"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.
The Department of Homeland Security (DHS) is reportedly drafting plans to transform family migrant detention centers in South Texas into screening hubs as the Biden administration faces a growing number of migrants at the southern border.
The Washington Post, which obtained internal DHS draft documents outlining the plans, reported Thursday that senior ICE official Russell Hott informed staff in an email this week that the number of unaccompanied minors and families arriving in the U.S. in 2021 is “expected to be the highest” recorded “in over 20 years.”
According to the Post, Hott added that with more than 500 family members arriving per day, the shift from detention to Ellis Island-style processing centers “may not be sufficient to keep pace with apprehensions,” with the potential for some migrants to be housed in hotels.
DHS officials, who spoke to the Post on the condition of anonymity because they were not authorized to speak publicly, said the transition to rapid processing and release centers has already begun.
The reported change comes as the latest move in President Biden’s efforts to reform the U.S. immigration system and keep up with the rising number of migrants crossing into the country amid shortages of bed space and personnel at detention centers.
The reported plans also mark a shift from policies under the Obama and Trump administrations, when most migrant families were quickly released or deported upon arriving in the U.S., with some being held in dormitory-style centers for extended periods of time as they awaited immigration proceedings.
The Biden administration has publicly said it is reviewing how family detention facilities are used, though the Post noted that the administration last week told a federal judge that the policies had not yet changed.
. . . .
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Read the full article at the link.
The three keys are: 1) screening for COVID, background, and credible fear of persecution; 2) matching asylum applicants with representation, which promotes nearly “perfect attendance,” at hearings; 3) radically and rapidly reforming the Immigration Court system so that the Immigration Judges are “practical experts” on asylum law and eliminating the huge number of “deadwood” cases clogging dockets so Immigration Judges can conduct asylum hearings for recent arrivals on a timely, consistent, predictable basis, with an emphasis on due process and getting the result correct at the initial merits hearing.
PANEL: Before: Richard A. Paez and Johnnie B. Rawlinson,
Circuit Judges, and George H. Wu,** District Judge. Opinion by Judge Paez;
Concurrence by Judge Rawlinson
* The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
** The Honorable George H. Wu, United States District Judge for the Central District of California, sitting by designation.
SUMMARY BY COURT STAFF:
Immigration
Granting Abdi Ali Asis Aden’s petition for review of the Board of Immigration Appeals’ dismissal of his appeal of an Immigration Judge’s denial of his applications for asylum and withholding of removal from Somalia, and remanding, the panel held that the Board erred in concluding that Aden did not qualify for an exception to the firm resettlement bar, and that the evidence compelled the conclusion that he suffered past persecution in Somalia on account of a protected ground.
Aden asserted that he suffered persecution in Somalia by members of Al-Shabaab, a militant terrorist organization affiliated with Al-Qaeda and the Islamic State, after his brother refused their orders to shut down his theater showing American and Hindi movies and sports, which Al-Shabaab viewed as “Satanic” movies. The Board concluded that Aden was ineligible for asylum because he was firmly resettled in South Africa, and that he failed to establish that he suffered past persecution in Somalia on account of a protected ground.
The Board noted that Aden presented “ample evidence” of persecution in South Africa, but nonetheless determined that he failed to qualify for the restricted-residence exception to the firm resettlement bar because the persecution he faced was at the hands of private individuals, rather than the South
*** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
ADEN V. WILKINSON 3
African government. The panel concluded that the Board erred in doing do, holding that the restricted-residence exception applies when the country’s authorities are unable or unwilling to protect the applicant from persecution by nongovernment actors.
The panel held that the evidence compelled the conclusion that Aden suffered past persecution in Somalia, where in addition to physically beating Aden, members of Al-Shabaab kept tabs on him by contacting his brother and warned they would kill Aden and his brother if they continued to disobey Al-Shabaab’s command to close their theater. The panel wrote that the chain of events revealed that Al-Shabaab intended to coerce Aden to submit to its new political and religious order, and used offensive strategies— beatings, destruction of property, and death threats—to achieve this goal. Further, the panel explained that continuing political and social turmoil caused by Al- Shabaab provided context for the harm and death threats that Aden experienced, which together with the past harm, compelled the conclusion that he suffered past persecution in Somalia.
The panel held that substantial evidence did not support the Board’s determination that Aden failed to establish that he was targeted on account of a protected ground because Al Shabaab was motived by their own political and religious beliefs, rather than Aden’s. The panel explained that Al- Shabaab’s accusation that the brothers were featuring Islamically forbidden, “Satanic” films provided direct evidence of their political and religious motive, and that even if the brothers did not feature the films out of their own political or religious convictions, Al-Shabaab at the very least imputed those beliefs to them. The panel wrote that the only logical explanation for Al-Shabaab’s treatment of Aden
4 ADEN V. WILKINSON
and his brother was that their actions were subversive to Al- Shabaab’s political and religious doctrine.
The panel remanded for the Board to consider, under the appropriate framework, whether Aden was firmly resettled in South Africa, and to give the government an opportunity to rebut the presumption of future persecution triggered by Aden’s showing of past persecution on account of a protected ground.
Concurring, Judge Rawlinson agreed that the case should be remanded for reconsideration of the firm resettlement issue. Judge Rawlinson noted that despite the fact that the IJ never addressed the issue of whether persecution by private actors may prevent application of the firm resettlement bar, the Board concluded that the firm resettlement bar applied to Aden because he did not introduce any evidence that the South African government imposed any restrictions on his residency such that the restricted-residence exception applied. Judge Rawlinson wrote that the Board’s conclusion was not supported by substantial evidence in the record, as reflected in the IJ’s factual findings. Judge Rawlinson also agreed that the Board erred in concluding that Aden failed to establish a nexus to a protected ground because, based on binding precedent, an applicant such as Aden, who disagrees with Al Shabaab’s view of the proper interpretation of Islam, can establish persecution on account of a protected ground by showing that others in his group persecuted him because they found him insufficiently loyal or authentic to the religious ideal they espouse.
ADEN V. WILKINSON 5
COUNSEL
Emery El Habiby, El Habiby Law Firm, Sun City, Arizona, for Petitioner.
Stephen J. Flynn, Assistant Director; Lynda A. Do, Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
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This case has been pending six years! Should have been granted by the IJ. No wonder EOIR is running a 1.3 million backlog! Attempts to turn “easy grants” into bogus denials is killing this system, not to mention the asylum seekers suffering the “triple whammy” of EOIR’S lack of expertise, lousy training, and a “denial culture.”
My good friend, colleague, and former NAIJ President Judge Dana Leigh Marks, who actually is an asylum expert, once told The NY Timesthat asylum cases are like the death penalty in traffic court. But, I suspect that many folks appearing in traffic court get significantly MORE due process than those on trial for their lives in our broken, biased, and dysfunctional Immigration Courts.
Judge Garland needs to fix this! Sooner, rather than later!
