⚖️CHRISTMAS 🎄 MESSAGE 2020: The Story & Spirit Of Christ 😇 Require Us To Show Compassion, Mercy, & Treat Refugees Fairly & Humanely, Even In Times Of Our Own Nation’s Difficulties & Trauma — “The Christmas story reminds us of a family struggling under the yoke of an oppressive regime,” Says Rev. Serene Jones👍🏼🗽

Manger
Getty Images
Rev. Serene Jones
Rev. Serene Jones
President
Union Theological Seminary

https://time.com/4155651/christmas-story-refugees/

From Time, Dec. 2015:

As our eyes fall upon the familiar manger scenes scattered throughout our churches and homes this Christmas season, it is hard not to think about the millions of people from that same manger land who are seeking refuge from terror and oppression now 2,000 years later.

Where will they go? Who will give them shelter?

As Oliver Willis with Media Matters tweeted: “if only we had a seasonally appropriate story about middle eastern people seeking refuge being turned away by the heartless.”

This less-than-140-character comment has inspired thousands of words in response, many of them from conservative Christians attacking Willis for committing a grave offense against the Christmas story. “Christmas is about Christ,” they insist, “not Syrian refugees. The holy family was simply returning to Bethlehem for a census.” Factually, these critics are right. But they miss the much larger point of the 

The Christmas story is not about a refugee family, but it is about a family seeking refuge. Ordered by an occupying government to travel by foot for days on end so that Caesar Augustus could count the number of people under his order, an expectant mother at the peak of her pregnancy is forced to undergo the single most dangerous experience of a first-century woman’s life not at home, but away in a manger.

It was a fiercely political environment through which they wandered. Why should we pretend like it wasn’t?

. . . .

I believe the Christmas story should open our eyes and our hearts to those most vulnerable in our midst. To those whose only hope is to travel by foot and inflatable raft for days in search of a livable life—many of whom look very much like the Middle Eastern Mary, Jesus’ mother.

. . . .

When Jesus is asked how one inherits eternal life, he responds with the story of the Good Samaritan. The most startling part of the story is that in Jesus’ time Samaritans were perceived similarly to American Muslims today.

Imagine the Pope, when asked how one gets into heaven, answering with a story about a young Muslim from Syria. This is the story Jesus tells.

Jesus tells us to welcome the stranger, to feed the hungry, to go and sell all your possessions and give the money to the poor. Jesus asks that we treat all of humanity with the same love, kindness and generosity that he modeled throughout his life.

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The Christmas story reminds us of a family struggling under the yoke of an oppressive regime. Of a God who became human to take on our struggles and strife and to embody divine love, whose light shines on all. As he tells us, whatever we have done for the least among us we have done to him.

As followers of Jesus we are called to welcome the strangers of our time. To return the care shown by the Good Samaritan to today’s marginalized communities. And to open our hearts and our doors to those seeking refuge this Christmas season, whatever their religion.

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

Read the complete article at the link.

Rev. Jones’s words are as true today, even in the middle of a pandemic, as they were in 2015 when she wrote them.

Unfortunately, the sometimes perceptive, occasionally tone deaf, WashPost Editorial Board chose Christmas Day to exhibit the latter quality, basically “buying in” to the myth that 140,000 (or 200,00, or even 1,000,000) refugees seeking asylum at our Southern Border are somehow going to destabilize our nation and throw it into a tailspin. https://www.washingtonpost.com/opinions/biden-needs-to-restore-american-values-to-immigration-policy-without-triggering-a-border-surge/2020/12/24/d1b60100-43d7-11eb-975c-d17b8815a66d_story.html

According to this specious reasoning, that justifies an indefinite extension of the current regime’s cruel, bogus, and illegal refugee bans, including “Let ‘Em Die in Mexico” by the new Administration while it “cautiously figures things out” (something the Obama Administration never managed to do over eight painful years of botched asylum policies). I call BS! In this situation, every day of unnecessary delay in ending the regime’s racist policies endangers human lives and mocks our claim to be a “nation of laws.”

I repeat the words of my Round Table friend & colleague Judge Paul Grussendorf, a man who has first-had experience with refugees at all levels of our system and who, unlike the Editorial Board and the nativists, has “walked the walk and talked the talk:”

In the early days of this administration there was much hype over the “migrant caravans” composed mostly of Central Americans from the “northern triangle” countries, El Salvador, Honduras and Guatemala, that were “invading” our country — the old “barbarian hordes” trope that is a favorite of every totalitarian regime. In fact the numbers of each such “caravan” for the most part would easily fit inside a typical college stadium. (Current demographics demonstrate that even if we admitted all of them as potential workers and residents, the U.S. would still experience labor shortfalls in the near future and they would not supplant the decline of our native-born population.)

Hon. Paul Grussendorf
Hon. Paul Grussendorf
U.S. Immigration Judge (Ret.)
Member, Round Table of Former IJs
Author
Source: Amazon.com

Judge Grussendorf has forgotten more about asylum and refugee law and practice, and the humanity they serve, than the Editorial Board or the nativist alarmists (“modern day chicken🐥 littles”) they mimic will ever know. 

We’ve survived four years of a maliciously incompetent regime that thrives on disorder, lies, corruption, promoting human misery, inequality, racism, and has intentionally sought to undermine our democracy. Refugees actually bring to the table hope, courage, skills, self-sacrifice, values, and the same ideals on which our country was founded. Indeed, “saving ourselves by saving others” was the theme of one of my first post-retirement essays in 2016. https://immigrationcourtside.com/saving-child-migrants-while-saving-ourselves/

We actually have both the legal tools and the professional expertise readily available to treat asylum seekers and other migrants fairly. The last two Administrations have basically either failed to use existing mechanisms properly or, as in the case of the regime, actively worked to disassemble that which works. 

Reversing these disgraceful trends isn’t rocket science. We can institute and apply the correct legal standards in a fair and reasonable manner. There are loads of folks out there, many in them in the private or NGO sector, who know how to work with refugees, make fair determinations, resettle those who qualify, and institute humane alternatives for those who don’t fit within our current system. Since the regime trashed our international humanitarian obligations, many trained refugee and humanitarian professionals are more than ready to resume using their skills and expertise in refugee matters that was so stupidly, immorally, and improperly “shelved” by the regime.

It might not happen on January 21, 2021, but it could and should happen within a short time thereafter with the right folks in change and a concerted effort on the part of the Biden-Harris Administration to put them in place where they can solve the problems. Getting our asylum, refugee, and Immigration Court systems functioning needs to be a national priority of the highest order, right after COVID relief and economic help! It’s a critical part of the Biden-Harris Administration’s overriding commitment to racial and social justice!

Not surprisingly, refugee crises and the need for a strong, competent, lawful response seldom, if ever, come upon us in “in the best of times” when we are completely prepared. Refugee crises almost always come to a head during times of war, natural disaster, famine, revolution, or worldwide economic depression and disorder. The UN Refugee Convention sprung from the aftermath of WW II and Cold War, hardly stable times in history.

We can and must make carrying through on our legal and humanitarian obligations to the most vulnerable humans in the world, even in difficult and challenging times, part of our obligation to “show Christ-like love in word and deed” regardless of our religious affiliation, if any. 

Christ never asked his followers to do what was easy, profitable, ego-satisfying, or non-threatening — he asked others to follow him in unselfishly taking risk, believing in a better world to come, and “putting it all on the line” for humanity. Those are noble principles that all should be able to agree and act upon.

Merry Christmas, and Due Process Forever!⚖️🗽👍🏼

PWS

12-25-20

WHY EOIR 🤡 MUST GO ** CH. CI — Latest CLINIC Court Victory Over Regime Exposes Unholy (Not To Mention Unconstitutional & Unethical) Alliance Between EOIR & ICE Enforcement To Screw Kids! — The Bottom Is Unfathomably Deep @ The Deadly EOIR Clown Show🤡! —  “ICE is barred (both at the IJ and BIA levels) from seeking denials of continuances or other postponements to await adjudication of the I-589 filed with USCIS, seeking EOIR exercise of jurisdiction over an asylum claim where USCIS has initial jurisdiction under the terms of the 2013 Kim Memo, or otherwise taking the position that USCIS lacks initial jurisdiction over the class member’s asylum application.”

Michelle Mendez
Michelle Mendez
Defending Vulnerable Populations Director
Catholic Legal Immigration Network, Inc. (“CLINIC”)

Michelle Mendez @ CLINIC reports:

Court Grants Class Certification and Amends Preliminary Injunction in USCIS UC Asylum Jurisdiction Litigation

 

On December 21, 2020, the U.S. District Court in Greenbelt, Maryland granted Plaintiffs’ motion for class certification in J.O.P. v. DHS, No. 19:1944, a lawsuit challenging a May 31, 2019 USCIS policy limiting USCIS asylum jurisdiction over applicants previously determined to be “unaccompanied alien children.” The court certified the following class:

 

“All individuals nationwide who prior to the effective date of a lawfully promulgated policy prospectively altering the policy set forth in the 2013 Kim Memorandum (1) were determined to be an Unaccompanied Alien Child (“UAC”); and (2) who filed an asylum application that was pending with the United States Citizenship and Immigration Services (“USCIS”); and (3) on the date they filed their asylum application with USCIS, were 18 years of age or older, or had a parent or legal guardian in the United States who is available to provide care and physical custody; and (4) for whom USCIS has not adjudicated the individual’s asylum application on the merits.”

 

Simultaneously, the court granted in part Plaintiffs’ motion to amend the nationwide preliminary injunction to prevent USCIS’s deference to EOIR jurisdictional determinations and to prevent ICE’s advocacy against USCIS initial jurisdiction. The court denied Plaintiffs’ request to amend the preliminary injunction to prevent USCIS from rejecting jurisdiction based on its expansion of the “affirmative act” exception from the 2013 Kim Memo, instead granting Plaintiffs 21 days to amend their complaint to encompass this claim. Please see CLINIC’s litigation webpage for the court’s December 21, 2020 memorandum opinion and order, as well as other case-related documents.

 

As amended, the preliminary injunction has the following components:

  • It enjoins USCIS from relying on the 2019 policy for any purpose. USCIS is barred from “rejecting jurisdiction over any asylum application filed by Plaintiffs and members of the class whose applications would have been accepted” under USCIS’s previous policy, articulated in the 2013 Kim Memo.
  • It enjoins USCIS from deferring to EOIR jurisdictional determinations. USCIS is barred from “deferring to EOIR determinations in assessing jurisdiction over asylum applications filed by Plaintiffs and members of the class.”
  • It orders USCIS to retract adverse decisions already made. USCIS must “retract any adverse decision rendered on or after June 30, 2019 that is based in whole or in part on any of the actions enjoined and restrained” as described above.
  • It enjoins ICE from advocating against USCIS initial jurisdiction. Where a class member’s asylum application is pending before USCIS, ICE is barred (both at the IJ and BIA levels) from seeking denials of continuances or other postponements to await adjudication of the I-589 filed with USCIS, seeking EOIR exercise of jurisdiction over an asylum claim where USCIS has initial jurisdiction under the terms of the 2013 Kim Memo, or otherwise taking the position that USCIS lacks initial jurisdiction over the class member’s asylum application.

Counsel for the Plaintiffs will continue to provide updates to practitioners as this litigation progresses. Advocates for clients: (1) who receive adverse decisions dated on or after June 30, 2019 that violate the terms of the amended preliminary injunction; or (2) in whose removal proceedings ICE advocates in violation of the amended preliminary injunction should contact Plaintiffs’ counsel Mary Tanagho Ross, mross@publiccounsel.org, and Kevin DeJong, KDeJong@goodwinlaw.com.

 

Thank you,

 

Michelle N. Mendez | she/her/ella/elle

Director, Defending Vulnerable Populations Program

Catholic Legal Immigration Network, Inc. (CLINIC)

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

Thanks for another “great news” report, Michelle, my friend!

Finally, at long last, some Article III judges are “calling out” the highly unethical and glaringly unconstitutional “partnership” between ICE enforcement and EOIR to screw asylum seeking kids.

The EOIR White Nationalist agenda 🏴‍☠️ of limiting legitimate continuances and administrative closing to mindlessly, improperly, and inefficiently proceed in Immigration Court on matters that should be resolved through USCIS adjudication is not only thoroughly corrupt, but also totally counterproductive, as uncontrollably mounting EOIR backlogs and increasing Article III Court interventions have shown.

And, the completely unconstitutional and unethical call early on by corrupt former AG Jeff “Gonzo Apocalypto” Sessions 🤮 for “his wholly owned EOIR judges” to join their “ICE enforcement partners” in racist immigrant bashing initiatives should long ago have been a basis for the Article IIIs to declare this entire ungodly mess in the Immigration Courts to be unconstitutional under the 5th and 14th Amendments.

Thanks to you and other members of the NDPA, Michelle, for all you have done and continue to do to expose corruption, illegality, and wrongdoing in the regime’s sprawling, out of control, immigration kakistocracy! Now, we need you and other members of the NDPA like you on the Federal Bench to short circuit all the BS and get sane, legal, humane policies and “best interpretations and practices” in place “from the git go” and then enforce them on recalcitrant bureaucrats.

Racial Justice in America is, as it must be, one of the top Biden-Harris priorities! 🇺🇸 It can only be achieved if the White Nationalist mess at EOIR and ICE is cleaned up and replaced with experts committed to due process, fundamental fairness, and human rights in charge! There must be new, dynamic, and courageous leadership committed to controlling and reforming the actions of civil servants throughout government who furthered Stephen Miller’s vile racist agenda unlawfully and immorally targeting immigrants of color, their families, and their communities. “Injustice anywhere is a threat to justice everywhere” (MLK, Jr.).

Time for the NDPA ⚖️🗽🧑🏽‍⚖️👩‍⚖️ to replace the EOIR Clown Show🤡!

Due Process Forever!

PWS

12-22-20

🏴‍☠️☠️🤮👎🏻IN NYT OP-ED, FORMER TRUMP DOJ ATTORNEY ERICA NEWLAND ADMITS COMPLICITY! — Having Undermined Democratic Institutions, Sold False Narratives To (Too Often Willing) Federal Judges, & Participated In Racist-Inspired “Dred Scottification” (“Dehumanization”) Of the Other Is Actually a BIG Deal! — So Is The Destruction Of Due Process & Fundamental Fairness In The Immigration Courts (Now, “Clown Courts”🤡, or “America’s Star Chambers”☠️) 

Erica Newland
Erica Newland
Former DOJ Attorney
Photo source: lawfareblog.com

https://www.nytimes.com/2020/12/20/opinion/trump-justice-department-lawyer.html?referringSource=articleShare

. . . .

Watching the Trump campaign’s attacks on the election results, I now see what might have happened if, rather than nip and tuck the Trump agenda, responsible Justice Department attorneys had collectively — ethically, lawfully — refused to participate in President Trump’s systematic attacks on our democracy from the beginning. The attacks would have failed.

. . . .

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

Read the full op-ed at the link. That’s right Erica. Lack of ethics, morality, and failing to uphold the Constitution and the rule of law have consequences. Helping to “custom design” obvious pretexts for racist and hate inspired policies, for consumption by right-wing judges who only seek “cover” for going along  to get along with fascism, is wrong. Duh!

It’s no surprise that the clearly unconstitutional and racially and religiously bigoted “Travel Ban,” willingly embraced by an intellectually dishonest and morally compromised Supremes majority, was first on the list in Erica’s “confession.” 

But, don’t expect any apologies from the vast majority of Trumpist lawyer/enablers who violated their oaths of office or from the big time law firms (one where I was formerly a partner) who have granted them undeserved refuge at fat salaries! Nor should we expect large-scale redemption from the legions of Government lawyers in DOJ, DHS, and elsewhere who will assert the “Nuremberg defense” of “just following orders.”  But, that doesn’t mean that the rest of us can’t demand some accountability for participation in  what are essentially “crimes against humanity.” 

Erica’s article largely echoes what my friend and colleague Judge Jeffrey Chase, many of our colleagues in the Round Table of Former Immigration Judges, ⚔️🛡 and numerous members of the New Due Process Army (“NDPA”) have been saying throughout this Administration. Indeed, I frequently have noted that the once-respected Solicitor General’s Office and EOIR operated as basically “ethics free zones” under the disgraced “leadership” of Sessions, Whitaker, and Barr.

It’s also why the the Biden-Harris team that takes over at DOJ must: 

  1. immediately remove all the current “executives” (and I use that term lightly) at EOIR as well as all members of the BIA and transfer them to positions where they can do no further damage to asylum seekers, migrants, their (often pro bono or low bono) lawyers, or the rest of humanity; 
  2. replace them with qualified individuals from the NDPA; and 
  3. be circumspect in eventually making retention decisions for Immigration Judges, taking into account public input as to the the degree to which each such judge’s jurisprudence during the Trump kakistocracy continued to reflect adherence to constitutionally required due process and fundamental fairness to migrants, respect for migrants and their representatives, best practices, and interpretations that blunted wherever reasonably possible the impact of the kakistocracy’s xenophobic, racist, White Nationalist policies. 

American justice has been ill-served by the DOJ and the Immigration Courts over the past four years. That’s something that must not be swept under the carpet (as is the habit with most incoming Administrations). 

The career Civil Service overall, and particularly complicit and often ethics-free government lawyers,  failed to put up the necessary resistance to an overtly anti-American regime with an illegal and immoral agenda. Lives were lost or irreparably ruined as a result. That’s a big-time problem that if not addressed and resolved will likely make continuance of our national democratic republic impossible.

⚖️🗽🧑🏽‍⚖️👍🏼🇺🇸Due Process Forever! Complicity Never☠️🤮🏴‍☠️👎🏻!

