"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Category: United States Citizenship and Immigration Services (“USCIS”)
Julie Soininen Esq. Attorney Montagut & Sobral PC Falls Church, VA PHOTO: M&S PC
Dear Judge Schmidt:
I hope that you are doing well and enjoying March Madness. Check out this settlement that we just negotiated! (I have been working on this for the past 2 years!)
Michelle Mendez, Rebecca Scholtz and Bradley Jenkins from CLINIC, (now with the National Lawyers Guild) were HUGE forces in this case…… Michelle is the one who got the ball rolling when I contacted her about what was going on. 6 of our clients were the named Plaintiffs, but we never could have handled this case on our own.
I am also attaching a recent article that I did which explains the whole (mess of a) back story……
“U.S. Citizenship and Immigration Services (USCIS) agreed to restore a path to permanent residency for many Temporary Protected Status (TPS) beneficiaries blocked by then-acting USCIS Director Ken Cuccinelli—an illegally appointed Trump official. Because of today’s agreement, TPS beneficiaries impacted by this policy will be able to reopen and dismiss their removal orders and apply to adjust their status to become permanent residents—eliminating the threat of deportation if their TPS protections are revoked in the future.
The agreement is the result of a new settlement in CARECEN v. Cuccinelli, a lawsuit filed by Democracy Forward, the Catholic Legal Immigration Network, Inc. (CLINIC), Montagut & Sobral, PC, and Debevoise & Plimpton, LLP in August 2020. Seven Temporary Protected Status (TPS) beneficiaries and the Central American Resource Center (CARECEN) sued the Trump administration for unlawfully denying tens of thousands of TPS beneficiaries the opportunity to take steps to adjust their immigration status and become permanent residents. In the lawsuit, the seven current TPS holders shared their stories. Now, each one now has the opportunity to obtain permanent residence.
The December 2019 policy change, disguised as a mere clarification, was one of the Trump administration’s many efforts to eliminate TPS protections for tens of thousands of beneficiaries. The groups’ lawsuit alleged the change violated the Administrative Procedure Act and the Immigration and Nationality Act; was motivated by the Trump administration’s racial and anti-immigrant bias; and was unlawfully authorized by Ken Cuccinelli, whose appointment was deemed illegal by a federal court in March 2020 in response to a separate lawsuit brought by Democracy Forward, CLINIC, RAICES, and Debevoise & Plimpton LLP.
“Today’s agreement will allow TPS beneficiaries—many of whom have lived in the U.S. for decades and built deep roots in their communities—to once again seek permanent residency and extinguish the threat of deportation if their TPS protections are revoked,” said Democracy Forward Senior Counsel John Lewis. “The Trump administration’s policy illegally sought to destabilize the lives of tens of thousands with TPS protections. We’re proud to have helped restore protections that ensure our neighbors have a path to pursue permanent residency.”
“This victory will change the lives of those individuals impacted,” stated Abel Nuñez, Executive Director of CARECEN. “As an organization, we are proud of our continued efforts to defend our community as they integrate into their new home in the U.S. CARECEN will work with those TPS members that qualify under the settlement and also keep fighting to ensure that all TPS beneficiaries who have been in the U.S. for over 20 years and have complied with everything that has been asked of them are able to apply for legal permanent residence.”
“As an organization grounded in Catholic social teaching, we celebrate today’s settlement that will prevent family separation and provide pathways to citizenship for thousands of TPS beneficiaries,” said Anna Gallagher, Executive Director of the Catholic Legal Immigration Network, Inc., or CLINIC. “Our faith tradition teaches us that we are to stand for justice and against any barrier to human flourishing. This agreement eliminates the barrier of an unlawful policy created by an illegally-appointed official. We are proud to have stood among those who fought against this policy, and we celebrate alongside our immigrant brothers and sisters whose lives will now be profoundly changed.”
Concepción de Montagut and Germaine Sobral from Montagut & Sobral P.C., who brought forward their client’s cases affected by the policy, said: “When we saw the negative impact the policy change had on the long-awaited permanent residence applications of our clients, we knew we had to fight the policy. We are proud to have been part of a team that has fought for this change that will now allow not only our six named clients, but also thousands of TPS beneficiaries to reopen and dismiss their deportation cases and proceed with their permanent residence applications so they can remain in the US with their families and turn their dreams into reality.”
Thanks Julie! Just another example of how the NDPA goes around cleaning up the messes created by the Government immigration bureaucracy!
The attack on TPS Adjustment was one of the stupidest moves of the Trump regime. The folks they “targeted” were all long term residents, many employed, paying taxes, and making substantial contributions to our economy, and all met the requirements for lawful permanent residence.
Rather than following the law and helping these deserving individuals to “get out of limbo,” the Trump regime wasted taxpayer money, violated the law, and attempted to undermine our economy by “targeting” them for race-based discriminatory treatment.
Fortunately, members of the NDPA like Julie and the team she mentions were there to thwart the illegal actions of “Cooch.”
“Students in the Immigration and Human Rights Clinic (IHRC) worked to obtain asylum for a voting rights activist from Nigeria. This case prompted the Clinic to develop a resource to assist asylees in understanding their rights.
The clinic took on the case of a Nigerian woman, Chioma*, who had been active in organizing women and youth in the Delta region to vote against corrupt political candidates. She drew crowds of women and youth as an effective organizer, simultaneously drawing the ire of incumbent politicians. Armed thugs targeted Chioma in her home in 2019, resulting in her hospitalization. Refusing to back down, she later attended a political event where she narrowly escaped an assassination attempt. Deciding she would rather stay alive for her children – even if far away – Chioma fled to the U.S. and left her family behind.
Clinic students Forrest Lindelof and Chizoba Kagha, both 3Ls, picked up Chioma’s case in the fall semester and worked under the supervision of Associate Dean of Clinical and Experiential Programs Lindsay M. Harris to complete her declaration, a detailed narrative of what she had endured in Nigeria and what she feared. The students crafted a legal brief with supporting evidence they obtained through working with a country conditions expert, a therapist and a medical doctor. The legal arguments were challenging because of the client’s dual citizenship in Cameroon and Nigeria; they needed to argue she would face persecution in both nations. The students had to become experts in the complex political dynamics at play in both countries, along with the citizenship laws.
This case also hit close to home for both students. Kagha shared, “I am the daughter of Nigerian immigrants who relocated to the United States in hopes of a better opportunity for their future children. When we began working with our client, I immediately felt a connection to her.”
As well, Lindelof related the client’s story to that of his immigrant mother. “As the son of an immigrant, it was not difficult to imagine my mother experiencing similar maltreatment and vulnerability. We worked that much harder, knowing that our work would have a meaningful impact on our client and her future.”
Moreover, the students got to know their client and were inspired by Chioma’s strength, resilience and personality. Lindelof described her as “jolly and good-humored” and the case as “a great source of pride.” Kagha added, “Her personality lit up a room, and her passion for helping others was inspiring.”
After working diligently with the client to prepare for the asylum interview, the students accompanied her to the asylum interview in November. After extensive questioning, Kagha delivered the closing statement, drawing together all the key issues in the case.
In January, Lindelof, Kagha and Harris received word that Chioma’s asylum application had been approved. The client was ecstatic, as was the UDC Law team. “To be able to sit in the asylum office as a Nigerian female student attorney delivering the closing statement for a Nigerian female client is a moment I will cherish for the rest of my life,” said Kagha.
Chioma was eager to be reunited with her spouse and children as soon as possible, but she was worried about accessing the asylee benefits to which she is entitled. Dean Harris has written about these benefits in depth in a 2016 article, From Surviving to Thriving: An Examination of Asylee Integration in the United States. Due to Chioma’s questions and concerns about her accessing public benefits rendering her a “public charge,” Dean Harris brought on 1L Clinical Associate Kendra Li to create a helpful one-page resource, Asylum and Public Charge. This resource clearly explains that asylees like Chioma are exempt from the public charge bar to adjustment of status to become a lawful permanent resident and eventually U.S. citizen.
“The best way to master a subject is to teach it to someone else,” Li said of developing the resource. “The public charge rule isn’t a complicated topic, but the process of researching it and distilling that research into a digestible and accessible product really cemented the learning.”
The document answers questions common for Chioma and other asylees. Li explained the need for creating this resource to answer these questions not only for the client in this case but countless other asylees. “Even though the Trump administration’s attempt to expand the public charge rule couldn’t, by law, apply to asylum seekers, it unsurprisingly – and perhaps deliberately – created a chilling effect well beyond the categories of immigrants it actually impacted,” Li said. “Our country is stronger and more just when the public benefits we provide reach all the people they’re meant to lift up, so it’s important to get the right information out there.”
Lindelof, under Harris’s supervision, quickly filed petitions to bring Chioma’s children and spouse to the United States and is now working to expedite those requests. Since Chioma was forced to flee Nigeria in 2019, thugs hired by political actors have targeted her husband at least five times, searching for Chioma and her whereabouts. The Clinic will stand by Chioma and her family throughout the lengthy process of family reunification and consular processing at the U.S. embassy in Nigeria. In the meantime, Chioma hopes to reengage in organizing and contribute to her community in the United States.
All three students reflected on how this case and their time engaging with the Immigration and Human Rights Clinic have enriched their legal education and helped them prepare for their careers.
“It is tough to express how meaningful my clinic experience was at UDC Law,” Lindelof said. “I came to law school with a background in psychology, having done a lot of fulfilling work with children with disabilities and individuals who suffered from addiction. I had not quite felt that same sense of fulfillment until my time at the Immigration and Human Rights Clinic. It renewed my passion for the law.”
Li “came to law school to practice immigration law and chose UDC for its clinical program.” She added, “I’m very appreciative to be involved as a 1L. This was a great first-year project. If this one pager helps just one person, it’ll have been well worth the effort.”
Kagha chose to attend UDC Law because of her “desire to positively impact the lives of others, especially people who look like me. To be able to sit in the asylum office as a Nigerian female student attorney delivering the closing statement for a Nigerian female client is a moment I will cherish for the rest of my life.”
Lindelof added praise for Dean Harris and the ways in which working with her have helped him narrow down his post-law school path. “Working with a supervisor with such tremendous drive and passion was infectious. Dean Harris did a great job tying the clinic’s content to racial justice and deficiencies in the justice system, which impacted my philosophy about the law and my general outlook on the world. It also drove me to seek out a career in immigration. I am humbled at the opportunity that I will be working for the D.C. Affordable Law Firm and practicing hopefully both family law and immigration next year, which happen to be the clinics I was a part of at UDC.”
*Name changed to preserve anonymity.”
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Congrats to my friend Dean Harris and her terrific students on saving another life in a system that often eats up humanity without much regard for justice.
