"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Category: United States Citizenship and Immigration Services (“USCIS”)
On Jan. 5, the Biden administration announced that it planned to issue a regulation “to provide that individuals who circumvent available, established pathways to lawful migration, and also fail to seek protection in a country through which they traveled on their way to the United States, will be subject to a rebuttable presumption of asylum ineligibility in the United States.”
These two reasons to bar people from seeking asylum — for transiting through other countries and for crossing the U.S. border without authorization — have different rationales and historical origins. But both have been marshaled against Central Americans since the late 1980s — severely undermining access to asylum. Doing so endangers people’s lives and breaks U.S. and international law. History reveals the purpose and perils of such bars.
No such bars stopped earlier waves of refugees seeking protection in the United States, especially those coming from Europe. When people who fled the Bolshevik Revolution applied to be considered “bona fide refugees” under a 1934 U.S. law, it did not matter that they had spent several years during the previous decade in Germany, France, China, Argentina, Cuba, Mexico or Canada and then crossed a land border without getting inspected by a U.S. official — as many did — beginning in the mid-1920s. They told immigration officials that conditions in those countries made it hard for them to live and it would be years before they could qualify for an immigration visa to the United States. So, they made their way to the United States on their own — and their mode of entry, and even their use of fraudulent travel documents, did not preclude them from adjusting to permanent status.
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The Biden administration insists its regulation will be different because it has opened up new legal pathways from transit countries and it will give asylum seekers a chance to prove why they didn’t use one of the legal pathways available to them. But migrants from Guatemala and Honduras lack parole programs that are newly available only to Venezuelans, Nicaraguans, Cubans and Haitians who have passports and sponsors in the United States. Further, parole, discretionary temporary permission to enter and stay in the United States with no path to citizenship, is a far cry from permanent refugee status. Fifteen thousand refugee resettlement slots this year are for all of the Caribbean and Latin America, where over 7 million Venezuelans are displaced. It is hard not to see this rule as an effort to limit access to asylum in the United States specifically for people from northern Central America and to treat today’s forcibly displaced people from the Americas unlike people seeking refuge from elsewhere in the past.
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Read Yael’s complete article at the link.
Many of us had believed that the Biden Administration would get beyond the biases, manipulations of law, and implicit or explicit racism of the past to achieve the orderly, legal, timely admission of refugees, including those from Latin America, from abroad and at the border. Unfortunately and outrageously, they haven’t even tried!
Instead, they have turned human rights and border policies into an unholy, largely incomprehensible and arbitrary, mishmash of many of the worst, most ineffective, and invidiously biased policies of the past.
This is an interview with Rev. Craig B. Mousin, an Adjunct Faculty member of DePaul University’s College of Law, Refugee and Forced Migration Studies Program, and the Grace School of Applied Diplomacy. The podcast critiques Department of Homeland Security Secretary Mayorkas’ recent NPR interview for what the interview omits in explaining 2023 asylum policies.
ACTION STEP
Imagine you are an asylum-seeker who has left your homeland. Listen to the interview with Secretary Mayorkas and consider its impact as you. Then write to the White House and Secretary Mayorkas and urge the Biden administration to follow the procedures and procedural protections of the Refugee Act of 1980: https://www.npr.org/people/4080709/steve-inskeep
We welcome your inquiries or suggestions for future podcasts. If you would like to ask more questions about our podcasts or comment, email us at: mission.depaul@gmail.com
This is an interview with Rev. Craig B. Mousin, an Adjunct Faculty member of DePaul University’s College of Law, Refugee and Forced Migration Studies Program, and the Grace School of Applied Diplomacy. The podcast critiques Department of Homeland Security Secretary Mayorkas’ recent NPR interview for what the interview omits in explaining 2023 asylum policies.
ACTION STEP
Imagine you are an asylum-seeker who has left your homeland. Listen to the interview with Secretary Mayorkas and consider its impact as you. Then write to the White House and Secretary Mayorkas and urge the Biden administration to follow the procedures and procedural protections of the Refugee Act of 1980: https://www.npr.org/people/4080709/steve-inskeep
We welcome your inquiries or suggestions for future podcasts. If you would like to ask more questions about our podcasts or comment, email us at: mission.depaul@gmail.com
Thanks for speaking out, Craig! Mayorkas’s interview was a shocking mix of intellectual dishonesty, insincerity, and misdirection worthy of a Trump Administration official. And, as Craig points out several times, the interviewer didn’t ask the right questions either.
Let’s understand what the Biden Administration’s arbitrary, ad hoc “parole program” that has been substituted for the Refugee Act of 1980 (“the law”), as amended, really does: 1) favors those who don’t necessarily meet the “refugee” definition (even if properly interpreted), but who have individual sponsors, over refugees; or 2) forces those who do meet the refugee definition into an inferior “parole status” that denies them the statutory path to a green card and eventual citizenship and other benefits that legal “refugee” or “asylum” status entails, or 3) a combination of 1) and 2).
Sound like a good idea? Of course not! It’s a prescription for a legal, humanitarian, and moral disaster!
Getting the USG to follow the law shouldn’t be this difficult. But, it is, because of the refusal of the Biden Administration to heed the advice of experts who not only know the law, but understand the border and the corrosive effect and real human consequences of unlawfully abandoning the statutory framework established by the Refugee Act of 1980.
Senator William Proxmire (D-WI) 1915-2005 Years served: 1957-89 PHOTO: Milwaukee JournalGolden Fleece Award IMAGE: Taxpayers for Common Sense
The late Senator Bill Proxmire (D-WI) was a ”good government activist,” famous for his monthly “Golden Fleece Awards!” 🏆🐑 The latter were presented to recognize, or more accurately expose, “the biggest, most ridiculous or most ironic example of government spending.”
Proxmire was Wisconsin’s longest-serving U.S. Senator (1957-89), having been elected in a 1957 special election to replace the infamous Sen. Joe McCarthy (R-WI) who died in office. (1957 was the year the then Milwaukee Braves beat the mighty NY Yanks to bring Milwaukee what remains its only World Series Championship. We were allowed to listen on the PA system at Washington Grade School, in Wauwatosa, where I was a student!)
According to his Congressional bio, “Proxmire also set an attendance record not likely to be beaten. Over a period of more than 20 years, he did not miss a single roll-call vote, casting 10,252 consecutive votes before leaving the Senate in 1989.” https://www.senate.gov/senators/FeaturedBios/Featured_Bio_ProxmireWilliam.htm. (Actually, the record was recently broken by Sen. Chuck Grassley (R-IA), sort of, as Grassley eclipsed Proxmire’s years of service, but cast thousands fewer votes, thanks to Congress’s lackadaisical approach to governing in recent years.)
