United States Citizenship and Immigration Services (“USCIS”) – Page 6

🏴‍☠️🤯☠️ INVITE ‘EM TO DEFECT, THEN ARBITRARILY REJECT — Russian Allies Find Broken U.S. Asylum System Akin To Russian Roulette! — “I don’t understand how we are denying Russians at all,” says Jennifer Scarborough, Refugees’ Lawyer!

Jennifer Scarborough, EsquireLaw Firm of Jennifer Scarborough PLLC Harlingen, TX PHOTO: Firm — Jennifer Scarborough, Esquire
Law Firm of Jennifer Scarborough PLLC
Harlingen, TX
PHOTO: Firm

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=df3af6fe-6f28-47f0-a65a-95a9e0272c10

Hamed Aleaziz & Tracy Wilkinson report for the LA Times:

WASHINGTON — Numerous Russians attempting to escape conscription onto the Ukrainian battlefield have made perilous journeys to the United States, trusting in the Biden administration’s declaration that the U.S. would “welcome” those fleeing the war and their forced participation in it.

Instead of winning asylum, however, some of these men have been detained and, in at least one case, deported back to Russia, where they could be thrown into the fight against U.S.-armed Ukraine — into “the meat grinder,” as the U.S. secretary of State recently put it.

The U.S. has deported nearly 190 Russians since the beginning of October 2022, almost three times as many as were removed during the entire prior year.

Some Russian conscripts have refused to board deportation flights, forcing U.S. immigration officers to return them to immigration detention and legal limbo.

Three Russians the U.S. detained and sought to deport told The Times that certain abuse awaited them at home, where draft dodgers are subject to imprisonment or swift dispatch to front lines. The three Russians said they felt bewildered — betrayed, even — bythe U.S. asylum system. The Times is withholding their identities because they fear retribution if they are returned to Russia.

“Death awaits me there if I go back,” said one Russian man in his 20s. He said he was slated to be deported but fainted when immigration officials loaded him onto the plane, which forced them to return him to detention.

Although Ukrainian President Volodymyr Zelensky urged Russians who opposed the war to stay at home and fight to topple Russian President Vladimir Putin, the Biden administration has explicitly encouraged Russians who do not want to fight in Ukraine to seek asylum in the United States.

“There are people out there in Russia who do not want to fight Putin’s war or die for it,” White House Press Secretary Karine Jean-Pierre said in September. “We believe that, regardless of nationality, they may apply for asylum in the United States and have their claim adjudicated on a case-by-case basis.

“We welcome any folks who are seeking asylum, and they should do that,” she said.

But Russians who have taken the U.S. up on that offer have quickly discovered that seeking asylum is not the same as winning it. The U.S. government’s willingness to help people who flee Russia — even if doing so undermines Russia’s war effort — is limited.

In some cases, the government has argued that being called up to serve in the Russian military is not alone sufficient grounds for asylum. Jennifer Scarborough, the lawyer for the three Russians The Times interviewed, has countered that they qualify for asylum because they did not want to be involved with the war for political reasons and would face unreasonable repercussions for refusing to serve.

“They could be deported back to a regime that is committing gross human rights violations,” she said. “I don’t understand how we are denying Russians at all.”

The number of Russians crossing the southern U.S. border surged in November and December, shortly after Putin, facing massive casualties among his troops, ordered up a fresh army mobilization and drafted up to 300,000 reservists.

Russians crossed the southern border more than 5,000 times in November and nearly 8,000 times in December, a major increase from earlier months.

More than 8 million Ukrainians have fled their homeland since Putin launched his invasion of the former Soviet Republic on Feb. 24, 2022. Their escapes have involved trains and commercial flights and massive assistance, and they have largely been welcomed in other countries.

By contrast, many of those fleeing Russia for the U.S. have used the same difficult and at times treacherous route that disfavored refugees from all over the world use. A flight from Dubai or Istanbul gets them to South America, where they continue on flights, buses and by foot northward, sometimes trekking through jungle, to reach Mexico and the U.S. border.

One man who spoke to The Times was picked up by immigration agents in December near Tecate. The man made the weeks-long journey to the U.S. with his younger brother.

The man fled Russia when his call-up notice arrived.

“Even in childhood, I understood that, for me, America was a symbol of freedom,” he said in a telephone interview from a detention center in Pennsylvania. “And yes, there was a dream to move here one day. Because during your entire life in Russia, it is difficult; you’re discriminated against at every turn.”

“I went through war,” the man said. “I know what this entails. I saw the war. And now they are trying to force me to bring this to Ukraine.”

. . . .

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Read the complete report at the link.

Jenn Scarborough asks the right question. In a functioning protection system, one would expect most cases like this to be granted in short order. However, the BIA generally has restrictive precedents on draft evaders and deserters stemming largely from a desire to deny protection to applicants fleeing civil wars in Central America decades ago. See, e.g., Matter of A-G-, 19 I & N Dec. 502 (BIA 1987).

As “Courtsiders” know, the endemic problem is lack of expert, progressive, dynamic, courageous intellectual leadership in a system now solely controlled and operated by a Dem Administration that often acts more like an “old school GOP” one on immigration and human rights! Administration of both parties live in perpetual fear that making good on promises of fair treatment and legal protection would actually motivate refugees to seek it!

That’s a particular problem at EOIR which should be the legal intellectual leader here! We need practical, scholarly, generous, common sense precedents focusing on what should be easily grantable protection claims!

Instead, we have a leaderless, bureaucratic, non-expert mess, still retaining too many elements of the anti-immigrant, anti-asylum, any reason to deny, go along to get along, court as a “deterrent” system constructed and promoted by the Trump Administration. That has continued to churn out both egregious inconsistencies and backlog-building inefficiencies in critical “life or death” cases!

🇺🇸 Due Process Forever!

PWS

08-20-23

🇺🇸⚖️🗽 ANDREA R. FLORES @ NYT: We Know That “Uber Deterrence” Fails At The Border — Title 42 Debacle Under Trump Proves It: Biden Must Abandon The Restrictionist Remnants & Restore Legality & Integrity To Our Current Refugee & Asylum Systems!

Andrea Flores
Vice President for Immigration Policy and Campaigns at FWD.us.
PHOTO: Linkedin

https://nl.nytimes.com/f/newsletter/H7Demr4HzkuwqSIi_5Cg4g~~/AAAAAQA~/RgRmt1VqP0TpaHR0cHM6Ly93d3cubnl0aW1lcy5jb20vMjAyMy8wOC8xMC9vcGluaW9uL2FzeWx1bS1zZWVrZXJzLWltbWlncmF0aW9uLXJlZm9ybS5odG1sP2NhbXBhaWduX2lkPTM5JmVtYz1lZGl0X3R5XzIwMjMwODEwJmluc3RhbmNlX2lkPTk5NzE5Jm5sPW9waW5pb24tdG9kYXkmcmVnaV9pZD03OTIxMzg4NiZzZWdtZW50X2lkPTE0MTYxOCZ0ZT0xJnVzZXJfaWQ9OGExZjQ3Mzc0MGIyNTNkOGZhNGMyM2IwNjY3MjI3MzdXA255dEIKZNNq0NRk4LcZOlISamVubmluZ3MxMkBhb2wuY29tWAQAAAAD

Andrea writes in a NYT Op-Ed:

U.S. asylum laws were designed to protect people fleeing harm. They were enacted in the decades following the Holocaust to ensure that the United States never again turned away people fleeing persecution. But now, many blame these laws for the chaos and inhumanity at the nation’s southern border.

The biggest blow to America’s commitment to asylum came during the pandemic, when former President Donald Trump invoked Title 42, an emergency measure that allowed border agents to turn away asylum seekers, under the justification of preventing the spread of the virus.

When Title 42 restrictions were lifted in May, President Biden enacted a carrot-and-stick approach aimed at deterring new asylum seekers from traveling by foot to the border. These new measures included a set of legal pathways, including a parole program that allows people from select countries, including Cuba and Haiti, to legally enter the country for at least two years, provided they have a financial sponsor in the United States. Doing so has discouraged would-be migrants from taking a dangerous trek with a smuggler, often through multiple continents.

This approach would have been a great step forward if it wasn’t paired with a counter measure that prohibits some asylum-seekers at the border from applying for protection in the United States. The vast majority of migrants must secure an appointment at an official port of entry, which are difficult to obtain, or else they will be subject to expedited removal if they cannot prove that they sought legal protection in another country along the way.

. . . .

If proponents of a secure border are serious about lowering border crossing numbers and decreasing unauthorized migration, they should support Mr. Biden’s attempts to create new legal pathways. Instead, a coalition of Republican attorneys general is challenging the president’s parole program. In Congress, Senate Republicans are trying to eliminate the same parole authority that allowed Afghans to temporarily resettle in the United States. There have been no challenges to the use of the parole authority to bring Ukrainians to the United States.

These actions reveal that our current fight over the border is not about the number of people trying to come here — it is about which should be allowed to come. American voters may not have strong opinions about the future of the asylum system or the legal pathways being created, but voters of both parties dislike the chaos and human suffering that have subsumed this issue for the past 10 years. Over a million American citizens have signed up to sponsor migrants from Cuba, Haiti, Venezuela and Nicaragua.

At a moment of record global displacement, we can’t keep waiting for Congress to modernize our immigration laws. Safe legal pathways are good for the people who use our immigration system. Mr. Biden has taken some critical steps to give migrants better options, but with no hope of congressional action in the near future, more is needed.

Andrea R. Flores is the vice president for immigration policy and campaigns at FWD.us.

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Read the complete op-ed at the link.

Much of what Andrea says echoes what I have said over and over on Courtside and has been repeatedly recommended by experts, who are then largely ignored by the Biden Administration.

As I have argued before, the “low hanging fruit” here would be EOIR reform: A new BIA of “practical scholars;” better IJs with proven asylum and human rights experience; ending “Aimless Docket Reshuffling On Steroids” (which drives many poor policy and legal decisions); and getting some dynamic, fearless, expert leadership on human rights and immigration at the DOJ — which is either the driver or the facilitator of many of the problems at the border, depending on how you look at it.

We can also see how Garland’s lackluster performance on immigration affects other areas of justice such as civil rights, women’s rights, and LGBTQ rights, to name a few of the most obvious ones. Nobody at today’s DOJ appears to possess the “big picture” knowledge and experience to “connect the dots” on these critical issues.

🇺🇸 Due Process Forever

PWS

08-10-23

🇺🇸🗽⚖️👍🏼😎 CONGRATS TO GW LAW IMMIGRATION CLINIC ON “WIRE TO WIRE” SUCCESS!📣

GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Professor Paulina Vera — They have dedicated their professional careers to teaching skills and values that change lives and advance a vision of a better future America!

Professor Alberto Benítez reports to Courtside:

Victory is the only option!

A shout-out to our student-attorneys Julia Yang, Spoorthi Datla, Cornelia Waugh, and Kelly Zhang. Yesterday our client S-L, from China, Kelly, and Paulina Vera attended an interview at USCIS. The client is a survivor of domestic violence and we had filed several applications on her behalf, including one for naturalization. Today all the applications were granted. S-L’s oath ceremony will be scheduled.

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

Alberto Manuel Benitez

Professor of Clinical Law

Director, Immigration Clinic

The George Washington University Law School

650 20th Street, NW

Washington, DC 20052

(202) 994-7463

(202) 994-4946 fax

abenitez@law.gwu.edu

THE WORLD IS YOURS…

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Many, many congrats to all involved!

Given the endemic delays at every level of the dysfunctional USG immigration bureaucracy, seeing a case through from the initial application to eventual naturalization is no mean feat!😎 THIS, NOT the total disgraceful BS emanating from Trump, DeSantis, Abbott, and the rest of the GOP xenophobes, is what the REAL “American Dream” is all about and what REALLY “Makes America Great” — NOT totally disingenuous slogans and “throwaway lines” from those afraid to embrace and celebrate the REAL America!🇺🇸

The future of American immigration advocacy looks promising, notwithstanding the incredibly dark visions being falsely promoted by GOP restrictionists and the disturbingly feeble response from the Biden Administration and Dems in Congress. The talent in the “New Generation” of the NDPA continues to grow thanks to the inspiration and tutelage of Professors Benitez and Vera and many others like them who have dedicated their lives to making things better for everyone!

As a result, there is a rapidly expanding talent gap between the NDPA and the sluggish, unresponsive, “go along to get along” USG immigration bureaucracy — right up to the White House where so-called “policy makers” fear standing up for the rule of law and American values! Getting the talent from the “outside” to the “inside” where they can solve problems and advance progressive, practical American values is the challenge that will determine the future of our democracy!

🇺🇸 Due Process Forever!

PWS

07-31-23

🗽 BORDER: WashPost’s Maria Sacchetti’s Nuanced Report Is Well Worth A Read: “The perceived success of Biden’s approach depends on which side of the border the migrants are on.” — Right to apply for asylum is a “simple rule” that politicos of both parties lack the will & skill to follow!🤮

https://www.washingtonpost.com/immigration/2023/07/18/border-asylum-us-mexico-biden-legal/

Maria writes:

. . . .

Federal law says anyone fleeing persecution may request asylum once they reach U.S. soil, no matter how they got there. Successive administrations have attempted to restrict that simple rule, however, desperate to reduce record numbers of crossings that have overwhelmed the immigration system, leaving many to live for years in the United States without a decision in their cases.

. . . .

One border, two realities

The perceived success of Biden’s approach depends on which side of the border the migrants are on.

Brownsville, an American city of 200,000 on the other side of the Rio Grande from Matamoros, Mexico, is officially under a state of emergency. But that emergency has dissipated in recent months.

The streets are quiet, thanks to a 70 percent drop in illegal border crossers since the new asylum rule and other Biden policy changes took effect. City workers greet the relatively small number of newcomers released from holding facilities and escort them to a curtained-off parking garage and to the first bus out of town.

In Matamoros, however, migrants trying to navigate the new rules are squeezing into shelters, sharing hotel rooms, curling up in a large camp on the dry riverbank or under pop-up tents at a grimy former gas station.

