under our bogus CDC directive. We already have seen how well that works out!
A girl peers out from an encampment at the U.S.-Mexico border where she and several hundred people waited to present themselves to U.S. immigration to seek asylum. / Photo by David Maung
Any way you cut it, the realities of human migration, the lives of the desperate individuals involved, the views of human rights experts and advocates, and our supposed commitment to international conventions, the rule of law, and Constitutional Due Process take a back seat when the “bogus border debate” shifts into high gear.
There is actually a very simple truth here: “Forced migration” is not “optional!” In fact, a number of forced migrants prefer “death in the attempt” to “death in place.”
Therefore, all the “deterrents,” “border militarization,” “Baby Jails,” and “stay home statements” won’t ultimately stop the inexorable flow (although they might temporarily divert, modulate, or vary it— usually just enough for the “powers that be” to declare “victory at sea” as a result of their failed policies while ignoring the human carnage and lost opportunities they leave behind).
Professor Philip G. Schrag Georgetown Law Co-Director, CALS Asylum Clinic, Author of “Baby Jails”
Sure, there is a timing factor. Weather, the “business plans” and propaganda of smugglers (Trump’s “enforcement only” policies have been a boon for them in more ways than one, not only boosting their fees, but diverting enforcement resources away from the “real” law enforcement problems at the border involving drugs and human exploitation), and Biden’s pledge to restore humanity and the rule of law to America all factor into the equation in some way.
But, they are not the the primary causes of forced migration, except to the extent that climatechange (ignored and worsened by Trump and the GOP) has aggravated the poverty and economic disorder in the Northern Triangle by destroying the livelihoods of many farmers and making their land essentially worthless.
Tone-deaf GOP politicos like McCarthy and Sen. Rob Portman (R-OH) apparently think the solution is to continue to mock the rule of law, violate the Constitution, and simply declare the Southern Border closed forever, al a Stephen Miller. Let families and children “die in place” in their home countries, die on the journey at the hands of other governments, or rot forever in Mexico — “Out of sight, out of mind.” As long as it isn’t happening in our country and being covered by our news outlets, who cares about human lives? That was certainly the Trump approach!
That’s hardly a “solution,” except in neo-Nazi or Soviet-era terms. The harshest and most inhuman approaches will, as they have in the past and continue to do, fail to stop desperate humans who want to survive from doing what’s necessary to save their lives and preserve their families’ futures, even when that interferes with the GOP’s “whitewashed” version of “American greatness.”
The solution involves following Constitutional due process, re-establishing the rule of law (including a radical “reform and replace” of our dysfunctional Immigration Courts), and adhering to our international obligations, both in letter and spirit. It also requires an expanded, much more robust, legal immigration system that reflects the demands of our economy, the needs of migrants, and the realities of human migration, particularly from Latin America. Like it or not, there will be more immigration.
As I have said before: “There are many ways in which we can diminish our own humanity, but none of them will stop human migration.”
Will G. Reaper Become The Lasting Image of America’s 21st Century Human Rights & Racial Justice Failures In The Eyes Of The Rest Of Humanity & Future Generations? Image: Hernan Fednan, Creative Commons License
Contrary to the GOP blather, immigration, voluntary, forced, coerced, legal, extra-legal, white, non-white, Christian, non-Christian, is what the real America is all about, for better or worse. Overall, immigration is a positive force for America.
Here’s a great essay on the positive nature of immigration by Pedro Gerson on Slate. Pedro isthe director of the Immigration Law Clinic at the Louisiana State University Law Center, and a former immigration staff attorney at the Bronx Defenders. The latter organization has been home to a number of notable members of the NDPA.
Pedro Gerson Director, Immigration Law Clinic LSU Law Center SOURCE: Twitter
As Pedro says, human migration to America will continue notwithstanding GOP xenophobes. The only question is whether we will have the wisdom and courage to work with and take advantage of its power in constructive, creative, forward looking ways, rather than trying to “recreate Jim Crow!”
Or, will we continue, as GOP restrictionists urge, to squander resources, goodwill, and human potential on futile efforts to eradicate what is perhaps the oldest and most fundamental phenomenon of human existence?
🇺🇸🗽⚖️Due Process Forever! Restore the rule of law! Fix The Disgraceful, Dysfunctional Immigration Courts, Judge Garland! End White Nationalist racism!