He also famously won contested re-election in 1976 spending under an inflation adjusted $1,000! “He relied upon retail politics — selling himself to Wisconsinites by shaking hands and listening to their stories — to fuel his reelection bid.” https://captimes.com/content/tncms/live/. Proxmire was a rare pol who “walked the walk!”
Sen. Proxmire left the Senate well before the creation of DHS. But, he would have had a field day with entrenched bureaucracy, lack of creativity, and spendthrift ways that have become ingrained in DHS’s poor to pathetic delivery of public services. USCIS lost its way under the malicious incompetence of the Trump Administration and such stunningly unqualified “leaders” as Ken “Cooch Cooch” Cuccinelli. But, it has continued to “wander in the wilderness” under Biden.
David J. Bier Associate Director of Immigration Studies Cato Institute PHOTO: Cato Institute
David “hits the nail on the head”: with these two paragraphs:
USCIS is charging more money for less efficient work. It is not surprising that it is taking adjudicators much longer to process forms because the length of the forms keeps growing. The average form length has increased from about 3 pages in 2003—when the agency started—to about 10 pages in 2022.
USCIS should be eliminating the number of required applications and streamlining the process through electronic filing. The “discounts” for online filing that it plans on introducing hardly compensate applicants who must spend much more time using USCIS’s difficult online application portals, and regardless, online filing will remain unavailable for many types of forms. USCIS is moving too slowly to create a modern immigration system.
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I’ll bet that with his brilliant mind and work ethic, Eric Holder could actually substantially improve on the alleged 13.2 minute average “adjudication” time for Form I-765.
Eric Holder, Jr. Former U.S. Attorney General, now Partner @ Covington & Burling. He could actually save Biden’s USCIS a few bucks on hourly cost of adjudicating EADs!
The EAD is probably the most egregious example of an out of control bureaucracy that charges more for less service and complicates, rather than simplifies, a routine “no-brainer/low risk” function. Even the current $410 fee for an EAD is a ripoff that should be generating tons of excess cash for USCIS. Given the incomprehensible EAD backlog, in fact, the public has paid for lots of “service” that has never been “delivered.”
In private industry, that would be a “red flag” for potential fraud, waste, and abuse. If there were a “Better Business Bureau” for the bureaucracy, USCIS be in hot — no boiling — water!
Actually, the DHS IG and the GAO are supposed to perform this function for the Government, but have been largely “MIA” on the rapid downward spiral of the immigration bureaucracy over the past decade! In any event, nobody appears to pay much attention to their reports. They are issued, covered initially by the media, the subject of a few “political sound bites,” and then buried and forgotten (except, perhaps, by historians and scholars).
DHS needs new creative management, an emphasis on public service, and some close oversight (something Dems conveniently ignored while they had “unified control” of Congress). Most of us “get” that Trump and his flunkies intentionally destroyed what passed for “service” at USCIS. But, that was a well-known fact going into the 2020 election.
After two years in office, whining about what the Trump kakistocracy did or didn’t do, and pointing to Congress’s undoubted dereliction of duty, is getting old. Very old!
The Biden Administration needs to get new leadership into the dysfunctional immigration bureaucracy at DHS, DOJ, DOL, DOS, & other agencies. That must be leadership with a vision, courage, expertise, and a determination to deliver great public services in a competent, timely manner without “breaking the bank” or further blaming, shaming, punishing, or burdening the public “victims” of failed government.
Additionally, the out of touch “Miller Lite Brew Crew” that passes for immigration, human rights, and security advisors at and to the Biden White House needs to be replaced with practical experts who can get the job done without breaking laws and resorting to “built to fail” gimmicks.
Perhaps Senate Dems need much more of “Sen. Bill Proxmire’s Ghost” 👻 and far less tolerance for “Miller Lite thinking” among Congressional Dems and the Biden Administration!
Undoubtedly, once they get rolling, the “GOP Clown Show” 🤡in the House will provide lots of unwanted “oversight” to Mayorkas and Garland. But, given the GOP’s toxic record on immigration, it’s highly unlikely to focus on solving any of the REAL problems in the immigration bureaucracy, nor will it promote better public service — something simply not in the GOP lexicon these days.
To paraphrase Forrest Gump, Immigration Court is like a box of chocolates; you never know what you’re going to get. Also, some of the chocolate is poison.
For many applicants in Immigration Court, the most important factor in determining success is not the person’s story or the evidence or the quality of their lawyer. It is the judge who is randomly assigned to the case. According to TRAC Immigration, a non-profit that tracks asylum approval rates in Immigration Court, Immigration Judge (“IJ”) approval rates vary widely. For the period 2017 to 2022, asylum approval rates ranged from 0% (a judge in Houston) to 99% (a judge in San Francisco). Of the 635 IJs listed on the TRAC web page, 125 granted asylum in less than 10% of their cases. At the other extreme, nine IJs granted asylum more than 90% of the time.
Based solely on these numbers, there is a 20% chance (1 in 5) that your IJ denies at least 90% of the asylum cases that he adjudicates. That’s pretty frightening. But there is much more to the story, which we will explore below.
If Santa were an IJ, it wouldn’t matter whether you were naughty or nice – he would deport you Ho-Ho-Home.
First, the raw TRAC data does not distinguish between represented and unrepresented applicants, and having a lawyer generally makes a difference. Overall, represented applicants were denied asylum in 64% of cases. Unrepresented applicants were denied asylum more frequently–in 83% of cases. So if your IJ sees many cases where the applicant does not have an attorney, her overall denial rate is likely to be higher than if most of her cases have lawyers. To find this information, go to the TRAC website, click on the judge’s name, and scroll almost to the bottom of the IJ’s individual web page. You will see the percentage of cases before that IJ where the asylum applicant had an attorney. If you see that your judge presides over many unrepresented cases, it probably means that her overall denial rate is higher than would be expected if that IJ saw more cases where the applicant had a lawyer. What does this mean? Basically, if you are before such a judge, and you have an attorney, your odds of success are probably better than the judge’s overall denial rate would suggest. Conversely, if you do not have an attorney, your odds of receiving asylum are probably lower than the judge’s overall denial rate would suggest.
A second big factor that is relevant to each IJ’s denial rate is country of origin. People from certain countries are more likely to be denied, and so if your judge sees many people from those countries, his overall denial rate will be pushed up. You can see country-of-origin information if you click on your judge’s name and scroll to the very bottom of his web page. The countries that have had the highest denial rates over the past two decades are: El Salvador, Guatemala, Haiti, Honduras, and Mexico. And so if your IJ has many cases from these countries, his overall denial rate will likely be higher. Meaning that if you are not from one of these countries, your odds of winning asylum are probably better than what your judge’s overall denial rate would suggest.