On a pedestrian bridge one hot morning in late June, Mexican authorities shooed away those who did not have an appointment through the app — including some Mexicans, even though the rule change is not supposed to apply to them.

“Let’s go, please,” one officer said to migrants who gathered at the Matamoros edge of the bridge. “Now.”

Advocates for immigrants say it is unlawful for officials to block migrants from crossing borders in search of protection — and unfair to presume they can easily navigate U.S. asylum law and appointments via smartphone apps. The process of requesting asylum is supposed to be simple, they said, because lives are at stake.

But advocates are powerless to navigate around the new rules until the court case is resolved.

In the sweltering heat one recent day, Christina Asencio, a lawyer with Human Rights First, tried to explain to migrants in the Matamoros camps how the system is supposed to work.

. . . .

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

Read Maria’s full article, one of the more balanced treatments I have encountered, at the link.

A few thoughts:

Even this fine article misses the biggest point: Most asylum seekers want to “do things the right way.” But there has been no “right way” for years because of the unlawful and bogus use of Title 42 by both the Trump and Biden Administrations. It’s still being unlawfully restricted by the arbitrary Biden Administration regulations. Yet, remarkably, asylum seekers are willing to risk their lives waiting in Mexico for an opportunity to apply in an orderly, legal manner under a broken and biased system unfairly “rigged” against them! THAT’S the “real big takeaway” about the reduction in unauthorized border crossings. It’s one that that nobody except experts and advocates are willing to fully acknowledge! Indeed, during the Title 42 charade, an asylum seeker’s only chance of getting into the system was to cross without authorization. Otherwise, they would have been summarily returned without any chance to present their claims.
Some asylum seekers will qualify for protection, some won’t. That’s what the legal, asylum system is supposed to determine — in a fair, expert, and timely manner. That our asylum system has become dysfunctional and ludicrously backlogged lies squarely with poor performance by Congress, the Executive, and the Courts, in many cases “egged on” by right-wing nativists’ myths and distortions. Blaming the victims — asylum seekers — for massive USG failures over decades is totally disingenuous!
Statistically, it’s true that most asylum applicants from the Southern Border do not achieve asylum under our current dysfunctional system. But, the question we should be asking is why aren’t more qualifying, given the horrible conditions in “sending countries” and the generous legal standards — including a presumption of future persecution based on past persecution — that are supposed to apply, but often don’t in practice.
For years, the Executive, through its captive EOIR “courts,” has been unfairly manipulating and intentionally misapplying the law, as well as misreading and ignoring evidence, to achieve unrealistically high asylum denial rates for applicants of color, particularly those arriving at our borders from Latin American and Haiti. See, e.g., https://immigrationcourtside.com/justice-betrayed-the-intentional-mistreatment-of-central-american-asylum-applicants-by-the-executive-office-for-immigration-review/; https://immigrationcourtside.com/appellate-litigation-in-todays-broken-and-biased-immigration-court-system-four-steps-to-a-winning-counterattack-by-the-relentless-new-due-process-army/. This continues to happen, as documented by the unusually large number of rebukes by Article III Courts (even some of the most conservative) of the flawed decision-making coming out of Garland’s broken EOIR. See, e.g., https://immigrationcourtside.com/2023/07/14/🌊-tsunami-of-bad-☠️-bia-decisions-hits-garlands-doj-wrong-on-nexus-4th-2-1-wrong-on-nta-4th-2-1-wrong-on-agfel-8th-wrong-on-past-political-per/.
One of the most egregious EOIR-led anti-asylum “scams” is abuse and misuse of the “nexus” requirement for asylum to send legitimate refugees back into harm’s way. See, e.g., immediately preceding reference. “Persecution” must relate to race, religion, nationality, membership in a particular social group, or political opinion. But, the asylum statute does NOT require that that be the sole or even the primary motivation for the persecution. It just has to be “at least one central reason.” And, usually, persecution is carried out by the persecutor for a variety of reasons. It’s called “mixed motive analysis” and EOIR Judges, particularly at the precedent-setting BIA, routinely ignore or mis-apply it to deny grantable claims.
Harm resulting from things like “work, poverty, natural disaster, and bad governments” does not automatically qualify an individual for asylum. But, contrary to what many suggest, neither do these circumstances preclude asylum. For example, while a “natural disaster” might not make an individual a “refugee” under law, if that individual were forced to live in a known danger zone or denied life-saving assistance at least in part because of religious, ethnic, or political identity, that WOULD qualify. Was the infamous “Kristallnacht” in Nazi Germany systemic persecution of Jews for ethic and religious reasons? Or was it “mere vandalism, random violence, and hooliganism?” I would say clearly the former. But, I can imagine today’s BIA attributing it to the latter, to deny protection to a large group of individuals. I adjudicated thousands of asylum cases as both a trial and an appellate judge during 21 years at EOIR. I found that harm where a “protected ground” was “at least one central reason” was the rule, not the exception as EOIR tries so hard to make it.
Other often “trumped up” methods EOIR uses for denying valid asylum claims include bogus “adverse credibility” findings; unreasonable “corroboration” requirements; fabricated “reasonable internal relocation” opportunities; nonsensical, ahistorical “changed circumstances” conclusions; ignoring or misconstruing expert testimony; “selective reading” or mis-reading of country background reports; coercive detention in substandard conditions; and restricting or limiting access to counsel. If you think this sounds like a national disgrace on “Garland’s watch,” you’re absolutely right!
Undoubtedly, under a properly functioning system, with true expert adjudicators and judges — those whose career experiences demonstrated sound scholarship and understanding of the life-threatening circumstances of asylum seekers and the inherent limitations of both the Asylum office and EOIR — many more asylum cases from those applying at the Southern Border and elsewhere would be granted. So, Government policies based largely on “deterrence” or on the self-fulfilling prophecy that “few will qualify” should be viewed as fatally flawed. Without a better EOIR and an asylum adjudication system run by well-qualified experts, we can’t possibly formulate rational and humane border policies or indeed workable immigration policies at all. Tragically, we’re a long way from that right now!

🇺🇸 Due Process Forever!

PWS

07-19-23

🤯🏴‍☠️ BIA BLUNDERS BUILD BACKLOG! — 4th Cir. (2-1) & 2d Cir. Continue To Call Out BIA’s Lawless, Anti-Immigrant Behavior In Dem Administration! — PLUS, BONUS COVERAGE — Commentary From Michelle Mendez & Me!😎

“Lady Injustice” has found a home at Garland’s dysfunctional EOIR!
Public Realm

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.ca4.uscourts.gov/opinions/221463.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-psg-political-opinion-and-cat-santos-garcia-v-garland

“Petitioner Christian Alberto Santos Garcia, a native and citizen of El Salvador, has twice travelled unlawfully into the United States — first in 2012, and again in 2016. In both instances, Garcia fled threats to his life and attacks carried out against him by the 18th Street Gang and the Salvadoran police. After seeking protection from removal before an immigration judge (the “IJ”) in 2016, Garcia was afforded relief — in the form of asylum, withholding of removal, and protection under the Convention Against Torture (the “CAT”) — by three separate IJ rulings. On each occasion, the Board of Immigration Appeals (the “BIA”) reversed the IJ rulings. Garcia, for his part, was removed to El Salvador in May 2022, and has awaited further developments in these proceedings from his home country. In this appeal, Garcia challenges and seeks reversal of three rulings made by the BIA — those being: (1) that the “particular social group” relied upon in connection with Garcia’s application for withholding of removal is not legally cognizable; (2) that Garcia was not persecuted in El Salvador on account of his political opinions; and (3) that Garcia failed to establish eligibility for CAT protection. As explained herein, we grant Garcia’s petition for review and reverse the BIA rulings in part, affirm them in part, and vacate them in part. We otherwise remand to the BIA for such further proceedings as may be appropriate.”

[Hats way off to pro bono publico counsel Jessica L. Wagner!]

Jessica Wagner
Associate
Gibson Dunn
D.C. Office
PHOTO: Gibson Dunn

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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https://www.ca2.uscourts.gov/decisions/isysquery/05b1e9ea-e5da-493a-8b94-45bc8e3d4757/3/doc/21-6043_opn.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca2-on-iac-prejudice-hardship-continuance-paucar-v-garland

“Petitioner Juan Pablo Paucar petitions for review of a January 22, 2021 Board of Immigration Appeals (“BIA”) decision (1) affirming an Immigration Judge’s denial of his application for cancellation of removal and (2) denying his motion to remand. The BIA rejected Paucar’s ineffective assistance of counsel claim, declined to remand for consideration of additional hardship relating to his cancellation application, and declined to remand to await adjudication of his U visa application. Paucar argues that the BIA (1) applied an incorrect standard when reviewing his ineffective assistance of counsel claim, (2) overlooked and mischaracterized his new hardship evidence, and (3) failed to follow precedent when denying his request for remand while awaiting the adjudication of his U visa application. We are persuaded by Paucar’s arguments. Accordingly, we GRANT Paucar’s petition for review, VACATE the BIA’s decision, and REMAND for further proceedings consistent with this opinion.”

[Hats off to Prof. Lindsay Nash and Paige Austin!]

Lindsay Nash
Associate Professor of Law
Co-Director, Kathryn O. Greenberg Immigration Justice Clinic
Cardozo Law
PHOTO: Cardozo Law

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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In Santos-Garcia v. Garland, the BIA’s 6-year quest to wrongfully deny protection to Santos has been thwarted, for now. But, the matter remains far from finally resolved, even though an IJ has now properly granted Santos relief three separate times, only to be wrongly reversed by the BIA on each occasion!

Rather than insuring that individual justice is done, the BIA has acted to promote injustice, create needless delay, and demoralize IJ’s who are getting it right! In the meantime, the respondent has been removed to the country where he has a well-founded fear of persecution to await his fate. This is because the 4^thCircuit denied a stay they should routinely have granted in an exercise of truly horrendous judicial misjudgment.

Now, the court majority fecklessly pontificates about the need for timely resolution (you’ve got to be kidding) while hinting, but not requiring, that the “Gang That Can’t Shoot Straight” should return the respondent now. Don’t hold your breath!

Here are three of my favorite quotes from Judge King’s majority opinion in Santos Garcia v. Garland.

Put simply, the BIA declined to “interact seriously” with the record before it in reviewing Garcia’s claim for CAT protection, and its failure in that regard requires a remand.

Should we not expect a supposed “expert tribunal” like the BIA should be to “seriously interact” with the record in life-or-death cases? Why aren’t Dems in Congress and everywhere else “all over Garland like a cheap suit” to stop this kind of judicial misbehavior in his “wholly owned courts?”

In closing, we recognize that Garcia’s removal proceedings have languished before the IJ and the BIA — and now this Court — for more than six years, leaving him in limbo and presently in harm’s way in El Salvador. We are also mindful that Garcia was only 15 years old when he sought to protect his cousin from the 18th Street Gang’s advances, setting off more than a decade of hardship and uncertainty. With that, we emphasize the “strong public interest in bringing [this] litigation to a close . . . promptly.” See Hussain v. Gonzales, 477 F.3d 153, 158 (4th Cir. 2007). And although we do not direct the affirmative award of any relief, we acknowledge the compelling case for protection that Garcia has made. If, on remand, the BIA affirms either the IJ’s award of withholding of removal or the award of CAT relief, the DHS and the Attorney General should swiftly “facilitate [Garcia’s] return to the United States” from El Salvador. See Ramirez v. Sessions, 887 F.3d 693, 706 (4th Cir. 2018) (directing the government to facilitate previously removed petitioner’s return to the United States pursuant to an Immigration and Customs Enforcement Policy Directive). Moreover, if the BIA determines that Garcia’s “presence 24 is necessary for continued administrative removal proceedings” on remand, the authorities should see to his prompt return. Id.

So, after six years bouncing around the system and three separate grants of asylum by an Immigration Judge, the 4^th Circuit essentially “begs” the BIA to get it right this time! This is after the court itself curiously denied the respondent’s application for stay notwithstanding the rather obvious risk of irreparable harm (e.g., death, torture) and the equally obvious substance of his timely filed appeal.

What a way to run a “justice system” (or, in this case, not)! Both the Executive and the Judiciary should be totally embarrassed by their gross mishandling of this case! But, I see resolve from neither Branch (nor the ever-absent Legislature) to put an end to this systemic mockery of due process, fundamental fairness, and simple common sense!

Here, discovering the BIA’s error in rejecting Garcia’s proposed social group of “young male family members of his cousin Emily” is no herculean task. Social groups based on family ties have been consistently approved by this Court as providing a sound basis for asylum or withholding of removal applications. See, e.g., Salgado-Sosa, 882 F.3d at 457; Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015); Cedillos-Cedillos v. Barr, 962 F.3d 817, 824 (4th Cir. 2020). Indeed, our pivotal 2011 decision on the matter — Crespin-Valladares v. Holder — recognized in no uncertain terms that “the family provides a prototypical example of a particular social group.” See 632 F.3d at 125. In tossing out Garcia’s proposed social group in March 2021, however, the BIA largely disregarded our precedent, providing no citation to or discussion of Crespin-Valladares. The BIA instead relied chiefly on its own then-existing precedent, set forth in the Attorney General’s 2019 L-E-A- II decision. As described above, L-E-A- II — which was vacated by the Attorney General in June 2021 and thus “lacks legal force” — “conflicted with [this Court’s] well-established precedent” recognizing families as cognizable social groups. See Perez Vasquez v. Garland, 4 F.4th 213, 227 n.11 (4th Cir. 2021). Surprisingly, the BIA paid little mind to L-E-A- II’s vacatur in its Reconsideration Order of 2022, doubling down on its earlier “particular social group” ruling and again inexplicably declining to apply Crespin-Valladares and its progeny.7

Notably, the “rule of Crespin-Valledares” — my case where the BIA erroneously reversed me — continues to have an impact! A dozen years post-Crespin and the BIA is still getting it wrong! Why are these guys still on the appellate bench, setting negative precedents and ignoring favorable precedents? In a Dem Administration? Seriously!