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 19–438. Argued October 14, 2020—Decided March 4, 2021
Immigration officials initiated removal proceedings against Clemente Avelino Pereida for entering and remaining in the country unlawfully, a charge Mr. Pereida did not contest. Mr. Pereida sought instead to establish his eligibility for cancellation of removal, a discretionary form of relief under the Immigration and Nationality Act (INA). 8 U. S. C. §§1229a(c)(4), 1229b(b)(1). Eligibility requires certain nonper- manent residents to prove, among other things, that they have not been convicted of specified criminal offenses. §1229b(b)(1)(C). While his proceedings were pending, Mr. Pereida was convicted of a crime under Nebraska state law. See Neb. Rev. Stat. §28–608 (2008). Ana- lyzing whether Mr. Pereida’s conviction constituted a “crime involving moral turpitude” that would bar his eligibility for cancellation of re- moval, §§1182(a)(2)(A)(i)(I), 1227(a)(2)(A)(i), the immigration judge found that the Nebraska statute stated several separate crimes, some of which involved moral turpitude and one—carrying on a business without a required license—which did not. Because Nebraska had charged Mr. Pereida with using a fraudulent social security card to obtain employment, the immigration judge concluded that Mr. Pereida’s conviction was likely not for the crime of operating an unli- censed business, and thus the conviction likely constituted a crime in- volving moral turpitude. The Board of Immigration Appeals and the Eighth Circuit concluded that the record did not establish which crime Mr. Pereida stood convicted of violating. But because Mr. Pereida bore the burden of proving his eligibility for cancellation of removal, the ambiguity in the record meant he had not carried that burden and he was thus ineligible for discretionary relief.
Held: Under the INA, certain nonpermanent residents seeking to cancel
2
PEREIDA v. WILKINSON Syllabus
a lawful removal order bear the burden of showing they have not been convicted of a disqualifying offense. An alien has not carried that bur- den when the record shows he has been convicted under a statute list- ing multiple offenses, some of which are disqualifying, and the record is ambiguous as to which crime formed the basis of his conviction. Pp. 5–17.
(a) The INA squarely places the burden of proof on the alien to prove eligibility for relief from removal. §1229a(c)(4)(A). Mr. Pereida accepts his burden to prove three of four statutory eligibility requirements but claims a different rule should apply to the final requirement at issue here—whether he was convicted of a disqualifying offense. Mr. Pereida identifies nothing in the statutory text that singles out that lone requirement for special treatment. The plain reading of the text is confirmed by the context of three nearby provisions. First, the INA specifies particular forms of evidence that “shall constitute proof of a criminal conviction” in “any proceeding under this chapter,” regardless of whether the proceedings involve efforts by the government to re- move an alien or efforts by the alien to establish eligibility for relief. §1229a(c)(3)(B). Next, Congress knows how to impose the burden on the government to show that an alien has committed a crime of moral turpitude, see §§1229a(c)(3), 1227(a)(2)(A)(i), and yet it chose to flip the burden when it comes to applications for relief from removal. Fi- nally, the INA often requires an alien seeking admission to show “clearly and beyond doubt” that he is “entitled to be admitted and is not inadmissible,” §1229a(c)(2), which in turn requires the alien to demonstrate that he has not committed a crime involving moral turpi- tude, §1182(a)(2)(A)(i)(I). Mr. Pereida offers no account why a rational Congress would have placed this burden on an alien who is seeking admission, but lift it from an alien who has entered the country ille- gally and faces a lawful removal order. Pp. 5–7.
(b) Even so, Mr. Pereida contends that he can carry the burden of showing his crime did not involve moral turpitude using the so-called “categorical approach.” Applying the categorical approach, a court considers not the facts of an individual’s conduct, but rather whether the offense of conviction necessarily or categorically triggers a conse- quence under federal law. Under Mr. Pereida’s view, because a person could hypothetically violate the Nebraska statute without committing fraud—i.e., by carrying on a business without a license—the statute does not qualify as a crime of moral turpitude. But application of the categorical approach implicates two inquiries—one factual (what was Mr. Pereida’s crime of conviction?), the other hypothetical (could some- one commit that crime of conviction without fraud?). And the Ne- braska statute is divisible, setting forth multiple crimes, some of which the parties agree are crimes of moral turpitude. In cases involving
Cite as: 592 U. S. ____ (2021) 3 Syllabus
divisible statutes, the Court has told judges to determine which of the offenses an individual committed by employing a “modified” categori- cal approach, “review[ing] the record materials to discover which of the enumerated alternatives played a part in the defendant’s prior convic- tion.” Mathis v. United States, 579 U. S. ___, ___. This determination, like many issues surrounding the who, what, when, and where of a prior conviction, involves questions of historical fact. The party who bears the burden of proving these facts bears the risks associated with failing to do so. This point is confirmed by the INA’s terms and the logic undergirding them. A different conclusion would disregard many precedents. See, e.g., Taylor v. United States, 495 U. S. 575, 600. Just as evidentiary gaps work against the government in criminal cases where it bears the burden, see, e.g., Johnson v. United States, 559 U. S. 133, they work against the alien seeking relief from a lawful removal order. Congress can, and has, allocated the burden differently. Pp. 7– 15.
(c) It is not this Court’s place to choose among competing policy arguments. Congress was entitled to conclude that uncertainty about an alien’s prior conviction should not redound to his benefit. And Mr. Pereida fails to acknowledge some of the tools Congress seemingly did afford aliens faced with record-keeping challenges. See, e.g., §1229a(c)(3)(B). Pp. 15–17.
916 F. 3d 1128, affirmed.
GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C.J.,andTHOMAS,ALITO,andKAVANAUGH,JJ.,joined. BREYER,J.,filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined. BARRETT, J., took no part in the consideration or decision of the case.
KEY QUOTE FROM DISSENT:
Finally, it makes particularly little sense to disregard this core feature of the categorical approach here. See id., at 203–204. As already noted, cancellation of removal is discretionary. Thus, when a conviction is not disqualifying under the categorical approach, the Government may still deny the noncitizen relief. If it turns out that an individual with a record like the one here in fact violated the statute in a reprehensible manner, that can be accounted for during the discretionary phase of the proceedings, when the categorical approach does not apply.
***
In my view, the Court should follow Congress’ statute. Congress has long provided that immigration courts apply- ing the INA provision here, like sentencing courts applying ACCA, must follow the categorical approach. See Mellouli, 575 U. S., at 805–806. Our cases make clear how that approach applies in a case like this one. We should follow our earlier decisions, particularly Taylor, Shepard, and John- son. And, were we to do so, ineluctably they would lead us to determine that the statutory offense of which Mr. Pereida was “convicted” is not “necessarily” a “crime involving moral turpitude.”
Because the Court comes to a different conclusion, with respect, I dissent.
**********************
“When in doubt, throw ‘em out,” seems to be the majority’s refrain. As pointed out by Justice Breyer, a decision that allowed Mr. Pereida, who has lived in the U.S. for a quarter of a century, to apply for cancellation of removal because of the uncertainty as to whether his 2010 conviction for “attempted criminal impersonation” under Nebraska law involved “moral turpitude,” would not have guaranteed him relief. It merely would have allowed the Immigration Judge to weigh the substantial equities that Mr. Pereida and his family had developed against his decade-old criminal conviction.
The Immigration Judge could then have decided, on the basis of a fully developed record, in the exercise of discretion whether or not Mr. Pereida merited a “second chance” in the U.S. And, of course, if the application were granted, ICE would still have the ability to appeal to the BIA, which exercises “de novo” review on questions of discretion.
There is lots that needs to be changed about our current immigration system. It’s too bad that Congress appears too deadlocked to get the job done.
PWS
03-04-21
UPDATE:
”Sir Jeffrey” Chase just reminded me that our Round Table 🛡⚔️filed an amicus brief in support of the respondent’s position in this case. Sadly, we didn’t carry the day, here! ☹️
But, we’ll be heard from again on the “categorical approach.” I guarantee it!
Jacqueline Thomsen Courts Reporter National Law Journal
Jacqueline Thomsen reports for the National Law Journal:
. . . .
Even with an emoluments lawsuit filed against Trump on his first day in office, four years later nothing came of it. After he left office, the lawsuits were declared moot by the U.S. Supreme Court and dismissed.
The struggle to legally hold Trump to account over the alleged emoluments violations were emblematic of the rest of the lawsuits he faced during his presidency, whether they targeted him individually or his administration.