A third important factor in examining IJ approval rates is the distinction between detained and non-detained asylum applicants. Certain judges have “detained dockets,” meaning that they rule on cases where the applicants are detained. Such people have a much more difficult time winning asylum: Some are barred from asylum due to criminal history or the one-year asylum bar. Others just have a more difficult time preparing their cases because they cannot easily gather evidence while detained. For these reasons, judges who decide many detained cases will generally have a lower overall asylum approval rate. Unfortunately, the TRAC data does not distinguish between detained and non-detained cases, and it is not always easy to know whether an IJ’s record includes detained cases (EOIR has a website that gives some details about each court, including whether that court is located at a detention facility).
While the TRAC data is not perfect (and there is no data on the newest IJs), it is the best source of information we have on Immigration Judge grant rates. Do keep in mind that the numbers only tell part of the story, and it is important to consider the above factors, as well as any other information you can gather from immigration lawyers and asylum applicants about your IJ.
What if you’ve done your research and have concluded that your judge is one of those who denies almost every case she sees? There are a few options.
One: You can go forward with the case and hope for the best. Sometimes a strong case can overcome a judge’s tendency to deny, and after all, even the worst IJs grant cases now and again (except for the 0% guy in Houston).
Two: You can ask for prosecutorial discretion and try to get the case dismissed. Except for cases where the noncitizen has a criminal or security issue, DHS (the prosecutor) is often willing to dismiss. Assuming you can get the case dismissed, you can then re-file for asylum at the Asylum Office (yes, this is a ridiculous waste of resources, but people are now doing it all the time). If you pursue this option, make sure to read the Special Instructions for the form I-589, as you will most likely be required to file your form at the Asylum Vetting Center.
Third: You can move. If you move to a new state (or at least a new jurisdiction within the same state), you can ask the IJ to move your case. Typically, you file a Motion to Change Venue. If the judge agrees, your case will be moved to a different court where you will hopefully land on a better IJ. Judges (and DHS attorneys) do not always agree to allow you change venue, especially if you are close to the date of your Individual Hearing or if you have previously changed venue in the past. And so if you plan to move your case, the sooner you make the move, the better.
Most Immigration Judges will do their best to evaluate the evidence and reach a fair decision. But some IJs seem intent on denying no matter what, and these judges are best avoided, if at all possible. Thanks to TRAC, you can get an idea about whether your IJ is one of these “deniers,” and this will help you decide how best to proceed in your case.
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So, at roughly the “halfway point” of the Biden Administration, one of the “best minds in the business,” Jason Dzubow, is expending his awesome brain-power advising lawyers on “strategies” for avoiding unfair “any reason to deny” Immigration Judges who inhabit about one in five Immigration Courtrooms under Garland!In other words, what steps you have to take to get a “fair hearing” on asylum from an agency whose sole function is SUPPOSED to be providing said “fair hearings” to everyone! See something wrong here?
One of these “strategies:” Request the ICE prosecutor’s agreement to dismissal of the (probably already long-pending) case in Immigration Court and “refile” before the Asylum Office (which also is hugely backlogged). Jason admits “that this is a ridiculous waste of resources, but people are now doing it all the time.”
Wonder why we have huge asylum backlogs? Despite what Trump, Biden, and nativist GOP politicos would have you believe, it has less do with those vainly seeking legal justice at our borders and LOTS to do with inept decisions, dumb actions (some of them downright malicious), and inactions by Congress and Administrations of both parties in the 21st Century.
Garland’s job was to fix this broken, unfair, wasteful, and astoundingly inefficient system. That isn’t “rocket science.” But, it requires dynamic, progressive, due process committed new leadership at EOIR and a major “shakeup” among Immigration Judges, at both the trial and appellate levels, so that those who are “looking for any reason to deny” either are get different jobs or start treating asylum seekers fairly and humanely byfollowing Cardoza, Mogharrabi, Kasinga, and 8 CFR!
Garland hasn’t gotten the job done! And, the applicants and lawyers whose lives and livelihoods are tied up in his beyond dysfunctional system are the ones paying the price for his failure! Also taxpayers see their dollars and resources being poured down the drain at EOIR!
But, they aren’t Garland’s only victims! EOIR’s dysfunction and its failure to provide consistently correct, generous, positive guidance on how to efficiently grant asylum, particularly at the border, drives a whole other series of failures, illegalities, wastefulness, and mis-steps by the Administration.
Much of the nonsense and legally inappropriate gimmicks being rolled out by President Biden himself at the border this week is an insane attempt to avert the dysfunction at EOIR and USCIS by punishing not the inept politicos and bureaucrats responsible (nor political grandstanding GOP demagogues like Abbott & DeSantis), but the victims!
Improperly taking away the legal right to seek asylum at the border and creating more “jury-rigged” faux refugee programs by misusing parole are NOT the answer! Whatever their short-term impact is, in the long run they will fail just like all the other “deterrents” and “asylum work-arounds” unsuccessfully tried by Administrations of both parties over the past two decades.
Indeed, for those of us who have been around immigration law and policy for the last half-century, it bears an uncomfortable resemblance to the “ad hoc, highly politicized, unsatisfactory” approach to refugee situations that was superseded by enactment of the Refugee Act of 1980. How little we learn from the past!
What HASN’T been tried is the obvious:Recognizing and vigorously defending the right to asylum and building a fair and efficient adjudication system run and staffed by human rights experts under the existing authority provided by the Refugee Act of 1980, as amended. Why not build a fair, functional, generous legal asylum system under that Act that would encourage applicants to use it and reward those qualified for doing so with timely legal status (including, of course, authorization to work)?
Existing law already provides for “expedited removal,” without full Immigration Court hearings, of those who fail to establish to a trained USCIS Asylum Officer that they have a “credible fear” of persecution! Draconian as that measure is, and it undoubtedly has resulted in mistakes and injustices to asylum seekers, both the Trump and Biden Administrations have gone even further by wrongfully depriving those fleeing persecution of even this limited statutory right to present their claim to an Asylum Officer! To matters worse, both politicos and so-called “mainstream” media have “normalized” this disgraceful and harmful scofflaw behavior by ignoring the pretextual, racist roots of the Title 42 charade!
In the meantime, given the near total lack of leadership, competence, and courage from above to “do the right thing” and bring the “rule of law” to life, I do have a strong suggestion for NDPA members courageously “fighting in the trenches.” Apply for upcoming Immigration Judge vacancies at EOIR in massive numbers, over and over, until the roadblocks are removed and justice prevails!