Michelle N. Mendez, ESQ
Director of Legal Resources and Training
National Immigration Project, National Lawyers Guild
PHOTO: NIPNLG

My friend Michelle Mendez, Director of Legal Resources and Training over at National Immigration Project offered some commentary on the Second Circuit’s decision in Paucar v. Garland.

Congratulations and thank you for your superb work, Lindsay! This case offers so much and seems like the CA2 delivered.

Here are a couple of excerpts from the decision that stood out to me:

“In a January 14, 2020 written decision, the BIA dismissed Paucar’s appeal and denied his motion to reopen and remand. Three months later—after Paucar filed a petition to review the BIA’s decision in this Court—the BIA sua sponte reinstated Paucar’s appeal and motion, noting that it had not “consider[ed] all of the evidence submitted by [Paucar].” Id. at 124.” [Do we know why the BIA sua sponte reinstated the appeal and motion?] LINDSAY NASH RESPONDS: “The BIA only sua sponte reopened the appeal and motion because Paige Austin (co-counsel extraordinaire, copied here) filed a PFR and identified the missing evidence early on, prompting OIL to agree to a remand.”

“Finally, the BIA concluded that remand to await the adjudication of Paucar’s U visa petition was unnecessary because Paucar could request a stay of removal from USCIS.” [Does anyone know what the BIA was referencing here? Later on the decision says DHS and not USCIS so perhaps it is a typo.] LINDSAY NASH RESPONDS: “I think that the reference to USCIS that you flag was a typo and that it should have said DHS.”

“We conclude that the BIA should have applied the Sanchez Sosa factors in considering Paucar’s motion to remand as it pertains to his U visa or explained its reasoning for not doing so. [This is the first time that the CA2 answers the question of whether Sanchez Sosa applies to motions to remand or reopen filed during the pendency of an appeal where the noncitizen did not previously request such a continuance before the IJ].”

There is a great discussion on the BIA improperly applying Coelho (which they love to throw around in correctly) to the prejudice assessment and a paragraph discussing how the CA2 and other courts of appeals view unpublished BIA decisions.

Again, really great work and outcome! Thanks for sharing with all of us, Dan!

For a case distinguishing Coelho and applying a “reasonable likelihood of success” standard to a MTR, see Matter of L-O-G-, 21 I&N Dec. 436 (BIA 1996), written by me! The BIA ignores it or misapplies it in many cases. But, it’s still “good law!” Just another instance in which the BIA evades “older” precedents that could produce favorable outcomes for respondents!

In this case the IJ denied the respondent’s applications and ordered removal in May 2018, five years ago. Nobody contests that the respondent was ineffectively represented at that time.

Through new pro bono counsel, respondent Paucar filed a timely appeal with the BIA. Less than two months following the IJ’s decision, new counsel filed a copiously documented motion to the BIA to remand for a new hearing because of the ineffective representation.

Rather than promptly granting that motion for a new hearing, the BIA set in motion five years of dilatory effort on their part to avoid providing a hearing. Obviously, several new merits hearings could have been completed during the time occupied by the BIA’s anti-immigrant antics!

Along the way, according to the Second Circuit, the BIA “improperly imposed a heightened standard,” “erred by discounting the impact of counsel’s ineffectiveness,” “improperly relied] on the IJ’s tainted findings,” “overlooked and mischaracterized the record evidence,” “erred by overlooking or mischaracterizing evidence,” “overlooked and mischaracterized material evidence,” and failed, without explanation, “to follow its own precedent.” What else could they have screwed up? The file number?

This would be highly unacceptable performance by ANY tribunal, let alone one entrusted with making life or death decisions about human lives and whose decisions in some instances have been unwisely insulated from effective judicial review by Congress. Individuals appearing before EOIR deserve better! American justice deserves better! How long will AG Garland continue to get away with failing to “clean house” at America’s most dysfunctional court system and bring order, due process, fundamental fairness, legal expertise, and judicial professionalism to this long-overlooked, yet absolutely essential, foundation of our entire U.S. justice system!

Wasting time and resources looking for bogus ways to deny that which better, more expert, fairer judges could easily grant his had a huge negative impact on the EOIR backlog and is a driver of legal dysfunction throughout the immigration bureaucracy, and indeed throughout our entire legal system, all the way up to and including the Supremes!

Start by fixing “that within your control!” That’s a simple message that Dems, unfortunately, don’t seem to get when it comes to immigration, human rights, and racial justice in America!

🇺🇸 Due Process Forever!

PWS

07-14-24

💡A Good Idea On Enhancing Refugee Processing, But Administration Doesn’t Seem That Serious About “Leveraging” It To Really Help!

From Asylum Access & Reuters:

#US is looking to open a resettlement pathway to #refugees in #Mexico who arrived before June 6, 2023.

“The plan under discussion would allow qualifying migrants approved for refugee status to enter via the U.S. refugee resettlement program, which is only available to applicants abroad (…) refugees receive immediate work authorization and government benefits such as housing and employment assistance”

Read more below from Reuters

https://lnkd.in/gDQwYerd

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

This is a fine idea, albeit one that many experts recommended that the Biden Administration implement in a robust way upon taking office in January 2021.

If properly and generously carried out, it could 1) stop the “endless wait” for refugees stuck in Mexico; 2) relieve border pressure; 3) avoid the backlogs at EOIR and the Asylum Office; 4) admit individuals as refugees with immediate work authorization and a clear part to green cards and citizenship; 5) pave the way for more robust refugee processing elsewhere in the Western Hemisphere; 6) avoid the political stunts of GOP nativist governors; and 7) be much harder for restrictionists to challenge in court.

Past programs similar to this in the Western Hemisphere (with the exceptions of Cubans in the 1960s) have largely failed because they have been too 1) limited, 2) slow, and 3) bureaucratized.

From the Reuters article, it appears to me that the Administration is ready to repeat all three of the foregoing mistakes, assuming the program even gets off the ground at all.

It’s definitely a good idea with promise. But realizing that promise depends on the details of implementation. In this case, they don’t sound promising. Stay tuned!

🇺🇸Due Process Forever!

PWS

07-13-23

🇺🇸🗽⚖️🎇 JULY 4, 2023 — “On True American Patriotism” By Robert Reich In Substack! — “The true meaning of patriotism is the opposite of Trump’s exclusionary White Christian Nationalism.”

Naturalization Ceremony
USG Official Photo
Public Domain

https://open.substack.com/pub/robertreich/p/what-is-the-true-meaning-of-patriotism?r=330z7&utm_medium=ios&utm_campaign=pos

Friends,

On Saturday, Donald Trump conducted the second formal rally of his campaign — in Pickens, South Carolina, where an estimated 50,000 turned up under the scorching sun to hear him.

There, he advanced his version of patriotism based on White Christian Nationalism.

He began by celebrating the town’s namesake, Francis Pickens, who was governor of South Carolina when it was the first to secede from the Union on the eve of the Civil War. Trump assured the crowd he wouldn’t let “them” change the town’s name.

He commended the Supreme Court for rejecting affirmative action “so someone who has not worked as hard will not take your place.”

He saluted the court’s decision to overrule Roe v. Wade so “radical left Democrats will not kill babies.”

He promised to stop “men competing in women’s sports” and prevent classroom teachers from teaching the “wrong” lessons about sexuality or history.

He condemned foreign governments that “send” over the border “people in jails and insane asylums” and promised to deny entry to “all communists and Marxists.”

And he declared America’s most dangerous opponents not to be Russia, China, or North Korea but “enemies within” America.

Rubbish.

The true meaning of patriotism is the opposite of Trump’s exclusionary White Christian Nationalism.

America’s moral mission has been toward greater inclusion — providing equal rights to women, Black people, immigrants, Native Americans, Latinx, LGBTQ+, Muslim, Jewish, atheist, and agnostic.

True patriots don’t fuel racist, religious, or ethnic divisions. Patriots aren’t homophobic or sexist.

Nor are patriots blind to social injustices — whether ongoing or embedded in American history. They don’t ban books or prevent teaching about the sins of the nation’s past.

True patriots are not uncritically devoted to America. They are devoted instead to the ideals of America — the rule of law, equal justice, voting rights and civil rights, freedom of speech and assembly, freedom from fear, and democracy.

True patriots don’t have to express patriotism in symbolic displays of loyalty like standing for the national anthem and waving the American flag.

They express patriotism in taking a fair share of the burdens of keeping the nation going — sacrificing for the common good.

This means paying taxes in full rather than lobbying for lower taxes or seeking tax loopholes or squirreling away money abroad.

It means refraining from making large political contributions that corrupt American democracy.

It means blowing the whistle on abuses of power even at the risk of losing one’s job.

And volunteering time and energy to improving one’s community and country.

Nor is patriotism found in baseless claims that millions of people vote fraudulently. Or in pushing for laws that make it harder for people to vote based on the Big Lie that the 2020 election was stolen.

Patriotism lies instead in strengthening democracy — defending the right to vote and ensuring more Americans are heard.

Patriots understand that when they serve the public, their responsibility is to maintain and build public trust in the institutions of democracy.

They don’t put loyalty to their political party above their love of America. They don’t support an attempted coup.

They don’t try to hold onto power after voters have chosen not to reelect them. They don’t make money off their offices.

When serving on the Supreme Court, they recuse themselves from cases where they may appear to have a conflict of interest. They don’t disregard precedent to impose their own ideology.

America’s problem is not as described by Trump and his White Christian Nationalism — that the nation is losing its whiteness or dominant religion, that too many foreigners are crossing its borders, that men are competing in women’s sports or teachers are not celebrating the nation’s history.

America’s problem is that too many Americans — including its lawmakers — are failing to understand what patriotism requires.

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

Happy July 4!😎🇺🇸

🇺🇸 Due Process Forever!

PWS

07-04-23

🇺🇸⚖️🗽 THE 14TH AMENDMENT IS A GENIUS 🧠 PROVISION THAT IS AT THE HEART OF AMERICAN DEMOCRACY — That’s Why White Nativist Racists Like Trump, DeSantis, & Their GOP Supporters Are Baselessly Attacking It! 🏴‍☠️🤮 — Jamelle Bouie in The NY Times! — “If birthright citizenship is the constitutional provision that makes a multiracial democracy of equals possible, then it is no wonder that it now lies in the cross hairs of men who lead a movement devoted to unraveling that particular vision of the American republic.”

Ron DeSantis Dave Grandlund PoliticalCartoons.com Republished under license Ron DeSantis and Donald Trump are “campaigning” on an agenda of racism, hate, and White Supremacist grievance not seen since the late Gov. George Wallace. Yet, mainstream media has largely “normalized” that which would have been unacceptable and unthinkable only a few years ago! — Ron DeSantis
Dave Grandlund
PoliticalCartoons.com
Republished under license
Ron DeSantis and Donald Trump are “campaigning” on an agenda of racism, hate, and White Supremacist grievance not seen since the late Gov. George Wallace. Yet, mainstream media has largely “normalized” that which would have been unacceptable and unthinkable only a few years ago!

https://www.nytimes.com/2023/06/30/opinion/birthright-citizenship-trump-desantis.html?smid=nytcore-ios-share&referringSource=articleShare

Jamelle concludes:

. . . .

The birthright citizenship clause of the 14th Amendment, based on similar language found in the Civil Rights Act of 1866, was a direct response to and a rebuke of [chief Justice] Taney’s reasoning [in Dred Scott]. Having won the argument on the battlefield, the United States would amend its Constitution to establish an inclusive and, in theory, egalitarian national citizenship.

The authors of the 14th Amendment knew exactly what they were doing. In a country that had already seen successive waves of mass immigration, they knew that birthright citizenship would extend beyond Black and white Americans to people of other hues and backgrounds. That was the point.

Asked by an opponent if the clause would “have the effect of naturalizing the children of Chinese and Gypsies born in this country,” Senator Lyman Trumbull, who helped draft the language of birthright citizenship in the Civil Rights Act, replied “Undoubtedly.” Senator John Conness of California said outright that he was “ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others.”

In 1867, around the time Congress was debating and formulating the 14th Amendment, Frederick Douglass delivered a speech in Boston where he outlined his vision of a “composite nationality,” an America that stood as a beacon for all peoples, built on the foundation of an egalitarian republic. “I want a home here not only for the Negro, the mulatto and the Latin races; but I want the Asiatic to find a home here in the United States, and feel at home here, both for his sake and for ours,” Douglass said. “The outspread wings of the American Eagle are broad enough to shelter all who are likely to come.”

If birthright citizenship is the constitutional provision that makes a multiracial democracy of equals possible, then it is no wonder that it now lies in the cross hairs of men who lead a movement devoted to unraveling that particular vision of the American republic.

Embedded in birthright citizenship, in other words, is the potential for a freer, more equal America. For Donald Trump and Ron DeSantis, that appears to be the problem.

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

Read the rest of Jamelle’s outstanding article and get the real story about the 14th Amendment. It has nothing to do with the racist lies and distortions spewed forth by Trump, DeSantis, and their fellow GOP white supremacists!

As we know, Congress has failed to address the realities of immigration since the enactment of IRCA in 1986. That has inevitably led to a large, disenfranchised population of undocumented residents — essential members of our society, yet deprived of political power and the ability to reach their full potential by their “status.” Consequently, they are subject to exploitation.

Nevertheless, this phenomenon would be much more serious without the “genius of the 14th Amendment.” Notwithstanding the failure of the political branches to address immigration in a realistic manner, the overwhelming number of the “next generation” of that underground population are now full U.S. citizens with the ability to participate in our political system and otherwise assert their full rights in our society.

Thus, because of the 14th Amendment we have avoided the highly problematic phenomenon of generations of disenfranchised Americans, essentially “stateless individuals,” forced into an underground existence. It’s not that these individuals born in the U.S., who have known no other country, would be going anywhere else, by force or voluntarily. Nor would it be in our best interests to degrade, dehumanize, and exclude generations of our younger fellow citizens as Trump, DeSantis, and the GOP far right extremist crazies advocate.

Additionally, in contradiction of traditional GOP dogma about limited government, the Trump/DeSantis charade would spawn a huge new and powerful “citizenship determining bureaucracy” that almost certainly would work against the poor, vulnerable, and individuals of color in deciding who “belongs” and who doesn’t and what documentation suffices. How many adult American citizens today who have deceased parents could readily produce definitive documentation of their parents’ citizenship?