When lower courts ruled against Trump officials—as they did in suits over border wall construction—his administration would go to the U.S. Supreme Court to get an emergency order that allowed them to continue the challenged action. More often than not, Trump got a ruling in his favor.
“Trump could count on them for anything,” Norm Ornstein, a conservative resident scholar with the American Enterprise Institute, said of Justices Clarence Thomas and Samuel Alito.
“And certainly that’s the case with Gorsuch, Kavanaugh and Barrett,” he added, referring to the three justices Trump appointed to the court.
And the novel legal questions surrounding lawsuits against a sitting president were enough to significantly delay several other challenges against him. House cases dragged out as courts determined whether lawmakers had the ability to sue to enforce subpoenas against the administration, a legal issue that forced similar suits to halt for months.
Despite two impeachments, hundreds of lawsuits against his administration and other litigation targeting him and his businesses, Trump left office relatively legally unscathed. Armed with a litigious past and a grip on his political party, he successfully managed to use the country’s institutions to minimize the blowback and get his way.
. . . .
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Those with NLJ access (everyone used to get 3 free articles/mo; now it’s down to one) can read the rest of Jacqueline’s article at the link. She’s a great writer. Too bad so much of her work is “hidden behind the wall.”
Lack of accountability for scofflaw behavior, abuse of power, and corruption are hallmarks of third-world dictatorships and authoritarian regimes throughout history.
The Supremes’ enabling started with the Travel Ban cases and continued to the Capitol insurrection, which “the complicit ones” were able to watch unfold from their marble palace across the street.
So, the Supremes, the institution whose most important job is to protect American democracy, democratic institutions, due process, and individual rights when the other two branches fail, wasn’t up to the job! Despite the Supremes’ best efforts to undermine democratic governance, and their active furthering of the GOP’s race-driven voter suppression agenda, 81 million voters bailed us out this time around. But, it’s highly unlikely that American democracy could survive another “Trump-type” authoritarian regime. Don’t expect any help from the Supremes as currently comprised.
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, March 19, 2021 (The timing of postponement notices has been inconsistent and it is unclear when the next announcement will be. EOIR announced 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.
Reuters: U.S. President Joe Biden on Wednesday revoked a proclamation from his predecessor that blocked many green card applicants from entering the United States.
Politico: ACLU Executive Director Anthony D. Romero was quick to welcome Mayorkas’ announcement, but cautioned that “the devil is in the details and Secretary Mayorkas has to shed all the caveats and qualifications around his announcement and follow through with everything that’s necessary to right the wrong.” See also Lawyers have found the parents of 105 separated migrant children in past month.
NYT: The two leaders, who previously talked about ways to stem migration in a call on Jan. 22, just days after Mr. Biden took office, are expected to discuss addressing the root causes of persecution and poverty that force Central American families to flee to the United States.
WaPo: Government officials say the camp is needed because facilities for migrant children have had to cut capacity by nearly half because of the coronavirus pandemic. At the same time, the number of unaccompanied children crossing the border has been inching up, with January reporting the highest total — more than 5,700 apprehensions — for that month in recent years.
Politico: U.S. District Judge Drew Tipton granted a preliminary injunction that blocks the moratorium the Biden administration announced on its first day.
WaPo: U.S. Immigration and Customs Enforcement officers have tapped a private database containing hundreds of millions of phone, water, electricity and other utility records while pursuing immigration violations, according to public documents uncovered by Georgetown Law researchers and shared with The Washington Post.
InTheseTimes: According to the Executive Office for Immigration Review (EOIR) — the Justice Department agency that oversees these immigration adjudication centers — nearly 300,000 asylum cases have been heard via videoconference in the past two years.
NPR: Nana Gyamfi, Executive Director of the Black Alliance for Just Immigration, tells NPR’s Scott Simon about challenges Black immigrants to the U.S. face.
NBC: The Consumer Financial Protection Bureau on Monday filed a lawsuit against Libre by Nexus, claiming the company is preying on immigrants through a bond scam that traps participants into paying expensive fees.
Examiner: Protocols for caring for families and children, border wall infrastructure, decriminalizing illegal immigration, immigration courts, employment-based immigration, and private detention facilities were not addressed in either the House or Senate versions of the bill.
USCIS has launched a temporary pilot program to facilitate attorney or representative participation in an asylum interview from a remote location via video or telephone. The pilot program is available only at the Arlington, Boston, Miami, Newark, and Newark/Manhattan Branch asylum offices. AILA Doc. No. 21030131
Law360: A fractured Second Circuit panel tossed an El Salvadoran asylum seeker’s appeal, finding that his opposition to gangs was not a political opinion and that he could avoid future beatings, a view the dissenting judge called an “uncharitable” interpretation of the case.
BIA ruled that an applicant for special rule cancellation of removal under INA §240A(b)(2) based on spousal abuse must demonstrate both that the abuser was their lawful spouse and was either a U.S. citizen or LPR at the time of the abuse. Matter of L-L-P-, 28 I&N Dec. 241 (BIA 2021) AILA Doc. No. 21022432
Law360: A pair of thorny immigration cases “baffled” and “confused” the inquisitive justices of the U.S. Supreme Court Tuesday as they wrestled with when testimony of asylum applicants must be presumed to be credible.
A district court grants nationwide preliminary injunction to prohibit enforcement and implementation of the 100-day pause on removals as outlined in the 1/20/21 DHS memo. (State of Texas v. USA, et al., 2/23/21) AILA Doc. No. 21012634
On 2/24/21, President Biden issued Proclamation 10149 revoking Proclamation 10014, section 1 of Proclamation 10052, and section 1 of Proclamation 10131, which suspended immigrant visas due to the 2019 novel Coronavirus outbreak. (86 FR 11847, 3/1/21) AILA Doc. No. 21022490
DOS updates its announcement and FAQs on the phased resumption of visa services following the rescission of Presidential Proclamation 10014, which suspended the entry of certain immigrant visa applicants into the United States. AILA Doc. No. 20071435
Documented: Judge Alison Nathan’s Nov. 30 ruling at U.S. District Court in Manhattan was the first to draw a constitutional line on how long an Immigration and Customs Enforcement detainee waits for an initial hearing before a judge.
Law360: A Florida federal judge ruled Friday that a Mexican citizen can join a class action challenging U.S. Customs and Immigration Enforcement detainee conditions at three South Florida facilities during the COVID-19 pandemic, saying the agency cannot escape jurisdiction by transferring him to a facility across the country.
AIC: The Council and partners filed a Freedom of Information Act (FOIA) lawsuit to compel the government to release documentation of three raids on a humanitarian aid station in the deadly desert in Southern Arizona.
The Department of Health and Human Services published a notice stating that it is no longer pursuing changes to the forms for sponsors of unaccompanied children on which it had requested public comment on 1/5/21 at 86 FR 308, and therefore withdraws its request for comment. (86 FR 11537, 2/25/21) AILA Doc. No. 21022531
DHS: Secretary Mayorkas announced that Michelle Brané will serve as the Task Force’s Executive Director. Most recently, she served as the senior director of the Migrant Rights and Justice program at the Women’s Refugee Commission.
RESOURCES
· Correction: The ERO ombudsman email that was circulating last week had a typo and should be: EROOmbudsman@ice.dhs.gov.
Check out “Top News #7.” It’s an article by Arvind Dilawar in In These Times about “EOIR’s Black Sites,” 🏴☠️ euphemistically known as “Immigration Adjudication Centers” where imposters masquerading as “judges” “process” cases by TV on the deportation assembly line, often without regard to the law, the facts, and the humanity of their victims and the lawyers representing them.