PWS

12-21-20

EOIR Clown Show Must Go T-Shirt
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept

   

🏴‍☠️👎🏻WITH KAKISTOCRACY HEADING INTO FINAL MONTH, BIA CONTINUES TO ISSUE NEGATIVE GUIDANCE ON EXPERT TESTIMONY — Matter of M-A-M-Z-, 28 I&N Dec. 173 (BIA 2020)

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

The Board of Immigration Appeals has issued a decision in Matter of M-A-M-Z-, 28 I&N Dec. 173 (BIA 2020).

 

(1) Expert testimony is evidence, but only an Immigration Judge makes factual findings.

(2) When the Immigration Judge makes a factual finding that is not consistent with an expert’s opinion, it is important, as the Immigration Judge did here, to explain the reasons behind the factual findings.

PANEL: MULLANE, CREPPY, and LIEBOWITZ, Appellate Immigration Judges

OPINION BY: Judge MULLANE

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

So, with the overt politicization and precipitous decline in reliability of DOS Country Reports, expert opinions have become of increasing importance in asylum cases. And, the are many great experts and groups providing alternatives to the skewed DOS reports these days.

So, what’s really needed in NOT more encouragement for IJs, many of whom lack real asylum expertise, to find ways to downgrade or dismiss experts. What is essential, is new guidance: 1) honestly recognizing that this Administration’s anti-asylum and inappropriate ideological agendas have undermined the credibility of DOS reports; and 2) describing ways in which IJs should be using alternatives, like expert testimony and reports, to support grants of protection to applicants who need and deserve them. 

Credible applicants are supposed to be given the benefit of the doubt. Today’s EOIR has “made mincemeat” of that principle.

It is time to rethink the evidence so often submitted and relied upon in asylum claims, to dial back the corroboration demands, and to return to a core principle of refugee law – the need to afford asylum seekers the benefit of the doubt. We need a better way to establish asylum eligibility and challenge stereotypes.

https://clinics.law.harvard.edu/blog/2020/07/refugee-eligibility-challenging-stereotypes-and-reviving-the-benefit-of-the-doubt/

Appropriate guidance is not going to happen until the present BIA is replaced by real appellate judges who are experts on asylum law, due precess, fundamental fairness,and who have experience representing asylum seekers in the real world. Hopefully, that long overdue day, is within sight: “Hey hey, ho, the EOIR Clown Show has got to go!

Due Process Forever!

PWS

12-20-20

EOIR Clown Show Must Go T-Shirt
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept

⚠️⚠️PRACTICE ALERT FOR ASYLUM SEEKERS FROM NDPA ALL-STAR PROFESSOR LINDSAY HARRIS! — Filing for Asylum Before January 11, 2021!

Professor Lindsay Muir Harris
Professor Lindsay Muir Harris
UDC Law

Alert for Asylum Seekers – Consult with an Immigration Attorney if you Haven’t Filed your Case before January 11, 2020

 

Over the summer, the U.S. government proposed a set of regulations that will dramatically change asylum law. In response, the public and immigrant advocates submitted close to 90,000 public comments. The Government changed some of the proposed rules, slightly, but the new rules are set to go into effect on January 11, 2021. There will likely be legal challenges (lawsuits) to try to stop the regulations from going into effect. But, it’s always hard to tell what will happen. One of the changes made between July 15, 2020 and December 2020 to the proposed rules is that they will not be retroactive. This means that they will not apply to anyone who has filed their I-589 Application for asylum before January 11, 2021. The Government is saying that the new rules will apply now and despite any legal challenge to any sections that the Government views as simply codifying existing case law. But, it is likely much better for asylum seekers to have their applications filed prior to January 11, 2021. This is especially for people fleeing harm from non-government actors, for asylum seekers fleeing gender-based harm, and for individuals who have spent time in another country before coming to the U.S. If you are seeking asylum, please consult with an immigration attorney as soon as possible. An I-589 asylum application takes hours to properly fill out and you will need to have time to work with an attorney to prepare your application and get it mailed before January 11, 2021. If you are an asylum seeker in need of assistance, please contact Lindsay.harris@udc.edu, Vice-Chair of the American Immigration Lawyers Association’s National Asylum & Refugee Committee and Associate Professor and Director of the Immigration & Human Rights Clinic at the University of the District of Columbia David A. Clarke School of Law.

 

 

 

Lindsay M. Harris (she/her/hers)

Associate Professor of Law

Director, Immigration & Human Rights Clinic

University of the District of Columbia

David A. Clarke school of Law

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

Thanks Lindsay, my friend!

One of the points that I can’t overemphasize is the importance of getting legal assistance to fully, carefully, and accurately fill out the asylum application (Form I-589). 

Variances between the written application and supporting documentation and testimony before the Asylum Office or Immigration Court have always been problematic.

But, under the current White Nationalist restrictionist regime, Asylum Officers and Immigration Judges  are encouraged to “fly speck” asylum applications for any variances, no matter how minor, that can be used to find the applicant “not credible.” While this is both a violation of the statute and the case law in most Circuits, it’s a reality that asylum applicants must deal with.

It’s a particular problem given the hiring of many new Immigration Judges with no expertise in asylum laws, no sympathy for asylum seekers, no experience representing asylum seekers, subject to production quotas that encourage them to use “any reason to deny” an asylum application, and basically imbued with the “propaganda” that most asylum applications are without merit.

My own experience, although now in the past, is that many asylum seekers incorrectly assume that the Form I-589 is just a “rough outline” of the claim and that they will be allowed to fill in blanks, obtain additional documentation, and explain problems in full at a later time. That wasn’t true in the past, and is even less so now.

What and how things are said in the written asylum application can have a determinative effect before both the Asylum Office and the Immigration Court! “First instance denials” by Immigration Judges are very hard to reverse on appeal, particularly when based on “adverse credibility rulings.” 

So, preparing the application carefully with assistance from someone who understands exactly how the Immigraton Court system works (or doesn’t) is essential!

Due Process Forever!

PWS

12-14-20

THE GIBSON REPORT — 12-07-20 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group

Elizabeth Gibson
Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

COVID-19

Note: Policies are rapidly changing, so please verify information on the relevant government websites and with colleagues as best you can.

 

EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including,January 1, 2020. NYC non-detained remains closed for hearings.

 

TOP NEWS

 

Judge Orders Government to Fully Reinstate DACA Program

NYT: Up to 300,000 additional undocumented immigrants could be allowed to apply for protection from deportation under a new court ruling. President Trump had sought to cancel the program.

 

Biden picks California Attorney General Xavier Becerra to be Secretary of Health and Human Services

ImmProf: As Attorney General, Becerra has filed 100 challenges to Trump administration policies, including many immigration and immigrant-related ones such as the rescission of the Deferred Action for Childhood Arrivals, efforts to defund sanctuary cities, addition of a U.S. citizenship question to Census 2020, and more.  Just last week Becerra won a challenge to President Trump’s public charge rule in the Ninth Circuit.

 

A Trump Immigration Policy Is Leaving Families Hungry

NYT: The “public charge” rule was supposed to ensure that green cards go only to self-sufficient immigrants, but in the pandemic, it is driving up hunger and leaving Joe Biden with a quandary.

 

Biden’s policies on immigration

WaPo: President-elect Joe Biden has pledged to make the United States a welcoming place for

immigrants, but his plans to dismantle the Trump administration’s barriers to immigration

could leave him in a quandary, especially as a new migration surge could be looming.

 

Undocumented Immigrants Are Half as Likely to Be Arrested for Violent Crimes as U.S.-Born Citizens

Scientific American: Some of the most solid evidence to date shows that President Trump’s cornerstone immigration policy was built on a wholly false premise.

 

LITIGATION/CASELAW/RULES/MEMOS

 

EOIR Issues Memo Consolidating and Updating Policy Regarding the Processing of Asylum Applications

EOIR issued a policy memo (PM 21-06) consolidating and replacing OPPM 00-01, Asylum Request Processing, and OPPM 13-02, The Asylum Clock. The memo concerns the processing of affirmative and defensive asylum applications, the asylum and EAD clocks, docketing and scheduling, BIA appeals, and more. AILA Doc. No. 20120702

 

EOIR Issues Guidance on “Enhanced Case Flow Processing” in Removal Proceedings

EOIR issued guidance on the implementation of an enhanced case flow processing model for non-status, non-detained cases with representation in removal proceedings. Memo is effective 12/1/20. AILA Doc. No. 20120130

 

BIA Rules on Ineffective Assistance of Counsel

BIA ruled that counsel accepting responsibility of error does not discharge the disciplinary authority complaint obligation, and respondents seeking reopening based on ineffective counsel must show probability they would’ve prevailed otherwise. Matter of Melgar, 28 I&N Dec. 169 (BIA 2020) AILA Doc. No. 20120442

 

Full 4th Circ. To Revisit Nationwide Public Charge Block

Law360: The full Fourth Circuit will revisit a lower court order blocking the Trump administration’s immigration wealth test, months after a split panel allowed the federal government to enforce the so-called public charge rule while immigrants challenge it in court.

 

CA1 Finds Petitioner Abandoned LPR Status After Living and Working in Canada for Six Years

The court denied the petition for review, finding that the petitioner, a Lebanese citizen who was admitted to the United States as a lawful permanent resident (LPR) in 1991, had abandoned his LPR status after living and working in Canada for six years. (Mahmoud v. Barr, 11/30/20) AILA Doc. No. 20120708

 

CA1 Upholds Denial of Asylum to Haitian Petitioner Who Provided Unsupported Theory of Attackers’ Motivation

Upholding the BIA’s denial of asylum, the court held that the Haitian petitioner had failed to establish a nexus between his 2017 attack and a protected ground, where he had provided no credible evidence that the attack was motivated by his political activity. (Celicourt v. Barr, 11/17/20) AILA Doc. No. 20113034

 

CA2: Federal Court Affirms New York’s Green Light Law Allowing Undocumented Immigrants To Seek Driver’s Licenses

Gothamist: In a ruling issued Monday, the U.S. Court of Appeals for the Second Circuit affirmed a lower court’s dismissal of Erie County Clerk Michael Kearns’s 2019 lawsuit seeking to block the state’s Green Light law.

 

CA4 Finds BIA Abused Its Discretion in Denying Asylum to Former Colombian Police Officer

The court held that the BIA erred in deciding that the petitioner, a retired Colombian police officer, had not shown past persecution because threats by the Revolutionary Armed Forces of Colombia (FARC) were written, and because he was never physically approached. (Bedoya v. Barr, 11/25/20) AILA Doc. No. 20120133

 

CA6 Upholds Matter of Castro-Tum and Says IJs Lack General Authority to Administratively Close Cases

The court found that the Attorney General correctly interpreted 8 CFR §§1003.10 and 1003.1(d) in Matter of Castro-Tum in holding that IJs do not have the general authority to suspend indefinitely immigration proceedings by administrative closure. (Hernandez-Serrano v. Barr, 11/24/20) AILA Doc. No. 20120134

 

CA7 Finds Petitioner Failed to Exhaust Administrative Remedies Where He Made No Argument About Criminal Violence in Mexico

The court dismissed in part the petitioner’s appeal of the denial of his cancellation of removal application, finding he had failed to exhaust his administrative remedies because he did not ask the BIA to address the subject of criminal violence in Mexico. (Barrados-Zarate v. Barr, 11/24/20) AILA Doc. No. 20120145

 

CA8 Upholds BIA’s Conclusion That Somali Government Would Not Acquiesce in Any Torture of Petitioner by Al-Shabaab

Where petitioner sought Convention Against Torture (CAT) relief and argued that the Somali government would acquiesce in his torture, the court held that the record did not show that the Somali government had willfully turned a blind eye to Al-Shabaab’s activities. (Moallin v. Barr, 11/23/20) AILA Doc. No. 20120146

 

CA9 Upholds Limited Preliminary Injunctions of DHS Public Charge Rule

CA9 upheld preliminary injunctions issued against DHS’s public charge rule by district courts in California and Washington. In its order, however, the panel majority vacated the Washington court’s entry of a nationwide injunction. (City and County of San Francisco, et. al. v. USCIS 12/2/20) AILA Doc. No. 20120235

 

CA9 Declines to Rehear Vega-Anguiano v. Barr En Banc

The court issued an order amending its prior opinion and denying the rehearing en banc of Vega-Anguiano v. Barr, in which the court found a reinstatement order improper where the petitioner had shown a “gross miscarriage of justice.” (Vega-Anguiano v. Barr, 11/19/19, amended 11/24/20) AILA Doc. No. 20120147

 

CA9 Finds BIA Erred in Giving Reduced Weight to Testimony of Specialist in Gang Activity

The court held that, despite its direction to reconsider the testimony of a specialist in gang activity in Central America and its effect on petitioner’s Convention Against Torture (CAT) claim, the BIA erred on remand by according reduced weight to his testimony. (Castillo v. Barr, 11/18/20) AILA Doc. No. 20113035

 

CA9 Says Showing of Prejudice Is Not Required When Ineffective Assistance Leads to In Absentia Removal Order

Granting the petition for review and remanding, the court held that the BIA erred by treating the petitioners’ failure to show prejudice caused by alleged ineffective assistance of counsel as a basis for denying their motion to reopen removal proceedings. (Sanchez Rosales v. Barr, 11/18/20) AILA Doc. No. 20113036

 

CA11 Says INA §241(a)(5) Bars Reopening of Reinstated Removal Order Where Noncitizen Unlawfully Reentered After Removal

The court concluded that the plain language of INA §241(a)(5) bars the reopening of a reinstated removal order where a noncitizen has illegally reentered the United States following his or her initial removal, and thus denied the petition for review. (Alfaro-Garcia v. Att’y Gen., 11/30/20) AILA Doc. No. 20120709

 

District Court Orders DHS to Fully Restore DACA Program

District court orders DHS to accept first-time requests for DACA, renewal requests, and advance parole requests, based on the terms of the DACA program prior to 9/5/17 and that one-year deferred action and EADs must be extended to two years. (Batalla Vidal, et al., v. Wolf, et al., 12/4/20) AILA Doc. No. 20120701

 

Advance Copy of USCIS Notice of Extension of TPS Documentation for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal

Advance copy of USCIS notice that DHS is automatically extending the validity of TPS-related documentation for beneficiaries under TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal through 10/4/21. The notice will be published in the Federal Register on 12/9/20. AILA Doc. No. 20120710

 

USCIS Issues Memo on Expanding Interviews to Refugee/Asylee Relative Petitions

USCIS issued a policy memo stating that it will require most petitioners to appear for an interview in connection with Form I-730. USCIS will implement the expansion of in-person petitioner interviews in phases and will provide advance public notice before each phase is implemented. AILA Doc. No. 20113041

 

DHS Issues Supplemental Policy Guidance on the Migrant Protection Protocols

DHS issued supplemental policy guidance on MPP, including on access to information about MPP, appeals, family units, mixed-nationality family units, UACs, known physical and mental health issues, use of restraints, interagency collaboration, and ongoing changes. AILA Doc. No. 20120712

 

CBP Says Program to Collect DNA Samples from Certain Individuals in Custody Will Reach Full Operation by End of 2020

CBP announced that the pilot programs it began in January 2020 to assess collection of DNA samples from certain individuals in CBP custody have provided the information it needs to implement nationwide collection. Per CBP, the collection program will reach full operation by December 31, 2020. AILA Doc. No. 20120433

 

RESOURCES

 

 

EVENTS

   

 

ImmProf

 

Monday, December 7, 2020

Sunday, December 6, 2020

Saturday, December 5, 2020

Friday, December 4, 2020

Thursday, December 3, 2020

Wednesday, December 2, 2020

Tuesday, December 1, 2020

Monday, November 30, 2020

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

Undoubtedly, the “malicious incompetents” in the regime’s immigration kakistocracy will intentionally leave a mess behind. I also recognize that construction is more difficult than destruction.

But, I don’t subscribe to the “mission impossible” tenor of the Post article above in Elizabeth’s report. Sure, the issues related to immigration are challenging. But, if Biden puts experts from the NDPA in charge they are very solvable, in months and years, not decades!

And, even if there were an immigration “surge” on the horizon, it hardly presents the “dire threat” to America’s security and prosperity that both parties have claimed it to be in the past. The “fiction of the great surge” overwhelming our nation has driven immigration policy of both parties for far too long with disastrous consequences!

In an article I recently posted, my friend and Round Table colleague retired U.S. Immigration Judge Paul Grussendorf, who also has been an Asylum Officer and worked with the UNHCR, cogently debunks the oft repeated myth of “surge theory:”

In the early days of this administration there was much hype over the “migrant caravans” composed mostly of Central Americans from the “northern triangle” countries, El Salvador, Honduras and Guatemala, that were “invading” our country — the old “barbarian hordes” trope that is a favorite of every totalitarian regime. In fact the numbers of each such “caravan” for the most part would easily fit inside a typical college stadium. (Current demographics demonstrate that even if we admitted all of them as potential workers and residents, the U.S. would still experience labor shortfalls in the near future and they would not supplant the decline of our native-born population.)

https://immigrationcourtside.com/2020/12/02/round-table-champion-%f0%9f%9b%a1%e2%9a%94%ef%b8%8fjudge-paul-grussendorf-speaks-out-from-personal-experiences-on-regimes-immigration-atrocities-%e2%98%a0%ef%b8%8f%f0%9f%a4%ae%e2%9a%b0/

Hon. Paul Grussendorf
Hon. Paul Grussendorf
U.S. Immigration Judge (Ret.)
Member, Round Table of Former IJs
Author
Source: Amazon.com

Indeed, immigration is likely to be a key part of our economic, jobs, and societal recovery. To make that happen, however, we need to end the “Amateur Night at the Bijou” approach that has been take by Administrations over the past two decades, bring in the pros and experts from the NDPA, and empower them to solve problems in conjunction with the private sector, NGOs, industry, labor, and international groups. Figuring out how to create mutually beneficial opportunities from the reality of human migration, rather than treating it as a “threat” that can be eliminated unilaterally (it isn’t, and it can’t) is the way to future success.