Donald M. Kerwin Executive Director Center for Migration Studies
In a new essay for the Center for Migration Studies of New York (CMS), CMS’s Executive Director Donald Kerwin writes:
The number of unaccompanied children and asylum-seekers crossing the US-Mexico border in search of protection has increased in recent weeks. The former president, his acolytes, and both extremist and mainstream media have characterized this situation as a “border crisis,” a self-inflicted wound by the Biden administration, and even a failure of US asylum policy. It is none of these things. Rather, it is a response to compounding pressures, most prominently the previous administration’s evisceration of US asylum and anti-trafficking policies and procedures, and the failure to address the conditions that are displacing residents of the Northern Triangle states of Central America (El Salvador, Guatemala, and Honduras), as well as Venezuela, Cuba, Haiti, and other countries…
The real immigration crisis is not at the border, but in the failure to respond effectively to the conditions driving forced migration, to establish orderly and viable legal immigration policies, to legalize the increasingly long-tenured undocumented population, and to reform and invest sufficiently in the US asylum and immigration court systems.
Thanks Don for speaking out against the scandalous GOP complete “border BS,” all too often parroted by the so-called “mainstream press.” Read the rest of Don’s essay at the link.
Don has spent his entire career solving migration and human rights problems. The Biden Administration and everyone who believes in American democracy should listen to “practical experts” like Don, rather than ignorant, racially-motivated GOP politicos and White Nationalist nativists spouting the “same old, same old” myths, fear-mongering, and unhelpful “non-solutions.”
If xenophobic rhetoric, cruelty, officially-sanctioned child abuse, evading our own legal and humanitarian responsibilities, and “enforcement only” were the “solutions,” the “problem at the Southern Border” — which has existed in one form or another for over a half century, would long ago have been solved. We can’t solve humanitarian situations that create forced migration with unilateral law enforcement gimmicks and cruelty toward the humans fighting for their lives. Human migration long pre-existed the formation of nation states and establishment of national boundaries.
Administration after administration, of both parties, have squandered time and taxpayer money on unsuccessful efforts to “enforce their way” out of forced migration situations. Contrary to GOP blather, Democratic Administrations have been almost as fixated as the GOP with unsuccessfully “detaining, deterring, and enforcing” their way out of human problems that demand more thoughtful human solutions.
All Administrations at some point prematurely claim that their efforts have “succeeded.” None actually have succeeded in addressing the causes of the migration. Therefore, none of these “false solutions” proves “durable.”
Significantly, Don is one of the few commentators to fully grasp the integral connection between the Trump regime’s complete destruction of the integrity of the Immigration Courts and its lawless, yet highly ineffective, border policies.
Real solutions don’t kill, harm, and maim refugees and forced migrants, encourage criminal cartels and corrupt foreign officials to prey on them, and stack up desperate humans in dangerous conditions just across the border because US Government officials were too biased and incompetent to operate under any semblance of the rule of law.
We can abide by our own laws, international norms, our Constitution, human decency, and common sense. It isn’t rocket science.
But, it does require a combination of expertise, courage, humanity, and practical problem solving that has been conspicuously absent from our governing structure since 2017, and severely undervalued before that.
Also, it’s certainly not that the Biden Administration has suddenly re-established due process and the rule of law at the border. Far from it!
The vast majority of those arriving at the border, even those who are applying at legal ports of entry, are unceremoniously and summarily removed without any process at all, let alone due process of law. This is all based on a largely bogus Trump-initiated exercise of authority by the CDC to use COVID-19 as a pretext to suspend the rule of law and constitutional due process at the border.
Moreover, we shouldn’t forget that even with the Biden Administration’s gradual efforts to re-establish a legal process for asylum seekers, unaccompanied children are still being held in Government detention for far longer than the 72-hours permitted under law. This problem won’t be solved, as some GOP nativists incredibly suggest, by dumping kids back across the Mexican Border, returning them to danger in their home countries without regard to their individual situations, or forcing them to turn to smugglers to make their way to relative safety in the interior of the U.S.
Nor will it be solved by long-term detention in disgraceful and inhumane “Baby Jails!” Ask my Georgetown Law colleague and author Professor Phil Schrag of the CALS Asylum Clinic about that!
Interestingly, some of the biggest complainers spreading the “open borders myth” are Greg Abbott and other Texas GOP politicos who have prematurely “reopened their state” in the middle of a pandemic in blatant contravention of best medical and public health advice. So, you can summarily dismiss their “crocodile tears” and bogus “hand wringing” about public health and safety.