This case is a prime example of why “expedited” asylum calendars are a bad idea that 1) impedes effective preparation and representation by attorneys; 2) underestimates the complexity of many asylum cases, particularly under today’s skewed, often hyper technical, anti-asylum framework established and promoted by the BIA; 3) violates due process and best practices by encouraging judges to focus on speed and artificial time limits, rather than using careful scholarship along with fair and careful procedures to achieve correct results.
This also shows the extreme harm caused by the Trump-Miller White Nationalist “public charge sham” and the damage to the integrity of our justice system of a intellectually dishonest, imperious GOP Supremes’ majority who enabled Trump’s cruelty and evil nonsense to corrupt justice in America. (The Supremes had improperly lifted a correct nationwide injunction against the Trump Administration’s scofflaw scheme, before the Biden Administration finally was allowed to withdraw the case from the Court.)
It’s also interesting that the task of “setting the record straight” on the chilling effects of the former Trump policy fell to Dean Harris and the IHRC. In a more functional and just system, one might envision such public information efforts being undertaken by the Government!
Additionally, Dean Harris directly ties the meltdown and systemic unfairness of our Immigration Courts to the overall problems of racism and lack of equal justice in our country. That’s a lesson that could profit AG Garland and his lieutenants who so far have mostly pretended that the dysfunctional, biased, and broken Immigration Courts exist in a bubble beyond the other problems facing our democracy. There will be no equal justice in American without equal justice for immigrants!
Waves of migration through Mexico and Central America, and people who go missing, will increase in 2022 due to high levels of violence in the region, the International Committee of the Red Cross (ICRC) said.
Battle-scarred ghost town bears mute witness to Mexico’s drug wars
“In many countries, violence is wreaking more and more havoc, and that’s why there are more and more migrants,” ICRC representative Jordi Raich told Reuters in an interview Wednesday. “And it’s not a situation that is going to improve or slow down, not even in the years to come.“
Immigration authorities in Mexico detained 307,679 migrants in 2021, a 68% increase compared with 182,940 detentions in 2019, according to government data.
Shelters in Mexico were completely overwhelmed last year, filled with frustrated migrants unable to continue their journey to the United States, Raich said.
Many migrants get “stuck” along Mexico’s southern or northern borders, Raich said, where they face “enormous economic constraints” and are able to find only basic services.
The administration of Joe Biden has faced record numbers of migrants arriving at the southern border and has implored Mexico and Central American countries to do more to stem the wave.
Disappearances in the region have not slowed either, the Red Cross said in a report released Thursday. Mexico recently surpassed 100,000 people reported missing in the country.
In El Salvador, 488 missing person cases remain unsolved, and in Guatemala, the number of missing women rose to six a day, the Red Cross report said.
Raich said it will be difficult to respond to the root causes of migration immediately. A joint effort among countries like El Salvador, Guatemala and Honduras is necessary, he added.
“Migration is not going to stop,” Raich said. “If you try to prevent it or strictly regulate it, people start to pile up at the borders, which is happening in Mexico and other countries.”
Meanwhile, the Biden administration on Thursday rolled out a sweeping new regulation that aims to speed up asylum processing and deportations at the US-Mexico border, amid a record number of migrants seeking to enter the US.
The announcement of the new rule came as US officials are debating whether to end a separate Covid-era policy that has blocked most asylum claims at the border. The asylum overhaul could provide a faster way to process border crossers if the Covid order is ended.
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Read the full article at the link.
Cruelty, walls, detention, family separation, border militarization, expedited hearings — they aren’t going to stop human migration.We will be able to increase border deaths, expand the scope of “black market migration,” increase our “underground population,” and enrich human smugglers. Good policy?
Meanwhile, it’s obvious that the “disingenuous internal debate” on Title 42 has nothing whatsoever to do with public health and everything to do with whether continued illegal and immoral suspension of asylum protections at the border will prove politically advantageous to the Biden Administration. It won’t! It might, however, cost Dems support among progressives.
There is, of course, no known medical evidence that “single males” present a greater COVID threat than families! Indeed, there is no known medical evidence to suggest that any potential asylum applicant is a threat to the health and safety of the US.
The whole thing is a deadly farce! Why aren’t Hill Dems calling for oversight of Garland’s sitting by and watching while the law and ethics are pulverized around him? Or worse yet, what about his Department’s defense of abrogation of our laws? Believe it or not, we actually have asylum and protection laws on the books, duly enacted by Congress, although you’d never know it from Garland’s feckless performance!
Meanwhile, WashPost and other so-called “mainstream media” continue to hype stories about increased border pressure. So, continuing to violate asylum law is a viable alternative “strategy?” Give me a break! How is violating the law going to stop folks from fleeing deadly conditions in their home countries? It won’t, as the ICRC points out above!
What it will do, as also pointed out above, is kill more asylum seekers, subject them to rape, torture and other harm, enrich smugglers, and increase the extralegal population in the U.S.!
Blaine Bookey Legal Director Center for Gender & Refugee Studies @ Hastings Law Photo: CGRS website
It also will increase those waiting in vain at the Southern Border for the reopening of a legal asylum system that has abandoned them! In the words of one expert:
“The conditions are squalid,” said Blaine Bookey, the legal director of the Center for Gender and Refugee Studies at University of California, Hastings College of the Law, who led a team interviewing dozens of families waiting in Tijuana for the federal government to lift Title 42. “There is real lack of access to sanitation, medical care, adequate food, all of the real basic fundamental necessities.”
. . . .
“There have been some exceptions made for Ukrainians, which we’re happy to see, but the policy should be ended for everyone,” Bookey said. “There was never a public health justification, and there certainly isn’t now.” (WashPost, supra).
Meanwhile, back at the ranch, Sen. John Cornyn (R-TX) babbles nativist nonsense:
Sen. John Cornyn (R-Tex.) said at a committee hearing last week that the influx has “completely derailed” efforts to discuss improving legal immigration to the United States, which he said states such as Texas need to staff hospitals and fill jobs. Border states such as Texas and Arizona are bracing for higher numbers of unauthorized immigrants in coming weeks, he said.
“Rather than deter would-be migrants with weak asylum claims from taking the dangerous journey to the southwest border, the administration has rolled out the welcome mat and created new incentives to illegally immigrate to the United States,” he said at the March 15 hearing before the Senate Judiciary subcommittee on immigration, citizenship and border safety.
To my knowledge, neither Cornyn nor any of his other GOP nativist buddies have ever adjudicated an asylum application. Nor have they represented asylum seekers before the Asylum Office or in our broken Immigration Courts. So, how would that have any idea whether certain asylum claims are “weak” or not? They wouldn‘t!
Moreover, we haven’t had a functioning asylum system at our Southern Border for years. So, how would anyone know how many of the claims are “weak?” They wouldn’t?
Remarkably, apparently unknown to Cornyn and his scofflaw buddies, we actually have laws to deal with his concerns. When the legal system is “open for business” — which it isn’t now — those claiming asylum at the border are subject to “summary exclusion” by DHS officers. Their claims are then expeditiously reviewed by Asylum Officers for a “credible fear” of asylum. Those who don’t establish credible fear, subject only to cursory review by an Immigration Judge, can be immediately removed by DHS.
Historically, when the system was at least nominally functional, those “passing” credible fear have been turned over to the now dysfunctional Immigration Courts. Under Trump, these “parodies of courts” were “weaponized” into “asylum killing grounds.”
Sessions and Barr packed their non-independent “captive courts” with “judges” perceived to be “enforcement oriented” and “anti-asylum” — willing to skew the law and facts as necessary to deny and deport. This mess is “led” by an appellate body, the BIA, which contains some of the most notorious members of the “Asylum Deniers’ Club” — folks who got their appellate jobs under Barr specifically because as Immigraton Judges they denied almost every asylum case that came before them! In other words, even when there was some semblance of a legal asylum system, it was redesigned under Trump to be systemically unfair to asylum seekers, particularly women and applicants of color. For sure, racism and misogyny played into this unseemly scenario.
Remarkably, Garland has chosen to maintain this dysfunctional, biased, and broken system largely in the form it existed and with almost all of the same unqualified or questionably qualified “judges” he inherited from Session and Barr!
Our broken asylum system can’t and won’t be fixed without dealing head-on with the overarching problem — systemic anti-asylum bias, poor quality decision-making, grotesque inconsistencies, and beyond incompetent administration of our Immigraton Courts by the DOJ!
Remarkably, Garland’s proposed solution is yet another “designed to fail” gimmick — expedite cases in his broken and biased, anti-asylum system! So the solution to a defective court system, infected with anti-asylum bias and poorly qualified judges turning out defective decisions is to make it “go faster!” The new regulations also fail to deal with the huge due process issue of lack of competent representation in the asylum system, particularly the Immigration Courts. Come on man!
We don’t need over 500 pages of new regulations and sophomoric, alternate universe “time limits” for an agency that can’t even find its files! What we need is for Garland to do the job he was hired to do more than a year ago! That’s “clean house” at the Immigration Courts, bring in competent, fair judges who have experience in Immigration Court and are legitimate, well-recognized asylum experts — starting with a new BIA (save for their one qualified Appellate Immigration Judge Andrea Saenz, a Garland appointee).
Get expert judges, intellectual leaders, and competent judicial administrators into the broken Immigration Court system to provide coherent, practical asylum legal guidance and work with advocates, the Asylum Office, and DHS to get a functional and fair legal asylum system in place and operating smoothly and efficiently at the border. It should already be in place by now. That it isn’t, is entirely “on Garland!”
Then, with experts who actually are committed to fairly and impartially applying asylum law in place, we’ll see, for the first time, how many of the asylum claims are valid and how many aren’t! And, while we’re at it, we might find that many of the “legal” immigrants Texas and the rest of America needs are right there at our borders — just waiting for our legal system to do justice and admit them. Asylum seekers are seeking legal immigration! It the USG that’s acting “illegally” here!
Report on Boston Asylum Office finds disproportionately low acceptance rates, bias against applicants
The office serving asylum seekers in and around Maine has the second lowest approval rate in the nation, according to a report by Maine immigrant advocacy groups.
The Boston Asylum Office has the second lowest acceptance rate of any office in the nation, and granted asylum to only 11 percent of its applicants in 2021, according to a report by Maine legal aid organizations handling immigration cases and advocates for reform.
The report says the office that serves asylum seekers in and around Maine is plagued by bias and burnout, and that its low grant rate is “driven by a culture of suspicion” toward asylum seekers.
The process of seeking asylum in the United States begins with an application to U.S. Citizen and Immigration Services. Applicants must prove they are fleeing a country in which they previously suffered persecution or were at risk of persecution based on race, religion, nationality, membership in a particular social group or political opinion.
Applications go through asylum offices first, which can either grant asylum from the outset or refer an application to an immigration court for a judge to consider.