As the relative proportion of “expert practical scholars” on the Immigration Bench grows and the “deniers’ club cohort” shrinks, change will emerge “from below” at EOIR, lives will be saved by the thousands, and justice will finally be realized in a system that now tries to resist and twist it! Functionality and “good government” will eventually win out over today’s inexcusable, and preventable, mess!
President Biden’s seemingly chaotic policy toward asylum seekers at the U.S. border is no accident. It’s carefully crafted to minimize political fallout. The administration should keep it simple instead, by following the law and doing the right thing — admitting those who arrive at our borders seeking asylum.
Give voters a chance, Mr. President. The American people value decency. They don’t respect craven and calculated inconsistency.
This week, the Biden administration announced an expansion of a Trump-era policy to turn away individuals fleeing persecution who reach our borders. This began with a pretext of limiting the spread of COVID-19, using a public health law known as Title 42. Now it’s just a sop to people who oppose immigration.
In April 2022, the Biden administration stated its intent to end Title 42. Litigation delayed the termination, but in mid-November, a federal judge ruled the policy unlawful, and ordered it to end by Dec. 21. The Supreme Court has stayed that order until it hears arguments next month.
Now, in a head-spinning turn of events, Biden has announced the expansion of Title 42 to Haitians, Nicaraguans and Cubans — nationalities that had not previously been subject to summary expulsion at the border.
If this were not enough of a contradiction, the administration also plans to resurrect another Trump-era policy which Biden had previously denounced, the “transit ban.” This rule bars from asylum any migrants who do not apply for and receive a denial of asylum from the countries they pass through on their way to the U.S.
This “outsourcing” of our refugee obligations to countries of transit, which a federal court found unlawful when implemented by the Trump administration, is ludicrous on its face. The asylum seekers who arrive at our border pass through countries such as Honduras, El Salvador and Guatemala, with human rights conditions as dire as in the migrants’ nations of origin.
To date, the only country with which we legally have such an arrangement is Canada — which makes sense because it has a robust refugee protection system and an admirable human rights record. And even if there are other countries of transit, such as Costa Rica, that have a well-developed framework for the protection of refugees, and solid records on human rights, they are already taking in numbers of asylum seekers that far exceed their capacity.
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Read Karen’s full op-ed at the above link.
It’s simply appalling, not to mention disingenuous, for Biden to ignore the advice of experts like Karen, the founder and moving force behind the Center for Gender and Refugee Studies at U.C. Hastings Law. (Karen also argued the landmark Kasinga case before the BIA when I was Chair). Instead, disgracefully, he has turned human rights and immigration policies over to a bunch of spineless, scofflaw politicos and “go along to get along” bureaucrats.
He has multiplied the problem by following and adopting their highly politicized program of “carefully crafted chaos” — which both ignores the law and inflicts irreparable harm, including death, on legal asylum seekers! The “crime” of these victims of Biden’s tone-deafness? Seeking to exercise their legal rights under U.S. and international law to apply for asylum!
Biden and some Dems seem to have forgotten the nationwide, grass roots wave of support for admission of refugees in response to Trump’s despicable “Muslim ban!” As Karen points out, rather than “running from” immigration, refugees, and asylum as issues, Biden and other Dems should be embracing them as part of our heritage as a nation of immigrants and a source of strength and shared prosperity for our future! Refugees and asylees are a key component of our legal immigration system.
Making the necessary progressive, due process and fundamental fairness oriented, reforms to enable our nation to welcome those qualified in a timely, humane, and fair manner should be a top priority! As Karen cogently notes, “doing the right thing,” and doing it really well, “is good politics!”
Biden’s latest immigration nonsense will be attacked by litigators on both sides. Both the ACLU and Stephen Miller’s nativist legal group “America First Legal” have pledged to resist various parts of the new policies in court. The irony here is that Biden’s latest anti-asylum efforts incorporate much of the “Miller White Nationalist agenda” that Biden and other Dems campaigned (and fund-raised) against during the 2020 election!
Biden and his immigration advisors apparently have been overindulging in this stuff lately! It shows in their disturbingly poor performance on asylum, human rights, an “order at the border!”
Karen’s message is the same as mine. “It’s not rocket science!🚀 Migrants have a right to asylum.”🗽 Start with that straightforward truth and everything else falls into place!
Thanks for speaking out so forcefully, articulately, and truthfully, Karen, my friend!
The Biden administration has long been saying that it wants to get rid of Title 42.
Why, then, has it been expanding use of this policy?
“Title 42” is shorthand for what is effectively an abuse of a public health authority to circumvent U.S. asylum laws. Beginning in March 2020, the Trump administration used an obscure public health statute to automatically expel migrants without allowing them to first apply for asylum, as is their right under U.S. law and international treaty;PresidentDonald Trump’s pretext was that these immigrants might spread covid-19.
Apparently, Trump considered covid a liberal media hoax except when useful for punishing foreigners.
Human rights advocates and public health experts alike criticized the policy as probably both illegal and lacking a credible epidemiological purpose. Whatever its intentions, it didn’t reduce stress at the border; instead, it increased attempted border crossings, as many people expelled without consequence or due process turned right around and tried again to enter the United States.
That is, if they weren’t kidnapped, tortured, raped or otherwise violently attacked first. This happened in more than 10,000 cases of expelled migrants, as documented by Human Rights First.
As a presidential candidate, Joe Biden pledged to restore the integrity of the asylum system. He promised that anyone qualifying for an asylum claim would “be admitted to the country through an orderly process.” As president, though, Biden dragged his feet in terminating Title 42. He finally agreed to end the program this past spring. But termination has since been delayed by complicated court rulings, which Biden officials seem to have fought only half-heartedly.
This week, the Supreme Court determined that Title 42 must remain in place at least until the court decides a related issue (probably in the coming months). Given the Biden administration’s claims of wanting to end Title 42, the president should theoretically be mad about the delay.
Instead, Biden officials seem to have seized the opportunity to make yet more immigrant groups subject to automatic expulsions. “The administration has taken the position in court that they can no longer justify keeping Title 42 in place, given the lack of any public health justification,” said Lee Gelernt of the American Civil Liberties Union, which is challenging the expulsion policy. “If you look at the administration’s actions, however, it’s clear they’re fine with Title 42 remaining in place.”
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Americans often complain that immigrants should come here “the right way,” but for many migrants, showing up at the border unannounced and turning themselves in is the only legal pathway available. If given options to come here that don’t require paying gangs and crossing deserts, people would gladly take them — which would in turn alleviate stress at the border.
To its credit, the Biden administration has taken baby steps on that last recommendation.