It’s not “rocket science.” But it will require cleaning out the immigration kakistocracy at EOIR, DOJ, DHS, DOS, and across Government and replacing it with qualified, professional, experts from the NDPA and letting them solve the problems!

Due Process Forever!

 

PWS

12-08-20

 

 

 

ROUND TABLE CHAMPION 🛡⚔️JUDGE PAUL GRUSSENDORF SPEAKS OUT FROM PERSONAL EXPERIENCES ON REGIME’S IMMIGRATION ATROCITIES, ☠️🤮⚰️ URGENT NEED FOR PRACTICAL HUMANITARIAN REFORMS — “The sham is that no law enforcement body in the country, federal or state, has a zero tolerance policy, simply because no one has the resources to detain, charge, prosecute, adjudicate and jail all offenders. (This stark reality is in fact the reason for the plea bargaining system in criminal court).”

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Star Chamber Justice
“Justice”
Star Chamber
Style
Sessions in a cage
Jeff Sessions’ Cage by J.D. Crowe, Alabama Media Group/AL.com
Republished under license
Trump Dumping Asylum Seekers in Hondiras
Dumping Asylum Seekers in Honduras
Artist: Monte Wolverton
Reproduced under license
Hon. Paul Grussendorf
Hon. Paul Grussendorf
U.S. Immigration Judge (Ret.)
Member, Round Table of Former IJs
Author
Source: Amazon.com

https://paulgrussendorf-19333.medium.com/trumps-asylum-immigration-policies-must-be-rolled-back-82de743ab175

Trump’s Asylum & Immigration Policies Must be Rolled Back

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Paul Grussendorf

6 days ago·17 min read

“Stephen Miller, the self-hating white nationalist who has dictated this administration’s immigration policy from the beginning, was once a staffer for then-Senator Jeff Sessions. Miller subscribes to the ‘white replacement’ or ‘white genocide’ theory that the brown-skinned migrant hordes will replace the superior descendants of Western civilization if not stopped.”

In 2016, after a legal career of 30 years in refugee and asylum protection, including eight years as a federal refugee officer and seven years as an immigration judge, I accepted a position in the Arlington, Virginia asylum office as a Supervisory Asylum Officer. I had tremendous respect for the U.S. asylum program and I knew from experience that most asylum officers choose the job as a humanitarian calling; their ranks include many attorneys and individuals with graduate degrees, with experience in the Peace Corps and other humanitarian backgrounds. And I can affirm that Asylum Officers have the hardest job of any immigration officers in USCIS-United States Citizenship and Immigration Services, due to the complex and ever-changing asylum law, and the nature of the intensive interviews.

The law enforcement side of our immigration system is exercised by ICE — Immigration and Customs Enforcement, a sub-agency of DHS that was created, along with Department of Homeland Security, in 2003 after the tragedy of 9/11. ICE officers are hired from a completely different profile of applicants and receive much less training in the humanitarian aspect of immigration law. The equivalent at the border is CBP — Customs and Border Protection.

The Netflix Series Immigrant Nation, airing in August 2020, exposes how, soon after Trump’s ascendancy to the presidency, he and his nativist cronies put into place a series of executive measures designed to practically eliminate refugee admissions; to curtail and eventually eliminate access to our asylum system; and even to severely reduce lawful migration to the United States. Virtually all of these executive measures are unlawful, in conflict with our nation’s immigration statute and in violation of our international treaty obligations, and even demonstrably harmful to the economic well-being of the U.S. They have all been challenged in court and practically every such executive measure has been deemed unlawful by federal district and appellate courts, yet the anti-immigrant juggernaut sails on. Recently the GAO — Government Accounting Office, an independent body, declared that, according to the Federal Vacancies Reform Act the current Acting Directors of both DHS, Chad Wolf, and USCIS, Ken Cuccinelli, were unlawfully appointed, and presumably every edict that they have issued since their appointments this past year will also be deemed unlawful.

One of the first ignoble acts of the administration’s new appointee to head U.S. Citizen and Immigration Services, Director Lee Cissna, was the removal of this truism from the agency’s mission statement: “America is a Nation of Immigrants.” Why would the head of the agency that receives all applications for visas, both temporary and permanent, and for asylum and refugee protection choose to redact such seemingly innocuous and self-evident verbiage from the agency’s mission statement?

In the same time frame the Department of Housing and Urban Development, headed by Trump’s appointee Ben Carson, removed the words “inclusion” and “free from discrimination” from its mission statement. We’ve seen in history how totalitarian regimes try to control the dialogue within their populace by changing and sanitizing language, including the use of language within federal institutions.

When this White House requested a study to map the net costs of refugees, conducted by the Department of Health and Human Services, and the results showed a net benefit to the economy over a period of ten years of $63 billion, the White House buried the study. https://www.nytimes.com/2017/09/18/us/politics/refugees-revenue-cost-report-trump.htm

Simultaneously the administration was implementing the so-called Muslim ban against citizens and residents of seven mostly-Muslim countries out of supposedly national security reasons. No one has ever explained why Saudi Arabia, the home of 15 of the 19 9/11 bombers, was not included in the list. (Saudi Arabia is also the home of the Al Qaeda sympathizer who shot up the Naval Air Station at Pensacola,Florida Air Base in December, 2019, killing three sailors and wounding eight.)

In the early days of this administration there was much hype over the “migrant caravans” composed mostly of Central Americans from the “northern triangle” countries, El Salvador, Honduras and Guatemala, that were “invading” our country — the old “barbarian hordes” trope that is a favorite of every totalitarian regime. In fact the numbers of each such “caravan” for the most part would easily fit inside a typical college stadium. (Current demographics demonstrate that even if we admitted all of them as potential workers and residents, the U.S. would still experience labor shortfalls in the near future and they would not supplant the decline of our native-born population.)

In the final months of 2016, I traveled with a group of asylum and refugee officers to San Salvador where we interviewed and vetted minors who were requesting refugee protection because of threats to themselves and their families by the ruthless MS-13 and 18th Street gangs. The children we spoke with or their parents had all received such threats as, “Either you work for us or you and your parents will be dead next week,” or “Give me your daughter or you have two days to leave the country.” And they all knew neighbors or close relatives who had died when such threats were ignored. We felt gratified knowing that we were granting these kids a lifeline of resettlement to the U.S.. I would only hope that any American father or mother, if ever faced with such a choice by a credible threat, would have the courage and means to flee across borders in order to protect their children, just as those parents joining the caravans with their children have chosen to do.

The new administration ordered a halt to such in-country interviews and even the resettlement of the cases we had already approved for travel. Its spokesmen have continuously and falsely characterized such asylum applicants as fraudsters who are gaming the system. The administration’s first morally challenged Attorney General, Jeff Sessions, claimed there was a conspiracy of corrupt attorneys who are manufacturing all of their stories. Believe me, they are not manufactured. All credible international reporters, including our own State Department, rebut the claim that such migrants are merely seeking jobs in the U.S. International reports affirm that some gangs in El Salvador are able to maintain such power and territorial control that they exercise the functioning equivalent of State authority, making it impossible for potential victims to resist their demands.

Sessions even admonished the assembled group of immigration judges at a conference, telling them they must not let their humanitarian impulses interfere with some fictitious mandate to deport as many applicants as possible. (Stephen Miller, the self-hating white nationalist who has dictated this administration’s immigration policy from the beginning, was once a staffer for then-Senator Jeff Sessions. Miller subscribes to the “white replacement” or “white genocide” theory that the brown-skinned migrant hordes will replace the superior descendants of Western civilization if not stopped.)

Jeff Sessions also chose to meddle in the administration of the immigration courts, in such a bungling manner that his mandated reforms achieved the opposite of his goal to reduce backlogs. By restricting the ways in which immigration judges can control their own docket, such as eliminating a judge’s ability to place a case on hold or “administratively close” a case while collateral legal action is ongoing in the migrant’s case, and by taking away ICE trial attorneys’ discretion to agree to grants of compelling cases, backlogs blossomed by the tens of thousands — within the two and a half years of this administration from approximately 500,000 to currently one and a half million.

The Netflix film crew obtained unprecedented access to ICE and CBP operations in the making of their series. I have trained asylum officers at the Federal Law Enforcement Training Center at Glencoe, Georgia, featured in the first episode of the Netflix series, and I have supervised asylum officers at the ICE family detention centers in Texas featured in the first episode. And I experienced, along with my colleagues, the devastating effects of the administration’s continuing attempts to deter refugees from coming to our southern border through abuse and cruelty, the so-called family separation policy. It is telling to see how many ICE and CBP officers and supervisors conceded, on camera, that the deterrence of ripping children from their parents’ arms upon arrival at the border is cruel and inhumane and un-American, but they felt compelled to follow the orders because “it’s the law.”

The so-called Zero Tolerance policy that was advanced by retired Marine General Kelly, first DHS Secretary and later White House Chief of Staff, and AG Sessions was a sham from the get-go. An impossible task, launched for public consumption and to create the impression that only by locking up all unlawful border crossers could any order be returned to the enforcement of our laws. The sham is that no law enforcement body in the country, federal or state, has a zero tolerance policy, simply because no one has the resources to detain, charge, prosecute, adjudicate and jail all offenders. (This stark reality is in fact the reason for the plea bargaining system in criminal court). In my career I observed how the U.S. Attorney’s Offices in Washington, D.C., and in San Diego, would, within their discretion, “no-paper” cases they considered too minor or insignificant to prosecute, saving their powder for bigger game. This was also the policy that the Obama Administration, under guidance of then DHS Secretary Janet Napolitano, established as ICE policy, when ICE agents and prosecuting attorneys were advised to let the low-hanging fruit go, such as hard-working but undocumented laborers, and concentrate instead on serious felons for apprehension and removal. The admitted consequences of this administration’s Zero Tolerance policy was to require all migrants be detained and prosecuted. Since children cannot be detained in an adult facility, they were to be separated from their parents, in order to achieve the maximum of trauma and pain upon the children and their parents. The trauma itself was to be a deterrent to future unlawful crossers, by “sending a message” not to come to the U.S. The notorious photos of kids in cages have tarnished our international reputation and provided talking points for terrorists.

Netflix film crews accompanied agents on raids in multiple locations, when the Zero Tolerance policy initially led to mass inland roundups. The cameras recorded agents blatantly lying to targets about who they are and their authority to enter private dwellings and arrest suspects without criminal arrest warrants, clear violations of the Fourth Amendment. We see numerous ICE veterans, and even FODs-Field Office Directors — lamenting the new ‘catch everyone’ policy, knowing from experience that such tactics are inhumane and bound to fail in the long run.

We see a gung-ho ICE public affairs officer trying to convince the Field Office Director of the Charlotte, North Carolina office to lie in a press briefing and indicate that 90% of the migrants detained in a community-wide sweep have criminal records; the FOD twice corrects him that the correct figure is 30–35%, meaning the remaining 70% are harmless field workers, hotel employees, construction workers or single mothers with U.S. citizen children.

Even though political appointees such as DHS Secretary Kirsjten Nielsen and AG Sessions were willing to blatantly lie to Congress about the motivation and consequences of such cruel policies, they were still tossed out by the president when the reality on the ground impaired their ability to achieve deportation numbers sufficient to satisfy the Nativist in Chief. Ultimately it took an even more barbaric policy, the Migrant Protection Protocol (MPP), another unlawful executive order, to force legitimate asylum seekers to remain on the Mexican side of the border while their cases were piling up in the bureaucracy. MPP is Orwellian double-speak, because the migrants, rather than being protected, are being sent into circumstances where they are easy prey for cartels targeting them and are notoriously subject to kidnappings, rapes, robberies and murders. No migrant being forced to wait for months in tents or temporary shelters along the border is safe.

Most disappointing to me as a Supervisory Asylum Officer was how management at the Arlington Asylum office, as soon as the MPP operating instructions came down in early 2019, was so willing to coerce asylum officers into violating their oaths to uphold the Constitution and the laws of the U.S. At an internal meeting with management and the asylum officers, supposedly to hash out the ground rules of this new MPP program, one of my officers complained that he felt both ethically and morally conflicted for the first time in his career, knowing that forcing asylum seekers to wait in Ciudad Juarez, one of the most dangerous cities in the world, was a violation of his oath and his training to offer protection to asylum seekers.

I wondered how our managers could justify to themselves the cruel and unlawful policies they were insisting that their subordinates carry out. Were they hoping that the federal courts would soon overturn the blatantly illegal policy and they would thus be off the hook? Were they thinking that at least they, as a federal officer with some limited power, were better than whoever might replace them if they were to resign? I’m sure that is how many attorneys and jurists, working within totalitarian regimes, justify their collaboration and acceptance of policies that are dehumanizing and deadly. When they were asked by their subordinates for justification they threw up a disingenuous wall of semantics, and when asked what procedures Customs and Border Protection were following in the context of MPP, they were told, “We believe CBP knows how to do their jobs.” Basically, just shut up and do what we tell you to do.

I was one of the first supervisors sent to oversee our officers conducting the new MPP screening interviews at the San Ysidro border crossing south of San Diego. Under the new guidelines the migrant must demonstrate to the asylum officer that it is “more likely than not” that they would meet serious harm if forced to wait for many months in Mexico until returning for an audience in front of an immigration judge, in order to be exempted from the requirement of waiting in Mexico. One of my very conscientious officers decided to refer for protection a young Guatemalan woman who had been held captive in an apartment in Tijuana by her domestic partner and brutalized and assaulted, and then viciously stalked when she fled from the dwelling. She should be allowed to remain in the U.S. pending her court date because it was clearly too dangerous for her to return to where her tormentor could easily locate her. I reviewed the interview notes and consulted with my officer and I agreed that it was a good case for protection. We informed CBP and our chain of command of the decision. The next day I received a call from the Deputy Director of the Arlington Asylum office., Jennifer Rellis. I was told that we had to be very careful with our assessments of the MPP cases because the “front office” had eyes on these cases. I was instructed to overturn our decision and to deny the young woman protection. And I was instructed that, going forward, any time I was inclined to approve any of my officers’ decisions to grant protection, I must first have one of my managers also review and sign off on it. There was no such requirement if we decided to deny protection to an applicant. Thus a presumption was created that we should deny protection in our MPP adjudications, a reversal of all of our training as asylum and refugee officers, and a blatant violation of our own statute and of U.N. refugee guidelines. In the following months this presumption against protection has continued to be enforced.

I wondered how Ms. Rellis could live with herself in so callously stripping me of my discretion to afford protection to legitimate refugees, given her training as a humanitarian lawyer. I’m sure if asked, she would argue we have no choice but to comply, and we can still protect asylum seekers within the limits of this new program. But there was no articulable reason why she would order me to enact an unlawful presumption of ‘not qualified’ where none exists in our asylum statute, regulation, case law, or international refugee law. The fact that such managers, whom we had always believed were motivated by their own humanitarian commitments, would so enthusiastically fall in line with a blatantly unlawful program caused great distress among the ranks of asylum officers. Many of my colleagues sought reassignment to other divisions within USCIS or even left the agency altogether. When I received that phone call I also began making arrangements to leave what had become a compromised agency.

Only months after I departed in June, the much-beloved Director of the Asylum Division was reassigned by the unlawfully appointed Acting USCIS Director Ken Cuccinelli to a management position in an uncontroversial department of USCIS. It was conceded that he had lamented to his asylum officers in an internal e-mail that it was unfortunate that the troops were being asked to adjust to these new policies with no forewarning or opportunity to adequately train.

It is remarkable that American Federation of Government Employees Union Local 1924, the union that represents asylum officers, has submitted “friend-of-the-court” briefs in numerous lawsuits against the administration’s attempts to implement the MPP program and otherwise curtail and dismantle the asylum program; and that Union Local 1924 President Michael Knowles has testified before Congress in opposition to such policies.

Jeff Session’s replacement AG William Barr has shown himself willing to continue the dismantling of our asylum program. He issued an edict that immigration judges would no longer have the discretion to grant bonds to asylum seekers in custody — clearly another attempt to discourage applicants from seeking shelter in the U.S. through the use of cruelty. This is an issue that is especially dear to my heart, as it has always been my principle that no asylum applicant should remain detained a day longer than necessary for routine administrative procedures. In fact, I testified before the Senate Judiciary Committee in 2013, at a time that comprehensive immigration reform was optimistically expected to be passed, in favor of granting immigration judges additional authority to issue bonds. My proposal wound up in the Senate’s draft legislation, which regretfully was never even taken up by the House. (In a meeting with Senator Marco Rubio’s immigration staffer I was assured that “the Senator is behind your proposals 100%.” During his subsequent presidential campaign in 2016 Rubio claimed he had never been in favor of comprehensive immigration reform). Again, several weeks after Barr’s edict against bond, a federal court blocked Barr’s draconian and heartless ban on conditional release from custody of asylum seekers from taking effect.

From the earliest campaign rallies in 2016, Trump has used fear and hatred of others to divide Americans and energize his base. The forefathers of most European Americans gained entry to the U.S. in exactly the same fashion as all those “illegal aliens” at our southern border; by showing up and asking for admission, at Ellis Island, at a time when there were no immigration controls in place other than routine screening for communicable diseases. Today the vast majority of Americans would not qualify for admission if measured against the standards this administration is trying to implement.