Jennifer Bailey, an attorney for the Immigrant Legal Advocacy Project and one of the report’s authors, said almost all asylum seekers she works with eventually obtain asylum status through immigration court, after failing to be granted asylum at the Boston Asylum Office. But the court process can take years, and, while they’re waiting, applicants aren’t able to access federal student aid, social services or educational opportunities. Even worse, they spend that time away from their families, who can still be at risk.
“It’s not uncommon for people’s (families) left at home to die while they’re waiting, or to be lost within the violence,” Bailey said.
Collaborating with the Immigrant Legal Advocacy Project on the report were the Refugee and Human Rights Clinic at the University of Maine School of Law, the ACLU of Maine and a visiting lecturer at Amherst College in Massachusetts who spent eight years waiting on a decision from the Boston Asylum Office and was ultimately denied in May 2021. Today, he and his family live in Canada.
During its first five years, the Boston office – which opened in 2015 and processes about 5,600 applications a year – granted roughly 15 percent of its asylum applications on average, the report states. Meanwhile, offices in San Francisco and New Orleans were accepting asylum requests at rates that were more than three times higher. Nationally, the acceptance rate from 2015 to 2020 was 28 percent, the report says.
The report acknowledged that asylum officers who approve or refer cases to court face a “complex and essential” list of responsibilities. Being overworked and having less time to consider cases often results in asylum officers sending more referrals to immigration court, said some former officers cited in the report.
Meanwhile, supervising officers play an “outsized” role in the asylum-granting process, according to the report. If an asylum officer recommends granting asylum and the supervisor disagrees, the officer could face retaliation in the form of more work or a negative performance evaluation, the report states.
PRESUMPTION OF FRAUD
The report’s authors contend that their research “strongly suggests” that Boston’s asylum office doesn’t consider applications from a neutral stance, “but rather presumes they must be fraudulent or pose a security threat.” Of 21 trainings for asylum officers mentioned in the report, 14 were focused on fraud detection. Former officers told the report’s authors that constantly hearing concerns about fraud and credibility made them think such problems were more prevalent than they were.
“They’re telling their story, which, no matter what, can involve this unimaginable trauma of torture and violence or sexual violence or death,” Bailey said of asylum seekers. “Put yourself in that position and imagine how hard it is to talk about the worst thing that’s ever happened to you in your life, and having this officer – who has the power to help you and your family – say ‘No, I don’t believe you.’”
According to the report, bias and skepticism in the office extend to certain countries. The Boston Asylum Office granted only 4 percent of asylum applications from the Democratic Republic of Congo from 2015 to 2020, even though the U.S. has acknowledged significant human rights violations in that country, including unlawful killings and torture, the report says. The office granted only 2 percent of its applications from Angola, another country where there is known abuse.
The Newark Asylum Office in New Jersey, which also serves some of New England, granted asylum to 17 percent of its applicants from Angola and 33 percent of its applicants from the Democratic Republic of Congo.
English-speaking applicants are nearly twice as likely to be granted asylum as non-English speakers, who are referred to immigration court 80 percent of the time, the report says. Asylum-seekers who can speak English are referred to immigration court just under 60 percent of the time.
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Read the rest of Emily’s fine article at the link.
I did lots of DRC cases over 13 years on the trial bench! Most had lawyers and were extremely well-documented. Often ICE didn’t oppose grants (prior to Trump).
In Arlington, with agreement from the parties, they were candidates for the “short docket.” Nearly all the DRC cases “referred” from the Arlington Asylum Office were granted upon “de novo” review in Immigration Court.
This is a prime example of how our asylum system seriously regressed under Trump and has not been fixed by Garland and Mayorkas! No wonder our Immigration Courts are hopelessly and unnecessarily backlogged with an astounding 1.6 million pending cases. Bad judging, systemic anti-asylum bias, lack of competence, and gross mismanagement by DOJ and DHS are taking a toll on democracy and humanity!
Pathetically and disingenuously, USCIS tries to blame their malfeasance and lack of competence on “the pandemic.” That drew one of the more perceptive public comments I’ve seen recently:
Pandemic restrictions didn’t create bias in other asylum offices – that’s a totally inadequate excuse.
For sure! Just like it’s a pretext for the elimination of our legal asylum system at the border that Garland disgracefully defends! Think that the “anti-asylum culture” problem ends with USCIS? Guess again?
Former Attorney General Jeff “Gonzo Apocalypto” Sessions was never bashful about sharing his White Nationalist, nativist, xenophobic falsehoods and myths about asylum seekers with his “captive” Immigration Judges. That’s right, for those not “in the know,” amazingly the “courts” that are supposed to provide expert legal precedents on asylum law and give a “fresh look” to those cases not granted by the Asylum Office aren’t “courts” at all as most Americans know them. They are run by the chief law enforcement official of the United States, the Attorney General, even though they are called “Immigration Courts.”
Sessions actually made the following statement, unsupported by any hard evidence, to a group of his wholly owned “judges” on October 12, 2017:
“We also have dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.”
At the same time, he announced that he was, on his own motion and over the objection of the DHS and the applicant, “undoing” the leading BIA precedent recognizing gender-based harm as a ground for asylum. For a good measure, he also warned his supposedly, but not really, “fair and impartial judges” that he expected them to strictly apply precedent — HIS precedents, that is. In other words, start cranking out those asylum denials or your career might be in peril!
Some judges chose to resign or retire. Some kept on doing their jobs conscientiously, legitimately “working around” Sessions’s poorly reasoned and factually inaccurate anti-asylum precedents. Many, however, chose to “go along to get along” with the anti-asylum program — some happily (there were reportedly some cheers and applause when Sessions announced his cowardly assault on vulnerable refugee women of color), some not.
So clearly wrong and totally off-base was Sessions’s assault on asylum-seeking women, primarily those of color, that even the otherwise timid and reticent AG Merrick Garland had to reverse it during his first year in office and restore the prior BIA precedent. However, there has been no further guidance from the BIA on properly and generously applying this potentially favorable, life-saving precedent.
President Biden charged Garland and Mayorkas with developing regulations on gender-based claims by October 2021. Obviously, that date has come and gone with the regulations still MIA!
Think that promoting a culture of xenophobia, racism, and overt bias has no effect? During the Trump Administration, although conditions for refugees, and particularly for refugee women, worsened over that time, the Immigration Court asylum grant rate fell precipitously — from more than 50% during the mid-years of the Obama Administration to only 23% during FY 2020, the last full year of the Trump regime.
The Immigration Courts and especially the BIA were “packed” by Sessions and his successor “Billy the Bigot” Barr with questionably qualified “judges” perceived to be willing to do their nativist bidding. Inexplicably, Garland has been unwilling to “unpack” them, despite these being DOJ attorney positions in the “excepted service,” NOT life-tenured Federal Judges.
Consequently, life or death asylum decisions today depend less on the legal merits of an applicant’s case than they do on the particular Immigration Judge assigned, the composition of the BIA “panel” on appeal, the Federal Circuit in which the case arises, and even the composition of the panel of U.S. Circuit Judges who might review the case.
They also depend on whether the applicant is fortunate enough to have a lawyer (not provided by the USG). Any unrepresented, often non-English-speaking asylum seeker has little or no chance of negotiating the intentionally arcane, opaque, unnecessarily hyper technical, and “user unfriendly” asylum system in Immigration “Court” without expert help.
Almost every week, the Circuit Courts of Appeals publish major decisions pointing out elementary legal and factual errors by the BIA’s “deportation railroad.” But, that’s just the tip of the iceberg! The vast majority of life-threatening errors by the Immigration Courts go uncorrected as the applicants are unable to pursue their cases to the Courts of Appeals or are “duressed” by DHS detention in substandard conditions into giving up viable claims.
Check out some of these denial rates by ten of Barr’s BIA appointees who previously served as Immigration Judges. Those judges are listed with their asylum denial rates, according to Syracuse University’s 2021 TRAC Reports:
Michael P. Baird (91.4%),
William A. Cassidy (99%),
V. Stuart Couch (93.3%),
Deborah K. Goodwin (91%),
Stephanie E. Gorman (92%),
Keith Hunsucker (85%),
Sunita Mahtabfar (98.7%),
Philip J. Montante, Jr. (96.3%),
Kevin W. Riley (90.4%),
Earle B. Wilson (98.2%)
Gee, these guys make even the artificially high nationwide asylum denial rates (76%) resulting from Trump’s all-out assault on due process and the rule of law look low by comparison! Gosh, only one of these Dudes was even within 10% (just barely) of that already outrageously high, artificially “reverse engineered” national denial rate.
Yet, inexplicably, these virulently anti-asylum judges continue to serve and negatively shape asylum law under Garland! Even “pre-Trump,” most of them avoided granting any asylum, in the face of precedents supposedly requiring generous application of the law in accordance with U.N. guidance and recognizing gender-based persecution as real.
So, it’s little surprise that no meaningful positive guidance or helpful interpretation has come from Garland’s BIA that might lead to expedited and consistent asylum grants to the many meritorious asylum cases now buried in his burgeoning 1.6 million case Immigration Court backlog! No wonder civil rights, human rights, equal justice, and Constitutional law experts consider Garland to be a failure as AG!
To date, Garland has appointed only one BIA Appellate Judge out of 21! That was to fill an existing vacancy. Judge Andrea Saenz is a superbly qualified asylum expert with scholarly credentials, “real life” experience representing asylum seekers in Immigration Court, clerking experience in those courts, and proven intellectual and practical leadership capabilities.
But, we need a “BIA of Judge Saenzes” — like yesterday! The talent is out there! But, Garland and his lieutenants have been too dilatory, tone deaf, and shockingly indifferent to these glaring due process, expertise, and racial justice issues to bring in the qualified judges and judicial administrators to fix his unjust, unfair, and grotesquely inefficient “courts.” Thus, the dysfunction grows, festers, and eventually destroys, maims, and kills! Is this really an appropriate “legacy” for a Dem Administration?
Today, in a WashPost OpEd, Krish O’Mara Vignarajah, President & CEO of Lutheran Immigration and Refugee Service, points out:
Why are members of this outrageous “protection deniers’ club” still on Garland’s broken and biased Immigration Court bench? You don’t have to be a human rights scholar or Constitutional law expert to see that there is something seriously wrong here that Garland is sweeping under the rug!
Yes, the best answer is an independent Article I Immigration Court, free from the mismanagement and political shenanigans of the DOJ, with a merit-based selection system for judges. But, that doesn’t absolve Garland from the responsibility to fix the existing system NOW before more lives are lost, futures ruined, and American justice irretrievably degraded!
The current racially discriminatory, scofflaw, patently unjust parody of a “court” system being run by Garland is as unacceptable as it is immoral!
Garland and Mayorkas have allowed this approach to asylum seekers to flourish on their watch. That raises serious questions about their suitability for their current positions! Albrecht Dürer, Public domain, via Wikimedia Commons
“Interim Regulations” Aren’t The Answer!