Here’s an excerpt:
Lisa Koop, associate director of legal services for the National Immigrant Justice Center (NIJC), stood with her client in immigration court in September 2019. The client (name withheld for privacy) had escaped violence in Central America and fled to the United States with her young daughter. Here, they were taken into custody by immigration authorities, which landed them in this courtroom, waiting to hear whether they would be granted asylum.
They were initially scheduled with a traditional, in-person immigration judge. But that judge retired and the case was transferred to an “immigration adjudication center.” This new judge video conferenced in. Koop says the judge did not allow an opening statement, was not familiar with relevant precedent and did not ask Koop to address any particularities of the case in the closing argument. The judge ruled that, while the case was “very sad,” it did not meet the criteria for asylum, then wished Koop’s client “good luck” following deportation.
This outrageous mockery of due process, fundamental fairness, and real judicial proceedings is ongoing, in the Department of “Justice” — yes, folks, the Chief Prosecutor of the U.S. maintains his own “wholly owned” “court system”in a nation where justice supposedly is unbiased and impartial — more than five weeks into the Biden Administration.
Last week, we heard a refreshingly emotional expression of personal gratitude and recognition of the essential role of refugee protections from Judge Merrick Garland.
What we haven’t heard to date is a recognition that what will soon be “his” DOJ treats refugees (in this case vulnerable asylum seekers) with disdain and disrespect “revved up” by four years of White Nationalist abuses heaped on them by Judge Garland’s corrupt predecessors as AGs for Trump. We also have yet to hear what Judge Garland plans to do about the deadly and disreputable “EOIR Clown Show” 🤡🦹🏿♂️ which will soon be operating under his auspices and which, whether he realizes it or not, will form the the major part of his legacy to American Justice.
Judge Garland should call up folks like Lisa Koop at NIJC, Claudia Valenzuela at American Immigration Council, andtheir colleagues to get a “real life dose” of what it means to be or represent an asylum seeker in today’s dysfunctional and disreputable Immigration “Courts” that actually are 21st Century Star Chambers.
“Justice” Star Chamber Style
Better yet, he should replace the current EOIR Senior Executives and BIA Appellate Immigration Judges with Koop, Valenzuela, and others like them — “practical experts” in due process, equal justice, immigration, and human rights — who would restore and advance judicial integrity and fairness to a system that has abandoned and trampled upon those fundamental values!
G. Reaper Approaches ICE Gulag With “Imbedded Captive Star Chamber” Run By EOIR, For Their “Partner” Reaper Image: Hernan Fednan, Creative Commons License
As stated at the end of Dilawar’s article:“Asylum-seekers are wrongfully denied asylum, and justice is not served.” Duh!
🇺🇸🗽⚖️Due Process Forever! End the EOIR Clown Show!🤡🦹🏿♂️🎪☠️
I am extremely proud to let you know that Michelle Brané, long-time director of the Women’s Refugee Commission’s Migrant Rights and Justice program, is headed to the Biden administration—effective immediately—to serve as executive director of the newly formed Interagency Task Force on the Reunification of Families. The task force is charged with identifying and reuniting families that were cruelly separated under the Trump administration.
In Michelle’s 14 years at WRC, she built our Migrant Rights and Justice program from the ground up. She and her team have been trailblazers in the work to protect the rights of women and girls seeking asylum in the United States.
An truly inspired and very encouraging choice by the the Biden Administration! The only “downside” — I had Michelle on my “shortlist” for key judicial or executive positions at the “New EOIR,” as well as for an Article III judicial appointment! But, that still could and should happen when her a work at the Interagency Task Force is done!
Michelle is a prime example of the “new generation” of due-process-oriented leaders that the NDPA produces! Brilliant, tough-minded, battle-hardened, “practical scholars,” experts, and innovative managers who will see the battle for social justice through to success, no matter how long it takes. Her background, starting at the BIA, also demonstrates how Judge Garland could and must remake EOIR into a “model judiciary” that attracts, trains, and exports the “best and the brightest” for high level judicial and policy positions.
But, it’s not going to happen unless the current awful mess at EOIR is replaced with “Michelle caliber experts” from the NDPA.
Here’s a recent unpublished decision from the 9th Circuit in Deepak Lama v. Wilkinson, (Feb. 24, 2021):
Before: HURWITZ and BRESS, Circuit Judges, and FEINERMAN,** District Judge.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Gary Feinerman, United States District Judge for the Northern District of Illinois, sitting by designation.
Deepak Lama, a citizen of Nepal, petitions for review of a decision by the Board of Immigration Appeals (BIA) dismissing his appeal of an Immigration Judge (IJ) order denying his claims for asylum and withholding of removal.1 We have jurisdiction under 8 U.S.C. § 1252. We grant the petition and remand.
The IJ found that Lama had suffered past persecution on account of his political activity and was entitled to a presumption of a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(1). But, the IJ also found that the government had rebutted the presumption, and the BIA then dismissed Lama’s appeal on the sole basis that Lama could safely and reasonably relocate within Nepal, to Chitwan, where he previously resided for five years without incident. Our review is limited to the ground on which the BIA relied. Qiu v. Barr, 944 F.3d 837, 842 (9th Cir. 2019).
When the presumption of a well-founded fear of future persecution applies, the government bears the “burden of showing that relocation is both safe and reasonable under all the circumstances” by a preponderance of the evidence. Afriyie v. Holder, 613 F.3d 924, 934 & n.8 (9th Cir. 2010), overruled on other grounds by Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1070 (9th Cir. 2017). “Relocation analysis consists of two steps: (1) ‘whether an applicant could relocate safely,’ and (2) ‘whether it would be reasonable to require the applicant to do so.’” Singh v. Whitaker, 914 F.3d 654, 659 (9th Cir. 2019) (quoting Afriyie, 613 F.3d at 934). We
1 The BIA found that Lama forfeited his claim under the Convention Against Torture. Lama does not challenge that ruling in this court.
2
conclude that the BIA’s limited relocation analysis does not satisfy the applicable legal requirements.
First, the agency “failed to take into account the numerous factors for determining reasonableness outlined in 8 C.F.R. § 1208.13(b)(3).” Knezevic v. Ashcroft, 367 F.3d 1206, 1215 (9th Cir. 2004). Relying on Lama’s stay in Chitwan between 2003 and 2008, the agency provided no analysis of whether it would be reasonable for Lama to relocate there at the time of his hearing, in 2017. Lama demonstrated that he experienced persecution in Nepal both in his hometown and later in Kathmandu, and that this persecution took place both before and after he lived in Chitwan. While his time in Chitwan appears to have been without incident, he last lived there many years ago. The government presented no evidence that Lama could safely and reasonably return there now, considering both the current political situation in Chitwan and Lama’s personal circumstances. See Singh, 914 F.3d at 661.
Second, the BIA’s analysis rests on an apparent misapprehension of the record. The BIA stated that “[t]he record contains no evidence that it would no longer be safe or reasonable for [Lama] to once again return to [Chitwan] where he had previously voluntarily relocated and resided for approximately 5 years without incident.” (Emphasis added.) But the record contains a 2016 letter written to Lama from his uncle, with whom he lived in Chitwan, indicating that Lama would not be
3
safe there. The BIA did not consider this evidence. And to the extent the BIA “erroneously presumed that relocation was reasonable and improperly assigned the burden of proof to [Lama] to show otherwise,” Afriyie, 613 F.3d at 935, it erred in that respect as well. See also 8 C.F.R. § 1208.13(b)(3)(ii) (burden of proof).