I was a refugee officer in the field at the time of the current President’s election. My colleagues and I were already conducting “extreme vetting” on Syrian, Iraqi, Somali, and numerous other populations, in conjunction with security resources of the CIA, FBI, Defense Intelligence Agency and Pentagon, years before this President decided to use fear as a means of control. My last assignment at the Refugee Affairs Division in 2015, before transferring to the asylum program, was to assist in the heightened vetting of all Syrian applicants at headquarters. Ironically, it is demonstrable that, on average, Syrian and Iraqi migrants to the U.S. are among the highest educated migrants in sciences and technology.

Refugee Admissions Decimated

During the last year of the Obama administration, in the context of the worst international refugee crisis since the end of the 2nd World War, the Obama administration asked that the Refugee Affairs Division increase refugee admissions from the already admirable number of 90,000 in fiscal year 2016 to 110,000 for 2017. However, on the heels of the Muslim ban came the new administration’s pronouncement that rather than 110,000, in fiscal year 2017 the program would be suspended for the rest of the year, thus grounding all refugee officers. . In 2018 the admissions was capped at 45,000 refugees, and it was determined that a ceiling of 30,000 admissions would be set for 2019. At a time when the U.S. should have been manning the bulwarks of refugee protection (Germany received a million refugees in 2015, comparable to the U.S. taking in 4 million) the U.S. effectively withdrew from the field, sending the signal that the U.S. no longer considers itself a leader in the world for refugee protection. A ceiling of 18,000 was set for fiscal year 2020, and this amount was only agreed to after push back from the Pentagon in reference to promises we had made to allies and interpreters working with our troops in the field in Irag, Afghanistan and Syria.

In 2018 Director Cissna also made the shocking announcement that USCIS would close all of its overseas offices, passing numerous tasks onto the State Department and domestic offices. The offices, established over a period of decades in such countries as Kenya, Ghana, South Africa, China, South Korea, Thailand, Mexico and Peru, primarily function as facilitators for family unity and refugee operations. Perhaps the first time that a federal bureaucracy has voluntarily given up turf, but in line with the administration’s seeming loathing for family unity.

The Myth of Skilled Migration

When then Chief of Staff General Kelly, formally DHS Secretary, disparagingly pronounced that most Central American migrants are “rural” migrants, as though of less value than presumably better educated “urban” migrants from white European countries, I took personal offense. My grandfather Grussendorf migrated with his family from a rural village in Lower Saxony, Germany at the end of the 19th Century at a time when there were no immigration controls at Ellis Island. He settled in the farming community of Grand Rapids, Minnesota, where he ran a farm and begat five children, one of whom became a high school math teacher; one became a state judge, one opened a nursery in Duluth, and one, my father, became a highly decorated Marine colonel, former company commander at the WWII landings at Saipan, Iwo Jima, and Okinawa. (I was born at Camp Pendleton). The state judge’s children included Cousin Benny Grussendorf who became Speaker of the House in the Alaskan Legislature. My father’s children included a Navy Captain and minister, a Navy enlisted man and transportation professional; a political activist, and an immigration judge. My brother the Navy Captain’s children include an Air Force flight surgeon and base hospital director; a veterinary, and a multi-lingual translator with her own business in France. All of these offspring were imbued with strong “rural” family values. That’s how migration works.

The idea of skilled-based migration, to be administered by a point system involving education, employment background, and language skills, isn’t all that bad in and of itself. Our close alleys Canada, the U.K., Australia and New Zealand all administer a version of this skills-based migration. The problem is the suggestion to eliminate family-based migration, when clearly the vast majority of our nation’s people, including the President’s own family, have benefited from it. The better idea is to double the current admissions level of permanent residents, half to be drawn from a skills-based system. It is the unnaturally low numbers of annual permanent resident admissions that is partly responsible for the log-jam of our immigration system, in today’s world where there is such an interest in immigration to the U.S., and given that our otherwise native-born population is in decline.

We must recognize that the recent surge at our southern border is not some kind of existential challenge to the nation’s existence, as seen in a vacuum, but rather only one component of the world-wide refugee crisis, a symptom of wars and world-wide insecurity. The long-term solution to any refugee crisis is always peace and prosperity in the country/region that is generating the refugees. Only peace and stability in Syria and northern Africa can allay the human waves of refugees into Europe. Only a Marshal-type program for the northern triangle countries, coupled with short term humanitarian protection for those fleeing eminent death, can resolve the crisis at our southern border.

And finally, regarding the present state of the U.S. Immigration Court system under this white nationalist administration, I’d like to quote my friend and colleague, Judge Paul Schmidt:

Once upon a time, there was a court system with a vision: Through teamwork and innovation, one of the world’s best administrative tribunals guaranteeing fairness and due process for all. Two decades later, that vision has become a nightmare. (…)

Today, the U.S. Immigration Court betrays due process, mocks competent administration, and slaps a false veneer of “justice” on a “deportation railroad” designed to evade our solemn Constitutional responsibilities to guarantee due process and equal protection. It seeks to snuff out every existing legal right of migrants. Indeed, it is designed specifically to demean, dehumanize, and mistreat the very individuals whose rights and lives it is charged with protecting.

It cruelly betrays everything our country claims to stand for and baldly perverts our international obligations to protect refugees. In plain terms, the Immigration Court has become an intentionally “hostile environment” for migrants and their attorneys.

https://immigrationcourtside.com/ tag: Good Litigating in a Bad System

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

Thanks, Paul my friend and colleague.

As Paul points out, beyond all of the regime’s racism, illegality, and immorality that has already been exposed in the media, the deep corruption, cowardice, and cruelty of those carrying out the program is simply stunning! It’s precisely how authoritarian, anti-democracy, illiberal regimes of the past like Nazi Germany, Soviet Russia, and Mao’s China operated. 

Inflicting “trauma for deterrence” on vulnerable humans is a “war crime” and a “crime against humanity,” plain and simple — regardless of the unlikelihood that regime’s many “perps” will be brought to justice within their lifetimes.

To those who doubt it, when the pandemic subsides, take a tour of the Holocaust Museum. The disgraceful conduct of the German judiciary and civil service is eerily similar to what Paul describes at DHS and EOIR.

We also must remember that despite being well-aware of the Trump/Miller racist-motivated immigration agenda, and the patent falseness of the legal and factual pretexts cooked up by the regime and its ethically challenged lawyers to provide “thin cover” for illegality and inhumanity, a Supremes’ majority improperly intervened to overrule lower Federal Courts and “greenlight” gratuitous cruelty and abuses of humanity! This process, known as “Dred Scottification” (“dehumanization of the other”) has carried over into the Supremes’ majority’s disgraceful  mistreatment of African Americans, Hispanic Americans, and other minorities in our society. It’s one of the key reasons why we have actually moved further away from racial equality and racial harmony in our society since the advent of the far-right judiciary.

Paul also exposes one of the biggest “shams” advanced by the racist right and their congressional supporters: That we must build an Immigration Court capable of deporting everyone in the U.S. without authorization. To state the obvious, this would be a practical impossibility, as well as an economic and social disaster — destabilizing industries and communities throughout the U.S., at a high cost, with no overall benefit.

It’s insane to charge the Immigration Courts with deporting everyone! That inevitably leads to mindlessly and exponentially increasing the number of judges without thinking about the training, support, technology, and wise policies necessary for them to operate successfully, fairly, and efficiently. Moreover, at some point, aimlessly increasing the number of judges without fixing the disgraceful deficiencies in the current system merely adds to the chaos, disorder, and the gross inconsistencies for which the system has become notorious. 

Obviously, the system must be fixed before a rational decision can be made on whether or not to expand it. Fixing the current system also lays the important groundwork for the necessary creation of an independent Article I Immigration Court.

No, the answer is to invest in fixing the current system to get it operating, as it originally was intended, as a high quality, modern, efficient court system that guarantees fairness and due process for all. 

With approximately 500 Immigration Judges already on board (not, of course, all the best qualified judges to carry out the mission — but that’s a problem for later), the reasonable annual capacity of the system is around 250,000 (500 judges x 500 cases/year) to 300,000. That means that more than one million of the current “deadwood” cases currently being warehoused on the EOIR docket by politicos at EOIR and DHS with no practical plan in place for ever completing them, must be removed and returned to DHS. 

That’s actually a job for a new, non-racist, professional DHS. But, given past spotty to downright contemptuous performance by DHS field officials, the Immigration Judges must be given strong authority to, where necessary, close and remove cases even in the face of DHS opposition. 

This means, of course, reversing “Gonzo Apocalypto” Sessions’s absurdly wrong decision in Castro-Tum. But, return to the prior status-quo is not enough! The BIA and the Immigration Judges must be empowered to take even more aggressive actions to close cases when necessary to do justice and to force the DHS to respect and comply with docket capacities. 

Then, as Paul suggests, like all other law enforcement agencies in the U.S., DHS enforcement must be required to develop strategies and prioritize cases in a manner that will not exceed the 250,000 per year capacity of the Immigration Courts. A large scale legalization program for those already here, a much more robust overseas asylum program, particularly in the Northern Triangle, and more “user friendly” legal programs to bring in needed workers, on either a temporary or permanent basis, would be great starting points to “rationalizing” the immigration system.

We thereby could end “Aimless Docket Reshuffling” as it has been practiced and expanded by DOJ & DHS politicos for the past two decades while taking the pressure off the Immigration Courts to do anything other than their only and only mission: through teamwork and best practices, guaranteeing fairness and due process for all who come before these courts. 

The key to making this happen: Immediate disempowerment of the deadly ongoing “Clown Show” 🤡☠️⚰️  in EOIR  “management” and at the BIA and replacing them with members of the NDPA: experts in asylum law, due process, practical scholarship, problem solving, and best practices. Then, and only then, will we see the restoration and progressive advancement of due process and humanity in the disgracefully broken U.S. Immigraton Courts. Without immediate EOIR reform, there can and will be no “equal justice for all” in the U.S. justice system! And, that’s bad news  for all of us! 

Due Process Forever!

PWS

12-02-20

☠️⚰️✈️DEATH FLIGHTS: 🏴‍☠️ DHS RACISTS RAMP WRONGFUL REFUGEE REMOVALS, ILLEGALLY TARGETING BLACKS IN WANING DAYS OF KAKISTOCRACY!🤮  — “Christmas Death Spree” Among Final Acts Of Hypocrisy For Regime After Four Years Of Hate Mongering, Dehumanization, Lies, Illegality, & Disdain For Human Life! — “It’s a death plane. Even if there was a means to make that plane crash that day, we would’ve done it.”

Molly O’Toole
Molly O’Toole
Immigration Reporter
LA Times
Source: LA Times website
Andrea Castillo
Andrea Castillo
Immigration Reporter
LA Times
Source: LA Times website

Molly O’Toole & Andrea Castillo report for the LA Times:

https://www.latimes.com/politics/story/2020-11-27/black-asylym-seekers-trump-officials-push-deportations

By MOLLY O’TOOLEANDREA CASTILLO

NOV. 27, 20204 AM

WASHINGTON —  Owning a small business in Cameroon selling French products was enough to trap the young man between the English-speaking minority and French-speaking majority government in the warring West African nation.

In July 2019, he was kidnapped by armed rebels, who tortured him for months in the jungle, demanding $10,000 ransom from his family, he said. Then, shortly after they paid, government forces arrested and tortured him for another month — for “financing” the separatists.

But what shocked him most, he said, was that after he escaped through a dozen countries and claimed asylum at the U.S.-Mexico border, American officials detained him for almost a year, then threatened and assaulted him and put him in solitary confinement before deporting him back to Cameroon in late October.

“At that point, it’s like the end of the world,” he said, requesting anonymity because he is in hiding. “It’s a death plane. Even if there was a means to make that plane crash that day, we would’ve done it.”

During President Trump’s last weeks in office, Black and African asylum seekers say, the administration is ramping up deportations using assault and coercion, forcing them back to countries where they face harm, according to interviews with the immigrants, lawyers, lawmakers, advocates and a review of legal complaints by The Times.

Immigrations and Customs Enforcement and Homeland Security headquarters did not respond to requests for comment.

The allegations have shed light on a group of immigrants that has been targeted by the president’s rhetoric and his policies to restrict asylum, but that is often overlooked. Relative to Mexicans and Central Americans, asylum seekers from Africa and the Caribbean make up a small but fast-growing proportion of the more than 16,000immigrants in detention today across the United States, particularly in the for-profit prison archipelago in the American South that has proliferated under Trump.

Despite Trump’s all-out assault on asylum, explicit bias against Black asylum seekers, and border closures under the pretext of the pandemic, some 20,000 Haitians and Africans have journeyed from South America, largely on foot, to claim protection at the U.S.-Mexico border during Trump’s time in office, according to Mexico’s migration statistics.

President-elect Joe Biden has said he will end the use of for-profit immigration detention, reverse many of Trump’s policies that restrict asylum, and reform the U.S. immigration system. But Trump has left his successor with decades-long private-prison contracts; more than 400 executive actions on immigration; a record immigration court backlog of more than 1.2 million cases; and record-high asylum denial rates, reaching around 70% last month.

Since October, lawyers have filed multiple complaints with the Homeland Security Department’s Office of Civil Rights and Civil Liberties and Inspector General’s Office documenting the cases of at least 14 Cameroonian asylum seekers at four detention facilities in Louisiana and Mississippi who say ICE subjected them to coercion and physical abuse to force their deportations.

The complaints call for investigations and an immediate halt to the deportations, arguing that officials are violating U.S. and international law, including due process rights and the Convention Against Torture.

In that time, more than 100 asylum seekers also have reported ICE using or threatening force to put them on deportation flights, in particular to Haiti and West Africa, according to lawyers and calls received on a national immigration detention hotline run by the nonprofit Freedom for Immigrants.

The Times has interviewed nine asylum seekers, most from Cameroon, others from Haiti or Ethiopia, many of whom requested anonymity for fear of retaliation. Five have been deported in the last month, and three remain detained after ICE attempted to remove them in recent weeks. One Cameroonian was released Monday after roughly 20 months in immigration detention.

They include teachers, law students, mothers, fathers, a 2-year-old boy and a 3-year-old girl, who have fled corrupt governments, political persecution, gang rape, torture by security forces, assassination attempts and arbitrary detention.

For many, deportation from the United States is a death sentence.

“I came to U.S. because I need to save my life because my life is in danger,” said a high school teacher who fled Ethiopia in 2017 after being jailed and beaten for supporting an opposition political party and student protests.

The teacher claimed asylum at the San Ysidro Port of Entry on the California-Mexico border in 2018. But last month, while being held at the Adelanto ICE Processing Facility, after he refused to sign deportation papers, six ICE officers assaulted and forcibly fingerprinted him, he said, then sent him to the medical clinic.

His asylum case had been denied but was pending an appeal. Two days after the assault, he said, officers told him he’d be transferred. Instead, they took him to Los Angeles International Airport and deported him to Ethiopia, where he was immediately rearrested and now awaits a court hearing.

“ICE is something like racist because they are doing excessive force,” the teacher said. “In [a free] country I don’t expect these things.”

Many asylum seekers are well aware of Trump’s disparagement of Black immigrants. And many believe that ICE officials and detention guards share his prejudices.

As Trump leaves office, the “pattern and practice of physical and verbal coercion” by ICE officers and guards to force Black asylum seekers to sign deportation papers is worsening, according to the complaints filed to Homeland Security’s Civil Rights and Civil Liberties and Inspector General’s offices.

Beyond threats, the tactics include shackling the immigrants, stripping them naked, holding them down and choking them, resulting in injuries, according to the complaints. Officials often committed the assaults out of sight of facility cameras, and in several instances filmed the assaults themselves, the complaints state.

Immigration detention is civil, not criminal, and ICE has the discretion to release detainees at any time. Most of the asylum seekers have family in the United States, and all have exercised their right to seek protection under U.S. law — meaning that many are being detained for years even though they have U.S. sponsors and haven’t committed a crime.

Of the deportation flights to West Africa in October and November, at least a dozen on board had pending cases, according to lawyers.

In interviews with The Times, the asylum seekers said they sought protection in the United States because they believed it was the only place where they could be safe and free.

“We believe in freedom and in this country as a country that provides protection for people who are running for their lives — and instead upon arrival, for us to be imprisoned and caged?” said a Haitian mother detained with her husband and 2-year-old son at a Pennsylvania ICE facility.

Police officers in Haiti had targeted her and her husband for their involvement with the political opposition, beating and sexually assaulting her while she was pregnant, according to sworn legal statements. She miscarried before she fled.

Despite many countries shutting their borders amid the COVID-19 pandemic, ICE has recently increased the pace of deportations, including sending a flight to West Africa just days after the Nov. 3 election. In October, there were nearly 500 ICE Air Operations flights, a more than 10% increase since September, according to Witness at the Border. More than 1,300 Haitians were deported, said Guerline Jozef, president of the Haitian Bridge Alliance in California.

In recent years, Cameroonians have increasingly accounted for one of the largest groups of what U.S. officials call “extracontinental” migrants, as the conflict in Cameroon has widened.

One man, going by the initials K.S., said he fled because officials in Cameroon had asked him to work with them to capture Anglophone people. He refused; his wife and three children are from the English-speaking side.

He had been detained at the Imperial Regional Detention Facility east of San Diego for over two years when the final appeal on his asylum claim was denied — making him so depressed that he spent a week under medical observation.

He said the ICE officer assigned to his case advised him to sign paperwork agreeing to be deported. The officer said that if the Cameroonian government didn’t accept ICE’s request to take him back, as was likely, he would be released to his U.S. sponsor after 90 days.

On Oct. 6, after 97 days had passed, six guards stood by as K.S. was ordered to pack up his things to leave.