So, notwithstanding GOP intransigence, their vile and baseless attacks on the 14th Amendment, and the lack of political will to solve and harness the realities and power of human immigration, the 14th Amendment is at work daily, solving much of the problem for us and making us a better nation, sometimes in spite of our Government’s actions or inactions. And, it performs this essential service in a manner that is relatively transparent and minimally bureaucratic for most.

🇺🇸 Due Process Forever!

PWS

07-01-23

⚖️😎 THE BLUM REPORT: Roberto Covers A “212(c) Redux” In Houston, Highlighting Garland’s Disturbing Failure to “Harvest The Low Hanging Fruit” 🍒 @ EOIR!

Roberto Blum, Esquire, reports from Houston:

Hello Judge, it has been a while since I reported from Houston. Although I have not reported, I have kept reading (and learning from) your writings. So it was a pleasant surprise when I recently came across some BIA decisions and saw your name written on them.

They are Matter of Arreguin, 21 I&N Dec. 38 (BIA 1995) and Matter of Fuentes-Campos, 21 I&N Dec. 905 (BIA 1997).

You see, I was preparing for a individual hearing on the merits, where the client, a 65-year old Mexican national, who has lived in the U.S. since about 1979, and was admitted as a Legal Permanent Resident in 1991, was found to be deportable under INA section 237(a)(2)(b)(i) due to a controlled substance conviction from 1994. His relief: Section 212(c).

The saga started in early January 2012, when he was encountered by ICE, was detained, and placed into removal proceedings. The firm I work for began to represent him at that point. While waiting for his detained merits date, the client suffered a medical condition and was not expected to survive, so ICE released him to family members, essentially so he wouldn’t die in their custody. However, he did not die, he survived, and made a full recovery.

Fast forward to today. Ever since his release, his case got stuck in the “aimless docket reshuffling” that you so often write about. It was not until today, June 28, 2023, that he finally got his day in court for an immigration judge (IJ) to consider his case.

Not knowing whether the assigned IJ or DHS trial attorney (TA) would have any experience with Section 212(c) because this is an old type of relief that is not very common anymore and also due to the hostility often encountered at Houston EOIR, I prepared for the worst case scenario, and feared that the client might not get a fair shake.

Fortunately on the day of trial, I saw an experienced TA was representing the government. Before the IJ went on the record the TA and I discussed the case, and the TA told me that he did not have any issues with the case. I asked if he would stipulate to a grant of relief and he said yes, but warned the IJ might still want to take testimony. The IJ came on the record shortly thereafter, and asked if we had any agreements, at which point I told the IJ that we had an agreement for stipulation to a grant of relief because the evidence submitted was sufficient to carry our burden. The TA confirmed our agreement, and the IJ responded that she had reviewed the record, and also agreed that the client was eligible and deserving of relief because of his long-time physical presence, the conviction was very old, and the client had not had any recent criminal history.

In less than 5 minutes, this case that had been pending over 11 years and 5 months (or about 4,184 days), was resolved by agreement of all parties! The client was stunned and did not even know what happened. He did not expect it to be this fast after waiting so long. The client confided in me that his mother passed away a few days ago in Mexico, and he had been very worried because all of his witnesses (family members) went to Mexico to attend the funeral and were not available to testify on his behalf. I remembered something my grandmother would tell me as a child, that when a close loved one dies, they go to heaven and become your guardian angel, so I thought… just maybe… his mother had been his guardian angel today and whispered in the TA and IJ’s ear before the hearing.

In all seriousness, I ask myself (as this is not the only case I have had that has been pending for over 10 years, only to be resolved by stipulation at the final hearing in less than 5 minutes) how much $$$ is the government spending to fight a case like this for more than a decade–only for it to be resolved in 5 minutes of discussion. (Of course if it had not been resolved favorably, we would have continued litigating the case and appealed to the BIA, something that under current wait times would last another 3 or more years and who knows how much more resources). I imagine that between the IJ and TA’s salary, the court staff, support staff, and even utilities of operating a court, the price tag might be well above $100,000 for a case like this. This is not sustainable.

I asked the client for permission to share the photo we took after the hearing, and if I get the permission I will share it with you.

I am glad the case was resolved favorably by agreement, however, I was ready to use your cases to help defend my client.

DPF!

RB

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

Love this, Roberto! Makes my day! Good precedents, great scholarship, collegiality, good judging, teamwork combining to make the system work in a just and humane manner! Thanks for forwarding and DPF!

Matter of Arreguin, written by the late Judge Fred W. Vacca, was one of the first precedents issued, in Volume 21 of the I&N Dec., during my time as BIA Chair. That Volume also reflected the “new style” of BIA precedent format with the “bound volume” citation and pagination available in the “slip opinion” and the individual author of the majority and separate opinions clearly identified.

Always gratifying to see that the now “old” precedents turned out by the long-gone “Schmidt Board” still have something to say and teach. It was a time when intellectual dialogue and meaningful debate of important issues was encouraged, rather than being discouraged and avoided as has happened in today’s “assembly line culture” at EOIR!

Additionally, Roberto’s report raises a continuing question. What if rather than misusing EOIR as a “deterrent,” and thereby engaging in “Aimless Docket Reshuffling,” Garland and the other “powers that be within the Administration” returned EOIR to its original purpose of insuring due process, fundamental fairness, and best, most efficient judicial practices?

I’m sure there is lots of “low hanging fruit,” 🍒exemplified by this case, that could be prioritized for quick disposition or reassigned to a better-functioning version of USCIS for more efficient completion. Indeed, with guidance and some institutional discipline by a “Better BIA” of true asylum expert Appellate Judges, I’d guess that the majority of the hundreds of thousands of asylum cases pending for more than two years could be granted without full hearings, either at EOIR or a better functioning Asylum Office. Additionally, many of the long-pending “Non-LPR Cancellation Cases” now clogging the EOIR docket could be more efficiently handled by a better functioning and better staffed USCIS.

It appears that nobody with any realistic vision of what the future could and should look like, and an appreciation of both the cosmic importance and great positive potential of a functional EOIR, has paid any attention to 1) the composition of the EOIR backlog, 2) the abundant opportunities for positive resolutions that would benefit everyone, 3) the lack of quality control at today’s EOIR, and 4) the glaring absence of practical problem solving skills among senior EOIR management and the BIA (not to mention DOJ management and leadership in this area, such as it is).

🇺🇸 Due Process Forever!

PWS

06-29-23

🏴‍☠️ FOURTH FINDS BIA’S NEXUS ABUSE CONTINUES UNDER GARLAND 🤮 — Dem AG Permits His “Courts” To Engage In Specious “Any Reason To Deny” Misconduct That Artificially Suppresses Asylum Grants! ☠️ — Marvin A.G. v. Garland (published)!

Four Horsemen — BIA Asylum Panel In Action — Garland, a former Article III Appeals Judge, employs appellate judges who routinely misconstrue asylum law to wrongfully deny legal protection, thus artificially suppressing what should be much higher success rates for asylum seekers in a functional legal system properly applying asylum law! The law and precedents establishing a properly generous application of the well-founded fear standard for asylum are routinely ignored or disingenuously avoided by Garland’s biased anti-asylum “courts!” BIA panels routinely butcher “mixed motive” cases to deny asylum to deserving refugees!
Albrecht Dürer, Public domain, via Wikimedia Commons

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.ca4.uscourts.gov/opinions/221499.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-nexus-marvin-a-g-v-garland

“Upon our review, we conclude that the Board abused its discretion by applying an incorrect legal standard in its nexus analysis for the petitioner’s asylum and withholding of removal claims. We also hold with regard to these two claims that the Board abused its discretion by arbitrarily disregarding the petitioner’s testimony about the threat of future persecution. However, we reject the petitioner’s argument that the Board abused its discretion with regard to his CAT claim. The Board provided specific reasons for finding the petitioner’s testimony insufficient to meet his burden of proof, and appropriately evaluated the evidence under the futility exception. We thus grant in part and deny in part the petition for review, vacate in part the Board’s order denying reconsideration, and remand for further proceedings consistent with this opinion. … We thus conclude that the IJ erred by applying an incorrect standard in the nexus analysis, and that the Board abused its discretion because it “compounded the [IJ’s] error by failing to recognize it.” Perez Vasquez, 4 F.4th at 223. In addition, both the IJ and the Board failed to address substantively the petitioner’s testimony about the threat of future persecution. … The Board thus applied the incorrect legal standard for the nexus analysis and arbitrarily disregarded relevant evidence. Accordingly, we hold that the Board abused its discretion in denying the petitioner’s motion to reconsider his asylum and withholding of removal claims, and we remand for the agency to “meaningfully consider [the petitioner’s] evidence” under the correct legal standard.”

[Hats off to Eric Suarez!]

Eric Suarez ESQUIRE
Partner
Sanabria & Associates
PHOTO: Firm website

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

EOIR judges and the BIA routinely butcher “mixed motive” cases like this one! This endemic problem at EOIR badly distorts asylum adjudication nationwide, produces false statistics suppressing the significant number of wrongful asylum denials (particularly targeting asylum applicants of color for unfair, unjust adjudications), and refutes the Article III’s disingenuous treatment of the BIA as an “expert tribunal” entitled to Chevron deference. In that way, it seriously undermines the integrity of our entire judicial system!

In this case, counsel specifically pointed our the BIA’s errors in a timely motion to reconsider, only to have it “blown off” with basically fabricated boilerplate BS!

The petitioner appealed the IJ’s decision to the Board. After the Board affirmed the IJ’s conclusions and dismissed the appeal, the petitioner filed a motion to reconsider. The Board denied the motion, concluding that the IJ did not clearly err in its nexus determination, and reiterating the IJ’s conclusion that family membership was “incidental or subordinate” to the other reasons the gang targeted the petitioner, namely, for monetary gain and gang recruitment.

Another of my favorite parts of this decision addresses the BIA’s pronounced tendency to invent specious “non-protected” reasons for the persecution and then dishonestly characterize that at the sole or primary motivations.

The Board’s cursory conclusion that the gang had targeted the petitioner for “monetary gain and gang recruitment” does not remedy the Board’s error. Indeed, we fail to see how family membership necessarily was subordinate to these other motivations when the sole basis the petitioner presented for his fear of future persecution was that the gang would target him due to his relationships with his siblings.

Friends, this is NOT the competent, impartial, professional, expert adjudication that due process and fundamental fairness requires! Nor is it the improvement from Trump’s institutionalized White Nationalist approach to asylum and immigration promised by Biden and Harris during their 2020 campaign! It’s basically a “bait and switch” by Dems! Additionally, it sets a horrible example for Immigration Judges (many of whom lack relevant expertise in asylum law) and Asylum Officers nationwide.

Garland’s has refused to “clean house” and employ solely competent, unbiased, impartial asylum experts as BIA Appellate Immigration Judges, selected on a merit basis from among those possessing the requisite practical asylum expertise, temperament, and widely-acknowledged qualifications for these critically important judgeships.

Garland’s failure to perform his job, in turn, is having a deleterious effect on every aspect of our asylum, protection, and immigration systems and is undermining the entire rule of law. It also promotes false narratives about asylum seekers and inhibits effective representation of this vulnerable and deserving group. It’s wrong; it’s inexcusable, and it’s a “big deal!’

I leave you with this thought from an expert who actually practices before EOIR and understands what competent asylum adjudication should be:

We really do need better judges at the BIA. [Hope that this] decision that will make a dent in their current dysfunction.

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges — Maybe HE should be in charge of selecting and training BIA Appellate Immigration Judges!

Or as my Round Table colleague Hon. “Sir Jeffrey” Chase suggests:

Maybe the Board should read my article on the proper test for nexus:

https://www.jeffreyschase.com/blog/2021/12/21/the-proper-test-for-nexus1

Great idea! But, don’t hold your breath!

SeniorCircuit Judge Barbara Milano Keenan wrote the opinion, in which Judge Thacker and Judge Heytens joined.

🇺🇸 Due Process Forever!

PWS

06-28-23

☹️ WORLD REFUGEE DAY 2023 (JUNE 20) IN AMERICA: More Asylum Seekers Denied Access; Flubbed Resettlement; Kids Face Court Alone; NGOs Left To Pick Up Slack!

Kids are among the many groups of refugees and asylum seekers ill-served by the Biden Administration’s policies and performance. “World Refugee Day 2023” is a rather grim reminder of America’s failure to live up to its obligations to the world’s most vulnerable!
Creative Commons License

ACCESS DENIED

Hamed Aleaziz reports for the LA Times:

https://apple.news/AnR6bRRRoSxm4nMAHyNOLXQ

A new Biden administration policy has dramatically lowered the percentage of migrants at the southern border who enter the United States and are allowed to apply for asylum, according to numbers revealed in legal documents obtained by The Times. Without these new limits to asylum, border crossings could overwhelm local towns and resources, a Department of Homeland Security official warned a federal court in a filing this month.

The new asylum policy is the centerpiece of the Biden administration’s border efforts.

Under the new rules, people who cross through a third country on the way to the U.S. and fail to seek protections there are presumed ineligible for asylum. Only people who enter the U.S. without authorization are subject to this new restriction.

The number of single-adult migrants who are able to pass initial screenings at the border has dropped from 83% to 46% under the new policy, the Biden administration said in the court filing. The 83% rate refers to initial asylum screenings between 2014 and 2019; the new data cover the period from May 12, the first full day the new policy was in place, through June 13.

Since the expiration of Title 42 rules that allowed border agents to quickly turn back migrants at the border without offering them access to asylum, the administration has pointed to a drop in border crossings as proof that its policies are working.

But immigrant advocates and legal groups have blasted Biden’s new asylum policy, arguing that it is a repurposed version of a Trump-era effort that made people in similar circumstances ineligible for asylum. (Under Biden’s policy, certain migrants can overcome the presumption that they are ineligible for asylum.) The ACLU and other groups have sought to block the rule in federal court in San Francisco, in front of the same judge who stopped the Trump policy years ago.