Gomes v. Gonzales, 429 F.3d 1264 (9th Cir. 2005), does not support the government’s position that because Lama once resided in Chitwan without incident, “it is axiomatic that he can do so again.” In Gomes, unlike this case, the petitioners had not shown past persecution and thus bore the burden to show that relocation was unreasonable. Id. at 1266–67 & 1266 n.1. In addition, unlike Lama, it appears that the petitioners in Gomes had safely resided in the area in question immediately prior to entering the United States. See id. at 1267. Gomes also did not involve the BIA failing to address evidence (here the letter from Lama’s uncle) indicating that relocation to the designated area could be unsafe.
For the foregoing reasons, we grant the petition and remand this matter to the BIA for further proceedings consistent with this decision. Any relocation analysis must comport with the governing regulations and this court’s precedents. See 8 C.F.R. § 1208.13(b)(3); Singh, 914 F.3d at 659–61. We also dismiss as moot the portion of Lama’s petition challenging the BIA’s denial of his motion to remand.
PETITION FOR REVIEW GRANTED IN PART AND DISMISSED IN PART; REMANDED.
4
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Once again, this is nothing profound, difficult, or controversial. Just basic application of EOIR’S own regulations, consideration of all the evidence presented by the respondent, and basic analysis, with some fundamental fairness and common sense thrown in. That’s probably why the panel didn’t deem it worthy of publication. But, it does further illustrate a disturbing pattern at the BIA and the Immigration Courts.
During my time as an Immigration Judge, I was sometimes involved in the nationwide judiciallaw clerk (JLC)training program. One of my key points to the JLCs was that many Immigration Judges, even then, continued to get basic “burden shifting” and further analysis wrong once the respondent established past persecution, thereby invoking the regulatory presumption of future persecution.
The DHS then has the burden of establishing by a preponderance of the evidence either 1) fundamentally changed conditions that would eliminate any well-founded fear of individualized persecution; or 2) a reasonably available internal relocation alternative under the applicable regulations.
Because conditions seldom materially improve in most refugee-sending countries, and reasonable relocation alternatives that would eliminate a well-founded fear of persecution (not hiding in someone’s basement or in a cave in the forest) can seldom be established, in my experience, the DHS almost always failed to rebut the presumption. This was particularly the case because then, as now, the ICE counsel usually presented no testimony or other evidence to rebut the presumption beyond that contained in the State Department Country Report, whichseldom was definitive on this type of highly individualized analysis.
Even where the DHS rebuts the regulatory presumption, the respondent still can win protection if she or he shows 1) compelling reasons for not returning arising from the past persecution, or 2) a reasonable possibility of other serious harm if returned.
These regulatory standards are consistent with the generous intent of the refugee definition as described by the Supreme Court in INS v. Cardoza-Fonseca. They should result in rather easy grants of protection in most cases involving past persecution,
However it appears that EOIR judges haven’t improved in this area. If anything, result-oriented decision-making geared to make denial of asylum the “administrative norm” evidently has been substituted for careful, professional, expert analysis. Indeed, correct analysis by expert judges knowledgeable in asylum law would probably result in most cases like this being granted at the Immigration Judge level, or even the Asylum Office, thus discouraging the DHS from taking largely meritless appeals to the BIA and reducing the workload in the Circuit Courts.
Instead the sloppy, biased, “any reason to deny” attitude that infects today’s EOIR means that justice for asylum seekers requires skilled lawyers, a “lucky draw” on judges at some level of the system, and, all too often, endless remands and time spent on “redos” to correct elementary errors. No wonder this system is running an astounding 1.3 million case backlog, even with many more IJs on the bench at both the trial and appellate levels!
This is a “system designed to fail.” And, failing it is, at every level, spilling over into the Article III Courts and placing the foundation of our entire U.S. justice system — due process for all under law — in jeopardy.
Quality, expertise, understanding, and a fair and humane attitude toward asylum seekers is much more important than quantity in asylum adjudication!This the exact opposite of the message delivered by the last Administration.
Here’s my basic thesis:
Granting relief wherever possible and at the lowest possible levels of the system speeds things up and promotes best practices and maximum efficiency without stomping on anyone’s rights. (And, it saves lives).
En masse denials and trying to run a “deportation railroad” eventually leads to gross inefficiencies and systemic failure. (And, it kills innocent individuals).
I’m not the only one who believes this. As one of my esteemed Round Table colleagues recently quipped: “The sloppiness of the BIA in case after case is alarming.” Indeed it is; but, sadly, not particularly surprising or unusual.
The Vera Institute of Justice (Vera) recommends that the Biden administration draw from time-tested models, data, and knowledge to build a federally funded, universal legal defense service that provides universal, zealous, and person-centered defense to all immigrants. This federal defender service should be modeled on the criminal federal defender system, which is generally regarded as more successful at realizing the values of high-quality, appropriately funded representation than its state counterparts. Vera makes this recommendation based on years of experience building and managing national immigrant legal defense programs. A federal defender service built on these core values is effective and achievable, and it would help ensure that the lives, liberty, and community health of immigrants are given full and equal protection under the law regardless of status. This policy brief highlights that a federal defender service would address systemic inequities of the immigration system and has widespread support in the United States.
A federally funded, universal legal defense service that provides universal, zealous, and person-centered defense to all immigrants would help address systemic inequities within the immigration system, and would represent a safeguard that is already proven, effective, achievable, and has widespread public support.
Publication Highlights
Vera has already worked with government partners, legal defense providers, advocates, and impacted people to create, test, and refine national immigrant legal defense programs grounded in universality, zealousness, and person-centeredness.
A federal defender service would combat the burden of racist immigration policies that most severely impact immigrants with criminal convictions, poor immigrants, Black immigrants, and immigrants with severe mental health conditions.
Without a federal defender service, tens of thousands of immigrants, including long-term permanent residents, asylum seekers, and parents of U.S.-citizen children, must face a hostile immigration system without representation.
Key Facts
Previous
Immigrants with attorneys are also
10 times more likely
to establish their right to remain in the United States than those without legal representation.
77%
of the 195,625 people whose immigration court cases completed in Fiscal Year 2019 did not have legal representation.
Immigrants with attorneys are
3.5 times more likely
to be granted bond than those without representation.
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You can download the full report at the above link.
The Biden Administration should work into this effort the already operating, highly acclaimed, innovative VIISTA program pioneered and developed by Professor Michele Pistone at Villanova Law for training of non-attorney representatives to provide high-quality representation to asylum seekers in Immigration Court.
Lots of the groundwork for a universal representation program has already been done! It’s about putting the right folks from outside Government in charge and building on the established foundation to take it to another level.
Thanks for speaking out Andrea!Andrea is a former Arlington Immigration Court intern and one of the “charter members” of the NDPA. As captured on this video, she was assaulted by ICE while trying to assist her child client in reuniting with his mother! A civil suit against the agent involved is pending.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons“Justice” Star Chamber Style
PANEL: Howard, Chief Judge, and Kayatta, Circuit Judge.**Judge Torruella heard oral argument in this matter and participated in the semble, but he did not participate in the issuance of the panel’s opinion in this case. The remaining two panelists therefore issued the opinion pursuant to 28 U.S.C. § 46(d).
ATTORNEYS: Nancy J. Kelly, with whom John Willshire Carrera and Harvard Immigration & Refugee Clinic of Harvard Law School at Greater Boston Legal Services were on brief, for petitioner.
Stratton C. Strand, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Douglas E. Ginsburg, Assistant Director, and Derek C. Julius, Senior Litigation Counsel, were on brief, for respondent.