“I didn’t think about deportation,” he said. “It was the last thought on my mind. They lied to me.”

ICE officers put him on a flight to Louisiana that picked up other Cameroonian deportees and then dropped the group off at the Prairieland Detention Facility in Texas. On Oct. 13, K.S. said, he was cuffed and taken to the airport, where he boarded a flight with about 100 other African migrants.

He watched as ICE officers strapped in three men from their shoulders to their ankles to restrict their movement and covered their heads with bags, then laid them across rows of seats in the plane.

Just as the flight was about to take off, K.S. and three other men were removed and taken back to Prairieland, without explanation.

Three weeks later, on Nov. 11, K.S. was back on a deportation flight with 27 other men. One, who was known to have heart problems, began crying that his chest was burning, K.S. said, an account confirmed to The Times by another passenger.

ICE ultimately removed the man and put him in an ambulance.

In contrast to Central Americans largely fleeing a lethal combination of gang violence, corruption, poverty and climate change, many Haitians and Africans have more traditional asylum claims that, at least in theory, better fit the categories outlined by an outdated U.S. asylum system largely conceived in the post-World War II era: persecution based on race, religion, nationality, political opinion or social group.

Yet Black and African asylum seekers are less likely than other immigrants to be released on parole or bond, or to win their asylum cases — a racial disparity that has worsened under Trump, according to lawyers and government data.

From September 2019 to May 2020, comparing hundreds of release requests from detained Cubans, Venezuelans, Cameroonians and Eritreans, the non-Africans had grant rates roughly twice as high, said Mich Gonzalez, senior staff attorney at the Southern Poverty Law Center. Fewer than 4% of Cameroonian parole requests were granted.

ICE is also increasingly blanket-denying Black immigrants’ release for clearly bogus reasons, said Anne Rios, a supervising attorney in San Diego with the nonprofit Al Otro Lado.

For example, ICE rejected one request by claiming an applicant’s identity hadn’t been established, when the agency had the applicant and his identification documents in its custody, according to parole applications and denials provided by Rios and reviewed by The Times.

U.S. officials have faced more impediments to deporting Haitian and African asylum seekers due to limited diplomatic relationships with their homelands and more complicated deportation logistics exacerbated by coronavirus closures abroad.

But that hasn’t stopped them. The Trump administration has at times put enforcement before its own stated foreign policy, contradicting the State Department and U.S. law barring officials from returning people to harm or death.

Take Cameroon. Last year, the U.S. pulled back some military assistance amid reports of atrocities committed by security forces trained and supplied by the U.S. military for counterterrorism. The State Department travel advisory for Cameroon warns of “crime,” “kidnapping,” “terrorism” and “armed conflict.”

Rather than obtaining valid Cameroonian passports, ICE officials have issued Cameroonian deportees “laissez-passer” travel documents that are invalid, or even signed by individuals in the United States purporting to be Cameroonian officials, according to the October complaint.

. . . .

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

Read the rest of the article at the link.

I understand the incoming Biden-Harris Administration’s desire to avoid getting entangled in the muck of the overt corruption, racism, and countless crimes of the outgoing regime. 

Nevertheless, I doubt that institutional racism can be eliminated, equal justice under law achieved, and racial harmony realized without dealing in some way with the many crimes against humanity committed in the name of racism, hate, and “Dred Scottification” by the regime and their cronies, toadies, and enablers at DHS, DOJ, DOS, and elsewhere in government. 

Also, to state the obvious, the types of cases described by Molly and Andrea could have been rapidly granted at the Asylum Office level in a functioning system. That’s a critical first step in eliminating the largely self-created backlog in the Immigration Courts, ending counterproductive litigation by the Government, and largely “zeroing out” the unnecessary and wasteful “New American Gulag” (“NAG”) of bogus “civil” detention largely abusively applied for illegal punishment and deterrence.

Fair and rational application of immigration laws and sane policies also make for efficient, fiscally responsible government. Compare that with the current kakistocracy which has run up record deficits, created endless backlogs, and left behind far, far more problems than they solved. Indeed, never has a gang of empowered malicious incompetents showed so little ability to recognize, promote, or govern in the common good.

Due Process Forever! Complicity in Crimes Against Humanity, Never!

PWS

11-29-20

🗽⚖️🇺🇸YAEL SCHACHER @ REFUGEES INTERNATIONAL FILES AMICUS BRIEF ON WHY “REMAIN IN MEXICO” IS A “CRIME AGAINST HUMANITY” — “When I wasn’t visiting border, I was trying to understand how the U.S. government could put in place a policy that seemed the very antithesis of what seeking asylum was supposed to be, as articulated in Refugee Act of 1980.”

Yael Schacher
Yael Schacher
Historian
Senior U.S. Advocate
Refugees International

https://www.google.com/url?q=https://www.refugeesinternational.org/reports/2020/11/25/le4a9nihwqnhgcn0q2l5fufa8fah6v&source=gmail-imap&ust=1606928318000000&usg=AOvVaw0Fc_OTkc3MFgBm5dijso0i

. . . .

When I wasn’t visiting border, I was trying to understand how the U.S. government could put in place a policy that seemed the very antithesis of what seeking asylum was supposed to be, as articulated in Refugee Act of 1980. I had spent my time before coming to Refugees International researching the writing and passage of that law and the development of the contemporary asylum system since 1980. The Remain in Mexico policy is unprecedented. The U.S. government claims the authority for it lies in a provision of the 1996 immigration law that allows for the return of certain applicants for admission to contiguous territory to await processing.  I began researching this provision and it became clear that it was not intended to apply to asylum seekers.

In support of a challenge to the Remain in Mexico program in California federal court, Refugees International and I, with attorneys from Sidley Austin LLP, submitted this brief describing why the Refugee Act forbids the program, a reality that the 1996 law does not change. The argument of the brief is that, when the 1980 Refugee Act was enacted, it was intended to establish a uniform process for consideration of asylum claims that would preclude this return to Mexico approach. A lynchpin in the argument is that there were two versions of the asylum provision of the Refugee Act—one proposed by Congresswoman Holtzman and one by Senator Edward Kennedy. Only the House version provided that asylum seekers at a land border be accorded the same ability to seek asylum as those already in the country. When, in conference, Holtzman’s version was accepted, Congress made a conscious choice in pursuit of uniformity in consideration of asylum requests: that the United States would treat asylum seekers at the border the same as it would all others. And the language mandating uniform treatment of asylum seekers in the 1980 Refugee Act was reiterated in the 1996 immigration law.

. . . .

 

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

The case is Immigrant Defenders Law Center v. Wolf, USDC, C.D. CA.

Read Yael’s intro, her outstanding brief prepared by Sidley Austin LLP, and the “Holtzman Papers” at the above link.  Notably, Sidley Austin is one of the great firms that have helped our Round Table with amicus briefs! It’s what happens when you connect the dots among history, research, social justice, and the law. It’s why the Liberal Arts are the wave of a better future and a better Federal Judiciary! It’s all about perspective and problem solving!


Thanks Yael for all that you, Refugees International, and great pro bono lawyers like Sidley Austin do for justice and humanity.

The real problem here: A disgraceful Supremes’ majority 🏴‍☠️ that improperly “greenlighted” this totally illegal, racist-inspired, “crime against humanity,” cooked up by neo-Nazi hate monger Stephen Miller ☠️🤮, after it had properly and timely been enjoined by lower Federal courts. And, a complicit EOIR that consistently fails to provide due process and justice to asylum seekers is a huge part of the problem. 

Unlike the Supremes, the EOIR Clown Show 🤡 can be removed and justice at all levels improved just by a putting the right experts from the NDPA in charge right off the bat.

Democratic Administrations, particularly the Obama Administration, have a history of not getting the job done when it comes to achievable immigration reforms within the bureaucracy. If you don’t want four more years of needless death, disorder, demeaning of humanity, and deterioration of the most important “retail level” of our justice system, let the incoming Biden Administration know: Throw out the EOIR Clown Show and bring in the experts from the NDPA to turn the Immigration Courts into real, independent courts of equal justice and humanity that will be a source of pride, not a deadly and dangerous national embarrassment! 

Contrary to all the mindless “woe is me” suggestions that it will take decades to undo Stephen Miller’s (is he really that much smarter than any Democrat politico?) racist nonsense, EOIR is totally fixable — BUT ONLY WITH THE RIGHT FOLKS FROM THE NDPA IN CHARGE!  

It’s only “mission impossible” if the Biden-Harris Administration approaches EOIR with the same indifference, lack of urgency, and disregard for expertise and leadership at the DOJ that has plagued past Dem Administrations on immigration, human rights, and social justice.

It won’t take decades, nor will it take zillions of taxpayer dollars! With the right folks in leadership positions at EOIR, support for independent problem solving (not mindless micromanagement) from the AG & DOJ, and a completely new BIA selected from the ranks of the NDPA, we will see drastic improvements in the delivery of justice at EOIR by this time next year. And, that will just be the beginning!

No more clueless politicos, go along to get along bureaucrats, toadies, and restrictionist holdovers calling the shots at EOIR, America’s most important, least understood, and “most fixable” court system! No more abuse of migrants and their representatives! No more ridiculous, “Aimless Docket Reshuffling” generating self-created backlogs! No more vile and stupid White Nationalist enforcement gimmicks being passed off as “policies!” No more “Amateur Night at The Bijou” when it comes to administration of the immigrant justice system at the DOJ under Dems!

Get mad!  Get angry! Stop the nonsense! Tell every Democrat in Congress and the Biden Administration to bring in the NDPA experts to fix EOIR! Now! Before more lives are lost and futures ruined! It won’t get done if we don’t speak out and demand to be heard!

This is our time! Don’t let it pass with the wrong people being put in charge — yet again! Don’t be “left at the station” as the train of immigrant justice at Justice pulls out with the best engineers left standing on the platform and the wrong folks at the controls! Some “train wrecks” aren’t survivable! 🚂☠️⚰️

Due Process Forever!

PWS

11-28-20

🇺🇸🗽⚖️MAYORKAS APPOINTMENT @ DHS SIGNALS MOVE AWAY FROM RACISM, WHITE NATIONALISM, STUPID NATIVISM AS “POLICIES” – If Confirmed, Can He Finally Bring Sanity, Humanity, Fiscal Responsibility, & Focus On Legitimate Law Enforcement & “National Security” (Rather Than A String Of Fabricated Anti-Immigration Actions Motivated By Overt Racism, Political Opportunism, & Invidious Religious Discrimination) To A Politicized Agency Gone Bezerk? — “This is it. The change we needed, hallelujah,” Says GOP Pundit Al Cardenas!

Suzanne Gamboa
Suzanne Suzanne Gamboa, Political Editor, NBCLatino, NBC NewsDate: October 21, 2013
Place: Washington, DC
Credit: Maria Patricia Leiva/OAS
Creative Commons License
Al Cardenas
Al Cardenas
Last of A Dying GOP Breed?
Al Cardenas speaking at CPAC FL in Orlando, Florida.
Gage Skidmore, Photo
Creative Commons
Alejandro Mayorkas
Alejandro Mayorkas
DHS Secretry – Designate
Official DHS Photo
Public Domain

https://www.nbcnews.com/news/latino/first-latino-tapped-head-dhs-signals-shift-trump-s-hard-n1248716

 

 

From Suzanne Gamboa @ NBC News:

 

Alejandro Mayorkas, the first Latino chosen for President-elect Joe Biden’s Cabinet, will head a Department of Homeland Security that is expected to drastically overhaul President Donald Trump’s hard-line immigration policies, as well as put Mayorkas at the forefront of the new administration’s anti-terrorism strategy.

Mayorkas will be the first Latino and first immigrant to head the Department of Homeland Security, if confirmed by the Senate. The highest-ranking Cuban American in the Obama administration, Mayorkas was deputy secretary of DHS under then-Secretary Jeh Johnson, and before that was the director of Citizenship and Immigration Services, a part of DHS that oversees granting citizenship and other immigration benefits.

Mayorkas, if confirmed, will take over the nation’s third-largest agency in terms of employees, one that was created after the Sept. 11, 2001, terrorist attacks and that oversees several smaller agencies such as Customs and Border Protection, Transportation Security, the Coast Guard and the Secret Service.

 

President-elect Biden names Alejandro Mayorkas for Homeland Security Chief

NOV. 23, 202003:15

The Trump administration has drastically transformed the nation’s immigration system with over 400 executive actions — including refusing entry to asylum-seekers, taking children from parents at the border and restricting travel to the U.S. by Muslims.

There will be pressure on the Biden administration to act quickly on immigration and uphold pledges he made on the campaign trail, such as ending travel bans and protecting young immigrants, known as Dreamers, and to take such actions in the first 100 days of his administration.

Much of Trump’s immigration policy was the work of his adviser Stephen Miller, who cited and promoted white nationalist beliefs in emails leaked to the Southern Poverty Law Center last year.

 

. . . .

 

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

Read the rest of Suzanne’s report at the link.

 

 

Al Cardenas has been one of very few Republicans to appear on “Meet the Press” over the past four years who has 1) dealt with facts, and 2) said something worthwhile. The normal GOP guest on MTP is either a Trump toady or a disingenuous apologist for the worst and most corrupt Administration in U.S. history.

 

I do suggest that Al needs to sit down and have a “heart to heart” with his Senate buddies Marco Rubio and  Ted Cruz as well as lots of Cuban-Americans in Florida about the future of America.  They don’t seem to be on the same page, or indeed even in the same universe, as Al and the substantial majority of American voters.

 

This also illustrates the vital importance to DHS reform of a strong, due process, human rights, efficiency oriented, “best practices” EOIR with expert judges from the NDPA in leadership positions and on the BIA (and eventually the Immigration Courts). In the past, true reform at DHS has often been inhibited by refusal of supervisors and line officials to follow “policies sent out from Washington” specifically designed to enhance individual justice, insert reality, and promote docket and litigation responsibility and efficiency. In other words, the type of practical, reasonable, humane, experience-based prosecutorial discretion policies that every other law enforcement agency in the U.S., save DHS, routinely follows.

 

DHS reforms won’t be fully effective unless preceded by an EOIR under new leadership with an expert, courageous, independent due process committed BIA unswervingly dedicated to protecting the rights of asylum seekers and other migrants and effectively requiring DHS to operate within the law and conform to rational, practical, non-discriminatory policies. The talent is out there, just waiting be tapped!

 

A friend recently asked me what I expected to happen when the U.S. asylum system is reinstituted as President-Elect Biden and Vice President Harris have pledged. Here’s my answer:

 

[The Biden Administration] will get them [asylum applications] adjudicated in a timely and professional manner; more will qualify for protection, thereby allowing more of the work to be shifted to the Asylum Office; the refugee program will expand; America will prosper!

 

I hope I’m right. But, it won’t happen without a “new awakening and some new faces” at EOIR. Remember, it’s not rocket science!

 

Due Process Forever!

 

PWS

11-25-20

 

 

 

 

 

FROM THE HEIGHTS OF KASINGA TO THE DEPTHS OF AMERICA’S DEADLY STAR CHAMBERS: Will The Biden Administration Tap The New Due Process Army To Fix EOIR & Save Our Nation? 

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Star Chamber Justice
“Justice”
Star Chamber
Style
Me
Me

FROM THE HEIGHTS OF KASINGA TO THE DEPTHS OF AMERICA’S DEADLY STAR CHAMBERS: Will The Biden Administration Tap The New Due Process Army To Fix EOIR & Save Our Nation?

By Paul Wickham Schmidt

Retired U.S. Immigration Judge

Courtside Exclusive

Nov. 12, 2020

I.  INTRODUCTION — ABROGATION OF ASYLUM LAWS IN THE FACE OF EXECUTIVE LAWLESSNESS & RACIAL BIAS IS A NATIONAL DISGRACE

In Matter of Kasinga, I applied the generous well-founded fear standard for asylum established by the Supreme Court in Cardoza-Fonseca to reach a favorable result for a female asylum applicant. It was based on a particular social group of women of the tribe who feared persecution in the form of female genital mutilation, or “FGM.” I sometimes think of this as the “high water mark” of asylum law at the BIA.

Since then, proper, generous application of asylum laws to serve their intended purpose of flexibly, fairly, and consistently extending protection to those facing persecution has been steadily declining. The Trump Administration essentially overruled Cardoza-Fonseca and abolished asylum law without legislative change.

Both Congress and the Court have failed to stand up to this egregious abuse of the law, constitutional due process, and simple human decency that presents a “clear and present danger” to our nation’s continued existence.

Indeed, the performance of the Court in the face of the Administration’s overt assault on asylum has been so woeful as to lead me to wonder whether any of the Justices, other than Justice Sonia Sotomayor, have actually read the Cardoza-Fonseca decision. Certainly, most of them have failed to consistently and courageously carry forth its spirit and to grapple with their legal and moral responsibility for letting a lawless Executive trample the constitutional and human rights, as well as the human dignity, of the most vulnerable among us.

How did we get to this utterly deplorable state of affairs and what can the Biden Administration do to save us? Will they act boldly and courageously or continue the tradition of ignoring abuses directed against asylum seekers and the deleterious effect it has on our society and the rule of law?

I guarantee that racial justice and harmony will continue to elude us as a nation unless and until we come to grips with the ongoing abuses in the Immigration Courts — “courts” that no longer function as such in any manner except the misleading name!

II.   BACKGROUND

To understand what has happened since Kasinga, here’s some background. In U.S. asylum law, there generally has been an “inverse relationship” between geography and success. The further your home country is from the U.S., the more generous the treatment is likely to be.