The new filing provides the first look at how the Biden administration’s asylum policy is affecting migrants who have ignored the government’s warnings not to cross the border.

“This newly released data confirms that the new asylum restrictions are as harsh as advocates warned,” said Aaron Reichlin-Melnick, policy director at the American Immigration Council. “The data contradicts conservative attacks on the rule for being too lenient. Less than 1 in 10 people subject to the rule have been able to rebut its presumption against asylum eligibility.”

. . . .

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

Read Hamed’s full story at the link.

None of the statistics cited in the article actually give a full picture, since the don’t account for 1) families, 2) children, and 3) those processed at ports of entry using the highly controversial “CBP One App.” Nor do they give insights into what happens to those denied access to the asylum adjudication system.

As Aaron Reichlin-Melnick points out, increased rejections of legal access are exactly what experts, including our Round Table of Former Immigration Judges, predicted in vigorously opposing the Administration’s ill-advised regulatory changes. See, e.g., https://immigrationcourtside.com/2023/03/27/⚔️🛡-round-table-joins-chorus-of-human-rights-experts-slamming-biden-administrations-abominable-death-to-asylum-seekers-☠️-proposed/.

In the article, DHS official Blas Nuñez-Neto babbles on about the wonders of mindless extralegal enforcement as a “deterrent.” In a classic example of disingenuous misdirection, Nuñez-Neto appears to suggest that “success” in implementing asylum laws should be measured in terms of the number of individuals denied access or discouraged from applying.

Actually, success in implementing asylum laws should be measured solely by whether 1) all asylum applicants regardless of status or where they apply are treated fairly and humanely; and 2) those eligible for asylum under a properly generous, protection-focused application of asylum laws are actually granted asylum in a timely manner complying with due process. By those measures, there is zero (O) evidence that the Biden Administration’s approach is “successful.”

Moreover, Nuñez-Neto’s comments and much of the media focus skirt the real issue here. Border apprehensions have decreased because asylum seekers in Northern Mexico appear to be “waiting to see” if the “CBP One App System” at ports of entry actually offers them a fair, viable, orderly way of applying for asylum. In other words, does the Biden Administration’s legal asylum processing system have “street credibility?”

So far, CBP One and DHS appear determined to “flunk” that test; the App continues to be plagued with technical and access glitches, and the numbers of appointments available is grossly inadequate to meet the well-known and largely predictable demand.

If the border lurches out of control in the future, it probably will be not the fault of legal asylum seekers. Rather, it will be caused by poorly-conceived and legally questionable Biden “deterrence policies” and the restrictionist politicians (in both parties, but primarily the GOP) who are “egging them on.” That is, an Administration unable to distinguish its friends from its enemies and unwilling to develop a comprehensive strategy for dealing with the inevitably of refugee flows by creatively and positively using and “leveraging” the ample (if imperfect) existing tools under our legal system.

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ADMINISTRATION’S FLUBBED RESETTLEMENT (NON) EFFORT EMPOWERS GOP WHITE NATIONALISTS, VEXES PROGRESSIVE DEMS

Nick Miroff & Joanna Slater report for WashPost:

NEW YORK — On the fourth day of his new life in New York City, Antony Reyes set out from the opulent lobby of Manhattan’s Roosevelt Hotelwith an empty wallet and the address of a juice bar on Broadway possibly offering some work.

Reyes had been staying at the crowded hotel-turned-emergency service center, hunting odd jobs during the day along with other newly arrived Venezuelans who navigated the streets of midtown using “Las Pantallas”— the Screens (a.k.a. Times Square) as a landmark.

“I just want to work,” Reyes said in Spanish. “I didn’t come here to be a burden on anyone.”

Reyes, 23, was among the tens of thousands of migrants who rushed to cross the U.S.-Mexico border ahead of May 11, when the Biden administration lifted the pandemic policy known as Title 42. The largest group were Venezuelans, who have been arriving to the United States in record numbers since 2021.

Unlike previous waves of Latin American immigrants who gravitated to communities where friends and family could receive them, the most recent Venezuelan newcomers tend to lack those networks in the United States. Many have headed straight to New York, whose shelter system guarantees a bed to anyone regardless of immigration status.

City officials say they are housing more than 48,000 migrants across an array of hotels, dormitories and makeshift shelters that now spans 169 emergency sites.

New York has spent $1.2 billion on the relief effort since last summer. The ballooning costs have left Mayor Eric Adams feuding with local leaders upstate over who should take responsibility for the migrants, and he has also called out President Biden, a fellow Democrat, for not sending more aid.

Other U.S. cities are struggling with the influx too. Denver, Philadelphia and Washington — all cities with Democratic mayors — have received migrants bused from Texas as part of a campaign by Republican Gov. Greg Abbott to denounce Biden administration border policies. In Chicago, migrants have slept in police stations while awaiting shelter beds.

Officials in those cities are scrambling to find bed space and clamoring for more federal assistance. But the ad hoc nature of the humanitarian effort raises questions about the ability of New York City and other jurisdictions to receive and resettle so many newcomers.

The flow of Venezuelans crossing the southern border has dropped since the Title 42 policy ended, even as many continue arriving in cities in northern Mexico in hopes of reaching the United States. The Biden administration is tightening border controls and urging Venezuelans and others to apply for legal U.S. entry using a mobile app, while expanding the number of slots available for asylum seekers to make an appointment at an official border crossing.

The number of people requesting appointments, however, far outstrips supply.

The influx of migrants in New York has pushed the city’s total shelter population to 95,000, up from 45,000 when Adams took office in January 2022.

“We have reached a point where the system is buckling,” Anne Williams-Isom, deputy mayor for health and human services, told reporters at a news conference in late May.

. . . .

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Read the rest of Nick’s & Joanna’s article at the link.

This Administration has been in office more than two years, with knowledge of the inevitable flow of asylum seekers, particularly from Venezuela and access to some of the best and most innovative human rights experts in the private sector.

Yet, this Administration has failed to 1) put in place an orderly nationwide resettlement system in partnership with the many NGOs and some localities “already in the business;” 2) construct “regional reception centers” to provide food, shelter, representation, and support to asylum seekers during the legal process, as recommended by many experts, and 3) restore functionality and timeliness to the legal asylum systems at USCIS and EOIR by a) cleaning out the “deadwood” (or worse) accumulated during the Trump Administration, and b) hiring experts, not afraid to properly use asylum and other laws to “protect rather than reject” and to replace the anti-asylum culture and legal regimes installed and encouraged at DHS and EOIR under Tump.

Additionally, most Venezuelans can’t be returned anyway, and the Administration’s apparent hope to “orbit” many of them to Mexico, a country far less able to absorb them than than the U.S., is ill-advised at best.

Consequently, updating TPS for Venezuelans and others, thus providing employment authorization and keeping them out of the already dysfunctional asylum system, should have been a “no brainer” for this Administration.

This is a truly miserable absence of creative, practical problems-solving by a group that ran on promises to do better. Given the shortage of affordable housing in NY and other areas, why not “replicate and update” the CCC, WPA, and other public works projects from FDR’s “New Deal?”

Give those arriving individuals with the skill sets opportunities to construct affordable housing for anyone in need, with an chance to live in the finished product as an added incentive! Let migrants be contributors and view their presence as an opportunity to be built upon rather than as a “problem” that can’t be solved.

Not rocket science! 🚀 But, evidently “above the pay grade” for Biden Administration immigration policy wonks!

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CONSTITUTION MOCKED BY ALL THREE BRANCHES AS KIDS CONTINUE TO FACE IMMIGRATION COURT ALONE!

https://documentedny.com/2023/06/20/unaccompanied-minors-immigration-court-asylum/

GIULIA MCDONNELL NIETO DEL RIO reports for Documented:

The 10-year-old boy sat in a chair that was too big for him and he asked the immigration judge in Spanish if he could speak to the court.

“Please, don’t deport me,” the boy, Dominick Rodriguez-Herrera, pleaded into the microphone. “I want to stay with my brother.”

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Then he buried his head into his mother’s stomach as they embraced, tears welling in both their eyes. “Don’t cry,” his mother told him softly, with one arm around Dominick, and the other holding her two-month-old son who whined on her shoulder.

Also Read: The Central American Minors Program Struggles to Get Back on Its Feet

The family, from Guatemala, was at the Broadway immigration court in Lower Manhattan last week for an initial hearing in Dominick’s immigration case. Dominick had crossed the U.S.-Mexico border alone in March of 2022, and was designated as an unaccompanied minor.

Dominick’s mother, Nelly Herrera, told Documented the ordeal began when they were both kidnapped in Mexico and separated. She said Dominick escaped their captors and reached the U.S. border. Malnourished and thin from weeks of little food, he managed to squeeze through a wall into California, although she’s not sure where. He was only eight years old, and had no idea where his mother was.

“He doesn’t talk about all that a lot because he says it’s something he doesn’t want to be reminded of anymore,” she said.

After authorities helped Herrera escape her captors in Mexico, she and Dominick were reunited last year. Now, without a lawyer, they are fighting for a chance for Dominick to stay with her in the U.S.

At a time when immigration courts are struggling to manage the high volume of migrants coming to New York City, another section of the system is facing a high volume of deportation cases: those of unaccompanied minors – children who entered the U.S. when they were under the age of 18, without a parent. Many of them show up to court without an attorney, and advocates are concerned that there aren’t enough resources to reach all of them.

“We are definitely seeing an uptick in the numbers,” said Sierra Kraft, executive director of a coalition called the Immigrant Children Advocates Relief Effort (ICARE).

Kraft said she observed the juvenile docket several times this year and found hundreds of children had come to court without legal representation.

“There was a little two year old that was sitting there with a sponsor, and they had no representation and really no idea what to do next. So it’s a real crisis,” Kraft said.

. . . .

At a Senate hearing on the safety of unaccompanied migrant children in Congress last week, Lorie Davidson, Vice President of Children and Family Services at Lutheran Immigration and Refugee Service, testified that most unaccompanied children do not have an attorney to represent them.

“I do not know of any other circumstances in which a three-year-old would have to represent themselves in court. It is indefensible,” Davidson said at the hearing.

. . . .

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Read Giulia’s complete article at the link.

Administrations of both parties have employed and disgracefully defended this clearly unconstitutional, due-process-denying process. The “low point” was probably during the Obama Administration when an EOIR Assistant Chief Immigration Judge infamously claimed that he could “teach asylum law to toddlers” — touching off an avalanche of internet satire. See https://www.aclu.org/video/can-toddlers-really-represent-themselves-immigration-court.

But, the Executive has had plenty of help from Congress and the Article III Courts, who both have failed to end this mockery of constitutional due process as well as common sense. It’s hard to imagine a more glaring, depressing example of failure of public officials to take their oaths of office seriously!

On the other hand, NY Immigration Judge Olivia Cassin, mentioned in the full article, is the right person for the job of handling the so-called “juvenile docket” at EOIR. A true expert in immigration and human rights laws, she came to the job several decades ago with deep experience and understanding gained from representing individuals pro bono in Immigration Court.

She is a model of what should be the rule, not the exception, for those sitting on the Immigration Bench at both the trial and appellate levels. Although AG Garland has done somewhat better than his predecessors in “balancing” his appointments, EOIR still skews far too much toward those with only prosecutorial experience or lacking ANY previous immigration and human rights qualifications.

Consequently, poor, inconsistent, and uneven judicial performance remains endemic at EOIR and not sufficiently addressed by Garland in his two plus years in office. Just another reason why Garland’s failing courts are running a 2 million case backlog and are unable to provide the nationwide due process, guidance, leadership, and consistency that EOIR was supposedly created to furnish.

Brilliant, well-qualified, and committed as individuals like Judge Cassin are, they are not going to be able to solve this problem without some help and leadership from above. Sadly, this doesn’t appear got be on the horizon.

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UPHOLDING THE RULE OF LAW & HUMAN DECENCY FOR REFUGEES HAS BEEN LEFT LARGELY TO NGOs IN LIGHT OF THE USG’S SYSTEMIC FAILURE

Jenell Scarborough, Pathway to Citizenship Coordinator at **EL CENTRO HISPANO INC, reports on Linkedin on a on a more optimistic note about the activities of those who actually are working to preserve and extend the rule of law and human decency to refugees:**

What a way to celebrate World Refugee Day, with a community listening section where we meet community leaders who every day make extraordinary efforts to join forces and serve Immigrants and Refugees. We’re not just hearing from Eva A. Millona Chief, USCIS Office of Citizenship, Partnership and Engagement and the Chief of Foreign Affairs for Foster America.
Thanks to Cristina España for keeping us connected with local government agencies and making visible the work of grassroots organizations, where El Centro Hispano works tirelessly. Without a doubt a great night!

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Way to go, Jenell. Encouraging to know that you are taking our legal obligations to refugees seriously, even if too many USG officials in all three branches aren’t! (Eva A. Millona of USCIS, mentioned in the post appears to be a rare exception among those in leadership positions within this Administration).

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🇺🇸 MAKE EVERY DAY WORLD REFUGEE DAY, & Due Process Forever!

PWS

06-21-23

🗽 AFTER DECADES OF INEXCUSABLE FAILURE & CRUEL GIMMICKS, AMERICA 🇺🇸 CAN & SHOULD DO MUCH BETTER FOR ASYLUM SEEKERS — AN ESSENTIAL GROUP OF LEGAL IMMIGRANTS — New AILA Report Tells How! ⚖️

Clown Parade — AILA says this vision of the USG’s Asylum Program could be changed for the better. PHOTO: Public Domain

https://www.aila.org/highstakesasylum

Introduction

There should be a process, but there does need to be some space to be able to do this process. When you are in the thick of applying for asylum, you’re going to commit errors, you’re going to make mistakes, and it’s my understanding that these are the things that get you sent home. The work of an attorney is so important because you [as the applicant] have to turn over your soul, the best of you in this interview. The hardest part is the time, and the details required to demonstrate to the U.S. you are worthy of being allowed to remain herei

Lara Boston, MA Recently received her green card based on an asylum grant.