Its Uniting for Ukraine program, for instance, has vetted and “paroled in” more than 82,000 Ukrainians and their immediate relatives abroad, which has discouraged Ukrainians from showing up en masse at our southern border (as had been the case early in the war). A similar but much more restrictive program was created for Venezuelans, whose numbers are capped at 24,000; a parallel program is reportedly in the works for Cubans, Nicaraguans and Haitians.
But again, these additional legal pathways can be created while still upholding the ability to apply for asylum at our borders. That’s what U.S. law requires — and what Biden has, repeatedly, promised to do.
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Read Catherine’s full article at the link. “If you look at the administration’s actions, however, it’s clear they’re fine with Title 42 remaining in place.”So true! So outrageous!
Contrary to much of the blather from both parties, refugee and asylum laws are an integral part of our LEGAL immigration system — one that is now being grossly misapplied and under-utilized!
Creating additional legal avenues for immigration by legislation is by no means inconsistent with maintaining robust, well-functioning refugee and asylum programs!
There are lots and lots of improvements that the Biden Administration could and should have made to the legal refugee and asylum programs that already exist under the law! Indeed, I suggest that many of the bogus “gimmicks” and counterproductive, wasteful, unfair “deterrents” devised and implemented by the Biden Administration, including expanded use of Title 42, were in direct or indirect response to Garland’s failed Immigration Courts. Because they are backlogged, inefficient, and dysfunctional, bureaucrats and politicos dream up ways to evade them (as opposed to fixing them so they work)!
It’s all wrong! There are “tons” of cases rotting inGarland’s ever-expanding EOIR backlog that could be granted or otherwise disposed of with relative ease and without stomping on anyone’s due process rights! There are ways of providing proper notice, better scheduling, and a new system for initial adjudications of non-LPR cancellation cases that do NOT require legislation; just better leadership and personnel at DOJ, DHS, and the White House!
The lack of scholarly, progressive, due process oriented precedents and implementation of best judicial practices by the BIA cripples justice in both the Immigration Courts and the USCIS Asylum Offices, even extending to the Refugee Program and other forms of USCIS adjudication of benefits.
For example, the ridiculous, largely self-created, backlogs in USCIS work authorizations is at least partially fueled by never ending backlogs in Immigration Court. Also, bad judicial decisions at EOIR create large amounts of unnecessary litigation in the Article III Courts and promote inconsistencies by allowing too many important issues, including proper application of some of the BIA’s own precedents favorable to respondents, to be resolved by the Circuits.
The system is a godawful mess! Yet, Dems inCongress didn’t even consider pressing for long-overdue Article I legislation, already introduced by Chair Lofgren, as part of their “lame duck push.” Thus, a key part of the immigration and justice systems continues to flounder and fail in Garland’s DOJ!
The need for so-called “comprehensive immigration reform” does not in any way minimize the responsibility of the Biden Administration for failing to reform the leadership and bureaucracies at DOJ and DHS to produce fairer, more efficient, expert, professional results!
Some cowardly Dem politicos and many Biden officials “run” from the immigration issue; yet, addressing and fixing the parts they control, like EOIR, could well have given them success to tout during the mid-term campaign.
And, as many experts suggest, it might also have helped address labor shortages, inflation and improved the economy. Rather than just “holding off disaster,” by acting more boldly on immigration the Dems might even have maintained and expanded their political control by demonstrating both the competence to solve immigration problems, even without comprehensive legislation, and the benefits of a fair, efficient, functional immigration system to America as a whole.
With the GOP taking over the House, expect many Dems to continue bellyaching that “nothing can be done about immigration.” It’s not like they did much of anything when they controlled both Houses!
There are still things that can be done to make the system fairer, more efficient, and more responsive to the common needs of America. Progressives should not let Dem “naysayers” off the hook!
CROTONE, Italy — On a continent that has spent years trying to cut off undocumented immigration — using fences, surveillance, financial incentives and sometimes even brute force — the close-the-door strategy is faltering
Migration across the Mediterranean has crested to the highest level in five years. New nationalities, most notably from Egypt, have joined the stream of people seeking escape to Europe. And hard-line border policies are merely driving smugglers to adapt: Soon after Greek authorities instituted a practice of harsh pushbacks, boats departing Turkey began charting a longer route — bypassing Greece and heading instead to Italy’s Calabrian coast, an area that used to see almost no arrivals.
“Here comes another,” a law enforcement official at the port of Crotone said one recent morning, watching a vessel with 80 people come into view, just four hours after the arrival of a boat with 81 others.
The European Union’s desire to obstruct migration on multiple fronts was reflected in a collection of deals cobbled together in the aftermath of a 2015 mass-scale wave from Africa and the Middle East. And, for a while, the strategy appeared to be working: Mediterranean crossings dipped dramatically. The issue lost political primacy, depriving nationalist parties of kindling.
But an increase in arrivals this year is showing the limits of a Fortress Europe strategy — and reviving the highly contentious issue of how to handle and divvy up those who make it to the E.U. and its borderless travel zone.
“Europe’s expectations were based on a wrong assumption — that mobility across the Mediterranean could be stopped or limited, so it would no longer be politically relevant,” said Roberto Cortinovis, a migration specialist at the Center for European Policy Studies. “And that is impossible.”
. . . .
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Some of the same things are happening here. Nativist/restrictionists, largely, but not exclusively, from the GOP, keep pushing failed “deterrence only” enforcement policies. And, the USG keeps “investing” in them despite decades of proven failure and deadly human results.
Ironically, today should have been the end of the illegal and abominable Title 42 charade. But, as with past fictional “deadlines” for termination, it didn’t happen.
Just to put Lee’s outrageous abuse of the law and human rights in perspective, remember that U.S. District Judge Emmet Sullivan recently concluded, on a voluminous record, that the use of Title 42 to deny migrants’ legal rights at the border was: 1) an illegal pretext from the beginning, and 2) causes “stomach churning” dire, irreparable harm, including rape, torture, and death, to legal asylum seekers. Essentially, nativist politicos like Lee are trying to force the Biden Administration to commit even more egregious human rights violations — on top of the hundreds of thousands, perhaps millions, they have already committed by enforcing Title 42 over the past two years.
While Lee’s scurrilous and totally misguided amendment is likely to fail, another almost equally bad one, sponsored by Sen. Sinema (I-AZ) to extend Title 42 indefinitely (till a “better plan” is in effect, which will never happen, particularly if the GOP has anything to say about it), is also up for a vote. “Lost in the shuffle” is the simple fact that we have existing laws that could and should be used to timely grant refugee to those legally qualified while expeditiously and summarily removing those with no credible claim. That the Biden Administration has failed to develop a viable plan for re-implementing existing law (which had been in effect for decades before being illegally abrogated by Trump) over the past two years should not be confused with impossibility!