OPINION BY: Chief Judge Howard
KEY QUOTE:
Petitioner Olga Araceli Molina- Diaz is a Honduran native and citizen who twice entered the United States without authorization. The government ordered her removed to Honduras, and an immigration judge (“IJ”) denied her subsequent application for withholding of removal (“Application”). Molina appealed to the Board of Immigration Appeals (“BIA”), which affirmed the IJ’s order and denied Molina’s motion to reopen and remand. Molina now petitions this court to review the BIA’s decision. Because we agree that the IJ and BIA made legal errors, we grant the petition, vacate the removal order, and remand for further proceedings.
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Folks, we’re not talking about obtuse principles of international law, complex statutory interpretation, or “cutting edge” legal concepts. No, this is about credibility, corroboration, following your own precedents (even when they might produce a result favorable to the respondent), and adjudicating a CAT claim.
These are the “bread and butter” of basic asylum and withholding adjudication that is the staple of most Immigration Court dockets. Not rocket science! Yet, once they got below the “caption line,” the BIA, a supposedly “expert tribunal,” got pretty much everything else wrong. With human life at stake, no less!
This isn’t just an “outlier.” It reveals deep systemic problems in a dysfunctional system that has been programmed to cut corners and deny relief. After 21 years as an EOIR Judge at every level, I know an “autopilot denial” when I see one.
This is clearly the product of a judge and a BIA panel that approached the case with a “we deny almost all Hondurans, it’s just a question of how” attitude. Because “the bottom line got to no,” obviously nobody paid much, if any, attention to what was above it. I suspect that if the staff attorney had drafted this as a grant or a remand, the BIA panel would have given it a more thorough and searching review.
Following your own precedents isn’t a matter that requires profound knowledge or amazing analytical skills. It just requires some level of basic expertise and an open mind — things that appear to be sorely lacking throughout today’s broken EOIR.
The flawed EOIR approach to claims for asylum and withholding, particularly those involving the Northern Triangle and women, is very costly, not only to the humans involved, but also to our justice system. This respondent reentered the U.S. in 2009, and her merits hearing before the IJ took place in 2012. A careful, proper analysis could well have resulted in a grant at that time.
Instead, this “plethora of errors,” created by EOIR’s corner cutting and obsession with denying claims, bounced around the system for nearly a decade before being “outed” by the Circuit Court — obviously the only judges involved who took the time to actually analyze the case in accordance with the law, the facts, and the arguments made by counsel. So, after nearly a decade, at three different levels of review, we’re basically back to “square one” with this case.
The case will be returned to the BIA who inevitably will return it to to the IJ for a new hearing that actually complies with the law and due process. Given the total dysfunction in the EOIR system, it’s could easily be around for another decade.
Getting it right at the first level is critically important in a high volume, yet life determining, system like the Immigration Courts!That’s why it’s so absolutely essential that Judge Garland replace the current BIA and many of the current trial judges with “practical experts;” judges selected on a merit-basis because of their understanding of immigration and human rights laws, demonstrated analytical skills, and who by experience and reputation are overwhelmingly committed to due process, fundamental fairness, treating respondents and their lawyers with respect and dignity, and getting the right result the first time around. “The best and the brightest,” if you will!
As this case that began well before Trump shows, the deterioration at EOIR has been underway across Administrations over the past two decades. It greatly accelerated and became more acute under Trump. That’s particularly true because “Trump AGs” drastically expanded the Immigration Courts and the BIA (while exponentially increasing the backlog), and now have appointed the majority of judges in the system — after just four years!
Compare that with the Obama Administration’s practice of taking an mind-boggling average of two years to fill IJ vacancies! And, then filling them almost all with “government insiders and former prosecutors” rather than some of the many renowned “practical scholars,” experienced clinicians, and notable litigators in the private/academic/NGO immigration/human rights sectors. They actually left behind unfilled judicial vacancies for Sessions to “pounce on.” Says all you really need to know about the “priority” of immigrant justice in the Obama Administration. The “good enough for government work” attitude that has replaced “guaranteeing fairness and due process for all” as the “EOIR Vision” needs to go, now!
🇺🇸⚖️🗽Due Process Forever! Achieving it in the Immigration Courts will be the “litmus test” of whether Judge Garland succeeds or fails in his new role as Attorney General! You can’t improve justice for all in America while running a “court system” that denies justice, often ignores the law, mocks due process, eschews best practices and common sense, and routinely disrespects the humanity of those appearing before it! All while running up a stunning 1.3 million case backlog! As Justice Sotomayor would say: “This is not justice!”
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Screwed the respondent again, this is exhilarating! Don’t they ever get tired of losing?” https://www.flickr.com/photos/rasputin243/ Creative Commons License
An applicant for special rule cancellation of removal under section 240A(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(2) (2018), based on spousal abuse must demonstrate both that the abuser was his or her lawful spouse and possessed either United States citizenship or lawful permanent resident status at the time of the abuse.
To state the obvious, if Congress intended the meaning the BIA came up with, they would have just said “was at the time of the abuse.”
Here are a few of the comments from the Courtside mailbox:
“I hope it is not naive to think that the DV community might get a new AG to certify this.Beyond the strategic evil of granting remand and slipshod reasoning, it demonstrates a shocking ignorance of domestic violence and abuse. There is no way this would survive review at the circuit level.”
“Interesting that even though the Administration has set a more “immigrant friendly” tone, the BIA continues to crank out restrictive, anti-immigrant precedents, inevitably choosing the interpretation least favorable to the respondent in all precedents! I sure wish they would be ousted!”
“It’s the same Board Members. I don’t remember the decisions becoming better under Obama, other than A-R-C-G-. And the present Board is far worse in its makeup than under Obama.”
And, perhaps my favorite, short, accurate, and to the point: “F**k!”
It’s what happens when you create a “judiciary” far removed from the human problems and real-life in-court experiences of the community whose lives they crush under their uninformed and tone-deaf “jurisprudence.”
Starting sometime in March, Judge Garland, now one of the most highly respected Federal Judges in America, will find himself in a new position — as the “named defendant” in some the worst so-called jurisprudence in modern American legal history in the now most-litigated area in Federal civil law! This is “intentionally skewed jurisprudence” embodying White Nationalism, inhumanity, and xenophobia.
Is that really the way he wants to be remembered by future generations? If not, what’s his plan for bringing due process, fundamental fairness, diversity, compassion, quality control, efficiency, and “practical scholarship” to our embarrassingly and disgracefully dysfunctional Immigration “Courts?”
CNN Digital Expansion 2019, Priscilla Alvarez Politics Reporter, CNN
Immigration
Lawyers are slowly making progress in locating and reuniting children and families separated at the southern US border as part of the Trump administration’s “zero tolerance” immigration policy. A month ago, the parents of 611 children had yet to be located. Now, that number is down to 506. President Biden this month signed an executive order establishing a new task force designed to identify and reunify these separated families. Meanwhile, the Biden administration has lifted an order that temporarily banned certain immigrant visas during the pandemic and will begin admitting some of the hundreds of migrants held in deplorable conditions in tent camps as part of a policy requiring them to stay in Mexico until their US court dates. Both these decisions are reversals of controversial Trump-era policies.
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Progress on restoring the rule of law at the border and in our legal immigration system, although many advocates yearn for much faster remedial action. Links to more detailed analysis, much of it by CNN All-Star 🌟 Immigration Reporter Priscilla Alvarez, are embedded in the above CNN summary.
1. Family and children detention protocols: The bill does not incorporate the Flores settlement governing the detention of immigrant minors. The Trump administration tried but failed to abrogate the settlement.
2. Border wall infrastructure: No surprise. The U.S./Mexico border wall, which President Trump championed, is not part of the bill’s enforcement plans. The Biden administration already had made it clear that construction of the wall was not a priority of his administration.