For people fleeing violence and persecution, nothing is more important than finding safety. For more than 40 years, U.S. asylum law has guaranteed asylum seekers the right to access legal protections enabling them to stay in the United States and avoid being returned to danger. But since the Refugee Act was signed into law in 1980, the laws on asylum eligibility have grown into a maze of convoluted requirements and pitfalls, like the children’s game “Chutes and Ladders,” with potentially deadly consequences.

Because of the complexity and requirements of asylum law, it takes time to prepare an asylum application. In my 25 years of practice, I have prepared and filed hundreds of asylum applications. Based on my experience, it takes time to get an accurate account of someone’s life when there’s violence and trauma involved. It takes time to find evidence of torture and persecution. When you read this report, I encourage you to try to imagine navigating the complex legal steps in the asylum process. Then, imagine doing it without an attorney, a nearly impossible task as extensive research and data has shown.1

This report comes at a critical moment when increased migration to the U.S. southern border and intense political pressure are pushing lawmakers to process asylum seekers faster. Faster can be accomplished, but it must also be fairer. If the system is fair, people meriting protection will receive it and those not eligible can and must depart. Toward that end, this report includes several recommendations that improve asylum processing so that it is both fair and more efficient. It is our hope that this report will contribute to policy reforms that are grounded in the realities of asylum law and the system that implements it.

Jeremy McKinney President, American Immigration Lawyers Association (AILA)

i Quotes by Lara throughout the report are from an interview conducted primarily in Spanish and then translated into English.

High-Stakes Asylum How Long an Asylum Case Takes and How We Can Do Better 3 AILA Doc. No. 23061202. (Posted 6/14/23)

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Executive summary and recommendations

The heightened levels of migration worldwide are drawing intense political and media attention to the United States’ southern border, including radical calls for blocking access to asylum seekers that would undo longstanding American humanitarian principles. More balanced, smarter approaches are available. In fact, since taking office, the Biden Administration has implemented several such policies, including the scale-up of resources to screen asylum seekers at the border and the expansion of existing legal pathways for people to obtain protection.

Unfortunately, the President is also accelerating and truncating the asylum system in an attempt to speed up the process with policies like the 2022 asylum processing rule and the dedicated dockets program.ii AILA has forcefully opposed these recent policies because they are restricting or blocking asylum access and, as a result, deeply compromising the integrity and fairness of the U.S. system.iii

This report on the asylum process draws principally upon the expertise of AILA’s membership of more than 16,000 immigration attorneys and law professors nationwide who provided more than 300 detailed responses to a survey about the critical steps and time required to prepare an asylum case.iv The report’s principal conclusion is that the minimum time required for an attorney to properly prepare an asylum case is 50 to 75 hours. While this estimate accounts for some complications, an asylum case can take much longer. For example, the attorney may need to find evidence of torture in a country that is still wracked by political violence or devote extensive interview time to obtain sensitive information from the asylum applicant while they are still suffering from trauma. See Appendix I.

The government can greatly increase the efficiency of the asylum process by increasing agency resources and capacity and by eliminating existing delays within the system. Some of those steps are being taken, but further action is urgently needed . AILA recommends the Biden Administration use a systemwide, all-of-government approach to implement a range of solutions that will improve asylum processing and the management of migration at the U.S. southern border.

America needs an asylum system that is in line with the nation’s commitments to protect asylum seekers and ensure a fair legal process while also meeting the urgent demand for greater efficiency and capacity. The country’s immigration system must be able to quickly identify who has a legitimate claim for humanitarian protection and who does not. Those not eligible should be required to depart. But imposing strict, arbitrary timelines for asylum that do not allow for adequate preparation will result in eligible asylum seekers being denied protection and sent back to face persecution or death.

ii The asylum processing rule is formally known as “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers.” New enrollment is currently paused as the Biden administration focuses on the transition away from Title 42. For recent updates, see Featured Issue: Asylum and Credible Fear Interim Final Rule, AILA, https://www.aila.org/advo-media/issues/featured-issue-asylum-and-credible-fear#:~:text=The%20 interim%20final%20rule%20%E2%80%9CProcedures,for%20individuals%20in%20expedited%20removal. See infra at Biden administration fast-tracked programs limit the opportunity to access counsel for more information on the asylum processing rule and the dedicated docket program.

iii E.g., AILA and the Council Submit Comments on Credible Fear Screening and Asylum Processing IFR, May 26, 2022, https:// www.aila.org/infonet/comments-on-credible-fear-screening; AILA Joins Legal Service & Mental Health Providers in Letter to Administration Expressing Grave Concerns over the “Dedicated Docket”, Oct. 5, 2022, https://www.aila.org/advo-media/ aila-correspondence/2022/letter-to-administration-expressing-grave-concerns; AILA and the Council Submit Comments on Circumvention of Lawful Pathways Proposed Rule, Mar. 26, 2023, https://www.aila.org/infonet/comments-on-circumvention- of-lawful-pathways.

iv See Appendix II.

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Ultimately, systemwide changes can only be accomplished through congressional action to appropriate the funding required to meet these systemic demands. After three decades of inaction, Congress must pass immigration laws that ensure America’s immigration system is ready for the future.

Key findings

The basic steps of preparing an asylum application takes an estimated minimum of 50 to 75 hours. This work cannot be done in one continuous period; instead, it is carried out over the course of several months. Cases with significant complexity can take far more time than this estimate.

Most asylum cases are not straightforward. Complicating factors that add time to an asylum case may include detention, past trauma experienced by the applicant, language barriers, and procuring evidence from foreign countries or expert witnesses such as medical testimony.

It is extremely difficult for an asylum seeker represented by counsel to sufficiently develop their asylum application within the mandatory deadlines established in the May 2022 asylum processing rule or the expedited family court “dedicated dockets.”
AILA recommendations
Ensure asylum timelines do not undermine fairness

When setting asylum processing deadlines, allow adequate time for an asylum seeker to obtain counsel and for the attorney to prepare for the case. Timelines should not rush trauma survivors who may need more time to recount their experience. Reasonable continuances should be allowed to obtain an attorney or for attorney preparation.

Waive or exempt asylum seekers from deadlines if the reason the deadline was not met is outside of their control.

Do not hold asylum seekers to the same evidentiary standards when they are subject to expedited adjudication timelines, such as the shortened deadlines of the 2022 asylum processing rule.
Reduce government delays and inefficiency

Establish uniform policies, centralized systems, and appropriate information sharing between immigration agencies. Agencies should centralize and digitize address changes across all agencies and simplify access to a noncitizen’s immigration record. These steps will enhance communication and data sharing, which will in turn reduce backlogs, avoid delays, and increase efficiency and fairness.

Reduce the immigration court backlog. Executive Office for Immigration Review (EOIR) should continue expanding initiatives to remove cases from the docket or facilitate the resolution of cases through pretrial conferencing. Immigration judges should administratively close or terminate appropriate cases, such as those eligible for a benefit with U.S. Citizenship and Immigration Service (USCIS).2

Do not expend finite prosecutorial resources on cases that can be resolved more expeditiously. Immigration and Customs Enforcement’s (ICE) Office of the Principal Legal Advisor (OPLA) attorneys should engage in pretrial negotiations and exercise prosecutorial discretion to avoid unnecessary litigation.
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Legal access and representation improve fairness and government efficiency

Ensure asylum seekers and other migrants being processed rapidly at the U.S. southern border have access to legal information, advice, and full counsel during credible fear interviews (CFIs), Customs and Border Protection (CBP) inspections, and immigration court proceedings.

Congress should Fund the Department of Justice (DOJ) to provide legal representation for all immigrants. Everyone needs access to an attorney to provide legal advice and information prior to any hearings, including the CFI. Congress should appropriate DOJ funding to provide full legal representation to those in removal proceedings who cannot afford it.

Ensure access to counsel in all detention facilities. Detention facilities must be held accountable to policies that ensure attorneys have reliable confidential contact visits with clients, as well as access to free and confidential phone calls and video conferences. The government must monitor access to counsel at ICE facilities and impose penalties for violations of standards.
Reduce immigration detention

• Reduce immigration detention. Detention delays asylum cases because it creates barriers to obtaining counsel and makes case preparation far more difficult. The Department of Homeland Security (DHS) should reduce its use of immigration detention.

Improve the asylum process

The Biden administration should publish the long-awaited regulation on particular social group (PSG) asylum cases. On February 20, 2021, President Biden issued an executive order to promulgate this regulation by November 17, 2021,3 but it has not been published. A regulation would aid in consistency of application of asylum law and would reduce USCIS referrals to immigration court.

Increase transparency in adjudications by making DHS’s asylum officer training materials publicly available.

Establish an interagency task force to develop a trauma-informed adjudication system. Experts in development, mental health, welfare, and trauma science should all be involved in this process. A trauma-informed adjudication process will help ensure accurate adjudications in the first instance, which in turn will decrease appeals.

Fund additional asylum officers. Congress should appropriate funds to increase the capacity of USCIS to adjudicate asylum applications.

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Download and read the complete report and view accompanying video at the above link!

Here’s one of my favorite comments on Linkedin from an all-star member of the NDPA, Amy R. Grenier:

A year ago, I wanted to cite something in a regulatory comment, but the cite I needed didn’t exist yet.

Today, the American Immigration Lawyers Association released a report on asylum timelines, High-Stakes Asylum: How Long an Asylum Case Takes and How We Can Do Better. The report is based on a survey of over 300 asylum attorneys about how much time it takes to prepare an asylum application, and what complications add significant time. High-Stakes Asylum also includes recommendations on how to inject efficiency into the existing asylum process and ensure the integrity of a system that has life-and-death consequences.

I hope that you find it helpful to cite someday #immigration #lawyers #HighStakesAsylum!

Three decades ago, when I was practicing business immigration at Jones Day, we also did a robust pro bono Immigration Court BIA practice in which I played an advisory role. Even then, we allocated a minimum of 100 hours of attorney/paralegal prep time for an asylum case in Immigration Court and 40 hours for a BIA appeal.

And, at that time, the system probably wasn’t as “intentionally user unfriendly” as it is now. On some occasions, we were responding to requests for pro bono representation from Immigration Judges who believed that without representation certain previously unrepresented detained cases would “be lost and linger in the system forever.” That was long before 2 million case backlogs!

Representation is essential for due process at EOIR! This fundamental truth is neither new nor is it “rocket science!” That politicians of both parties and Article III Judges have swept this truth under the carpet doesn’t make it less true! If lives of persons who didn’t have the bad fortune to be immigrants were at issue, this intentionally due-process-denying system would have been held unconstitutional by the Supremes decades ago!

Unfortunately, A.G. Garland has fashioned a “highly, unnecessarily, and intentionally user unfriendly system” that actually discourages and impedes pro bono and low bono representation.

Alfred E. Neumann — Immigration experts and long-suffering advocates have become weary of AG Garland’s “above the fray” attitude and substandard performance on human rights and equal justice in America!
PHOTO: Wikipedia Commons

Even worse, he and his subordinates have failed miserably to “fully leverage” the amazing VIISTA Villanova program for training more highly-qualified non-attorney “accredited representatives” to rapidly close the representation gap throughout the nation. The asylum litigation “training modules” put together by VIISTA founder Professor Michele Pistone, with help from the National Institute for Trial Advocacy (“NITA”) puts EOIR/DOJ/DHS asylum training to shame!

Professor Michele Pistone
Villanova Law — The founder of VIISTA Villanova, brilliant lawyer, inspirational leader, teacher, scholar, social justice mavan, why isn’t she running and reforming EOIR? Why is Garland afraid of a proven “creative disrupter” driven 100% by a commitment to equal justice for all?

Incredibly, the Biden Administration “blew off” recommendations by experts that Professor Pistone or one of her colleagues be recruited to “shake up” EOIR and radically reform and improve training in asylum and other forms of protection.

Lack of fundamental expertise and private sector expedience representing asylum seekers is a key reason why EOIR under Garland continues to “wander in the wilderness” of legal dysfunction with no way out! So unnecessary! So damaging to democracy!

Many thanks to Jeremy McKinney, Greg Chen, and others who worked on the AILA report. Cite it! Use it! Demand that Congress heed it! Use it to force justice into Garland’s failed, dysfunctional, and unfair “Clown Courts!”🤡

🇺🇸 Due Process Forever!

PWS

06-16-23

🤯🗽 AT THE REAL BORDER WITH TODD MILLER OF THE BORDER CHRONICLE: Less Due Process, More Robo-Dogs! — The “Bogus Invasion Of Due Process Seekers” Overhyped By The White Nationalist GOP, The Biden Administration, & An Indolent Media Never Came — But, “The Border Industrial Complex,” Well-Fed By Biden, Is Alive & Prospering As Never Before!

https://www.theborderchronicle.com/p/the-real-border-surge-the-end-of?utm_medium=email

Todd writes in the Border Chron:

On May 11th, I was with a group of people at the bottom of the Paso del Norte bridge in Ciudad Juárez, Mexico. Suddenly, I realized that I didn’t have the small change needed to cross the bridge and return to El Paso, Texas, where I was attending the 16th annual Border Security Expo. Worse yet, this was just three hours before Title 42, the pandemic-era rapid-expulsion border policy instituted by the Trump administration, was set to expire. The media was already in overdrive on the subject, producing apocalyptic scenarios like one in the New York Post reporting that “hordes” of “illegals” were on their way toward the border.

While I searched for those coins, a woman approached me, dug 35 cents out of a small purse — precisely what it cost! — and handed the change to me. She then did so for the others in our group. When I pulled a 20-peso bill from my wallet to repay her, she kept her fist clenched and wouldn’t accept the money.

Having lived, reported, and traveled in Latin America for more than two decades, such generosity didn’t entirely surprise me, though it did contradict so much of the media-generated hype about what was going on at this historic border moment. Since Joe Biden took office in 2021, the pressure on his administration to rescind Trump’s Title 42 had only grown. Now, it was finally going to happen — and hell was on the horizon.

But at that expo in El Paso that brought together top brass from the Department of Homeland Security (DHS), its border and immigration enforcement agencies, and private industry, I was learning that preparations for such a shift had been underway for years and — don’t be shocked! — the corporations attending planned to profit from it in a big-time fashion.