Far from it, as many experts have pointed out, illegally “closing” ports of entry to asylum seekers has made unauthorized entry the “sole and exclusive” way for asylum seekers to exercise their rights! Yet, nativist politicos, the media, and even the Biden Administration ignore or mister present this truth.
As the International Organization on Migration has said, ““Migration is inevitable, necessary and desirable.” https://www.iom.int/news/migration-inevitable-necessary-and-desirable-opening-exhibition-iom-hague. It can be controlled and channeled with wise, realistic, and humane decisions. But, it won’t be stopped by walls, prisons, deportations, racist nationalistic rhetoric, militarization of borders, or cruel and inhumane laws and restrictionist policies.
Or, as I have said before, “We can diminish ourselves as a nation, but it won’t stop human migration.” Sure, the U.S. needs comprehensive, robust immigration reform that recognizes the inevitably and mutual benefits of human migration. But, particularly with a GOP House, it’s not on the horizon.
In the meantime, it is incumbent on the Biden Administration to make existing laws and policies work to timely, efficiently, and humanely screen refugees and asylum seekers at our borders. Those who qualify should be admitted in a reasonable period of time rather than aimlessly sent to wander the U.S. waiting for interviews from USCIS or hearings from EOIR that might never happen because of mismanagement and lack of vision in the current system. Those who don’t have credible claims should be subject to the summary removal procedures of the current law.
That the Biden Administration has, to date, lacked the competence, vision, and expertise to make the existing laws work in an acceptable manner is a shame. Ultimately, it’s one they won’t be able to “run away from” no matter how hard they try!
Who would have thought that the Biden Administration would be dumb and treacherous enough to let this neo-Nazi xenophobe and refugee hater “own” human rights “policy” in a Dem Administration? But, it appears they have! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
From Michael Shear & Eileen Sullivan the NY Times:
WASHINGTON — The Biden administration is considering substantial new limits on the number of migrants who could apply for asylum in the United States, according to people familiar with the proposal, which would expand restrictions similar to those first put in place along the border by former President Donald J. Trump.
The plan is one of several being debated by President Biden’s top aides as the country confronts a high number of illegal crossings at the border. It would prohibit migrants who are fleeing persecution from seeking refuge in the United States unless they were first denied safe harbor by another country, like Mexico.
People familiar with the discussions said the new policy, if adopted, could go into effect as soon as this month, just as the government stops using a public health rule that was put in place at the beginning of the coronavirus pandemic by the Trump administration and became a key policy to manage the spike in crossings during Mr. Biden’s tenure. A federal judge has ordered the administration to stop using the health rule on Dec. 21.
But the idea of broadly prohibiting migrants from seeking asylum strikes directly at the heart of decades of American and international law that has shaped the United States’ role as a place of safety for displaced and fearful people across the globe.
. . . .
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Read the complete article at the link.
[U.S. District Judge Emmet ]Sullivan wrote that the federal officials knew the order “would likely expel migrants to locations with a ‘high probability’ of ‘persecution, torture, violent assaults, or rape’ ” — and did so anyway.
“It is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals,” Sullivan wrote. “It is undisputed that the impact on migrants was indeed dire.”
What part of Judge Sullivan’s very clear ruling on their “crimes against humanity” and knowing violations of U.S. and international law doesn’t the “Biden Administration Clown Show” 🤡 understand? Just follow the asylum law and due process, already! If you can’t do that, resign and let folks who can do the job (of which there are plenty out here in the “real world”) take over and do the job you have been failing at for two years!
In any event, the talent is out here in the private/NGO sector and will resist this latest insult to humanity and degradation of the rule of law and due process that Administration officials are “pondering!” “Studying and deciding whether or not to violate the law (again)?” Sounds like a potential criminal conspiracy to me!
In any event, expert litigators like Lee Gelernt of the ACLU and other NDPA superstars are prepared to “beat the Biden Administration’s brains (if any) out” in court again if they try to implement any more of their illegal and immoral immigration gimmicks!
“If the Biden administration simply substitutes the unlawful and anti-asylum Trump transit ban for Title 42,” Mr. Gelernt said, “we will immediately sue, as we successfully did during the Trump administration.”
The Chair of the Senate Foreign Relations committee was also “not on board” with the Biden Administration’s latest harebrained ideas on diminishing human rights that they have substituted for basic competence over the past two years of disasters, and unforgivable policy screw-ups on immigration, human rights, and racial justice issues:
“If the reported story is true, the Biden administration would further step away from our nation’s commitment to offer refuge to asylum seekers,” Senator Bob Menendez, Democrat of New Jersey and the chairman of the Foreign Relations Committee, said in a statement on Thursday. “I will firmly oppose this misguided attempt to rewrite our asylum laws without congressional approval, just as I firmly opposed the same efforts under President Trump.”
I also have to wonder how Judge Sullivan will react when he learns how Biden Administration officials are using his “reluctantly granted” five weeks of delay in implementing his “cease and desist order.” Instead of, at long last, getting their collective tails in gear to finally put in place a competent legal system for re-establishing legal asylum at the southern border, these disgraceful petty bureaucrats and so-called “policy” officials have been scheming to evade the rule of law and commit yet more “crimes against humanity.”
The NDPA is not going to let them get away with it. Even if it means ripping apart the “so-called Democratic Coalition” going into the 2024 elections!
🇺🇸 Due Process Forever! Tyranny & Stupidity From either Dems or the GOP, never!
Despite two years of blather and broken promises, the Biden Administration’s approach to asylum at the border hasn’t advanced much over Trump’s. That’s a shame, because the tools and expertise to fix the system are available, yet largely ignored by the Administration. It might come to a head on Dec. 22. Artist: Monte Wolverton Reproduced under license
As experts predicted, the Biden Administration’s poorly-conceived and ineptly implemented “expedited asylum dockets” have sharply diminished favorable outcomes and due process for asylum seekers in a broken system already stacked against them. This preventable disaster is particularly acute for the too many unrepresented applicants who have little chance of relief in a system designed to reduce them to dehumanized denial statistics.
But, the real “sleeper” here is that over three quarters of the cases “referred” by the Asylum Office are GRANTED by the Immigration Courts. This shows a gross “over-referral” of cases to the Immigration Courts that could and should be expeditiously granted at the Asylum Office. The Administration’s regulation change to give Asylum Officers more authority to grant asylum at the first instance has not had the positive effects it should have.
Of course, the Administration’s unforgivable failure to “leverage” asylum grants for recently arrived refugees cripples their border response and creates fodder for GOP White Nationalist xenophobes. It builds unnecessary backlogs and promotes “aimless docket reshuffling” in Garland’s disgracefully dysfunctional and hopelessly backlogged EOIR!