Thus, folks like Kasinga from Togo, or those from Tibet, Ethiopia, China, or Eritrea, with relatively difficult access to our borders, tend to do relatively well. On the other hand, those from Mexico, Haiti, Central America, and South America, who have easier access to our borders, tend to be treated more restrictively.

This reaction has been driven by a hypothesis with limited empirical support, but which has been accepted in some form or another by all Administrations, regardless of party, since the enactment of the Refugee Act of 1980. That is, the belief that human migration patterns are driven primarily by the policies and legal regimes in prosperous so-called “receiving countries” like the U.S.

Thus, generous and humane asylum policies will encourage unwanted flows of asylum seekers across international borders. And, of course, we all know that nothing threatens the national security of the world’s greatest nuclear superpower more than a caravan or flotilla of desperate, unarmed asylum seekers and their families trying to turn themselves in at the border or to the Border Patrol shortly after arrival.

Conversely, restrictive policies including rapid, unfair rejection, border turn-backs, mass detentions, criminal sanctions, family separation, denials of fair hearings, walls, border militarization, and hostile, often racially and religiously charged rhetoric, will cause asylum seekers to “stay put” thus deterring them and reducing the number of applications threatening our national security. In other words, encourage legitimate asylum seekers to “perish in place.” Often, these harsh policies are disingenuously characterized as being, at least partially, “for the benefit of asylum seekers” by discouraging them from undertaking dangerous journeys and paying human smugglers only to be summarily rejected upon arrival.

This “popular hypothesis” largely ignores the effect of conditions in refugee sending countries, including both geopolitical and environmental factors. For example, the current migration flow is affected by the practical difficulties of travel in the time of pandemic and by economic failures and cultural and political changes resulting from unabated climate change, not just by the legal restrictions that might be in place in the U.S. and other far-away countries.

It also factors out the “business narratives” of human smugglers designed to manipulate asylum seekers in ways that maximize profits under a variety of scenarios and to take maximum advantage of mindlessly predictable government “enforcement only” strategies.

Indeed, there is plenty of reason to believe that such policies serve largely to maximize smugglers’ profits, extort more money from desperate asylum seekers, but with little long-term effect on migration patterns. The short-term reduction in traffic, often hastily mischaracterized as “success” by the government, probably reflects in part “market adjustments” as smugglers raise their rates to cover the increased risks and revised planning caused by more of a particular kind of enforcement. That “prices some would-be migrants out of the market,” at least temporarily, and forces others to wait while they accumulate more money to pay smugglers.

It also likely increases the number of asylum seekers who die while attempting the journey. But, there is no real evidence that four decades of various “get tough” and “deterrence policies” — right up until the present — have had or will have a determinative long term effect on extralegal migration to the U.S. It may well, however, encourage more migrants to proceed to the interior of the country and take “do it yourself” refuge in the population, rather than turning themselves in at or near the border to a legal system that has been intentionally rigged against them.

Regardless of its empirically questionable basis, “deterrence theory” has become the primary driving force behind government asylum policies. Thus, the fear of large-scale, out of control “Southern border incursions” by asylum seekers has driven all U.S. Administrations to adopt relatively restrictive interpretations and applications of asylum law with respect to asylum seekers from Central America.

Starting with a so-called “Southern border crisis” in the summer of 2014, the Obama Administration took a number of steps intended to discourage Central American asylum seekers. These included: use of so-called “family detention;” denial of bond; accelerated processing of recently arrived children and adults with children; selecting Immigration Judges largely from the ranks of DHS prosecutors and other Government employees; keeping asylum experts off the BIA; taking outlandish court positions on detention and the right to counsel for unrepresented toddlers in Immigration Court; and dire public warnings as to the dangers of journeying to the U.S. and the likelihood of rejection upon arrival.

These efforts did little to stem the flow of asylum seekers from the Northern Triangle. However, they did result in a wave of “Aimless Docket Reshuffling” (“ADR”) at the Immigration Courts that accelerated the growth of backlogs and the deterioration of morale at EOIR. (Later, Sessions & Barr would “perfect the art of ADR” thereby astronomically increasing backlogs, even with many more judges on the bench, to something approaching 1.5 million known cases, with probably hundreds of thousands more buried in the “maliciously incompetently managed” EOIR (non)system).

Success for Central American asylum applicants thus remained problematic, with more than two of every three applications being rejected. Nevertheless, by 2016, largely through the heroic efforts of pro bono litigation groups, applicants from the so-called “Northern Triangle” – El Salvador, Honduras, and Guatemala – had achieved a respectable approval rate ranging from approximately 20% to 30%.

Many of these successful claims were based on “particular social groups” composed of battered women and/or children or family groups targeted by violent husbands or boyfriends, gangs, cartels, and other so-called “non-governmental actors” that the Northern Triangle governments clearly were “unwilling or unable to control.”

III.   CROSSHAIRS

Upon the ascension of the Trump Administration in 2017, refugee and asylum policies became driven not only by “deterrence theory,” but also by racially, religiously, and politically motivated “institutionalized xenophobia.” The initial target was Muslims who were “zapped” by Trump’s so-called “Muslim ban.” Although initially properly blocked as unconstitutional by lower Federal Courts, the Supreme Court eventually “greenlighted” a slightly watered-down version of the “Muslim ban.”

Next on the hit list were refugees and asylees of color. This put Central American asylum seekers, particularly women and children, directly in the crosshairs.

In something akin to “preliminary bombing,” then Attorney General Jeff Sessions launched a series of false and misleading narratives against asylum seekers and their lawyers directed at an audience consisting of Immigration Judges and BIA Members who worked at EOIR and thus were his subordinates.

Without evidence, Sessions characterized most asylum seekers as fraudulent or mala fide and blamed them as a primary cause for the population of 11 million or so undocumented individuals estimated to be residing in the U.S. He also accused “dirty immigration lawyers” of having “gamed” the asylum system, while charging “his” Immigration Judges with the responsibility of “assisting their partners” at DHS enforcement in stopping asylum fraud and discouraging asylum applications.

IV.    THE ATTACK

While not directly tampering with the “well-founded fear” standard for asylum, with Sessions leading the way, the Administration launched a three-pronged attack on asylum seekers.

First, using his power to review BIA precedents, Sessions reversed the prior precedent that had facilitated asylum grants for applicants who had suffered persecution in the form of domestic abuse. In doing so, he characterized them as “mere victims of crime” who should not be recognized as a “particular social group.” While not part of the holding, he also commented to Immigration Judges in his opinion that very few claimants should succeed in establishing asylum eligibility based on domestic violence.

He further imposed bogus “production quotas” on judges with an eye toward speeding up the “deportation railroad.” In other words, Immigration Judges who valued their jobs should start cranking out mass denials of such cases without wasting time on legal analysis or the actual facts.

Later, Sessions’s successor, Attorney General Bill Barr, overruled the BIA precedent recognizing “family” as a particular social group for asylum. He found that the vast majority of family units lacked the required “social distinction” to qualify.

For example, a few prominent families like the Rockefellers, Clintons, or Kardashians might be generally recognized by society. However, ordinary families like the Schmidts would be largely unknown beyond their own limited social circles. Therefore, we would lack the necessary “social distinction” within the larger society to be recognized as a particular social group.

Second, Sessions and Barr attacked the “nexus” requirement that persecution be “on account of” a particular social group or other protected ground. They found that most alleged acts of domestic violence or harm inflicted by abusive spouses, gangs and cartels were “mere criminal acts” or acts of “random violence” not motivated by the victim’s membership in any “particular social group” or any of the other so-called “protected grounds” for asylum. They signaled that Immigration Judges who found “no nexus” would find friendly BIA appellate judges anxious to uphold those findings and thereby retain their jobs.

Third, they launched an attack on the long-established “nongovernmental actor” doctrine. They found that normally, qualifying acts of persecution would have to be carried out by the government or its agents. For non-governmental actions to be attributed to that government, that government would basically have to be helpless to respond.

They found that the Northern Triangle governments officially opposed the criminal acts of gangs, cartels, and abusers and made at least some effort to control them. They deemed the fact that those governments are notoriously corrupt and ineffective in controlling violence to be largely beside the point. After all, they observed, no government including ours offers “perfect protection” to its citizens.

Any effort by the government to control the actor, no matter how predictably or intentionally ineffective or nominal, should be considered sufficient to show that the government was willing and able to protect against the harm. In other words, even the most minimal or nominal opposition should be considered “good enough for government work.”

V.   THE UGLY RESULTS

Remarkably, notwithstanding this concerted effort to “zero out” asylum grants, some individuals, even from the Northern Triangle, still succeed. They usually are assisted by experienced pro bono counsel from major human rights NGOs or large law firms — essentially the “New Due Process Army” in action. These are the folks who have saved what is left of American justice and democracy. Often, they must seek review in the independent, Article III Federal Courts to ultimately prevail.

Some Article IIIs are up to the job; many aren’t, lacking both the expertise and the philosophical inclination to actually enforce the constitutional and statutory rights of asylum seekers — “the other,” often people of color. After all, wrongfully deported to death means “out of sight, out of mind.”

However, the Administration’s efforts have had a major impact. Systemwide, the number of asylum cases decided by the Immigration Courts has approximately tripled since 2016 – from approximately 20,000 to over 60,000, multiplying backlogs as other, often older, “ready to try” cases are shuffled off to the end of the dockets, often with little or no notice to the parties.

At the same time, asylum grant rates for the Northern Triangle have fallen to their lowest rate in many years 10% to 15%. Taken together, that means many more asylum denials for Northern Triangle applicants, a major erosion of the generous “well-founded fear” standard for asylum, and a severe deterioration of due process protections in American law. Basically, it’s a collapse of our legal system and an affront to human dignity. The kinds of things you might expect in a “Banana Republic.”

VI.  WILL BIDEN FIX EOIR OR REPEAT THE MISTAKES OF THE OBAMA ADMINISTRATION?

The intentional destruction of U.S. asylum law and the weaponization of EOIR in support of the White Nationalist agenda have undermined the entire U.S. justice system. It actively encourages both dehumanization (“Dred Scottification”) and institutionalized racism all the way up to a Supreme Court which has improperly enabled large portions of the unlawful and unconstitutional anti-migrant agenda.

The Biden Administration can reverse the festering due process and human rights disaster at EOIR. Unlike improving and reforming the Article III Judiciary, it doesn’t need Mitch McConnell’s input to do so.

Biden can appoint an Attorney General who will recognize the importance of putting immigration/human rights/due process experts in charge of EOIR. He can replace the current BIA with real appellate judges whose qualifications reflect an unswerving commitment to due process, expert application of asylum laws in the generous manner once envisioned by the Supreme Court in Cardoza-Fonseca, implementing “best” practices, judicial efficiency, and judicial independence.

Biden can return human dignity to an improperly weaponized system designed to “Dred Scottify” the other. He can appoint better qualified Immigration Judges through a merit-based system that would encourage and give fair consideration to the many outstanding candidates who have devoted their professional lives to fighting for due process, fundamental fairness, and immigrants’ rights, courageously, throughout America’s darkest times!

That, in turn, will create the necessary conditions to institutionalize the EOIR reforms through the legislative creation of an independent, Article I Immigration Court that will be the “gemstone” of American justice rather than a national disgrace! One that will eventually fulfill the noble, now abandoned, “EOIR Vision” of “through teamwork and innovation being the world’s best tribunals, guaranteeing fairness and due process for all.”

The Obama Administration shortsightedly choose to “freeze out” the true experts in the private advocacy, NGO, academic, clinical teaching, and pro bono communities. The results have been beyond disastrous.

In addition to killing, maiming, and otherwise harming humans entitled to our legal protection, EOIR’s unseemly demise over the past three Administrations has undermined the credibility of every aspect of our justice system all the way to the Supreme Court as well as destroying our international leadership role as a shining example and beacon of hope for others.

The talent in the private sector is out there! They are ready, willing, and very able to turn EOIR from a disaster zone to a model of due process, innovation, best practices, fair, efficient, and practical judging, and creative judicial administration. One that other parts of the U.S. judicial system could emulate.

Will the Biden Administration heed the call, act boldly, and put the “right team” in place to save EOIR? Or will they continue past Democratic Administrations’ short-sighted undervaluation of the importance of providing constitutionally required due process, equal justice, and fundamental fairness to all persons in the U.S. including asylum applicants and other migrants.

I’ve read a number of papers and proposals on how to “fix” immigration and refugee policies. None of them appears to recognize the overriding importance of making EOIR reform “job one.”

For once, why can’t Democrats “think like Republicans?” When John Ashcroft and Kris Kobach and later Jeff Sessions and Stephen Miller set out to kneecap, politicize, and weaponize the U.S. justice system, what was their “starting point?” EOIR, of course!

The Obama Administration’s abject failure to effectively address and reverse the glaring mess at EOIR left by the “Ashcroft reforms” basically set the table for Sessions’s even more invidious plan to weaponize EOIR into a tool for xenophobia and White Nationalist nativism. The problems engendered by allowing the politicization and weaponization of EOIR have crippled the U.S. justice system far beyond immigration and asylum law.

Without a better EOIR, fully empowered to lead the way legally and insure and enforce compliance, all reforms, from DACA, to detention reform, to restoration of refugee and asylum systems will be less effective, more difficult, and less enduring than they should be. Equal justice for all and an end to institutionalized racism cannot be achieved without bold EOIR reform!

It would also take some of the pressure off the Article III Courts. Time and again they are called upon, with disturbingly varying degrees of both willingness and competence in the results, to correct the endless stream of basic legal errors, abuses of due process, and inane, obviously biased and counterproductive policies regularly flowing from EOIR and DOJ. Indeed, unnecessary litigation and frivolous, ethically questionable, often factually inaccurate or intentionally misleading positions advanced by the DOJ in immigration matters now clog virtually all levels of the Article III Federal Courts right up to the docket of the Supreme Court!

So far, what I haven’t seen is a recognition by anyone on the “Biden Team” that the experts in the private bar who have been the primary fighters in the trenches, almost singlehandedly responsible for preserving American justice and saving our democracy from the Trump onslaught, must be placed where they belong: in charge of the effort to rebuild EOIR and those who will be chosen to staff it!

Continue to ignore the New Due Process Army and their ability to right the listing American ship of state at peril! It’s long past time to unleash the “problem solvers” on government and give them the resources and support necessary to use practical scholarship, technology, best practices, and “Con Law/Human Rights 101” to solve the problems!

No “magic list,” stakeholders committees, or consensus-building groups can take the place of putting expert, empowered, practical problem solvers in charge of the machinery. We can’t win the game with the best, most talented, most knowledgeable, most courageous players forever sitting on the bench!

The future of our republic might well depend on whether the Biden-Harris Administration can get beyond the past and take the courageous, far-sighted actions necessary to let EOIR lead the way to a better future of all Americans! We can only hope that they finally see the light. Before it’s too late for all of us!

Due Process Forever! Complicity & Complacency, Never!

 

 

 

 

⚰️☠️🏴‍☠️KILLERS ON THE LOOSE, ON YOUR PAYROLL! — Whistleblower Report Shows How  Corrupt Regime “War Criminals” Have Intentionally Falsified Information To Cover Up Deadly Conditions In Northern Triangle, Thereby Potentially Condemning Refugees To Death Without Due Process — Too Many Article III Judges Have Disingenuously Used “Standards Of Review” & Other Dishonest “Legal Gimmicks” To Hide Their Own Failures To Critically Examine Bogus Asylum Denials & Overtly Racist Restrictionist Policies Flowing From The Twisted Mind Of Neo-Nazi Stephen Miller!

Trump Dumping Asylum Seekers in Hondiras
Dumping Asylum Seekers in Honduras
Artist: Monte Wolverton
Reproduced under license

https://www.justsecurity.org/72451/whistleblower-dhs-suppressed-reports-on-central-america-and-inflated-risk-of-terrorist-border-crossers/

Susan Gzesh in Just Security:

. . . .

U.S. law and the United Nations Convention and Protocol Relating to the Status of Refugees also require the United States to accept political asylum claims presented at the U.S. border and to not return applicants to a place where their “life or freedom would be threatened.” These conditions were, of course, not met with respect to El Salvador, Guatemala, and Honduras. The Trump administration later ceased referring to the agreements with these Central American countries as “Safe Third Country” agreements and used the term “Asylum Cooperation Agreements,” perhaps in a cynical attempt to avoid U.S. law and regulations.

What Murphy’s Complaint Reveals

According to his whistleblower complaint (footnote 1 at pages 9-10) and earlier anonymous reports he filed with the DHS Office of Inspector General, career DHS intelligence official Brian Murphy presented intelligence reports to political appointees in DHS which found “high levels of corruption, violence, and poor economic conditions” in all three countries. It was no surprise that Murphy’s complaint recounts that in December 2019, as the Trump administration was sending the first asylum seekers to Central America, then Acting Assistant Secretary of DHS Ken Cuccinelli ordered Murphy to change those reports.

According to Murphy, Cuccinelli not only claimed the reports must be false, but also attributed them to forces within the intelligence community hostile to the President. He accused “unknown ‘deep state intelligence analysts’ of compiling intelligence information to undermine President Donald J. Trump’s policy objectives with respect to asylum.” According to Murphy, Cuccinelli further ordered him to identify those “who compiled the intelligence reports and to either fire or reassign them immediately” (see page 9 of Murphy’s complaint).