Today, the Biden Administration released new “Interim Asylum Regulations” that appear designed to fail. https://public-inspection.federalregister.gov/2022-06148.pdf. That’s because they don’t address the real competency, leadership, and legal problems plaguing the current system!
I won’t claim to have waded through every word of this entire 512-page mishmash of largely impenetrable bureaucratic gobbledygook. But, I can see it’s more tone-deaf micromanagement of the Immigration Court, along with the usual, arbitrary and capricious, unrealistic “off the wall” “time limits” that are guaranteed to make things worse, not better. It’s basically more of Garland’s “Aimless Docket Reshuffling” and his “Treadmill for Immigration Attorneys” that have already helped fuel unprecedented backlogs amidst wildly inconsistent results and a steady stream of life-threatening errors from his dysfunctional “courts.”
As if the answer to a poorly functioning, hopelessly self-backlogged, incompetent, biased, and unfair system is to “speed it up!” Come on, man! That suggests, quite incorrectly, that the primary problems in our asylum system are something other than lack of competence, integrity, expertise, and leadership at DHS and DOJ!
In reality, Garland’s defective “assembly line justice” at EOIR is already cutting so many corners and being so careless and “denial focused” that a steady stream of elementary legal errors show up in the Courts of Appeals every week. How is speeding up an already unfair and error plagued system going to make it better?
The real answer is to move the many grantable asylum cases that pass credible fear through the system correctly, fairly, on a reasonable, timely, predictable basis, with representation. That requires more and better trained Asylum Officers; different, better Immigration Judges who know how to recognize and grant asylum and keep the parties moving through the system; a new BIA of practical scholars who are due-process-oriented human rights experts to set favorable, practical asylum and procedural precedents and to keep IJs, AOs, and counsel for both sides in line; and close cooperation and advance coordination with the private bar and NGOs to insure representation of all asylum seekers.
This “interim regulation” avoids and obfuscates the necessary personnel replacement, attitude adjustment, and changes to the “culture of denial and deterrence” required in the Executive Branch for our asylum system to work! I predict colossal failure!
Get ready to litigate, NDPA! This is an “in your face,” largely unilateral, insulting approach. Rather than respecting your expertise, dedication, abilities, and counsel in fundamentally changing this system, Mayorkas and Garland intend arrogantly to “shove it down your throats and the throats of asylum seekers” with their inferior personnel, a toxic culture of denial, bad attitudes, and poor lawyering! Accept the challenge to resist!`
“The USCIS Contact Center purports to provide tools for checking case statuses online, correcting notices that contain mistakes or were never delivered, and connecting applicants to a representative for live support. However, the Contact Center is more often a source of frustration than assistance. We outline some of our firm’s experiences with the Contact Center, and provide suggestions for improving its services.
One common set of issues occurs when an attorney attempts to place a call or e-request on behalf of a client. USCIS refuses to speak with even the managing attorney of the firm if a different attorney has submitted a Form G-28. Difficulties arise when the attorney of record has departed the firm or is otherwise unavailable, and other attorneys are then unable to utilize the Contact Center to assist a client. Even when the alternate attorney on the case submits a Form G-28, the Contact Center often is unable to track the submission of a new Form G-28 and refuses to speak with the alternate attorney. In some instances, USCIS will speak with an alternate attorney if the client is also on the call. This arrangement, however, defeats the purpose of a Form G-28 by forcing the client verbally give permission for representation over the phone, and is highly inconvenient when an attorney cannot be physically in the room with a client or arrange a conference call.
Additionally, USCIS only allows certain interested parties to a case to utilize the Contact Center to make queries. Only the petitioner or an attorney/accredited representative can submit e-requests in connection with a Form I-129 or I-140 petition, for example. USCIS will not respond to requests placed by the beneficiary of such petitions, although the beneficiary may be more sensitive to delayed receipt notices or misspelling on approval notices, and in a better position to raise these issues to USCIS than the employer.
Further, the USCIS Contact Center is not always responsive to requests, even when they are placed by a recognized party. Our office has observed instances of receipt notices that contain errors failing to get corrected, even after multiples calls and e-requests from the attorney of record. When USCIS does not timely rectify errors of this kind and issues an approval notice still containing a misspelling, applicants are forced to file a Form I-824 and pay the considerable $465 filing fee to seek a correction. The processing time for an I-824 ranges from a few months to upwards of 24 months.
Delays in processing applications have become endemic. Applicants do not get an employment authorization document issued in time and can lose their job. Also, obtaining advance parole to travel takes several months. One can use the USCIS Contact Center to make an expedite request under its articulated criteria. Unfortunately, most expedited requests get denied even though they fit the criteria
The problems with the USCIS Contact Center have widely been observed. On February 28, 2022, 47 members of Congress wrote a letter to DHS urging it to make improvements to the Contact Center. See AILA, Forty-Seven Members of Congress Urge DHS to Make Improvements to USCIS Contact Center, AILA Doc. No. 22030300 (Feb. 28, 2022), https://www.aila.org/infonet/urging-dhs-to-make-improvements-to-uscis-contact. Among the improvements suggested by the members of Congress were providing accurate and accommodating callback windows for customers submitting requests through InfoMod, allowing law firm staff other than the attorney of record to make requests through the Contact Center, making the criteria used to grant appointments through InfoMod public, and offering walk-in availability for emergency requests at local USCIS offices.
Notwithstanding its shortcomings, the USCIS Contact Center has facilitated positive outcomes for some individuals. The USCIS 800 number has been helpful in getting corrected notices sent to applicants, or in this firm’s experience, ensuring that beneficiaries to an approved I-140 receive copies of Notices of Intent to Revoke under Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017).”
Asylum attorneys have been facing a longstanding mental health crisis. The pandemic, sweeping regulatory changes, and uncertainty created deeper dimensions of stress in an already chaotic immigration system. To address this crisis, in 2020, Professors Lindsay Harris and Hillary Mellinger surveyed over 700 immigration attorneys utilizing the National Asylum Attorney Burnout and Secondary Traumatic Stress Survey. Their groundbreaking study found that asylum attorneys displayed symptoms of burnout and Secondary Traumatic Stress (STS) at rates higher than immigration judges, social workers, hospital doctors, nurses, and prison wardens. Asylum attorneys reported burnout symptoms including not only depression, but boredom, cynicism, discouragement, and a loss of compassion. Notably, STS symptoms mirror Post-Traumatic Stress Disorder which include intrusive thoughts, traumatic nightmares, insomnia, chronic irritability, fatigue, trouble concentrating, and hypervigilance.
The ABA has a longstanding commitment to address and identify resources to ameliorate attorney well-being and mental health. While strides have been made, this panel seeks to build upon the study to facilitate a normative shift away from old mental health paradigms to a culture of openly discussing burnout and secondary trauma within law school settings, non-profits, government agencies, and law firms.
This webinar, moderated by Deena Sharuk, Senior Legal Advisor to the ABA Commission on Immigration (COI), along with experts Law Professor Lindsay Harris, Criminal Justice and Criminology Professor Hillary Mellinger, ABA COI Senior Staff Attorney Eloy Gardea, and Leora Hudak from Center for Victims of Torture will discuss the implications of the survey’s findings on lawyers, their clients, and the immigration system. The panelists will discuss concrete ways to shift the norms in the legal profession on an individual and institutional level for attorneys to build sustainable careers in this field.
Time: Apr 7, 2022 03:00 PM in Eastern Time (US and Canada)
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Of course, USCIS isn’t the only part of the dysfunctional immigration bureaucracy taking a toll on the heath of practitioners and their clients.
Over at EOIR, poor leadership, overly bureaucratized management, “Aimless Docket Reshuffling,” mindless enforcement “gimmicks,” a “Miller Lite” BIA, poor judicial selections by the Trump regime unaddressed by Garland, anti-immigrant/anti-asylum seeker “culture,” disdain for due process, disregard for best practices, endless largely self-generated backlogs, and lack of transparency continue to plague the system and torment advocates.
Unlike DOJ and EOIR, the ABA Panel conducting this webinar is made up of true subject matter experts and all-star practical scholars.
Deena Sharuk Senior Advisor ABA Commission on ImmigrationProfessor Lindsay Muir Harris UDC LawDr. Hillary Mellinger Assistant Professor Department of Criminal Justice and Criminology Washington State University PHOTO: WSUEloy Gardea Senior Staff Attorney ABA Commission on Immigration PHOTO: FacebookLeora Hudak Program Manager Center for Victims of Torture PHOTO: Linkedin
For the last year, “Courtside” has been ripping the incredibly poor, timid, stunning lack of vision leadership, expertise, common sense, and morality in the Biden Administration’s failure to restore and expand a robust overseas refugee program and to enforce the rule of law and due process in our asylum system at the border and in the US. Even as I write this, Garland’s failed BIA, with too many Trump restrictionist holdover judges, continues to crank out bad asylum precedents and anti-immigrant legally incorrect appellate decisions and precedents.
DOJ mindlessly continues to advance and defend the indefensible in Federal Court. It’s “Miller Lite” on steroids! Squandering taxpayer money, wasting scarce pro bono resources, and worst of all, endangering human lives!
This guy has to be thrilled with Garland’s approach to human rights, racial justice, and due process @ DOJ! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
Essential human rights issues like providing definitive, generous, positive guidance to move gender-based asylum cases through the system, correcting “intentionally overly restrictive” and ridiculously hyper-technical, legally wrong, highly impractical applications of supposedly “generous” asylum laws, lack of common sense, expertise, understanding, and humanity remain endemic in Garland’s broken “court” system and the USCIS Asylum Offices which are supposed to be under their legal guidance.
The border effectively remains illegally and irrationally closed to refugees seeking asylum! Absurdly, the decisions as to who lives and who dies are left to the unfettered, unreviewable, “discretion” of Border Patrol Agents who are glaringly unqualified to make them. There aren’t even any known criteria in effect!
Indeed, that’s the precise reason why Congress created Asylum Officers and put them and Immigration Judges into the life or death asylum screening process, only to have Trump abrogate the law as Federal Courts meekly and fecklessly stood by! Hardly America’s finest moment!
There is plenty of irresponsibility to go around! But, dilatory “What Me Worry” AG Merrick Garland and his feckless lieutenants Lisa Monaco, Vanita Gupta, Kristen Clarke, and Liz Prelogar, along with DHS Secretary Alejandro Mayorkas, deserve “special censure” for the brewing, unnecessarily out of control humanitarian and equal justice crisis!
Garland’s tone-deaf approach to human rights and the rule of law now threatens the international order and the lives of perhaps millions of refugees and asylum seekers! PHOTO: Wikipedia Commons
The Biden administration’s immigration policy to date has been shambling. It can now do one big thing right: step up, grant humanitarian parole and help resettle Ukrainian refugees.