Seeing the phase-out of Title 42 through the lens of a growing border-industrial complex proved grimly illuminating. Border officials and industry representatives continued to insist that just on the other side of the border was a world of “cartels,” “adversaries,” and “criminals,” including, undoubtedly, this woman forcing change on me. By then, I had heard all too many warnings that, were the United States to let its guard down, however briefly, there would be an infernal “border surge.”

As I later stood in the halls of that expo, however, I became aware of another type of surge not being discussed either there or in the media. And I’m not just thinking about the extra members of the National Guard and other forces the Biden administration and Texas Governor Greg Abbott only recently sent to that very border. What I have in mind is the surge of ever higher budgets and record numbers of Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) contracts guaranteed to ensure that those borderlands will remain one of the most militarized and surveilled places on planet Earth.

. . . .

At $29.8 billion, the CBP/ICE portion of the DHS budget he praised was not just the highest ever but a $3 billion jump above 2022, including $2.7 billion for “new acquirements in our southwestern border.” In other words, the coming surge at the border was distinctly budgetary.

For context, when Donald Trump took office in 2017 his CBP/ICE budget was $21.2 billion. By 2020, it had gone up to $25.4 billion. In other words, it took him four years to do what the Biden administration essentially did in one. The last time there had been such a jump was from $9.4 billion in 2005 to $12.4 billion in 2007, including funding for huge projects like the Secure Fence Act that built nearly 650 miles of walls and barriers, SBInet which aimed to build a virtual wall at the border (with special thanks to the Boeing Corporation), and the largest hiring surge ever undertaken by the Border Patrol — 8,000 agentsin three years.

But if that’s what $3 billion meant in 2005-2007, what does it mean in 2023 and beyond? Gone was the Trump-era bravado about that “big, beautiful wall.” Hysen’s focus was on the Department of Homeland Security’s launching of an Artificial Intelligence Taskforce. A technocrat, Hysen spoke of harnessing “the power of AI to transform the department’s mission,” assuring the industry audience that “I follow technology very closely and I am more excited by the developments of AI this year than I have been about any technology since the first smartphones.”

Robo-Dog — This cuddly robo version of “man’s best friend” can be fully outfitted to “go into barracks and blow a motherfucker’s face off.” And, it can be triggered by an agent 30 miles away! How great is that! Sadly, in the midst of all this techno-warfare at the border, the Biden Administration can’t scrape together the resources to humanely resettle and fairly and timely process those asylum seekers they DO let into the country. It’s a question of priorities.
PHOTO: Border Chronicle
CAPTION BY COURTSIDE

That robo-dog in front of me caught the state of the border in 2023 and the trends that went with it perfectly. It could, after all, be controlled by an agent up to 33 miles away, according to the vendor, and apparently could even — thank you, AI — make decisions on its own.

The vendor showed me a video of just how such a dog would work if it were armed. It would use AI technology to find human forms. A red box would form around any human it detects on a tablet screen held by an agent. In other words, I asked, can the dog think?

I had in mind the way Bing’s Chatbox, the AI-powered search engine from Microsoft, had so infamously professed its love for New York Times reporter Kevin Roose. A human, using an Xbox-like controller, the vendor told me, will be able to target a specific person among those the dog detects. “But,” he reassured me, “it’s a human who ultimately pulls the trigger.”

In Mexico, when I walked to a spot where the Rio Grande flowed between the two countries, I ran into a small group of migrants camped out at the side of the road. Near them was a fire filled with charred wood over which a pot was cooking. A pregnant Colombian woman told me they were providing food to other migrants passing by. “Oh,” I asked, “so you sell food?” No, she responded, they gave it away for free. Before they had been camped out for months near the immigration detention center in Ciudad Juárez where a devastating fire in March killed 40 people. Now, they had moved closer to the border. And they were still waiting, still hoping to file applications for asylum themselves.

Behind where they sat, I could see the 20-foot border wall with coiling razor wire on top. There was nothing new about a hyper-militarized border here. After all, the El Paso build-up had begun 30 years ago with Operation Hold the Line in 1993. A desert camo Humvee sat below the wall on the U.S. side and a couple of figures (Border Patrol? National Guard?) stood at the edge of the Rio Grande shouting to a Mexican federal police agent on the other side.

The clock for the supposed Title 42 Armageddon was ticking down as I then crossed the bridge back to El Paso, where more barriers of razor wire had only recently been emplaced. There was also a slew of blue-uniformed CBP agents and several jeeps carrying camouflaged members of border units. Everyone was heavily armed as if about to go into battle.

At the Border Security Expo, Hysen pointed out that fear of a Title 42 surge had resulted in an even more fortified border, hard as that might be to imagine. Fifteen hundred National Guard troops had been added to the 2,500 already there, along with 2,000 extra private security personnel, and more than 1,000 volunteers from other agencies. Basically, he insisted, they had everything more than under control, whatever the media was saying.

. . . .

At the Edge of Everything — and Nothing At All

On the morning of May 12th, I was with border scholar Gabriella Sanchez at the very spot where the borders of Texas, New Mexico, and Chihuahua meet near El Paso. Title 42 had expired the night before and I asked her what she thought. She responded that she considered this the border norm: we’re regularly told something momentous and possibly terrible is going to happen and then nothing much happens at all.

And she was right, the predicted “surge” of migrants crossing the border actually decreased — and yet, in some sense, everything keeps happening in ways that only seem grimmer. Perhaps 100 yards from where we were standing, in fact, we soon noticed a lone man cross the international boundary and walk into the United States as if he were taking a morning stroll. Thirty seconds later, a truck sped past us kicking up gravel. For a moment, I thought it was just a coincidence, since it wasn’t an official Border Patrol vehicle.

Then, I noted an insignia on its side that included the U.S. and Mexican flags. The truck came to a skidding stop by the man. A rotund figure in a gray uniform jumped out and ran toward him while he raised his hands. Just then, a green-striped Border Patrol van also pulled up. I was surprised — though after that Border Security Expo I shouldn’t have been — when I realized that the initial arrest was being made by someone seemingly from a private security firm. (Remember, Hysen said that an extra 2,000 private security agents had been hired for the “surge.”)

In truth, that scene couldn’t have been more banal. You might have seen it on any May 12th in these years. That banality, by the way, included a sustained violence that’s intrinsically part of the modern border system, as geographer Reece Jones argues in his book Violent Borders: Refugees and the Right to Move. In the days following Title 42’s demise, an eight-year-old Honduran girl died in Border Patrol custody and a Tohono O’odham man was shot and killed by the Border Patrol. In April, 11 remains of dead border crossers were also recovered in Arizona’s Pima County desert alone (where it’s impossible to carry enough water for such a long trek).

In the wake of Donald Trump, everything on the border has officially changed, yet nothing has really changed. Nothing of note is happening, even as everything happens. And as Hysen said at that border expo meeting, big as the record 2023 border budget may be, in 2024 it’s likely to go “even further” into the stratosphere.

Put another way, at the border, we are eternally at the edge of everything — and nothing at all.

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

Read Todd’s complete report in the Border Chron at the link.

From Ike’s “Military-Industrial Complex” to Biden’s “Border-Industrial Complex” — my life has spanned it all! But, while Ike was trying to warn us about the dangers ahead, Biden (and the GOP) are trying to lull us into accepting unending and largely unaccountable border militarization as the inevitable wave of the future — even a good thing!

I’ve got nothing against technology! But, it should employed to make humanity better, not just for its own sake. As I suggest below, the “Armed Robot-Dogs v. CBP One” (or EOIR’s venture into the virtual world) strongly suggest the lack of a healthy balance!

Human migration is even older and more permanent than never-ending border militarization, industrialized cruelty, and dehumanization. The latter are now routinely practiced by the very Western nations who once, long ago, fought against Nazism and vowed, apparently somewhat disingenuously, “never again!”

Human migration was in motion long before the creation of the modern nation-state. It will be with us as long and there is life on earth.

Moreover, the realities of climate change and the future migrations and political reckonings it will force go well-beyond our already overly restrictive legal refugee regimes. Like it or not — and those of us fortunate to live in potential “receiving countries” shouldn’t fear it — there will be more, not less, human migration in the future.

In this context, I’m highly skeptical that “armed robo-dogs” — even those miracles of modern technology fully weaponized to “go into barracks and blow a motherfucker’s face off” — are the durable solutions to inevitable events that we need.

It struck me that the woman who insisted that Todd keep her 35 cents, and the patient folks camped out around a wood cooking fire just south of the fence, waiting for appointments and hearings that might never come from the poor technology (how would an armed robo-dog react to the badly flawed “CBP One App” inflicted on human asylum seekers — state of the art technology seems rather one-sided at DHS, as most advocates would tell you) and our broken asylum legal system, probably are closer to having the answers to the future than any of the “hot air” politicos calling the shots or aspiring to do so.

🇺🇸 Due Process Forever!

PWS

06-10-23

🛡⚔️ THE ONGOING QUEST FOR THE “HOLY GRAIL OF JUSTICE” — Round Table Files Brief In Support Of Due Process, Rule of Law In East Bay Sanctuary v. Biden!

https://drive.google.com/file/d/12Gi2JbTNOI9C1kVWN1NuULgAuYCWziVd/view?usp=sharing

KEY EXCERPT:

INTRODUCTION

As former immigration judges and former members of the Board, we submit this amicus brief to ask the Northern District of California to strike down the Circumvention of Lawful Pathways Rule, 88 Fed. Reg. 31314 (May 11, 2023). The Rule, which came into effect in the immediate aftermath of Title 42’s sunset and which applies to non-Mexican asylum-seekers at the U.S.-Mexico border, automatically forecloses a migrant’s asylum claim unless the person (i) arrives at an official port of entry having secured an immigration appointment through a complex mobile application, (ii) receives advance permission to travel to the U.S., or (iii) comes to the U.S. after applying for and being denied asylum in a transit country. Absent proof one of these narrow exceptions or a medical or other emergency, asylum-seekers will be unable to seek asylum regardless of whether they have compelling claims to relief.

Immigration judges serve an important role in the Congressionally-mandated process for reviewing the claims of asylum-seekers at or near the U.S.-Mexico border. This decades-old process, known as Expedited Removal, has its own flaws, but it does provide a credible fear review system that provides important protections for those seeking asylum. Specifically, and as explained in more detail below, the Expedited Removal statute requires that asylum-seekers, regardless of how they entered the United States, be interviewed by asylum officers to determine whether they have a credible fear of persecution and therefore can proceed to a full asylum hearing under Section 240 of the INA. The statute further mandates that immigration judges provide de novo review of asylum officers’ negative credible fear determinations, and thus make the final decision about whether an asylum-seeker at the U.S.-Mexico border has shown a credible fear of persecution and will have the opportunity to progress to a full asylum hearing.

The Rule unlawfully undermines this statutory scheme. First, the Rule creates clear bars to asylum for most migrants, disingenuously labeling these as “rebuttable presumptions.” As a result, almost all claims for asylum are pretermitted without the full asylum credible fear interviews required by the statutory Expedited Removal process. Rather, the credible fear interview will be turned into a “reasonable fear” interview to determine whether the migrant can proceed to claim withholding of

removal or protection under the Convention Against Torture (“CAT”), lesser forms of relief compared to asylum. Asylum-seekers are thus denied the opportunity to obtain full review of their asylum credible fear claims, including the de novo review by an immigration judge as required by Section 235 of the INA, 8 C.F.R. § 235.3. Instead, asylum-seekers may only seek review from an immigration judge as to the application of the narrow exceptions under the Rule or the lesser claims for relief. Accordingly, the Rule significantly and unlawfully curtails the role of immigration judges in asylum adjudication as set forth in the INA.

Moreover, the idea that the Rule heightens efficiency in the asylum adjudication process is an illusion. When an asylum-seeker is denied the ability to provide a credible fear of persecution, Expedited Removal still requires a review of potentially more complicated claims for withholding of removal and protection under the CAT. Thus, immigration judges on the one hand find their hands tied, unable to review the claims of bona fide asylum-seekers, but on the other hand are required to delve into the standards of withholding and CAT. Thus, the Rule turns a straightforward (and efficient) asylum credible fear review into a three-part analysis: the Rule exceptions, withholding, and CAT.

Finally, by creating exclusions that deny asylum to refugees who appear at the U.S.-Mexico border, the Rule violates U.S. obligations under the 1951 Refugee Convention. Longstanding canons of statutory and regulatory construction require consideration of international law; in this case, the Rule violates both the INA and international law.

. . . .

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

Read the complete brief skillfully prepared by our friend Ashley Vinson Crawford and her team at Akin Gump!

Our brief basically reiterates, expands, and applies points we made in our recent comments opposing the Biden Administration’s “Death to Asylum,” regulations! See https://immigrationcourtside.com/2023/03/27/⚔%EF%B8%8F🛡-round-table-joins-chorus-of-human-rights-experts-slamming-biden-administrations-abominable-death-to-asylum-seekers-☠%EF%B8%8F-proposed/

Rather than heeding our comments and those of many other experts, the Administration proceeded with its wrong-headed changes, rammed through a farcically truncated “comment period” that showed that process was little but a sham. This is the exact kind of mockery of justice and prejudgement that one might have expected from the Trump Administration. It’s also one of the many things concerning immigration that Biden and Harris “ran against” in 2020 but lacked the will and integrity to achieve in practice.

Notably, we’re not the only group of “concerned experts” weighing in against the Biden Administration’s ill-advised rules. The union representing the USCIS Asylum Officers were among the many expert organizations and individuals filing in support of the plaintiffs in East Bay Santuary. See, e.g., Asylum Officers, Ex-Judges Back Suit On Biden Asylum Rule – Law360.

Among other choice commentary, the Asylum Officers argue that the rule “effectively eliminates asylum” at the southern border! What on earth is a Dem Administration doing betraying due process and the rule of law in favor of the most scurrilous type of nativist anti-asylum pandering — stuff right out of the “Stephen Miller playbook?” Who would have thought that we would get rid of Miller & company in 2020, yet still have to deal with his ghost in a Biden/Harris Administration that clearly and beyond any reasonable doubt has “lost its way” on immigration, human rights, racial justice, and the rule of law?