With respect to the policy rationale to support spending millions of dollars on a border wall,  Murphy’s complaint recounts how he was asked to reinterpret and rewrite intelligence reports about Known or Suspected Terrorists (KSTs) attempting to enter the United States from Mexico to fit the White House’s policy arguments about the need for a wall. In several meetings during 2018 and 2019, Murphy delivered intelligence to then DHS-Secretary Kirstjen Nielsen and other officials that the actual number of individually-documented KSTs was very tiny. Despite Murphy’s briefings, Nielsen and other officials in DHS issued documents and gave congressional briefings in which they greatly exaggerated the numbers, inflating a figure of 3 KSTs to over 3,000. (Murphy’s attorney has provided an amended complaint to correct an error in the original version of these events.) At one meeting in December 2019, after Murphy contradicted his superiors regarding the number of KSTs crossing into the United States, he was removed from the meeting by now interim DHS Secretary Chad Wolf (as noted in his amended complaint at pages 5-8).

Brian Murphy’s Whistleblower complaint confirms what the public has seen so often: White House officials and political appointees in federal agencies willing to hide carefully investigated and proven facts in order to substitute lies more in keeping with White House policy goals.

DHS Secretary-designate Chad Wolf is supposed to testify before a House panel later this week.  Let’s hope he gives truthful answers to all the questions raised in Brian Murphy’s complaint.

. . . .

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

Read the rest of Susan’s article at the link.

Hey, 3 known “suspected” terrorists vs 3,000! What’s the big deal? They both contain the number “3.”

This is the type of demonstrable nonsense that the Supremes’ majority disingenuously accepts in letting the regime declare bogus “immigration emergencies” and stomp all over the legal and constitutional rights of asylum seekers! Real people die, get tortured, and have their lives destroyed because elitist judges have removed themselves from humanity and kowtow to a scofflaw, corrupt, immoral Executive. This is what a failing democracy and a complicit judiciary look like.

I appreciate Susan’s optimistic hope in the last paragraph. But, the chance “Wolfman,” an “illegal,” will tell Congress the truth under oath is zero. 

All three branches of our failing Government have conspired to insure that his lies and illegal actions will have no meaningful consequences for him or any of his co-conspirators. Only the health, safety, and lives of his, Trump’s, Miller’s, Barr’s, Session’s, and “Cooch’s” victims are on the line.

In the meantime, refugees entitled to protection under U.S. and international law continue to be returned to dangerous and deadly conditions in the Northern Triangle without due process or indeed any process whatsoever. Indeed, with the help of disingenuous Federal Courts, the regime has effectively repealed U.S. protection laws without enacting a single piece of legislation!

One of many unfortunate “practical consequences” of the Article IIIs overall lack of critical review: In addition to having to fight the unethical and often frivolous litigation “strategies and gimmicks” of the regime and the DOJ, advocates, often serving pro bono or low bono, now bear the burden of preparing their own “Country Reports” to rebut the falsified, misleading, and highly politicized versions of country conditions presented in DOS “Country Reports.” 

The latter used to be considered the “international gold standard” for determining country conditions in asylum and refugee adjudications (although true expert judges and adjudicators still viewed them critically). Now, they are little more than “political propaganda screeds” for a corrupt, White Nationalist, bigoted regime. 

But, most Article IIIs have been intentionally or negligently “asleep at the switch,” still disingenuously “deferring” to these deeply defective and intentionally misleading, sometimes fictionalized, accounts. For example, almost any legitimate asylum expert would say that Jeff “Gonzo Apocalypto” Sessions’s largely fictionalized account of conditions for women in El Salvador, presented in Matter of A-B-, 27 I&N Dec. 316 (AG 2018), bears little resemble to reality.

Of course, the political branches have authority to set policy — but only within Constitutional and legal limits. Clearly, that authority to direct the activities of civil servants does not include authority to ignore facts and create false narratives in support of overtly racist, religiously bigoted, or improperly politically punitive agendas. Any Federal Judge who looks the other way when such overtly invidious objectives and motives are at work is derelict in his or her duty.

Our democracy is in deep trouble. And, to get it fully functioning and finally achieve the promise of equal justice under law, we eventually will need a better qualified Article III Judiciary.

The sooner that process starts, the better. It will take years or even generations to reform the life-tenured judiciary and get better qualified women and men on the bench. Judges who actually reflect the diversity of America and are unswervingly committed to equal justice for all under our laws.

We need Federal Judges, at all levels from the Supremes to the Immigration Courts, who actually know and understand asylum and human rights laws and their human dimension. Judges who have the courage and integrity to stand up for the rights of all persons for due process, fundamental fairness, and to be treated with human dignity, free of the overt racist bias demonstrated by Trump, Miller, and others.

In the end, the rights of foreign nationals to be treated as “persons” under our law are all of our rights! The dehumanization and “Dred Scottification” of asylum seekers by the regime and the Federal Courts diminishes each of us, including those complicit “go along to get along” judges who fail to see their own humanity in the faces and lives of those they oppress and fail to protect.

For now, they are largely getting away with it. But, eventually, somewhere down the line, there will be a “judgement of history” for their inhumanity and dereliction of duty. Of that, I am certain!

 Due Process Forever!

PWS

09-17-20

THE SADNESS OF PROPHECY WITHOUT POWER: Two Years Ago, I Gave A Speech Warning Of The Consequences Of “1939 Germany” — Now, We’re In “Germany 1938” With 1939 Just An Election Away! — Moscow Mitch, Lindsey The Toad, Texas Ted & The Rest Of The GOP Fellow Travelers & Cultists Would Be Right At Home With Franz van Papen!

 

This morning, Joe Hagan wrote in The Hive For Vanity Fair:

On the latest episode of Inside the Hive, former Republican strategist Stuart Stevens described the GOP under Donald Trump as a party of cynics, stooges, racists, and obsequious enablers whose profiles in cowardice bear an uncomfortable resemblance to 1930s Germany. “When I talk to Republican politicians, I hear Franz von Papen,” he says, referencing the German chancellor who convinced Germans that so-called radical leftists were a far greater threat than Adolf Hitler. “They all know that Trump is an idiot. They all know that he’s uniquely unqualified to be president. But they convinced themselves that he was a necessity.”

https://www.vanityfair.com/news/2020/09/ex-republican-strategist-surveys-the-wreckage-of-trumps-gop

All too disturbingly true. For those who didn‘t notice, the GOP now has no platform. None! They are nakedly running on lies, racism, fear, White Supremacy, hate, misogyny, xenophobia, intentionally false narratives, anti-science, anti-intellectualism, and corruption. Sound familiar? It should to those of us who studied Modern European History and World War II. 

Two years ago, before the International Association of Refugee & Migration Judges meeting at Georgetown Law, fresh from a visit to the Holocaust Museum in DC, I gave a speech warning of a return to “Eve of the Holocaust thinking.” 

It was, of course, “extreme hubris and total self-delusion” to think anyone was paying attention. Nevertheless, it doesn’t lessen my “extreme sadness” of watching the disintegration of our nation, without being able to prevent it.

Here’s a “reprint” of that speech from the Summer of 2018:

JUST SAY NO TO 1939: HOW JUDGES CAN SAVE LIVES, UPHOLD THE CONVENTION, AND MAINTAIN INTEGRITY IN THE AGE OF OVERT GOVERNMENTAL BIAS TOWARD REFUGEES AND ASYLUM SEEKERS

IMPLICIT BIAS IARMJ 08-03-18

JUST SAY NO TO 1939:  HOW JUDGES CAN SAVE LIVES, UPHOLD THE CONVENTION, AND MAINTAIN INTEGRITY IN THE AGE OF OVERT GOVERNMENTAL BIAS TOWARD REFUGEES AND ASYLUM SEEKERS

 

By Paul Wickham Schmidt,

U.S. Immigration Judge, Retired

Americas Conference

International Association of Refugee & Migration Judges

Georgetown Law

August 4, 2018

INTRODUCTION

 

Good afternoon. I am pleased to be here. Some twenty years ago, along with then Chief U.S. Immigration Judge Michael J. Creppy, I helped found this Association, in Warsaw. I believe that I’m the only “survivor” of that illustrious group of “Original Charter Signers” present today. And, whoever now has possession of that sacred Charter can attest that my signature today remains exactly as it was then, boldly scrawling over those of my colleagues and the last paragraph of the document.

 

As the Americas’ Chapter Vice President, welcome and thank you for coming, supporting, and contributing to our organization and this great conference. I also welcome you to the beautiful campus of Georgetown Law where I am on the adjunct faculty.

 

I thank Dean Treanor; my long-time friend and colleague Professor Andy Schoenholtz, and all the other wonderful members of our Georgetown family; the IARMJ; Associate Director Jennifer Higgins, Dimple Dhabalia, and the rest of their team at USCIS; and, of course, our Americas President Justice Russell Zinn and the amazing Ross Patee from the Canadian Immigration and Refugee Board who have been so supportive and worked so hard to make this conference a success.

 

I recognize that this is the coveted “immediately after lunch slot” when folks might rather be taking a nap. But, as the American country singer Toby Keith would say “It’s me, baby, with you wake up call!” In other words, I’m going to give you a glimpse into the “parallel universe” being operted in the United States.

 

In the past, at this point I would give my comprehensive disclaimer. Now that I’m retired, I can skip that part. But, I do want to “hold harmless” both the Association and Georgetown for my remarks. The views I express this afternoon are mine, and mine alone. I’m going to tell you exactly what I think. No “party line,” no “bureaucratic doublespeak,” so “sugar coating.” Just the truth, the whole truth, and nothing but the truth!

 

I have good news and bad news. The good news is that we don’t have an implicit bias problem in the U.S. asylum adjudication system. The bad news: The bias is now, unfortunately, quite explicit.

 

Here’s a quote about refugees: “I guarantee you they are bad. They are not going to be wonderful people who go on to work for the local milk people.”

 

Here’s another one: “We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order.”

 

Here’s another referencing the presence of an estimated 11 million undocumented residents of the U.S.: “Over the last 30 years, there have been many reasons for this failure. I’d like to talk about just one—the fraud and abuse in our asylum system.”

 

Here’s yet another: “We’ve had situations in which a person comes to the United States and says they are a victim of domestic violence, therefore they are entitled to enter the United States. Well, that’s obviously false but some judges have gone along with that.”

 

You might think that these anti-asylum, and in many cases anti-Latino, anti-female, anti-child, anti-asylum seeker, de-humanizing statements were made by members of some fringe, xenophobic group. But no, the first two are from our President; the second two are from our Attorney General.

 

These are the very officials who should be insuring that the life-saving humanitarian protection purposes of the Refugee Act of 1980 and the Convention Against Torture are fully carried out and that our country fully complies with the letter and spirit of the 1951 Convention Relating to the Status of Refugees which is binding on our country under the 1967 Protocol.

 

Let me read you a quote that I published yesterday on my blog, immigrationcourtside.com, from a young civil servant resigning their position with “EOIR,” otherwise known as our Immigration Court system, or, alternatively, as the sad little donkey from Winnie the Pooh.

 

I was born and raised in a country that bears an indelible and shameful scar—the birth and spreading of fascism. An ideology that, through its different permutations, almost brought the world as we know it to an end. Sadly, history has taught me that good countries do bad things—sometimes indescribably atrocious things. So, I have very little tolerance for authoritarianism, extremism, and unilateral and undemocratic usurpations of Constitutional rights. I believe that DOJ-EOIR’s plan to implement individual annual numerical performance measures—i.e., quotas—on Immigration Judges violates the Due Process clause of the Fifth Amendment of the United States Constitution, and the DOJ’s own mission to “ensure the fair and impartial administration of justice.” This is not the job I signed up for. I strongly believe in the positive value of government, and that the legitimacy of our agency—and any other governmental institution for that matter—is given by “the People’s” belief in its integrity, fairness, and commitment to serve “the People.” But when the government, with its unparalleled might and coercive force, infringes on constitutionally enshrined rights, I only have two choices: (1) to become complicitous in what I believe is a flagrant constitutional violation, or (2) to resign and to hold the government accountable as a private citizen. I choose to resign because I cannot in good conscience continue serving my country within EOIR.

 

Strong words, my friends. But, words that are absolutely indicative of the travesty of justice unfolding daily in the U.S. Immigration Courts, particularly with respect to women, children, and other asylum seekers –- the most vulnerable among us. Indeed, the conspicuous absence from this conference of anyone currently serving as a judge in the U.S. Immigration Courts tells you all you really need to know about what’s happening in today’s U.S. justice system.

 

Today, as we meet to thoughtfully discuss how to save refugees, the reality is that U.S. Government officials are working feverishly at the White House and the U.S. Department of Justice on plans to end the U.S. refugee and asylum programs as we know them and to reduce U.S. legal immigration to about “zero.”

 

Sadly, the U.S. is not alone in these high-level attacks on the very foundations of our Convention and international protection. National leaders in Europe and other so-called “liberal democracies” — who appear to have erased the forces and circumstances that led to World War II and its aftermath from their collective memory banks — have made similar statements deriding the influence of immigrants and the arrival of desperate asylum seekers. In short, here and elsewhere our Convention and our entire international protection system are under attacks unprecedented during my career of more than four decades in the area of immigration and refugee protection.

 

As a result, judges and adjudicators throughout the world, like you, are under extreme pressure to narrow interpretations, expedite hearings, view asylum seekers in a negative manner, and produce more denials of protection.

 

So, how do we as adjudicators remain loyal to the principles of our Convention and retain our own integrity under such pressures? And, more to the point, what can I, as someone no longer involved in the day-to-day fray, contribute to you and this conference?

 

Of course, you could always do what I did — retire and fulfill a longtime dream of becoming an internet “gonzo journalist.” But, I recognize that not everyone is in a position to do that.

 

Moreover, if all the “good guys” who believe in our Convention, human rights, human dignity, and fair process leave the scene, who will be left to vindicate the rights of refugees and asylum seekers to protection? Certainly not the political folks who are nominally in charge of the protection system in the US and elsewhere.

 

So, this afternoon, I’m returning to that which brought this Association together two decades ago in Warsaw: our united commitment to the letter and spirit of the 1951 Convention; additionally, our commitment to fairness, education, international approaches, group problem solving, promoting best practices, and mutual support.

 

In the balance of my presentation, I’m going to tell you four things, taken from our Convention, that I hope will help you survive, prosper, and advance the aims of our Convention in an age of nationalist, anti-refugee, anti-asylum, anti-immigrant rhetoric.

 

 

 

 

BODY

 

Protect, Don’t Reject

 

First, “protect, don’t reject.” Our noble Convention was inspired by the horrors of World War II and its aftermath. Many of you will have a chance to see this first hand at the Holocaust Museum.

 

Our Convention is a solemn commitment not to repeat disgraceful incidents such as the vessel St. Louis, which has also been memorialized in that Museum. For those of you who don’t know, in 1939 just prior to the outbreak of World War II a ship of German Jewish refugees unsuccessfully sought refuge in Cuba, the United States, and Canada, only to be rejected for some of the same spurious and racist reasons we now hear on a regular basis used to describe, deride, and de-humanize refugees. As a result, they were forced to return to Europe on the eve of World War II, where hundreds who should and could have been saved instead perished in the Holocaust that followed.

 

Since the beginning of our Convention, the UNHCR has urged signatory countries to implement and carry out “a generous asylum policy!” Beyond that, paragraphs 26 and 27 of the UN Handbookreiterate “Recommendation E” of the Convention delegates. This is the hope that Convention refugee protections will be extended to those in flight who might not fully satisfy all of the technical requirements of the “refugee” definition.

 

Therefore, I call on each of you to be constantly looking for legitimate ways in which to extend, rather than restrict, the life-saving protections offered by our Convention.

 

Give The “Benefit Of The Doubt”

 

Second, “give the benefit of the doubt.” Throughout our Convention, there is a consistent theme of recognizing the difficult, often desperate, situation of refugees and asylum seekers and attendant difficulties in proof, recollection, and presentation of claims. Therefore, our Convention exhorts us in at least four separate paragraphs, to give the applicant “the benefit of the doubt” in assessing and adjudicating claims.

 

As a sitting judge, I found that this, along with the intentionally generous “well-founded fear” standard, enunciated in the “refugee” definition and reinforced in 1987 by the U.S. Supreme Court and early decisions of our Board of Immigration Appeals implementing the Supreme Court’s directive, often tipped the balance in favor of asylum seekers in “close cases.”

 

 

 

 

Don’t Blame The Victims

 

Third, “don’t blame the victims.” The purpose of our Convention is to protect victims of persecution, not to blame them for all societal ills, real and fabricated, that face a receiving signatory country. Too much of today’s heated rhetoric characterizes legitimate asylum seekers and their families as threats to the security, welfare, heath, and stability of some of the richest and most powerful countries in the world, based on scant to non-existent evidence and xenophobic myths.

 

In my experience, nobody really wants to be a refugee. Almost everyone would prefer living a peaceful, productive stable life in their country of nationality. But, for reasons beyond the refugee’s control, that is not always possible.

 

Yes, there are some instances of asylum fraud. But, my experience has been that our DHS does an excellent job of ferreting out, prosecuting, and taking down the major fraud operations. And, they seldom, if ever, involve the types of claims we’re now seeing at our Southern Border.

 

I’m also aware that receiving significant numbers of refugee claimants over a relatively short period of time can place burdens on receiving countries. But, the answer certainly is not to blame the desperate individuals fleeing for their lives and their often pro bono advocates!

 

The answer set forth in our Convention is for signatory countries to work together and with the UNHCR to address the issues that are causing refugee flows and to cooperate in distributing refugee populations and in achieving generous uniform interpretations of the Convention to discourage “forum shopping.” Clearly, cranking up denials, using inhumane and unnecessary detention, stirring up xenophobic fervor, and limiting or blocking proper access to the refugee and asylum adjudication system are neither appropriate nor effective solutions under our Convention.