Catherine Rampell Opinion Columnist Washington Post
Trump’s xenophobic policies had consequences beyond the cruelty inflicted while he was in office. Ultimately, they hobbled our ability to provide aid during a humanitarian catastrophe and thereby protect our own national security interests. Now, Biden must not only respond to the current crisis but also repair our institutions so that we have greater capacity to deal with future ones.
I’m sure traumatized Ukrainians and Russian dissidents being improperly turned back at our border were comforted by the following tone-deaf blather from Mayorkas as reported by Deepa Fernandes in the SF Chron:
Deepa Fernandes Immigration Reporter SF Chronicle PHOTO: SF Chron
On Thursday, Homeland Security Secretary Alejandro N. Mayorkas told reporters that Border Patrol agents were reminded they have some leeway with regard to enforcing Title 42, particularly when it comes to those fleeing the crisis in Ukraine, BuzzFeed News reported.
“This was policy guidance that reminded (border officers) of those individualized determinations and their applicability to Ukrainian nationals as they apply to everyone else,” the online news outlet quoted Mayorkas as telling reporters.
Come on, man! You’ve got to be kidding me!
Belatedly, it appears that the Biden Administration is now “considering” restoring the rule of law at the borders (something they actually promised during the election), according toAlexandra Meeks over at CNN:
ALexandra Meeks Current News Reporter CNN PHOTO: Linkedin
The Biden administration is preparing for the potential of mass migration to the US-Mexico border when a Trump-era pandemic emergency rule ends. The influx is expected because officials are considering the possibility of terminating a public health order known as Title 42, which border authorities have relied on to turn away migrants, sources familiar with the discussions said. Internal documents, first reported by Axios, estimate around 170,000 people may be coming to the US border and some 25,000 migrants are already in shelters in Mexico. The Department of Homeland Security has asked department personnel to volunteer at the Mexico border in response.
But, it’s not clear that they have any real plan in mind. That’s certainly the case in Garland’s dysfunctional, astoundingly backlogged (1.6 million known cases) Immigration “Courts” led by a Trump restrictionist BIA. “Gauleiter” Stephen Miller must evilly chuckle every morning at how Garland has left his “designed for White Nationalism” system largely in place and continuing to shaft and screw asylum seekers on a daily basis.
And, no, 170,000 migrants arriving at the border, not all of whom are seeking asylum, isn’t a “mass migration” emergency! It’s a fairly predictable movement of migrants at a pace that should be well within the capabilities of our nation.
Treat them with respect. Promptly and properly screen them with qualified Asylum Officers. Timely welcome those many who qualify for protection with competent expert Immigration Judges. End the anti-asylum nonsense and move the many grantable asylum, withholding, and CAT cases through the system. Develop humane, orderly responses for those who are rejected. Get in place a new BIA that understands asylum law, due process, and human rights. Empower them to “knock heads” of IJs and Asylum Officers who won’t let go of the White Nationalist “reject, don’t protect” program!”
It’s not “rocket science.” 🚀 Not by a long shot!
No, an “emergency mass migration situation” is 3.2 million refugees fleeing war in Ukraine in three weeks and arriving in allied nations like Poland, Romania, and Moldova who have far fewer resources and ability to respond than the U.S.! These are also nations who legitimately fear that they could be next on Russia’s “hit list.”
And, while the humanitarian crisis is brewing, what’s Garland up to? He beefing up his already-record-setting Immigration Court backlog with “kiddie cases” (0-4 year olds, incredibly) — to the extent anyone can even figure it out, given his notoriously flawed and unprofessional record keeping at EOIR. See, e.g., https://trac.syr.edu/immigration/reports/681/.
Garland and his top lieutenants are too busy filling the Immigration Courts with these desperados in the 0-4 age group to worry about restoring due process or treating asylum seekers fairly! PHOTO: Sean Choe, Creative Commons License
Honestly! But, don’t say that “Courtside,” Jeffrey Chase Blog, Dan Kowalski, ImmigrationProf Blog, CGRS, Human Rights First, NIJC, AILA, KIND, NCIJ, ABA, and many other experts didn’t warn against this grotesque failure long ago — often predating the 2020 election!
I understand that “no fly zones” are more complicated than most American pols and media wags think and that there are challenges to waging war from afar without actually declaring war on Russia. But, repairing our refugee, asylum, and immigration systems, and restoring due process to our courts are not in this category of difficulty.
It’s beyond time for the Biden Administration, particularly Mayorkas and Garland, to get the lead out, grow backbones, get rid of the remnants of Trumpism in their ranks— personnel, substance, process — and run a refugee and asylum legal system that serves our and our allies’ needs. One that is values and law based! One that our nation can be proud of, rather than embarrassed before the world! End the Clown Show, in Falls Church and throughout our muddling immigration and (non) human rights bureaucracy!🤡
The Garland/Mayorkas “Plan” for human rights and immigrant justice is proving as deadly as it is dysfunctional. PHOTO: Thomas Hawk Creative Commons Amateur Night
Time’s a wasting and people are dying! ⚰️ Enough of “Amateur Night at the Bijou.”☠️ Nobody’s laughing!🤮
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
How much of Ukraine will look like this by war’s end? Photo from Previous Russia-Ukraine War by Wojciech Zmudzinski Creative Commons License
Weekly Briefing
briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The content of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
CONTENTS (jump to section)
PRACTICE ALERTS
NEWS
LITIGATION & AGENCY UPDATES
RESOURCES
EVENTS
PRACTICE ALERTS
Virtual EOIR Registration: For new attorney registration, practitioners are no longer required to go to the court personally to show an ID. However, they still may appear personally. To coordinate identification verification please contact: Tina.Barrow@usdoj.gov or by phone at 717-443-9157.
Adjustment-Ready Cases: DHS is filing motions for dismissal for about 1,000 cases nationwide for Adjustment-Ready Cases (ARCs) to allow for pursuit of relief before USCIS. If you don’t want the case dismissed, timely file your opposition.
ICE Appointment Scheduler: Now available in Spanish, French, Portuguese, and Haitian Creole in addition to English.
Hill: Immigration restrictionists celebrated that the bill includes funding increases for ICE and Customs and Border Protection, but worried that the Biden administration will not use those funds to implement the Trump-style strict enforcement measures they favor…“The budget gives ICE money to fund over 5,000 more beds than proposed in funding bills introduced last year in both the House and Senate. These funding levels directly contradict commitments made by the Biden administration and members of Congress to reduce the immigration detention system,” Mary Meg McCarthy, executive director of the National Immigrant Justice Center, said in a release.
WaPo: Advocates for immigrants said they welcomed many of the Biden administration’s early changes, such as ending the travel ban and increasing the number of refugees allowed into the United States. But they said the most recent spending bill increases funding for immigration enforcement and complained that Biden has not kept his campaign promise to end privately run detention, which accounts for the majority of the ICE system.
NYT: The tension has also resonated inside the White House, where senior officials have been anxious that unwinding the Trump-era border restrictions would open the United States to an increase in illegal crossings at the southern border and fuel Republican attacks that Mr. Biden is too lenient on illegal immigration.
NYT: More than 4,100 Russians crossed the border without authorization in the 2021 fiscal year, nine times more than the previous year. This fiscal year, which began Oct. 1, the numbers are even higher — 6,420 during the first four months alone.
RollCall: Now, embassies have shuttered in Russia, Belarus and Ukraine. That could increase pressure on other consular posts in the region already feeling the weight of a visa backlog of nearly half a million cases.
AP: All Florida government agencies would be barred from doing business with transportation companies that bring immigrants to the state who are in the country illegally under a bill sent to Gov. Ron DeSantis on Wednesday.
Miami Herald: Nearly 200 Haitian migrants were returned to Haiti on Friday by the U.S. Coast Guard after their bid to reach U.S. shores ended with their overloaded sailboat running aground behind a wealthy North Key Largo resort in the Upper Florida Keys and some of their compatriots making a harried dash to freedom in the choppy waters. See also Black Immigrants to the U.S. Deserve Equal Treatment.
NYT: Although the bureau did not say how many people it missed entirely, they were mostly people of color, disproportionately young ones. The census missed counting 4.99 of every 100 Hispanics, 5.64 of every 100 Native Americans and 3.3 of every 100 African Americans.
Buzzfeed: Immigration and Customs Enforcement agents obtained millions of people’s financial records as part of a surveillance program that fed the information to a database accessed by local and federal law enforcement agencies, according to a letter sent Tuesday by Sen. Ron Wyden to the Department of Homeland Security inspector general requesting an investigation into whether the practice violated the US Constitution.
Forbes: “International student enrollment at U.S. universities declined 7.2% between the 2016-17 and 2019-20 academic years, before the start of the Covid-19 pandemic,” according a new analysis from the National Foundation for American Policy (NFAP). “At the same time, international student enrollment at Canadian colleges and universities increased 52% between the 2016-17 and 2019-20 academic years, illustrating the increasing attractiveness of Canadian schools due to more friendly immigration laws in Canada, particularly rules enabling international students in Canada to gain temporary work visas and permanent residence.”
Law360: A Salvadoran woman urged the U.S. Supreme Court to review an Eleventh Circuit decision greenlighting her deportation based on a decades-old removal order issued after she voluntarily left the country, saying the ruling conflicted with Fifth and Seventh Circuit precedents.
Law360: The Second Circuit on Thursday revived an asylum application from a man who says he fled political violence in Guinea, finding a string of errors in an immigration judge’s determination that he wasn’t credible.
LexisNexis: Dissent: I respectfully dissent from this court’s denial of rehearing en banc on the issue of whether to grant Chevron deference to the Board of Immigration’s (“Board”) recent interpretation of § 1101(a)(43)(S), providing that an aggravated felony under the INA is “an offense relating to the obstruction of justice, perjury or subornation of perjury, or bribery of a witness.” …Namely, this decision is the first and only to uphold the Board’s 2018 redefinition as reasonable—repudiating the Ninth Circuit’s 2020 decision. Accordingly, by no longer requiring a nexus element, this opinion expands the list of possible state crimes that could trigger immigration deportation consequences for many persons who may not have been otherwise subject to deportation. This is a sizeable impact for many people in our country.
LexisNexis: The Government indicates that the matter should be remanded, in part, to the BIA for consideration of her request for voluntary departure in light of Niz-Chavez. Thus, the petition for review is granted as to the stop-time issue, and this matter is remanded to the BIA for consideration under Niz-Chavez and other relevant precedents.