But, beyond that, this statistic also projects that a large part of EOIR’s largely self-inflicted “asylum backlog” consists of clearly grantable, represented “affirmative” asylum cases referred by the Asylum Office. Rather than working with the private bar to identify and prioritize these cases in an orderly, professional manner for expedited grants, Garland has done the exact opposite!
The problem of mass over-referral to EOIR by the Asylum Office is hardly “today’s news.” Indeed, in 2016, the year I retired from the bench, 83% of the “affirmative” referrals by the Asylum Office were GRANTED in Immigration Court! https://www.statista.com/statistics/234398/affirmative-asylum-case-grant-rate-by-us-immigration-courts/ And, that was with a BIA setting precedents that were generally, and quite incorrectly, unfavorable to asylum seekers. Of course the latter problem has also gotten worse in the intervening years.
As I have pointed out before, despite two years to reform and improve the asylum system at both DHS and EOIR, the Biden Administration appears woefully unprepared to reinstitute the rule of law for asylum seekers on December 22 in a manner that is fair, efficient, reasonable, and humane. Failure to solve the long-festering problem of under-granting asylum and over-referring cases to EOIR is just part of the overall ineptitude, lack of dynamic leadership, absence of vision, and, frankly, moral vapidity of the Biden Administration on human rights and racial justice.
Failure to timely and competently grant asylum at the first instance is a major driver of disorder and backlogs at both USCIS and EOIR. That’s basically “Good Government 101,” apparently not required to work on immigration in this Administration.
The process requires close coordination and cooperation with NGOs and the pro bono bar for representation (essential for due process), quick identification and granting of strong cases, and orderly resettlement (in place of the random bussing by GOP grandstanding governors curiously empowered by the Biden Administration’s lack of leadership).
But, if there is a plan by the Administration to involve the private sector in a positive manner, it’s certainly a secret. That’s tragic, as the imbalance in experience, expertise, and competence between the private bar, where it resides, and the Administration, where it doesn’t, has reached incomprehensible levels!
I always hope for the best, even when it’s against the odds. But, if disaster and massive human rights violations unfold on and after Dec. 22, expect the Biden Administration, like Trump, to blame everybody but themselves.
The job of creating order out of disorder is likely to fall primarily on NGOs and advocates at or near the border. As always, the first priority is saving as many refugee lives as possible. But, the next priority is to hold the Biden Administration accountable and not let them shift the blame for their self-created disorder at the border and the predictable, yet avoidable, mess they appear determined to create!
Along the 2,000-mile (3,219km) boundary between the US and Mexico, the 2022 fiscal year proved the deadliest on record for people trying to make unauthorized crossings of this heavily patrolled international line.
In Eagle Pass’s regional enforcement sector alone, border patrol agents discovered more than 200 dead migrants between October 2021 and the end of July, compared to an already heartbreaking 34 bodies during the entire 2020 fiscal year.
Ahead of this week’s crucial midterm elections, Republicans have manipulated these harrowing statistics as yet another opportunity to make much ado about what various rightwing players call Joe Biden’s “open border policies”, accusing his administration of incompetence that is causing “body bags [to] keep piling up”.
It’s close to sealed by a hostile combination of pandemic-era public health measures cynically retooled as federal immigration control and mass policing by state troops who arrest, jail and criminalize migrants.
Cruelly, these hardline deterrence mechanisms advanced by both Democrats and Republicans have probably only made the US’s south-west border bloodier.
Deterrence as a strategy has informed some of the US’s most controversial immigration policies, from separating families, to detaining children, to stranding asylum seekers in dangerous Mexican border towns.
But desperate people still find ways to make it on to US soil: last fiscal year, Customs and Border Protection documented nearly 2.38m enforcement encounters at the southern border, a record high causing headaches for Biden as conservatives accuse the president of being “lax” on border crime.
The truth is more complex, and not at all lax. More than a million of last fiscal year’s border enforcement encounters were processed under Title 42, now invoked as a federal immigration enforcement tool but originally disguised as a public health measure amid the Covid-19 pandemic.
The policy allowed the Trump and now the Biden administrations to expel huge numbers of people from the US without even letting them ask for asylum, seemingly in violation of domestic and international law.
Far from ending unauthorized migration, the invocation of Title 42 has in fact dramatically inflated the number of encounters at the US-Mexico border, as people who are expelled feel compelled to cross again – and again, and again. Sometimes, relentless migrants have been so determined to complete their journeys that they have risked life and limb dozens of times, fueling a political and humanitarian disaster.
And both parties continue to police people seeking security and opportunity over violence, persecution and poverty as if they’re national security threats.
In the shadow of it all, the corpses amass.
Back in Eagle Pass, locals like Rosalinda Medrano who have lived for decades along a porous border understand that migrants have and will always come or, increasingly, die trying.
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“Even though there’s one fence, and another fence, and so many troopers, and the national guard, and you name it – Border Patrol, here and there and everywhere – it’s not gonna stop these families,” she said, adding simply: “They want a better life.”
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Read the complete article at the link, in which Alexandra points to the numerous achievable solutions that both parties eschew — for political reasons — some cynical, dishonest, and racist (GOP) — others cowardly (Dems). None of what Alexandra reports will come as news to faithful readers of Courtside, or, indeed, to anyone who has taken the time to actually study and reflect on America’s decades of expensive, inhumane, “deterrence policies.”
Fact is, existing law, if correctly applied and administered, offers some obvious ways to start solving the problem:
Robust realistic “overseas” refugee programs in the Western Hemisphere — 150,000 would be a modest start — rather than the piddling, restricted numbers now slowly doled out by the Biden Administration.
Reopen legal ports of entry to legal asylum seekers, as required by law, to incentivize and reward them for not seeking to cross between ports of entry.
Staff the Asylum Office and the Immigration Courts with real experts in asylum law (there are plenty of well-qualified lawyers now in the private sector) who are committed to due process and can rapidly recognize and grant the many meritorious cases. Then, individuals are admitted in legal status, on their way to green cards, rather than aimlessly wandering the US with government-issued packets of misinformation (or no information at all) waiting for hearings that will come either too soon or too late, but never in a reasonable manner and often with incorrect preordained results designed to abuse the legal system as an “enforcement deterrent.” (NOTE: To act as an incentive/reward for appearing at ports of entry, the asylum system must be credible, transparent, and timely — something that no Administration has achieved to date, but which is possible with more vision, leadership, and better personnel making decisions.)
Work with, bolster, support, and learn from the many NGOs in the U.S. to insure that asylum seekers are informed of their obligations, represented on their applications, and resettled, mostly away from the borders to areas that need them, in an orderly fashion.