As I have previously mentioned, I expect a “stand alone” Article I Bill 🧑🏽⚖️ to be introduced in the House shortly.It could be combined with the Immigration Court improvements in the Biden Bill.
We need to keep the pressure on until Article I happens!
For the Republicans, justice is not something that “rolls down like waters,” it’s something that comes down like a hammer.
This was a failure that Sen. Cory Booker (D-N.J.) aimed to make clear when he asked Garland whether he was familiar with a biblical reference to justice that advises to “act justly and to love mercy.” Much of Booker’s questioning centered around racism within the criminal justice system — the disproportionate arrests of minorities, lousy legal representation for the poor, sentencing imbalances and the issue that caused Kennedy such befuddlement, implicit bias.
Garland acknowledged these issues, the flaws in the system, the need to change. And then he told in public, the story he’d told Booker in private about why he wanted to leave a lifetime appointment on the federal bench to do this job. It’s the most reasonable question, but one that so often is never asked: Why do you want to do this?
Garland acknowledged these issues, the flaws in the system, the need to change. And then he told in public, the story he’d told Booker in private about why he wanted to leave a lifetime appointment on the federal bench to do this job. It’s the most reasonable question, but one that so often is never asked: Why do you want to do this?
“I come from a family where my grandparents fled antisemitism and persecution,” Garland said. And then he stopped. He sat in silence for more than a few beats. And when he resumed, his voice cracked. “The country took us in and protected us. And I feel an obligation to the country, to pay back.”
“This is the highest, best use of my one set of skills,” Garland said. “And so I want very much to be the kind of attorney general you’re saying I could be.”
And that would be one focused on protecting the rights of the greatest and the least — and even the worst. Punishment is part of the job. But it’s not the definition of justice.
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Read Robin’s complete article at the link. She can write! So delighted the Post got her off the “fashion beat” where her talents were being squandered, and got her onto more serious stuff!
Judge Garland’s awareness and humility are refreshing. But, unless he takes immediate action to redo EOIR and the rest of the DOJ’s immigration kakistocracy, it won’t mean much.
Judge, it could have been YOUR family forced to suffer kidnapping, extortion, murder threats, family separation, and other overtly cruel and inhuman treatment in squalid camps in Mexico, waiting for “hearings” that would never come before “judges” known for denying almost 100% of claims regardless of merit! YOUR family’s plea for refugee could have been rejected by some nativist bureaucrat or “hand-selected by the prosecutor” “Deportation Judge” for specious, biased reasons!
YOUR family was welcomed! But what if the only thought had been how to “best deter” “you and others like you” from coming?
Maybe because you and yours are White and hail from Eastern Europe, the “rule of law” has a different meaning and impact than it would if you were Brown, Black, or some other “non-White” skin color and had the misfortune to be from a “shithole” country where we have no concern for what happens to humanity? Or, worse yet, what if your family’s claim had been based on your Grandmother’s gender status? You would really be out of luck under today’s overtly misogynist approach to refugee law flowing out of EOIR!
Then, where would you and your nice family be today? Would you even be? THOSE are the questions you should be asking yourself!
Unfortunately, it’s easy to see that folks like Cotton, Hawley, Cruz, and Kennedy will be deeply offended if you attack their White Nationalist privilege, views, and agendas in any meaningful way.
And, if you actually make progress in holding the Capitol insurrectionists accountable, you’ll have to deal with the unapologetic, disingenuous, anti-democracy, insurrectionist actions of folks like Hawley and Cruz. That won’t be too “bipartisanly popular” with a GOP gang that just overwhelmingly worked and voted to ignore the evidence and “acquit” the “Chief Insurrectionist.”Who, by the way, was a main purveyor of the institutionalized racism that infects EOIR and the rest of the DOJ. It’s no real secret that “America’s anti-democracy party” aids, abets, encourages, and exonerates White Supremacists and domestic terrorists.
In the GOP world, “mercy” and “due process” are reserved for White guys like Trump, Flynn, Stone, White Supremacists, and “Q-Anoners.” Folks of color and migrants exist largely below the floor level of the GOP’s definition of “person” or “human.” For them, justice is a “hammer” to beat them into submission and punish them for asserting their rights.
So, restoring the rule of law at the DOJ is going to be a tough job —you need to clean house and get the right folks (mostly from outside Government) in to help you. And, you must examine carefully the roles of many career civil servants who chose to be part of the problems outlined by Chairman Durbin in his opening remarks.
You’re also going to have to “tune out” the criticism, harassment, and unhelpful “input” you’re likely to get from GOP legislators in both Houses who are firmly committed to the former regime’s White Nationalist agenda of “Dred Scottification,” disenfranchisement, nativism, and preventing equal justice for persons of color, of any status!
Think about all the reasons why you and your family are grateful for the treatment you received from our country. Then, think of the ways you could make those things a reality for all persons seeking refuge or just treatment, regardless of skin color, creed, or status. That’s the way you can “give back” at today’s DOJ! That’s the way you can be remembered as the “father of the diverse, representative, independent, due-process exemplifying21st Century Immigration Judiciary!” 🧑🏽⚖️👩⚖️👨🏻⚖️
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, March 19, 2021 (The timing of postponement notices has been roughly every two weeks lately, but it has been inconsistent and it is unclear when the next announcement will be. EOIR announced 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.
Politico: Congressional Democrats unveiled President Joe Biden’s expansive immigration reform bill Thursday, which would provide an eight-year pathway to citizenship for 11 million undocumented immigrants. But it already faces dim prospects for becoming law with such narrow Democratic majorities in both chambers. See also Factbox: What’s in Biden’s sweeping immigration bill being rolled out in Congress?
CNN: The guidelines establishes strict parameters for ICE officers, particularly in the event that an undocumented immigrant is encountered who’s not being targeted, and appears intended to restrain an agency emboldened under the last administration. See also New ICE Enforcement Priorities Represent an Important Shift, But More Change Is Needed.
CNN: Twenty-five migrants who had been forced to stay in Mexico crossed the US border in San Diego on Friday, the first group to arrive in the country as part of the Biden administration’s rollback of a controversial Trump-era policy, according to a source with knowledge of the process. See also The Ambiguous End of “Remain in Mexico.”
BuzzFeed: Department of Homeland Security officials have been directed to stop using words such as “alien” and “illegal alien” from communications with the public or within the agency when referring to people who aren’t US citizens in an effort by the Biden administration to recast immigration terminology.
SPLC: A federal court has again blocked a Trump administration ban that categorically denied asylum to anyone at the southern border who had transited through a third country en route to the United States, with very limited exceptions.
CBS: The Department of Homeland Security on Tuesday moved to scrap a contract signed at the tail end of the Trump administration that could have allowed a union of deportation officers to stall the implementation of certain immigration policy changes.
BuzzFeed: As millions across Texas endured freezing temperatures without running water or electricity this week, immigrants detained by ICE said they have endured their own misery with not enough to drink, toilets full of human excrement that couldn’t be flushed, and days without being able to shower.
ICE: He is the former Dean of the University of San Francisco School of Law, where he established an immigration law clinic. Prior to his time as Dean, Mr. Trasviña served as the Assistant Secretary of the Office of Fair Housing and Equal Opportunity in the U.S. Department of Housing and Urban Development, managing over 580 employees and a budget exceeding $140 million per year, and President and General Counsel of the Mexican American Legal Defense and Educational Fund (MALDEF).
CNN: Immigration and Customs Enforcement is planning to release some migrant families in detention to accommodate the arrival of migrants arrested at the US-Mexico border, according to two Homeland Security officials.