LexisNexis: The Board granted one extension but denied a second, suggesting that Oluwajana instead submit his brief with a motion seeking leave to file it late. When he did so, less than two weeks after the submission deadline, the Board denied the motion in a cursory-and factually erroneous-footnote. And having rejected the brief, the Board upheld the removal order without considering Oluwajana’s allegations of error by the immigration judge. Based on the undisputed circumstances of this case, we conclude that the Board abused its discretion by unreasonably rejecting Oluwajana’s brief.
Law360: The Ninth Circuit ordered the Board of Immigration Appeals on Wednesday to decide if an immigrant’s rape conviction bars deportation relief, with a dissenting judge saying the decision only delays the “unpalatable” conclusion that the man can seek a removal waiver.
BIA: When the Department of Homeland Security raises the mandatory bar for filing a frivolous asylum application under section 208(d)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1158(d)(6) (2018), an Immigration Judge must make sufficient findings of fact and conclusions of law on whether the requirements for a frivolousness determination under Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), have been met.
LexisNexis: Additionally, the respondents assert that despite informing immigration officials of their intent to get a new attorney and “sort out [their] case,” ICE officials told them that they were not priorities for deportation and there was nothing more they could do with respect to their case (Respondents’ Mot., Tab G). Accordingly, under these circumstances, we will equitably toll the filing deadline for the respondents’ motion to reopen.”
Law360: An Illinois federal judge closed the book on Chicago’s lawsuit challenging certain Trump-era conditions for recipients of a federal public safety grant on Tuesday when he put the final touches on his judgment blocking conditions for receiving the grant to resolve the case’s outlying issues.
LexisNexis: Defendant executed an I-864 Affidavit of Support; therefore, he is contractually obligated to provide Plaintiff and J.K.M.F. any support necessary to maintain their household at an income that is at least 125 percent of the Federal Poverty Guidelines. Plaintiff has received no financial support from Defendant since fleeing to a shelter on October 21, 2021…Accordingly, Plaintiff has alleged a meritorious claim against Defendant for breaching his contractual duty.
Law360: U.S. Immigration and Customs Enforcement’s New York office will overhaul its policy on people suspected of civil immigration offenses while on bond, settling claims it detained suspects beyond what the law allows without a chance to post bail.
Law360: A D.C. district court ordered the federal government to disclose the names of border officers who screened migrants’ asylum claims under a pilot program, saying Friday that asylum-seekers needed to know if they were unwittingly placed in the since-suspended project.
Law360: A woman’s suit contending she was wrongly deprived of pandemic relief payments from the IRS because of her marriage to an immigrant is barred by a federal law prohibiting court challenges that restrain tax collection, a Maryland federal court ruled.
USCIS: U.S. Citizenship and Immigration Services announced that it is updating the USCIS Policy Manual to consider deferred action and related employment authorization for noncitizens who have an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, for Special Immigrant Juvenile (SIJ) classification but who cannot apply to adjust status to become a lawful permanent resident (LPR) because a visa number is not available.
AILA: DOS provided guidance for nationals in Ukraine seeking to enter the United States. The guidance clarifies information on nonimmigrant visas, immigrant visas, COVID-19 entry requirements, humanitarian parole, refugee status, and more.
AILA: EOIR updated appendix O of the policy manual with adjournment code 74. The reason is “Public Health,” and the definition is “Adjourned for public health reasons.”
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Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
The “Top News Section” is a good rundown of the Biden Administration’s “mixed bag” on immigration policy, particularly as it relates to our largely defunct asylum system and the refugee system (still reeling from Trump-era “deconstruction”) that does not appear to be prepared for the inevitable flow of Ukrainian refugees. It also highlights some of the lingering damage to our democracy (e.g., racially biased census undercount) done by the Trump regime and its toady enablers.
My Take: Ukrainian Refugees & The U.S. Response
So far, largely meaningless political rhetoric from the Administration concerning Ukrainian refugees has been predictably “welcoming.” But, the actions to date have amounted to nothing more than taking the obvious step of granting TPS to Ukrainians actually here.
That does little or nothing to address the nearly 3 million refugees who have fled Ukraine in recent weeks. If the Administration has a coherent plan for admitting our share of those refugees and resuming processing of Ukrainians and all other refugees seeking asylum at the border, they have not announced it.
For example, despite U.S. and worldwide condemnation of China’s treatment of Uyghurs — some characterizing it as “genocide” — the Administration has done nothing to speed the processing of the very limited number of Uyghur refugees languishing in our still largely dysfunctional asylum system. If, as I’ve pointed out on numerous occasions, the Administration is unable to address “low hanging fruit” like Uyghurs and Immigration Court reform, in a bold and timely matter, how are they going to respond to more difficult human rights issues?
As this op-ed in today’s NY Times points out, “generous” responses to large-scale refugee situations are often short-lived. As refugees flows inevitably continue and grow, the initial positive responses too often “morph” into xenophobia, nativism, racism, culture wars, and restrictionism.https://www.nytimes.com/interactive/2022/03/15/opinion/ukraine-refugee-crisis.html
Ukrainian refugees have two potential “advantages” over those from Syria, Afghanistan, Iraq, Haiti, Venezuela, Ethiopia, DRC, and the Northern Triangle that could help them realize “more durable” protection. They are 1) mostly White Europeans, and 2) mostly Christian.
Neither of these is a legally recognized international criterion for defining refugees. Fact is, however, that they were not universally descriptive of those aforementioned groups who have often received less enthusiastic receptions from Western democracies. As a practical matter, “cultural attitudes” influence the Western World’s acceptance of refugees, probably to a greater extent than the actual dangers which those refugees face in the lands from which they have fled.
But, that has also been true in Haiti, Syria, Central America, the DRC and many other trouble spots. It has made little positive difference to the U.S. The Trump regime, led by Uber racist-misogynist refugee deniers “Gonzo Apocalypto” Sessions and “Gauleiter” Stephen Miller actually went out of their way to target the most vulnerable women and children fleeing persecution for further abuse.
And, to date, the Biden Administration’s promise to do better and regularize the treatment of those fleeing gender-based violence has been a huge “nothingburger.” Whatever happened to those promised “gender-based regulations” and the “common-sense recommendations” to replace the restrictionist holdover, bad-precedent-setting BIA with real judges who are experts in gender-based asylum?
The flow of refugees from Ukraine, and a much smaller (at this point) flight of dissidents from Russia, has already “exceeded projections” and is not likely to diminish in the coming weeks and months. Moreover, with Russia focusing on civilian targets and leveling parts of many major metropolitan areas in Ukraine, the essential infrastructure and “livability” of many areas is rapidly being destroyed.
Thus, even if a “truce” were declared tomorrow (which it won’t be), many who have fled would not be able to return for the foreseeable future, perhaps never, even if they wanted to. The latter is a particular risk if Russia makes good on its threats to eradicate the current Ukrainian Government and replace it with a Russian puppet regime.
Refugee planning has consistently lagged foreign policy developments even though that has been shown to be problematic over and over. When will we ever learn?
We can’t necessarily prevent all foreign wars and internal upheavals, worthy as that goal might be. But, we can learn to deal better with inevitable refugee displacements.
Indeed, that was the purpose of the UN Convention and Protocol on the Status of Refugees, to which we and the other major democracies are parties. That more than 70 years after the initial Convention was signed we are still groping for solutions (indeed, we have shamefully abrogated a number of our key responsibilities under both domestic and international law)to recurring, somewhat predictable, and inevitable dislocations of humanity is something that should be of concern to all.
Despite all of the nativist propaganda, the truth is that nobody wants to be a refugee and that it could happen to any of us for reasons totally beyond our control! The similarity of the lives of many Ukrainians, up until a few weeks ago, to daily life in Western Democracies has perhaps “brought home” these realities in ways that the equally bad or even worse plight of other refugees in recent times has not.
I hope that we can learn from this terrible situation and treat not only Ukrainian refugees, but all refugees, with generosity, humanity, compassion, kindness, and as we would hope to be treated if our situations were reversed. Because, in reality, nobody is immune from the possibility of becoming a refugee!
Trump Judge Mark T. Pittman has a very explicit vision of the future for brown-skinned children seeking protection from “White Nationalist Nation.” EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
ThreadOpen appSee new TweetsConversationAaron Reichlin-Melnick@ReichlinMelnick🚨Absolute madness. The same day the DC Circuit rules that families can’t be expelled under Title 42 to places they will be persecuted, a federal judge in Texas just overruled the CDC and ordered the Biden administration to expel unaccompanied children. https://storage.courtlistener.com/recap/gov.uscourts.txnd.347182/gov.uscourts.txnd.347182.100.0_1.pdf…
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Read the rest of Aaron’s feed at the link.
Although the DC Circuit basically confirmed that the evidence produced by plaintiffs showed illegal returns to death and that there was little, if any, support for the draconian Title 42 exclusion order, the relief granted was unacceptably narrow. The order merely directed the Administration to cease returning individuals to countries where they would be persecuted or tortured.
That order is weak because:
It doesn’t specify any particular fair procedure that must be followed by DHS in determining who faces persecution or torture. That appears to leave open the possibility of DHS employing bogus “summary determinations by enforcement agents” rather than using Asylum Officers and having cases referred to Immigration Courts.
There are no limits on the Government’s ability to detain individuals and/or return them to other countries.
The standard for so-called “withholding of removal” to persecution is “more likely than not” as opposed to the more generous “well-founded fear” or “reasonable possibility” standard for asylum (although individuals should be able to invoke the regulatory “presumption of future persecution” arising out of past persecution).
Even if granted, withholding of removal does not provide individuals with “durable legal status” nor does it allow them to access the asylum system, from which they apparently would remain barred under Title 42.
Judge Mark T. Pittman of the Northern District of Texas is a Trump appointee with strong ties to the Federalist Society and a very loose grasp on domestic and international laws and procedures for protecting children.
It’s interesting, if disheartening, to compare the “overt wishy-washiness” of the DC Circuit Judges who were timidly, “sort of” trying to protect at least some minimal legal and human rights with the “in your face,” overtly anti-immigrant, arrogant tone and ridiculous self-assuredness with which activist righty District Judge Mark Pittman advanced his absurdist notion that the White Nationalist agenda of “protecting” America from the “non-threat” of brown-skinned children merited his simultaneous assumption of the roles of President, Secretary of DHS, Attorney General, and for a good measure, Congress.
Obviously, the “judicial restraint,” supposedly a hallmark of modern conservatism, was just a “smoke screen” for the GOP’s activist anti-social, anti-immigrant, racially charged agenda. That’s not news to many of us, although it seems to have gone “over the head” of many in the Biden Administration and many Dems on the Hill.
It shows once again why “Team Garland’s” indolent, often uninformed, and floundering approach to immigrant justice under law is being steamrolled by Trump holdovers and crusading right-wing Federal Judges. And, you wonder why Dems can’t figure out what they stand for and what their “line in the sand” is!