 

 

 

 

Give Detailed, Well-Reasoned, Individualized Decisions

 

Fourth, and finally, “give detailed, well-reasoned, individualized decisions.” These are the types of decisions encouraged by our Convention and to promote which our Association was formed. Avoid stereotypes and generalities based on national origin; avoid personal judgments on the decision to flee or seek asylum; avoid political statements; be able to explain your decision in legally sufficient, yet plainly understandable terms to the applicant, and where necessary, to the national government.

 

Most of all, treat refugee and asylum applicants with impartiality and the uniform respect, sensitivity, and fairness to which each is entitled, regardless of whether or not their claim under our Convention succeeds.

 

CONCLUSION

 

In conclusion, I fully recognize that times are tough in the “refugee world.” Indeed, as I tell my Georgetown students, each morning when I wake up, I’m thankful for two things: first, that I woke up, never a given at my age; second, that I’m not a refugee.

 

But, I submit that tough times are exactly when great, independent, and courageous judging and adjudication are necessary to protect both applicants from harm and governments from doing unwise and sometimes illegal and immoral things that they will later regret.

 

I have offered you four fairly straightforward ways in which adhering to the spirit of our Convention can help you, as judges and adjudicators, retain integrity while complying with the law: protect, don’t reject; give the benefit of the doubt; don’t blame the victims; and give detailed, well-reasoned, individualized decisions.

 

Hopefully, these suggestions will also insure that all of you will still be around and employed for our next conference.

 

Thanks for listening, have a great rest of our conference, and do great things! May Due Process and the spirit of our noble Convention and our great organization guide you every day in your work and in your personal life! Due Process forever!

 

 

(08-06-18)

 

 

 

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

In addition to the Moscow Mitches, Grahams, and other corrupt GOP pols who have sold out our nation, the disgraceful performance of Chief Justice John Roberts and his GOP colleagues in the face of the regime’s overtly racist, White Nationalist, deadly abuses of asylum seekers in violation of the Due Process and Equal Protection clauses of the Constitution, the Refugee Act of 1980 (b/t/w, ignored and abrogated, but never repealed), the Geneva Refugee Convention and 1967 Protocol, and the Convention Against Torture will fit well within the “Judicial Aid and Complicity Section” of the future “Museum Honoring Victims of Crimes Against Humanity Committed By The Trump Regime.”  

The Constitution is remarkably clear: All “persons” within the jurisdiction of the U.S. are entitled to due process and equal protection under our laws. Unquestionably, refugees seeking legal protection within our court system, some actually being detained, deported, or forced to relocate by our Government, are within our jurisdiction. An L1 law student knows that! It’s not rocket science!

So, the only way that the Supremes’ majority could abrogate legally required protections is through intentionally disingenuous “legal mumbo jumbo and gobbledygook” and ridiculous “legal fictions” that, at heart, convert refugees and migrants of color into “non-persons” under the law. Similar to their approach to the voting rights of African Americans and Latinos.

That’s how you abandon your duties to your fellow human beings and tank on your Constitutional oaths. Sounds pretty overtly racist to me. And, I must say, it sounds pretty racist to most lawyers who understand immigration and human rights laws.

Too bad and too late for those deserving justice and protection, men, women, children, members of the LGBTQ community, religious and political activists, most highly vulnerable and semi-defenseless in the face of lawless tyranny, whose lives have been sacrificed or ruined forever by lousy, ideological, tone-deaf, anti-human-dignity judging. 

It’s too late for them. But, it’s not too late for America to turn away from 1939 and advance to a better 2021 with a commitment to making “equal justice for all” under the law a reality rather than a cruel, unfulfilled, bogus promise! That would at least honor the memory of the dead, tortured, raped, broken, mutilated, and ruined who have been unnecessarily sacrificed by the GOP and their complicit judges who failed in their duties to our Constitution and to humanity.

We can’t change yesterday. But, we can stop repeating its mistakes!

 

PWS

09-11-20

“POPPYCOCK!” — Conservative U.S. District Judge Richard Leon “Zeroes In” On Racist, Disingenuous, BS Presented In Court By Trump Regime To Justify “Crimes Against Humanity” Committed Against Asylum Seekers By USG! — Contrasts With Disingenuous Enabling Of Racist Immigration Agenda By Supremes’ Majority! — As Reported By “Legal Clairvoyant” 🔮 Jacqueline Thomsen @ NLJ!

“POPPYCOCK!” — U.S. District Judge Richard Leon’s Characterization Of Trump Regime’s Defense Of Asylum Seeker Abuse By DHS & Barr’s Unethical & Frivolous Arguments!

Jacqueline Thomsen
Jacqueline Thomsen
Courts Reporter
National Law Journal & Legal Clairvoyant

 

https://link.law.com/click/21370303.6876//5162eb9334b9b0a8048a6907C27093cdb

Due Process “Legal Eagle” Jacqueline Thompsen reports for the National Law Journal’:

. . . .

The federal immigration law requires that officers who conduct the interviews—in which migrants must show they face at least a 10% chance of persecution due to certain factors in order to be eligible for asylum—receive significant training on handling the applications

In responding to the administration’s claims that the border patrol agents received similar training as asylum officers, Leon wrote, “Poppycock! The training requirements cited in the government’s declaration do not come close to being ‘comparable’ to the training requirements of full asylum officers.”

“To make matters worse, the January MOA precludes any individual CBP agent from conducting credible fear interviews for longer than 180 days, meaning that CBP agents cannot gain the experience necessary to appropriately apply the complex asylum laws and regulations,” the judge added. “These procedures plainly violate Congress’s requirements.”

The Trump administration has administered a widespread crackdown on asylum proceedings, adopting a slew of policies that make it more difficult for migrants fleeing persecution in other countries to obtain protections in the United States.

The ruling comes in a lawsuit filed by attorneys with Tahirih Justice Center and the Constitutional Accountability Center, on behalf of four mothers and their seven children from Honduras, Ecuador and Mexico seeking asylum in the U.S. All of the migrants failed to pass the credible fear assessment conducted by CBP agents, which were upheld by immigration judges.

Leon also found in Monday’s ruling that it “would certainly seem unlikely” that CBP agent interviews of migrants could be considered to be “nonadversarial proceedings with a neutral decision-maker,” as required under federal regulations and guidelines. He noted that border patrol agents are considered law enforcement, and said federal authorities’ statements on measures they have taken to minimize the possibility of the interviews becoming adversarial “hardly seems sufficient.”

Leon wrote the training requirements for those conducting the credible fear assessments “are essential for a functioning asylum process, which is why Congress required them,” describing the legal framework surrounding U.S. immigration, asylum, and other similar processes as “complex, to say the least.”

“After all, an asylum officer who is not adequately trained in the applicable legal requirements is less likely to ask the right questions of an asylum seeker, or for that matter, to gather the facts necessary to make an accurate determination of whether an asylum seeker has a credible fear of persecution,” he continued. “Indeed, the record here contains several examples of the effects of inadequate training: one CBP agent failed to follow up with questions about an asylum-seeking plaintiff’s sexual abuse, and another failed to inquire into another asylum-seeking plaintiffs husband’s murder investigation.”

Leon also found the immigrants in the case would face irreparable harm, if he did not issue a preliminary injunction to block their removal from the U.S.

***********

Why isn’t it an ethical and professional problem for “Billy the Bigot’s” DOJ to make nonsense arguments to a Federal Judge in support of unlawful actions? Private members of the bar arguing “poppycock” in a civil case could well find themselves referred for disciplinary action. Why are Cabinet Officials and their attorneys exempt from normal professional and ethical considerations?

You can read Judge Leon’s clearly written and cogently reasoned 22-page decision in A.B.-B. v. Morgan here: https://www.courtlistener.com/recap/gov.uscourts.dcd.216698/gov.uscourts.dcd.216698.32.0.pdf.

If only more judges at all levels could write with such clarity and in plain English!

The rejection at the “credible fear” stage of the bona fide asylum claims described by Judge Leon is beyond appalling! These are essentially totally and intentionally unqualified and biased U.S. Government employees committing “crimes against humanity” and getting away with it! These aren’t “legal errors.” It’s systemic malfeasance, otherwise known as “malicious incompetence” with a heavy dose of racism and misogyny thrown in for a good measure!

If substantiated during the immigration hearing process that should have taken place, all these applicants should have been “slam dunk” grants of asylum, withholding of removal, and/or relief under the Convention Against Torture in a properly functioning justice system. Instead, but for the efforts of pro bono counsel, they would have been illegally returned to harm, torture, and/or death with no legitimate process at all!

No wonder “Billy the Bigot’s” Immigration Courts are out of control and the borders are a deadly mess when individuals who with proper screening and access to competent counsel should have been quickly legally admitted to the U.S. under protection laws are instead being “rejected” by biased and unqualified Border Patrol Agents impersonating Asylum Officers!

Here’s my favorite quote (among many) from Judge Leon’s decision: 

Of course, the Government has a strong interest in the “prompt execution of removal orders.” Nken,556 U.S. at 436. However, the Government and public can have little interest in executing removal orders that are based on statutory violations, League of Women Voters of U.S. v. I,{ewby,838 F.3d l,12 (D.C. Cir. 2016) (“There is generally no public interest in the perpetuation of unlawful agency action.”), especially where those statutory violations may compromise the accuracy of such removal orders. R.I.L.-R. v Johnson, 80 F. Supp. 3d 164, 191 (D.D.C. 2015); Grace, 344 F. Supp. 3d at 14144 Indeed, the public has an interest “in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm.” Nken,556 U.S. at 436. As such, the balance of interests here weighs in favor of preliminary injunctive relief.

The last point, “the public has an interest ‘in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm,’” Nken,556 U.S. at 436, has basically been ignored by the Supremes’ majority recently in sending refugees to their death or into harm’s way without any semblance of due process, based on various lies, distortions, and racist schemes by the Trump regime intentionally mischaracterizing “national security” and “national emergency.” As Judge Leon would say: “Poppycock!”

Perversely, the Trump regime and the Supremes’ have made execution of illegal removal orders, resulting from racist White Nationalist schemes, a “national priority.” Truly, this is a system broken from the top down in need of immediate repair and injections of intellectually honesty, moral courage, and ethics — something that seems “out of vogue” in all three branches of our failing democracy these days

I recently had a conversation with Jacqueline in which she basically predicted this decision based on her study of the arguments and trends among U.S. District Judges, regardless of philosophy or appointing party, in DC. Nice going Jacqueline! Congrats on your clairvoyance!

Those with NLJ access (anyone can get “three free” per month by registering) can read the complete article at the link.

Judge Leon’s linear, straightforward, and “no BS” treatment of the regime’s absurdist, unethical, and scofflaw legal “defense” of essentially “crimes against humanity” contrasts sharply with the disingenuous and essentially “brain dead” treatment of similar BS by the “JR Five” on the Supremes. There, the patently unconstitutional and illegal (not to mention immoral) agenda of neo-Nazi racist Stephen Miller and the unethical maneuvers of SG Noel Francisco are often wrongfully rewarded. By contrast, the the Supremes’ majority routinely trashes the legal and constitutional rights of vulnerable people of color, particularly asylum seekers, migrants, and voters beneath an avalanche of bogus “Dred Scottification” jurisprudence.

Additionally, Judge Leon is “onto something” that has been swept under the carpet by the Supremes and the Circuit Courts when he questions “whether CBP agents could ever lawfully be given authority to conduct asylum interviews and adjudicate asylum claims, see Compl. ‘]Tfl 108-09, it would certainly seem unlikely under these circumstances. After all, law enforcement officers typically “function as adversaries” whose role is “to investigate criminal activity, to locate and arrest those who violate our laws, and to facilitate the charging and bringing of such persons to trial.” New Jersey v T.L.O.,469 U.S. 325,349 (1985) (Powell, J., concurring).” 

Similarly, many of us have argued that Immigration “Judges” who work for uber-enforcer and Trump shill “Billy the Bigot” and have been “repurposed” and “weaponized” into DHS enforcement support staff can not possibly be the “fair and impartial” quasi-judicial adjudicators required by the Due Process Clause of the Fifth Amendment!

Better Justices and better Federal Judges for a better America, particularly for people of color and other minorities. It’s actually quite simple and straightforward. It starts with throwing Trump and the GOP out of every political office this Fall. 

Then, we need some real Justices and Federal Judges who will stand against systemic racism and enforce equal justice in America! Not, rocket science! Just knowledge of the Constitution, awareness of human rights and immigrants’ rights, a focus on racial justice, courage to speak truth to power, and a demonstrated commitment to human dignity and human decency. One could easily wonder why those haven’t been the minimal requirements for Federal judicial service in the past.

Past is past, particularly for life-tenured judges. But, America can’t afford any more disastrous judicial appointments, at any level, who lack the guts and human decency to stand up to scofflaw, neo-fascist racists like Trump, Miller, and their cronies. 

The top to bottom overall failure of the American judiciary to put an end to unconstitutional and unfair racism and “Dred Scottification” of “the other” in our society is aiding and abetting the dark, lawless forces aligned with the regime destabilizing our country and ripping it apart! No more!

Due Process Forever!

PWS

08-31-20

OUTLAW REGIME/COMPLICIT JUDGES/NATION WITHOUT SOUL: Nicaraguan Gov. Pulled Refugee’s Toenails Out: Trump, Miller, & Wolf, Aided By Roberts, Sent Her Back To For More Torture & Perhaps Death Without Any Process!

Star Chamber Justice
The U.S.Asylum System
As Redesigned By Trump, Miller, Wolfman, & Roberts

Kevin Sieff
Kevin Sieff
Latin America Correspondent
Washington Post

https://www.washingtonpost.com/world/the_americas/nicaragua-asylum-us-border/2020/08/27/9aaba414-e561-11ea-970a-64c73a1c2392_story.html

Kevin Sieff reports for WashPost:

She was one of the most recognizable activists in Nicaragua, protesting a government that has jailed and killed its opponents. Her photo ran in national newspapers; one called her the “face of the rebellion.” Her video of police firing at student protesters went viral. Her confrontations with the government were cited by the U.S. State Department.

Valeska Alemán, 22, paid a price for that notoriety. She was detained twice. Interrogators pried off her toenails. When she decided to leave the country, the United States seemed a natural destination: The Trump administration has been vocal in its opposition to Nicaragua’s crackdown — and its support of the country’s young protesters.

‘They took my humanity’: Pro-government paramilitaries terrorize Nicaraguan protesters

But by the time Alemán arrived at the U.S. border in July, the administration had launched a pandemic-era policy that sends Nicaraguans directly back to their country without letting them apply for asylum. Seventeen days after crossing into Texas, she was put on a plane back to Managua with more than 100 other Nicaraguans, almost all of them opponents of President Daniel Ortega.

Her backpack was full of documents to show U.S. immigration officials that the government appeared ready to kill her. The officials wouldn’t look at them. When she landed back in Nicaragua, it felt as if she was carrying a ticking bomb, proof that she was trying to flee and accuse the government of abuse.

“I thought, ‘Okay, so they’re going to throw me straight back in jail,’ ” Alemán said. “ ‘I’m going to be tortured all over again.’ ”

Another expelled asylum seeker, Moises Alberto Ortega Valdivia, 38, swallowed five pages of his asylum paperwork, panicked that Nicaraguan police would find it.

Since taking control in 2017, the Trump administration has narrowed the pool of people who qualify for asylum and sent tens of thousands of applicants back to Mexico to await their hearings from squalid tent camps and shelters.

In squalid Mexico tent city, asylum seekers are growing so desperate they’re sending their children over the border alone

During the coronavirus pandemic, the administration has gone further, effectively shutting the asylum system down. Most Central American applicants are simply escorted back to Mexico. But Nicaraguans — including political protesters to whom the United States has given rhetorical support — are flown back to the country they tried to escape.

The administration is using a public health order known as 42 U.S.C. that cites “the danger to the public health” of migrants to justify the asylum system’s closure. Mexico has agreed to accept Salvadorans, Guatemalans and Hondurans. Other nations, such as Cuba and Venezuela, have refused to accept chartered U.S. deportation flights of their own citizens.

The U.S. is putting asylum seekers on planes to Guatemala — often without telling them where they’re going

In the case of Nicaragua, the United States is sending asylum seekers back to a country the State Department describes as violently repressive.

“Throughout Nicaragua, armed and violent uniformed police or civilians in plain clothes acting as police (‘para-police’) continue to target anyone considered to be in opposition to the rule of President Ortega,” the department says in a travel warning. “The government and its affiliated armed groups have been reported to arbitrarily detain pro-democracy protestors, with credible claims of torture and disappearances.”

U.S. Customs and Border Protection did not respond to multiple requests for comment. In a statement, the State Department said it “condemns all forms of political oppression, especially that orchestrated by the corrupt Ortega regime.” But it would not comment on the expulsion of Nicaraguan asylum seekers.

Alemán traveled with a family of Nicaraguan asylum seekers to the Texas border. All were university graduates and students of international affairs. Before they left, they reviewed the asylum laws on a U.S. government website.

. . . .

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

Read the rest of Kevin’s article at the link.

Section 208 of the Immigration & Nationality Act says:

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.

Very clear. What happened to refugee Valeska Alemán and other asylum seekers at the hands of the Trump regime was totally illegal (not to mention immoral); essentially a “crime against humanity” for which Trump, Miller, Wolfman, and the other “perps” should be held accountable.

But, this is Trump’s America where a majority of the Roberts’ Court favors White Supremacy, racism, and crimes against humanity over the Constitutional, statutory, and human rights of people of color. It’s called “Dred Scottification.”  It’s a national and international disgrace that will stain our nation forever!

Think racial justice and equal justice in America will be achieved without a better Executive, throwing the GOP out of legislative power, and better Federal Judges? Guess again!

Due Process Forever!

PWS

08-28-30