Reuters: The justices agreed to take up an appeal that the Trump administration had filed of a lower court ruling that found the rule likely violated federal immigration and administrative law by impermissibly expanding the definition of who counts as a “public charge” and greatly increasing the number of people who would be rejected for residency.
Conecta: Individuals and families who believe they may be eligible for the program for active MPP cases can now register via Conecta for an appointment with the Support Hub, the first step in the process. For those without internet, call: 800 283 2753.
USCIS updated guidance in its Policy Manual regarding the educational requirements for naturalization. The update, effective 3/1/21, provides that USCIS will revert to administering the 2008 civics test to applicants who filed for naturalization before 12/1/20, or who will file on or after 3/1/21. AILA Doc. No. 21022232
ICE Acting Director issued a memo establishing interim guidance in support of the interim civil immigration enforcement and removal priorities issued by DHS on 1/20/21. The guidance, effective immediately, covers enforcement actions, custody decisions, execution of final orders of removal, and more. AILA Doc. No. 21021800
CDC notice announcing a temporary exception from expulsion for unaccompanied noncitizen children to its order issued October 13, 2020, suspending the right to introduce certain persons from countries where a quarantinable communicable disease exists. (86 FR 9942, 2/17/21) AILA Doc. No. 21021732
Unpublished BIA decision equitably tolls 180-day time limit on motion to rescind in absentia order based on ineffective assistance of counsel. Special thanks to IRAC. (Matter of Enriquez-Godinez, 6/24/20) AILA Doc. No. 21021600
Unpublished BIA decision holds that carrying a firearm without a license under 18 Pa. Cons. Stat. 6106(a)(1) is not a firearms offense because it applies to antique firearms that are suitable for use. Special thanks to IRAC. (Matter of Santana Colon, 6/30/20) AILA Doc. No. 21021601
The court held that substantial evidence supported the BIA’s decision affirming the IJ’s adverse credibility determination, reasoning that discrepancies in the record warranted a finding that petitioner had testified untruthfully about his asylum claim. (Zaruma-Guaman v. Wilkinson, 2/9/21) AILA Doc. No. 21021837
The court rejected the petitioner’s contention that the conditions of prolonged 41-bis incarceration he faced or would face in Italy rose to the level of torture, as that term is used in the Convention Against Torture (CAT) and its implementing regulations. (Gallina v. Wilkinson, 2/12/21) AILA Doc. No. 21021840
The court rejected the BIA’s “excessively narrow” view of the nexus requirement, concluding that the record indisputably showed that the petitioner had satisfied her burden to establish that her familial ties were one central reason for her persecution. (Diaz de Gomez v. Wilkinson, 2/8/21) AILA Doc. No. 21021631
The court held that it lacked jurisdiction to review petitioner’s argument that the IJ and BIA erred in finding his conspiracy to commit wire fraud offense was a “particularly serious crime” rendering him statutorily ineligible for withholding of removal. (Tibakweitira v. Wilkinson, 2/1/21) AILA Doc. No. 21021632
The court held that BIA did not abuse its discretion in denying the petitioner’s motion to reopen her 1992 deportation proceedings, finding that the Supreme Court’s decision in Pereira v. Sessions did not affect the soundness of her proceedings. (Perez-Perez v. Wilkinson, 2/11/21) AILA Doc. No. 21021841
The court held that the BIA and the IJ failed to consider evidence that the petitioner’s removal would result in exceptional and extremely unusual hardship to his daughter, given that her hardship—a speech impairment—is aggravated by her emotional turmoil. (Martinez-Baez v. Wilkinson, 2/1/21) AILA Doc. No. 21021634
Where the BIA upheld the denial of asylum to petitioner based on a finding that serious reasons exist to believe he committed a serious nonpolitical crime, the court held that the “serious reasons for believing” standard requires a finding of probable cause. (Barahona v. Wilkinson, 2/3/21) AILA Doc. No. 21021636
Upholding the BIA’s denial of asylum and related relief, the court found that the petitioner’s proposed particular social group (PSG) comprised of “minor Christian males who oppose gang membership” was not a cognizable PSG. (Santos-Ponce v. Wilkinson, 2/10/21) AILA Doc. No. 21021932
Denying in part the petition for review, the court held that petitioner’s proposed particular social group (PSG) of “Mexican wealthy business owners” was not cognizable because it lacked social distinction, particularity, or an immutable characteristic. (Macedo Templos v. Wilkinson, 2/9/21) AILA Doc. No. 21021931
Granting the petition for review, the court held that the IJ and BIA had impermissibly refused to consider the Iraqi petitioner’s mental illness as a factor in determining whether he was barred from withholding of removal based on a particularly serious crime. (Shazi v. Wilkinson, 2/11/21) AILA Doc. No. 21021930
Granting the petition for review, the court held that the act of reentering illegally under INA §241(a)(5) requires some form of misconduct by the noncitizen—such as entering without inspection—rather than merely the status of inadmissibility. (Tomczyk v. Wilkinson, 2/3/21) AILA Doc. No. 21021644
A district court granted a preliminary injunction preventing the government from implementing the Third Country Transit Ban final rule and ordering the return to the pre-Final Rule practices for processing asylum applications. (East Bay Sanctuary Covenant vs. Barr, 2/16/21) AILA Doc. No. 21021645
Granting in part plaintiffs’ motion for emergency relief, the court ordered defendants to treat all visas issued or renewed pursuant to Gomez v. Trump as having been issued in the first instance as of the date the court makes a final judgment. (Gomez, et al., v. Biden, et al., 2/19/21) AILA Doc. No. 21022233
The district court preliminarily approved a settlement agreement under which the L.A. County Sheriff’s Department will pay $14,000,000 to former inmates detained beyond the expiration of their state criminal charges pursuant to immigration detainers. (Roy v. County of Los Angeles, 11/25/20) AILA Doc. No. 21021736
The U.S. District Court for the District of Massachusetts issued a preliminary injunction requiring DHS to rescind the orders returning seven asylum-seeking plaintiffs to Mexico pursuant to the Migrant Protection Protocols (MPP). (Bollat Vasquez, et al. v. Mayorkas, et al., 2/13/21) AILA Doc. No. 21021646
Law360: A California federal judge has recommended sanctioning the U.S. Department of Homeland Security and Customs and Border Protection, finding Thursday that two officials shredded notes relevant to asylum-seekers’ claims of being illegally turned away from the southern border.
DHS announced that it has begun the first step in a phased approach to process individuals returned to Mexico with active MPP cases. DHS processed a limited number of individuals on 2/19/21 through the San Ysidro Port of Entry. Additional ports of entry will begin processing individuals this week. AILA Doc. No. 21021230
DOS updated its guidance on K visa processing for individuals who are named plaintiffs in Milligan v. Pompeo and who are subject to a geographic COVID-related proclamation. DOS also provided guidance for K visa applicants who are not plaintiffs in the case. AILA Doc. No. 20113030
USCIS notice extending Deferred Enforced Departure (DED) and work authorization for eligible Liberians through 6/30/22, pursuant to the memo issued by President Biden on 1/20/21. (86 FR 9531, 2/16/21) AILA Doc. No. 21021233
CUNY Immigration Seminar Series, Spring 2021: Feb 5: Holding Fast, Feb 19: Hyper Education, Mar 5: Citizenship Reimagined, Mar 12: The President and Immigration Law, Mar 26: The Browning of the New South, Apr 9: Reuniting Families, Apr 23: Represented But Unequal, Apr 30: Pursuing Citizenship in the Enforcement Era.
FJC Core and Advanced Trainings, February and March 2021 for service providers, community leaders, and city agency staff who are working with populations directly or indirectly affected by domestic and gender-based violence.
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