Meanwhile, back at the ranch, Garland and other weak-kneed Biden officials can’t decide how much of the leftover “Miller Lite” anti-asylum, anti-humanitarian, anti-due-process policy they want to retain and defend and how much effort, if any, they want to put into re-establishing human rights and the rule of law.
One observation: After more than one-year in office, the Biden Administration is no closer to having an orderly, functional, due-process-oriented asylum system in place and ready for the border than they were on January 20, 2021! The expert Asylum Officers and qualified Immigration Judges who are necessary to operate such a system are still few and far between, and the program to facilitate legal assistance for those seeking legal protection at the border is all but non-existent.
Living 120 miles apart, family shares hopes and anxieties while navigating ‘chaotic’ resettlement process
Lamha Nabizada spent nearly six months at Fort McCoy, a 60,000-acre Army base in Monroe County, Wis., before she was relocated with part of her family to Rockville, Md. Here, she looks through the window of a hotel room on Feb. 22, 2022, during the family’s search for permanent housing. She is among 76,000 Afghans evacuated to the United States during the country’s largest resettlement operation since the Vietnam War. (Eman Mohammed for Wisconsin Watch)
By Zhen Wang February 28, 2022 Wisconsin WatchIn her final hours living at Fort McCoy, an Army base in rural Monroe County, Wisconsin, Lamha Nabizada searched for an interesting place to pose for a photo at this reporter’s request. The task wasn’t easy.“Everywhere is the same thing, same barrack,” the 27-year-old told Wisconsin Watch.Venturing outside into frigid air, she posed in front of a flagpole and gun turret.It was Feb. 6, the day before Nabizada and her 22-year-old brother Masroor would travel to Maryland — continuing a resettlement journey that began last August when the Taliban took over Afghanistan’s capital of Kabul. They were among tens of thousands airlifted from the country with passports, legal documents and little else.Nearly six months later, the siblings were among the last to leave Fort McCoy, which housed as many as 12,600 Afghans.
Lamha felt mixed emotions as she prepared to leave: hope for new opportunities and anxiety about moving to an unfamiliar place.
“I don’t know what will happen in the future,” she said.
On Feb. 15, Fort McCoy became the seventh of eight U.S. military installations to send its final evacuees to host communities. Four days later, the eighth base cleared out the last of the 76,000 total evacuees who arrived for the largest resettlement operation since the Vietnam War.
Through Feb. 23, Wisconsin had resettled about 820 of the 850 Afghan evacuees currently slated for the state, according to Bojana Zorić Martinez, director of the Wisconsin Department of Children and Families’ Bureau of Refugee Programs.
Zorić Martinez said serving so many people at once was difficult. Aside from housing, they need Social Security numbers, jobs, food and other basic items.
Evacuees are eligible to apply for benefits available to refugees, according to the federal Office of Refugee Resettlement. That includes job preparation, English language training and medical aid. They may also be eligible for other federal benefits such as Medicaid and food assistance.
Zorić Martinez said the system shrunk under Trump, who slashed the country’s refugee cap each year he was in office, which meant less money for resettlement agencies.
“We are now seeing the consequences of that,” she said.
Zhen Wang joined Wisconsin Watch as a reporting intern in May 2021. At UW-Madison, she is pursuing a master’s degree in journalism, honing her investigative journalism skills, and preparing herself for a career in health care journalism. She previously worked for the Guardian Beijing bureau and China Daily. Before joining the journalism industry, she worked in various sectors and obtained a master’s degree in international relations in New Zealand. She speaks Chinese and is a member of Asian American Journalists Association.
More by Zhen Wang / Wisconsin Watch
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Reprinted from Wisconsin Watch under Creative Commons License. Full story available at the link. Nice reporting by Zhen Wang!
Here are some additional quotes from Zhen’s article from my good friend and NDPA superstar Professor Erin Barbato of the U.W. Law Immigration Clinic, among the many clinical teams who have “stepped up” for Afghan refugees:
“The government has to provide more resources, if we’re going to ensure that everybody has their basic needs met during this transition time, and it’s wonderful to see people in the community coming together,” said Erin Barbato, director of the Immigrant Justice Clinic at the University of Wisconsin Law School. “But that’s not going to solve the problem for everybody.”
The legal clinic is helping evacuees file for asylum and training attorneys to represent them in that process — positions that are in short supply. Barbato and other immigration experts fear some people will fall through bureaucratic cracks unless the federal government takes action to stabilize the system.
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Barbato, the UW legal clinic director, said the two-year parolee status leaves evacuees vulnerable to future deportation — a potentially deadly proposition. The U.S. asylum program last year faced a backlog of nearly 413,000 applications.
Congress has historically passed such laws to protect evacuees from U.S. military conflict zones, including in Vietnam and Iraq.
Echoing immigration advocates and veterans, Barbato said an Afghan Adjustment Act, which has yet to be introduced in Congress, could pave a safer, quicker path to citizenship. Lawmakers must also inject more resources into the immigration bureaucracy, she added. How these resources are allocated will shape the fate of applicants who have waited years in the queue — as well as new Afghan arrivals.
Professor Erin Barbato Director, Immigrant Justice Clinic UW Law Photo source: UW Law
An applicant for adjustment of status under section 209(b) of the Immigration and Nationality Act, 8 U.S.C. § 1159(b) (2018), must possess asylee status at the time of adjustment, and thus an applicant whose asylee status has been terminated cannot adjust to lawful permanent resident status under this provision.
PANEL:
WILSON and GOODWIN, Appellate Immigration Judges. Concurring and Dissenting Opinion: LIEBMANN, Temporary Appellate Immigration Judge.
OPINION BY: Judge Goodwin
CONCURRING & DISSENTING:Judge Liebmann
KEY QUOTE FROM JUDGE LIEBMANN’S SEPARATE OPINION:
Based on the unambiguous and controlling language “any alien granted asylum” in section 209(b) of the Act, I would hold that an asylee who has not previously adjusted to lawful permanent resident status pursuant to section 209(b) may apply for adjustment of status under that section even after termination of asylee status, provided that the noncitizen continues to be a refugee or the spouse or child of a refugee. A review of the overall context of section 209(b) of the Act, the governing regulations, and relevant case law supports this reading of the statute. I would therefore remand to permit the respondent to apply for adjustment of status pursuant to section 209(b). [Citation Omitted]
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Nice to see some common sense “scholarly pushback” to the Garland “Holdover” BIA’s ridiculously pro-DHS-tilted precedents. While Garland apparently isn’t paying any attention to what’s being done in his name, hopefully the Appellate Courts will pick up on Judge Liebmann’s cogent analysis.
Some GOP judges and super-sleazy state AGs have a very clear vision of the future for refugees of color. Most days, the Biden Administration can’t decide whether they share it or not. EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)Professor (Emeritus) David A. Martin UVA Law PHOTO: UVA Law
The court’s opinion carries the reader along on what purports to be textual analysis and implacable logic. On closer examination, however, it is a startling exercise in judicial imperialism. The opinion seizes on fragments of statutory text, taken out of context, to construct a presumed congressional intent that would be more to the judges’ liking. It ignores contrary indicators in the wording and the historical development of the key provisions. It makes no attempt to reconcile the supposed strict mandate with the historical fact that Congress went 20 years without really noticing—much less objecting to—the absence of implementation. The court also shows an arrogant disregard for the operational realities of border enforcement, including the sensitivity of diplomatic relations with Mexico that sustain cross-border cooperation—on migration issues as well as other policy priorities.
I can bring some special perspective in analyzing the appeals court’s decision. I have been a scholar and teacher of immigration law for 40 years, and I also was fortunate to hold policy-level positions dealing with immigration in three different departments, under three different Presidents. My years in government gave me close exposure to the operational realities at a level most law professors—and judges—don’t experience. One of those stints consisted of 30 months during the mid-nineties as General Counsel of the Immigration and Naturalization Service (INS) the period when the key reform bills on which the Fifth Circuit relies were introduced, debated, amended, enacted and implemented.
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Read David’s complete article at the above link. As usual, my “practical scholar” friend gives you the real legal analysis that should have been applied by the court. Now, here’s my “less nuanced” take on this atrocious and cowardly piece of extreme White Nationalist judicial misfeasance!
Remarkably, in their 117 pages of snarky, wooden legalese, demeaning of humanity, and willfully misrepresenting reality, these life-tenured righty judges (surprise, two Trumpists, one Bush I) give no serious consideration whatsoever to the well-documented, daily, ongoing abuses of the human and legal rights of those fleeing oppression who are subjected to this heinous White Nationalist program! See, e.g., https://www.humanrightsfirst.org/resource/shameful-record-biden-administration-s-use-trump-policies-endangers-people-seeking-asylum
Just how do asylum applicants exercise their statutory “right” to apply for asylum and other protection under U.S. and international law if they are dead, kidnapped, beaten, extorted, raped, threatened, given inadequate notice of hearing, denied their right to legal assistance, prevented from preparing and documenting their cases, and if they are fortunate enough to finally get a hearing, subjected to an anti-asylum, anti-due-process, non-asylum-expert “faux judiciary” run by a prosecutor with a majority of his “holdover judges” appointed or co-opted by his White Nationalist, asylum-hating predecessors? The Fifth Circuit doesn’t bother to explain. That’s probably because historically their failure to stand up for human rights and racial justice for those in need of protection has been part of the problem.
Also, it’s remarkable how righty judges who couldn’t find any reasons to stop the Trump regime from rewriting asylum law out of existence in unprecedented ways, without legislation, and usually without regard to the APA, suddenly take a much different position when it comes to the Biden Administration’s modest efforts to vindicate human rights and restore some semblance of the rule of law. But, that’s actually less surprising than the Biden Administration’s failure to “see the handwriting on the wall” and have a “Plan B” in operation.
Obviously, these three life-tenured right-wing human rights abusers in robes need to spend a few months “detained” in Mexico or in the “New American Gulag!” But, that’s wishful thinking. Not going to happen! These are ivory tower guys with life tenure, fat salaries, and robes who use their positions to pick on the most vulnerable in the world and deprive them of their legal and human rights based on intentional misconstructions of the law, ignorance of reality, and pandering to a rather overly political racist appeal from GOP AGs who are from “the bottom of humanity’s — and our legal profession’s — apple barrel!” Doesn’t get much worse than that!
Nevertheless, it should be clear to both advocates and the Biden Administration that “Remain in Mexico” likely is here to stay! Despite the lack of merits to the Fifth Circuit’s decision, and the Supreme’s granting of the Biden Administration’s cert petition, I wouldn’t hold my breath for relief from either the right-wing Supremes or the feckless Dems in Congress.