As Round Table spokesperson “Sir Jeffrey” Chase says, “We are in very good company!” Too bad that the Biden Administration has wandered off course into the morally vacant, disingenuous “never-never land” of anti-asylum, racially-driven nativism! It certainly did not have to be this way had effective, principled, expert leadership taken hold at the beginning.

🇺🇸 Due Process Forever!

PWS

06-09-23

🏴‍☠️🤯 112 NGOs BLAST BIDEN ADMINISTRATION’S BAD APPROACH TO CREDIBLE FEAR, DEMAND IMMEDIATE END (Good Luck With That)! “ — “These policies punish people seeking safety and prioritize political optics over the administration’s stated aim of working to ‘restore and strengthen our own asylum system, which has been badly damaged by policies enacted over the last four years that contravened our values and caused needless human suffering.’”

Border Detention — Due process and fundamental fairness are elusive in DHS’s “New American Gulag!” Administration policy wonks absent themselves from the border to avoid witnessing the unnecessary human trauma and suffering their illegal and ill-advised policies cause.
PHOTO: Public Realm

https://www.refugeesinternational.org/reports/2023/6/5/the-biden-administration-must-immediately-stop-conducting-credible-fear-interviews-in-cbp-custody

Refugees International June 5, 2023

The Honorable Alejandro N. Mayorkas

Secretary

U.S. Department of Homeland Security

2707 Martin Luther King Jr. Avenue, SE

Washington, D.C. 20528

Ur M. Jaddou

Director

U.S. Citizenship and Immigration Services

5900 Capital Gateway Drive

Camp Springs, Maryland 20588

Troy A. Miller

Acting Commissioner

U.S. Customs and Border Protection

1300 Pennsylvania Avenue, NW

Washington, D.C. 20229

David L. Neal

Director

Executive Office for Immigration Review

5107 Leesburg Pike

Falls Church, VA 22041

Dear Secretary Mayorkas, Director Jaddou, Acting Commissioner Miller, and Director Neal,

We, the undersigned 112 civil, human rights, faith-based, and immigration groups write to express our deep concern with your return to the Trump-era policy of forcing asylum seekers to explain by phone the life-threatening harms they’re fleeing mere hours after arriving in the U.S., while being held in Customs and Border Protection (CBP) detention, and essentially cut off from legal help. In March 2023, nearly 100 organizations reminded President Biden of his commitment to end the Trump policy, urging him not to rush back to the broken, anti-asylum policies that this administration rightly terminated. We are incredibly disappointed that this administration has chosen to move forward, full steam ahead. We call on the Biden administration to immediately cease conducting credible fear interviews (CFIs) in CBP custody and instead ensure that asylum seekers are given full and fair access to the U.S. asylum system, including meaningful access to counsel.

Since taking effect, President Biden’s iteration of this policy has produced systemic due process barriers similar to its predecessor policy, with asylum seekers being rushed through CFIs and immigration judge reviews with little to no access to counsel. President Biden’s asylum ban, another iteration of Trump-era policies, is further exacerbating these mass due process violations and fueling the systematic deportation of individuals who may qualify for protection in the U.S., in violation of the non-derogable principle of non-refoulement.

The Biden administration is effectively denying asylum seekers any meaningful chance to consult with counsel and rushing them through a sham process to quickly deport them, including by:

Conducting CFIs shortly upon an individual’s arrival in CBP detention without providing or allowing them to access the time and resources needed to recover from their journey or the harm they survived;

Barring attorneys from entering the CBP facilities where asylum seekers are jailed and CFIs are conducted;

Truncating the minimum time period individuals have to attempt to telephonically consult with an attorney to a mere 24 hours after receiving notice of the credible fear process. This change is especially absurd given that new policies, such as the asylum ban and the return of certain nationalities to Mexico, expand the content about which an individual may need to consult an attorney;

Failing to provide asylum seekers hard copies of the M-444 Information About Credible Fear Interview in contravention of 8 CFR § 208.30(d)(2), hard copies of the list of pro bono legal service providers, and advanced written notice of the CFI;

Heightening the standard for requests to reschedule a CFI to a showing of “extraordinary circumstances,” likely making it nearly impossible for asylum seekers to reschedule a CFI in order to secure representation or prepare for the interview;

Restricting asylum seekers’ access to telephones, in contravention of 8 CFR § 208.30(d)(4), and denying them writing utensils, in effect forcing them to attempt to commit key information to memory, including their attorney’s contact information and information about the CFI process;

Requiring an applicant’s signature on the Form G-28 for attorneys to enter an appearance with the Asylum Office, which often cannot be timely obtained by attorneys who are remotely representing jailed clients, thereby obstructing their ability to obtain information about their clients;

Conducting CFIs, including outside of normal business hours and on weekends, without the attorney of record present, in contravention of 8 CFR § 208.30(d)(4);

Failing to provide advance written notice to attorneys of record prior to a scheduled CFI or immigration court review hearing, including by not updating the EOIR Cases and Appeals System (ECAS) to reflect upcoming court hearings;

Failing to afford individuals time and opportunity following negative fear determinations to consult with counsel who could advise them about their rights and the review process;

Failing to serve asylum seekers and their attorneys with their record of credible fear determinations in contravention of 8 CFR § 208.30(g)(1);

Blocking attorneys from entering an appearance with the immigration court, including by not docketing immigration court review cases in a timely manner, thereby preventing them from representing their clients;

Refusing to permit attorneys to actively participate in immigration court reviews and rejecting evidence submitted in advance of the immigration court review; and

Conducting Immigration Judge reviews of negative credible fear findings without the attorney of record present.

Forcing asylum seekers in CBP detention to proceed with their CFIs while facing nearly insurmountable barriers to legal counsel –while also subjecting them to an asylum ban – upends any notion of fairness. Instead, it is an evisceration of our asylum system. The installation of new phone booths, which you claim differentiate Biden’s program from the Trump policy, fails entirely to address any of these systemic obstacles. Additionally, the Biden administration’s decision to conduct immigration court reviews immediately following these lightning-fast CFIs, while the individual is still in CBP custody, unacceptably further heightens the due process barriers asylum seekers must overcome to avoid summary deportation.

We have also received troubling reports of the terrible conditions that asylum seekers face in CBP custody while awaiting their CFIs, in line with years of reports of abusive, dehumanizing, and sometimes life-threatening conditions that include medical neglect, inedible food and water, and lack of access to showers and other basic hygiene. It has been less than a month since the unforgivable death of eight-year-old Anadith Tanay Reyes Álvarez, who was jailed in one of the CBP facilities where your administration conducts CFIs. We are horrified that the administration has systematized the detention of asylum seekers in these same deadly conditions while rushing them through fear screenings.

Notably, the administration has a choice: it is not required to use expedited removal and has the authority to refer people for full asylum hearings, rather than subjecting them to rushed CFIs in dehumanizing CBP detention while cut off from legal help. Sacrificing fairness for speed by jailing people fleeing persecution and torture, subjecting them to a ban on asylum, and forcing them to proceed with a life-or-death interview without meaningful access to counsel must not be this administration’s response to people wishing to exercise their fundamental human right to seek asylum. These policies punish people seeking safety and prioritize political optics over the administration’s stated aim of working to “restore and strengthen our own asylum system, which has been badly damaged by policies enacted over the last four years that contravened our values and caused needless human suffering.”

Respectfully,

Acacia Center for Justice

Afghans For A Better Tomorrow

African Human Rights Coalition

Al Otro Lado

Alianza Americas

Alliance of Californians for Community Empowerment, ACCE

American Friends Service Committee (AFSC)

American Gateways

American Immigration Council

Americans for Immigrant Justice (AI Justice)

Amnesty International USA

Angry Tias and Abuelas

Asian Americans Advancing Justice | AAJC

Asylum Seeker Advocacy Project (ASAP)

Bend the Arc: Jewish Action

Black Alliance for Just Immigration (BAJI)

Bridges Faith Initiative

Border Kindness

Capital Area Immigrants’ Rights Coalition

Center for Constitutional Rights

Center for Gender & Refugee Studies

Center for Victims of Torture

Central American Resource Center of Northern CA – CARECEN SF

Church World Service

Cleveland Jobs with Justice

Coalition for Humane Immigrant Rights (CHIRLA)

Community Action Board of Santa Cruz County, Inc. (CAB)

Community Legal Services in East Palo Alto (CLSEPA)

Diocesan Migrant and Refugee Services Inc.

Dorcas International Institute of RI

Fellowship Southwest

First Focus on Children

Florence Immigrant & Refugee Rights Project

Franciscan Action Network

Freedom Network USA

Greater Boston Legal Services

Harvard Immigration and Refugee Clinical Program

HIAS

Houston Immigration Legal Services Collaborative

Human Rights First

Human Rights Initiative of North Texas

Immigrant Defenders Law Center

Immigrant Legal Resource Center

Immigration Equality

Immigration Law & Justice Network

Immigration Hub

Innovation Law Lab

Interfaith-RISE

Interfaith Welcome Coalition – San Antonio

International Center of Kentucky

International Institute of Los Angeles

International Institute of New England

International Refugee Assistance Project (IRAP)

ISLA: Immigration Services and Legal Advocacy

JAMAAT – Jews and Muslims and Allies Acting Together

Jewish Family Service of San Diego

Jewish Vocational Service of Kansas City

Just Neighbors

Justice in Motion

Kino Border Initiative

Las Americas Immigrant Advocacy Center

Latino Community Foundation

Lawyers for Good Government

Legal Aid Justice Center

Lost and Found Church of the Nazarene

Lutheran Immigration and Refugee Services

Mariposa Legal, program of COMMON Foundation

Massachusetts Law Reform Institute

Metrowest Legal Services

Minnestoa Freedom Fund

MLPB

Mujeres Unidas y Activas

Muslim Advocates

National Employment Law Project

National Immigrant Justice Center

National Immigration Law Center

National Network for Immigrant and Refugee Rights

National Partnership for New Americans

NCLR (National Center for Lesbian Rights)

Northeastern University School of Law Immigrant Justice Clinic

Open Immigration Legal Services

Oromo Center for Civil and Political Rights

Oxfam America

Phoenix Legal Action Network

Physicians for Human Rights

Public Law Center

RAICES

Refugees International

Resource Center Matamoros / Asylum Seeker Network of Support, Inc.

Robert F. Kennedy Human Rights

Rocky Mountain Immigrant Advocacy Network

SIREN, Services Immigrant Rights and Education Network

Southwest Asylum & Migration Institute (“SAMI”)

Student Clinic for Immigrant Justice

Survivors of Torture, International

Team Brownsville

Tennessee Justice for Our Neighbors

The Advocates for Human Rights

The Catholic Legal Immigration Network, Inc.

The Reformed Church of Highland Park

UC Davis Immigration Law Clinic

Unitarian Universalists for Social Justice

Unitarian Universalist Service Committee

United Sikhs

U.S. Committee for Refugees and Immigrants (USCRI)

USAHello

Vera Institute of Justice

Washington Office on Latin America

Wind of the Spirit Immigrant Resource Center

Witness at the Border

Women’s Refugee Commission

Young Center for Immigrant Children’s Rights

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

Interesting way for a Dem Administration to treat human rights, due process, and fundamental fairness! Remarkable rejection of values that got them elected! Is “dismissive dissing” of the views of the “folks who brought you to the dance” really the key to future success?

🇺🇸 Due Process Forever!

PWS

06-07-23

Hamed Aleaziz & Tracy Wilkinson report for the LA Times:

🇺🇸 Due Process Forever!

Related posts:

Andrea writes in a NYT Op-Ed:

🇺🇸 Due Process Forever

Related posts:

Professor Alberto Benítez reports to Courtside:

Victory is the only option!

🇺🇸 Due Process Forever!

Related posts:

Maria writes:

🇺🇸 Due Process Forever!

Related posts:

Dan Kowalski reports for LexisNexis Immigration Community:

🇺🇸 Due Process Forever!

Related posts:

From Asylum Access & Reuters:

🇺🇸Due Process Forever!

Related posts:

Happy July 4!😎🇺🇸

🇺🇸 Due Process Forever!

Related posts:

Jamelle concludes:

🇺🇸 Due Process Forever!

Related posts:

Roberto Blum, Esquire, reports from Houston:

🇺🇸 Due Process Forever!

Related posts:

Dan Kowalski reports for LexisNexis Immigration Community:

Related posts:

ACCESS DENIED

Hamed Aleaziz reports for the LA Times:

ADMINISTRATION’S FLUBBED RESETTLEMENT (NON) EFFORT EMPOWERS GOP WHITE NATIONALISTS, VEXES PROGRESSIVE DEMS

Nick Miroff & Joanna Slater report for WashPost:

CONSTITUTION MOCKED BY ALL THREE BRANCHES AS KIDS CONTINUE TO FACE IMMIGRATION COURT ALONE!

GIULIA MCDONNELL NIETO DEL RIO reports for Documented:

UPHOLDING THE RULE OF LAW & HUMAN DECENCY FOR REFUGEES HAS BEEN LEFT LARGELY TO NGOs IN LIGHT OF THE USG’S SYSTEMIC FAILURE

Jenell Scarborough, Pathway to Citizenship Coordinator at EL CENTRO HISPANO INC, reports on Linkedin on a on a more optimistic note about the activities of those who actually are working to preserve and extend the rule of law and human decency to refugees:

🇺🇸 MAKE EVERY DAY WORLD REFUGEE DAY, & Due Process Forever!

Related posts:

🇺🇸 Due Process Forever!

Related posts:

Todd writes in the Border Chron:

🇺🇸 Due Process Forever!

Related posts:

KEY EXCERPT:

🇺🇸 Due Process Forever!

Related posts:

🇺🇸 Due Process Forever!

Related posts:

Jenell Scarborough, Pathway to Citizenship Coordinator at **EL CENTRO HISPANO INC, reports on Linkedin on a on a more optimistic note about the activities of those who actually are working to preserve and extend the rule of law and human decency to refugees:**