That’s particularly true since the GOP is just coming off a massive example of how their incompetent mis-governance of Texascaused unnecessary misery and loss of life among Texas residents as a result of a highly predictable and long-foreseen “weather emergency.” Why does the mainstream media often continue to treat these “political hacks,” who couldn’t “govern” their way out of a paper bag, as credible spokespersons on anything, let alone human rights situations of which they have no expertise whatsoever?
🇺🇸🗽⚖️Due Process Forever! Re-Establish The Rule Of Law, Including Full, Robust Humanitarian Protections At The Border& In Our Disgracefully Dysfunctional Immigration “Courts.”
Republicans are convinced that attacking President Biden’s border policies will win them the midterms. House Minority Leader Kevin McCarthy (R-Calif.) has gleefully labeled the situation there “Biden’s border crisis.”
In this, Republicans are benefiting from a media debate that has gone off the rails.
There’s a huge hole in this GOP attack, but it’s rarely described clearly in news reports and commentary. You can read endless headlines warning of a “crisis.” But even if that’s so, a crisis relative to what, exactly ?
What’s missing is a serious comparison with the pre-Biden status quo. It’s as if the current situation exists in a vacuum: Before there was no crisis, and now there’s a crisis .
That’s absurd. The situation under former president Donald Trump was substantially worse from a humanitarian and a pragmatic governing perspective: worse for the migrants, worse for the rule of law and worse for our country.
Biden is cleaning up Trump’s mess
It’s true that child and teenage migrants are overwhelming our facilities.
Because they can’t get released alone, they must be held at Border Patrol facilities for 72 hours before getting transferred to the Office of Refugee Resettlement, which places them with relatives or guardians. The ORR facilities are jammed, backlogging border facilities.
This is a terrible situation. But it’s happening in large part because Biden is undoing a Trump policy that should be undone.
Due to covid-19, the previous administration turned away most asylum seekers — without hearings — under a legal provision allowing a temporary block on noncitizens from entering to protect public health.
Biden is no longer applying this provision to unaccompanied children and teenagers (while keeping it for adults), helping fuel child backlogs. But that’s a move in the right direction, both from a humanitarian and rule-of-law perspective.
Coronavirus will be tamed before long, and we have a legal obligation to allow migrants to exercise their right to seek asylum. And as David Bier notes, that provision is not for controlling migrant flows outside a genuine public health rationale. If anything, expelling adults abuses it.
So continuing to use this tool is not a tenable long-term solution to the humanitarian problem, and it’s not in keeping with the rule of law. That requires letting in the kids, and we will have to allow more adults to apply for asylum. The question is how we manage it.
. . . .
******************
Read Greg’s full op-ed at the link.
I understand why Fox News, Breitbart, and the rest of the “truth averse” right wing media shills promote the GOP’s racist, xenophobic “border crisis” myths.
What I don’t get is why the so-called “mainstream media” doesn’t do its homework on the real situation on the border and the Trump-created mess facing Biden in restoring some sense of order and lawful behavior to an intentionally broken and dysfunctional system.
A few journalists like Greg, his WashPost colleague Arelis Hernandez, Cindy Carcamo (LA Times), Nicole Narea (Vox News), and Priscilla Alvarez (CNN), to name some, have taken the time to get it right (or close to right). But, far too many reporters who should know better just repeat the Abbott, McCarthy, GOP disingenuous nonsense without critical analysis or pushback.
And, what’s sorely missing is the perspective of those at the heart of this situation: the kids and families faced with such a desperate situation in their home countries that they are willing to seek mercy and refuge in a country that proudly advertises its lack of respect for their humanity, our own laws, and international norms that are supposed to insure fair and humane treatment.
They aren’t numbers, stats, bar graphs, and trend lines — they are human beings. They assert rights to apply for refuge under international norms that the U.S. has written into laws –laws we have unilaterally decided not to follow.
The overwhelming majority seek not to “evade” authorities, but to turn themselves in to our legal system: A system that functionally no longer exists at our Southern Border thanks to Trump and, to some extent, the Supremes. This is neither a “law enforcement” nor a “national security” crisis — it’s a fundamental breakdown in our legal system and a betrayal of humane values.
That’s the real problem here. It originated long before the Biden Administration. To date, no GOP politico has offered any type of constructive solution. And, too few journalists have held the GOP nativists accountable for their racist-inspired lies, misrepresentations, myths, and lack of any semblance of constructive proposals for rational, lawful, governance — real solutions for problems aggravated by their own toxic, inhumane, and often illegal policies!