Given that the program is likely to be judicially imposed, the Administration and advocates can still get together to make it work in compliance with due process. It’s well within their power and not rocket science:
Appoint a new BIA with appellate judges who are practical scholars in asylum and will establish coherent, correct legal guidance on domestic violence claims, gender based asylum, gang-based claims, nexus, “failure of state protection,” credibility, corroboration, the operation of the presumption of future persecution, the DHS’s burden of rebutting the presumption, “rise to the level,” right to counsel, fair hearings, and other critical areas where the current “Trump holdover” BIA’s guidance has been lacking, inadequate, and/or defective. They can also insure consistency in asylum adjudications, something that has long escaped EOIR.
Get a corps of Immigration Judges with established records and reputations for scholarly expertise, commitment to due-process, practicality, and fairness to asylum seekers to handle these cases.
Work with pro bono and advocacy groups and the UNHCR to insure that every person applying under this program has access to competent representation and adequate opportunities to prepare and document cases. Nolan Rappaport and I have recently written about the “largely untapped potential” of a better “qualified representative” program. Professor Michele Pistone at Villanova Law has done some ground-breaking innovative work on training accredited representatives for asylum cases in Immigration Court. But, like most other long overdue reforms, it appears to have gone over Garland’s distracted head! https://immigrationcourtside.com/2022/02/02/⚖%EF%B8%8F🗽there-will-be-no-supreme-intervention-to-stop-mpp-☹%EF%B8%8F-rappaport-pistone-schmidt-tell-how-the-administration-advocates-c/
Work with the Government of Mexico and the UNHCR to guarantee the health, security, safety, and welfare of those waiting in camps in Mexico.
Then, we’ll finally find out how many of those who have already passed credible fearactually qualify for a grant of asylum under a fair, competent, timely system run by experts with individuals who are well-represented! I’ll bet it’s the majority, not the measly 2% who have received grants under EOIR’s “Stephen Miller Lite” approach!
For example, during 13 years on the trial bench, I found that the majority of those referred to Immigration Court after a positive “credible fear” finding (all of the “Remain in Mexico” applicants fall in that category) qualified for asylum or some other type of protection from removal. And, like my friend and long time-colleague Professor Martin, I’ve been working on asylum issues from enforcement, advocacy, academic, and judicial standpoints, in and out of government, since before there was a Refugee Act of 1980!
So, to me, the “2% asylum grant rate” in Immigration Court for these cases,” particularly in light of some revised intentionally overly restrictive “credible fear” criteria imposed by the Trump regime, appears clearly bogus. Why hasn’t Garland looked into the systemic defects in the EOIR system, as applied to “Remain in Mexico,” that have artificially suppressed the grant rate?
Lack of lawyers, undue hinderances on gathering evidence and presenting cases, poor notice, lack of expertise, inadequate training, and anti-asylum performance by IJs and the BIA, and in some cases kidnapping, assault, rape, extortion, and other well-documented physical harm knowingly inflicted on applicants by placing them in clearly dangerous and unacceptable conditions in Mexico are just the start!
There are lots of creative ways of making our current immigration system work better! You just need the knowledge, motivation, expertise, and guts to make it happen! So, far that’s been lacking at all levels of the Biden Administration, but particularly at Garland’s “brain-dead” DOJ. Gosh, these guys make Stephen Miller look like a “creative genius,” albeit an evil and pathological one! 🤯🤮🏴☠️ Come on, man!
As many of us have pointed out, Garland, Mayorkas, Biden, and Harris could and should have had such a system up and operating by now! Outrageous and disgusting as the conduct of the 5th Circuit has been, it’s hardly unpredictable given past performance. Every day that the Administration continues to waste by not making the necessary changes at EOIR, a court system totally within their control, adds to the human misery and injustice!
So, bottom line: White Nationalist judges get life tenure from the GOP. Meanwhile, back at the ranch of the “Gang That Couldn’t Shoot Straight,” Biden and Garland retain Trump’s White Nationalist appointees and enablers at EOIR and eschew the chance to create a diverse, progressive, expert, practical, due-process-oriented, fundamental-fairness-insistent, racial-justice-committed judiciary to decide life-or-death cases that affect and influence the operation of our entire justice system and our democracy in ways that no other court system in America does! The Administration’s alarming “tone deafness” is blowing perhaps the “last clear chance” to create a “model judiciary!” Sounds like something only a Dem Administration could do. Go figure!
One Year In: The Biden Administration and Asylum Policy
Developments in Fourth Circuit Case Law
Increasing Access to Pro Bono Counsel in Underserved Areas: Virginia as a Case Study
Working Across Disciplines: Best Practices for Attorneys and Mental Health Professionals in Asylum Seeker Evaluations
Country Conditions: From Page to Practice
CLE Credit and DOJ Accredited Representative Certifications
This event has been approved for 6.5 credit hours of CLE credit from Virginia and North Carolina. Attorneys seeking CLE credit must purchase tickets indicating that CLE credit is provided (indicated by “CLE” listed by the ticket type).
Attorneys from other jurisdictions who are not seeking CLE credit from Virginia or North Carolina are welcome to attend.
DOJ Accredited Representative certifications will be provided to those who register as DOJ Accredited Representatives seeking certification.
Zoom Webinar Information
Zoom information for the event will be sent to the email address used to register. For security reasons, we do not post the Zoom link information. All Zoom registration information will be provided in a separate email closer to the date of the event.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration JudgesHon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration Judges
More NDPA Training:Tomorrow and Saturday, the New York Asylum and Immigration Law Conference will be held virtually; Sue Roy and I are among the speakers, along with many other members of the NDPA.
Cornell Law School and the Cornell Migrations Initiative, along with other organizations, are hosting a free public webinar on Wednesday March 9 from 1-2 pm ET entitled “After the Fall: The Future of Afghan Allies Fleeing the Taliban.”
Six months after the fall of Afghanistan, a lot has been done, but a lot remains to be done.The United States evacuated over 100,000 Afghans to the United States or third countries.Yet an estimated 200,000 Afghans who helped the U.S. military or government remain in Afghanistan, fearing persecution and famine.Moreover, those who have made it to the United States have mostly entered on humanitarian parole, which is a temporary status that expires after two years.They need ways to remain in the United States permanently.
Learn what Cornell University and other organizations have done to assist Afghans at risk, what remains to be done, and how you can help.
Speakers include Joel Kelsey, chief of staff to U.S. Senator Richard Blumenthal; Chis Purdy, director of Veterans for American Ideals and Outreach at Human Rights First; Nell Cady-Kruse from the Evacuate Our Allies Coalition; Camille Mackler, executive director of Immigrant ARC; and Katie Rahmlow, a Cornell law student who has worked on several Afghan cases. Cornell law professor Stephen Yale-Loehr, who directs an Afghanistan asylum clinic at Cornell Law School, will moderate.
The Dehumanizing Work of Immigration Law is an analysis piece authored by immprof Jennifer M. Chacón (Berkeley) for the Brennan Center for Justice. It was part of a series of articles examining the “punitive excess that has come to define America’s criminal legal system.”
In her article, Chacón acknowledges that “our immigration laws are exceptionally harsh in ways that frequently defy common sense.” She notes that for many migrants “the notion that there is a ‘right way’ to immigrate is just not true.” Moreover, “our country has not always honored its own legal processes when immigrants are doing things ‘the right way.’” And, for those “long-time lawful permanent residents who have contact with the criminal legal system are often denied the chance to do things ‘the right way.’”
“Again and again,” Chacón writes, “notions of the rule of law are invoked to justify the sundering of families and communities that would, in other circumstances, seem unthinkable.”
Jennifer elegantly articulates a theme that echoes what “Sir Jeffrey” Chase and I often say on our respective blogs: It’s all about gratuitous cruelty and intentional dehumanization of “the other” — primarily vulnerable individuals of color!
But, it need not be that way! Undoubtedly, the current legislative framework is outdated, unrealistic, and often self-contradictory. Congress’s failure to address it with bipartisan, humane, common sense, practical reforms that would strengthen and expand our legal immigration system is disgraceful.
But, there are plenty of opportunities even under the current flawed framework for much better interpretations of law; more expansive, uniform, and reasonable exercises of discretion; creation and implementation of best practices; advancements in due process and fundamental fairness; drastic improvements in representation; improved expert judging; rational, targeted, “results-focused” enforcement; promoting accountability; and teamwork and cooperation among the judiciary, DHS, and the private/NGO/academic sectors to improve the delivery of justice and make the “rule of law” something more than the cruel parody it is today.
Historically, as Jennifer points out, courts have often aided, abetted, and sometimes even disgracefully and cowardly encouraged lawless behavior and clear violations of both constitutional and human rights. But, it doesn’t have to be that way in the future!
Folks like Trump, Miller, Sessions, Barr, Wolf, “Cooch,” Hamilton, McHenry, et al spent four years laser-focused on banishing every last ounce of humanity, fairness, truth, enlightenment, kindness, compassion, reasonableness, efficiency, rationality, equity, public service, racial justice, consistently positive use of discretion, practicality, and common sense from our immigration and refugee systems.
Biden and Harris promised dynamic change, improvement, and a return to a values-based approach to immigration. Once in office, however, they have basically “gone Miller Lite” —preferring to blame and criticize the Trump regime without having a ready plan or taking much positive action to bring about dynamic systemic improvements. In fact, as pointed out by Jennifer, Garland and Mayorkas have continued to apply, defend, and to some extent rely on the very vile policies they supposedly disavowed. Talk about disingenuous!
Drastic improvements in the current system are “out there for the taking,” with or without Congressional assistance. But, the will, skill, and guts to make the “rule of law” something other than an intentionally cruel, failed “throw away slogan” appears to be sorely missing from Biden Administration ldeadership!
Maybe, the beginning of Jennifer’s essay “says it all” about the abject failure of Garland and others to “get the job done:”
During his confirmation hearing to be attorney general, when asked about the Trump administration’s policy of separating children from their parents at the U.S.–Mexico border, Merrick Garland repudiated the policy, stating “I can’t imagine anything worse.”
Yet, now that he is confirmed, Attorney General Garland presides over an agency that represents the U.S. government in court arguing every day that parents should be separated from their children, brothers from sisters, grandchildren from grandparents.
Obviously, that’s the problem! Garland actually “can’t imagine” the human impact of government-imposed family separation! Nor can he “imagine” what it’s like to be caught up in his unfair, biased, and broken Immigration “Courts” as a party or a lawyer. The “retail level” of our justice system “passed him by” on his way to his judicial “comfort zone.”
“Justice” Star Chamber Style — “AG Garland ‘can’t imagine’ what it’s like to be caught up in the dysfunctional, abusive, and unfair ‘court system’ that he runs!”
Unless and until we finally get an Attorney General who has either experienced or has the actual imagination necessary to feel the daily horrors and indignity that our unnecessarily broken immigration justice system inflicts on real human beings, American justice and human values will continue to spiral downward! ☠️🤮
And, there will be no true racial justice in America without justice for immigrants!