“Even though there’s one fence, and another fence, and so many troopers, and the national guard, and you name it – Border Patrol, here and there and everywhere – it’s not gonna stop these families,” she said, adding simply: “They want a better life.”
We can, and must, do better than “more body bags” as a matter of national policy! Migrants aren’t going to stop coming. That, we can’t change in the long run — no matter how many lies, myths, and distortions nativists throw out there, and no matter how fast spineless Dem politicos run from or attempt to hide the truth. But, we can deal with reality in a more humane, practical, realistic manner that will serve our nation’s, and humanity’s, interests into the future.
It wasn’t “Camelot,” as you can clearly see from this picture taken on the day of my retirement, June 30, 2016. No “Arthurs, Guineveres, or Lancelots” in this shot! But, the Arlington Immigration Court did its best to bring a modicum of due process, fundamental fairness, justice, and respect to those passing before it. Not perfect, by any means. But I was glad to be there and be “part of the team” for 13 years!
⚖️🪦 “REQUIEM FOR A HEAVYWEIGHT” — Farewell To The Arlington Immigration Court
By Paul Wickham Schmidt
Courtside Exclusive
Nov. 7, 2022
It was my “professional home” for the final 13 years of my career, until I retired in 2016. The Arlington Immigration Court was “born in controversy” decades ago when the Immigration Courts abandoned the sole outpost in the District Colombia and moved across the Potomac River to Northern Virginia. For many years thereafter, its internal acronym remained “WAS,” and mail and record files intended for the Seattle Immigration Court in the “State of Washington” periodically were misrouted to WAS, and vice versa.
Over the years, it grew from a single Immigration Judge — the legendary trail-blazer Judge Joan Churchill — to a judicial cast in the double digits. It outgrew always-inadequate space several times, reaching “the final resting place” on Bell Street in National Landing (née “Crystal City”) in 2012. It was combined and uncombined with the nearby “Headquarters Immigration Court.” At various times, Arlington Judges had regular jurisdiction over such far-flung locations as Cleveland, Cincinnati, Buffalo, Puerto Rico, and the USVI!
To be sure, Arlington had its share of tragedies, scandals, screw-ups, and nonsense. When located in the misnamed “penthouse” — a/k/a the top floor of the Ballston Metro Center — there were NO PUBLIC RESTROOMS — undoubtedly a violation of various Federal and local rules and an act of gross inhumanity to mankind by the chronically inept “powers that be” at EOIR “Headquarters” in Falls Church. Obviously, there were also no “10-minute recesses,” as attorneys and clients — old, young, handicapped, mobile or immobile, fit or unfit— were required to take the elevator to the lobby and fan out to various coffee shops and restaurants in the neighborhood to seek “relief from injustice and inconsideration.”
But, I like to think that the cause of justice was sometimes served at Starbucks, in the corridors, the elevator lobby, or on the surrounding streets during these interludes. On some happy occasions, counsel returned from these “extended recesses”with joint solutions to the case that might not previously have occurred to them, or to me.
On several occasions, the Arlington Fire Marshals closed us down for overcrowding! Toward the end of of our tenancy at Ballston, I inherited the sole “courtroom with a window.” I sometimes quipped that by craning my neck, I could see all the phases of my EOIR career from there: my past (the notorious “EOIR Tower in Falls Church”); my present (the humanity before me in my courtroom); and my future (“The Jefferson” Retirement Home across the square).
But, Arlington also was a place of general and genuine camaraderie: Where judges, Government attorneys, private attorneys, interpreters, and staff worked together as a team to bring practical, efficient, justice to those individuals appearing before the court and the many beyond that whose lives and fates were tied up in theirs. Indeed, of the various places I worked and visited in EOIR, it most reflected the values that have always been important to me: Fairness, scholarship, timeliness, respect, and teamwork.
Those “Thursday Judicial Lunches” and the famous or infamous “Seersucker Thursdays” helped model the spirit of teamwork and camaraderie. Indeed, my judicial career ended on June 30, 2016 — not incidentally, my final “Seersucker Thursday.” (I did, however, “carry on the tradition when teaching at Georgetown Law each June thereafter — until COVID and the “Zoom-era” struck!)
It was also a “showcase court” — or as close an approximation of one as EOIR had at the time. Because of the location in the DMV area, a steady stream of politicos, senior managers, journalists, Congressional Committee staff, professors, DOJ attorneys, USCIS adjudicators, statisticians, demographers, and the like passed through Arlington’s cramped confines and sat on some of the world’s most uncomfortable pews (some interns actually brought “stadium cushions”) to observe the “real life drama” of Immigration Court.
Also, as then Chief Judge Michael Creppy accurately told me at the time of my 2003 reassignment, Arlington was a “teaching court.” Generations of outstanding student attorneys from local law school clinics, “Big Law” associates, and newly-minted immigration practitioners “learned the ropes” in our cramped and chronically over-or under-heated courtrooms. (Immigration Judges were deemed “not qualified” to adjust courtroom thermostats. We had to call on the Court Administrator or the Security Guard to exercise that higher-level responsibility. I actually used to get “joint oral motions” from counsel to raise my courtroom temperature when we were in Ballston!)
And, Arlington Judges were known for their willingness toengage in “educational dialogue” with the parties and observers at the conclusion of the case. Of course, the “merits” of cases were “off limits.” But, it was a terrific opportunity to share information about procedures, practices, and to convey “judicial expectations” to those eager to learn more. Memorably, Judge Wayne Iskra’s totally accurate and painfully obvious remark that “the system is broken” seemed to go above and beyond what our “handlers” in Falls Church deemed appropriate!
Notably, a large number of “Arlington alums” are now themselves in key positions, as judges, government officials, NGO leaders, law firm founders and partners, academics, scholarly commentators, or media figures. Arlington interns and judicial law clerks have also gone on to distinguish themselves. For better or worse, hopefully the former, Arlington had “influence” that went beyond its “utilitarian wannabe to shabby” physical confines.
It was also a place of hope. That might have been why for years we had a negligible “no show” rate for individual hearings. For a number of years, from 2010 to the “advent of Trump,’” it was among the “league leaders” in asylum grants and favorable outcomes for individuals. This was in an age where the overall system and many of the attitudes of DOJ politicos who had authority over the Immigration Courts were relatively unsympathetic to asylum seekers, particularly those arriving at our southern land border or by boat!
A “colorful cast of characters” passed through the Arlington bench. Some were “up and comers” — on their way to “fame and fortune” in the EOIR hierarchy or beyond.
Others of us were exiles or refugees from “The Tower” or Senior Executive positions elsewhere at so-called “Main Justice” or “other government agencies.” At various points during my 13-year tenure, the following were “in residence” at Arlington: former Acting Commissioner of the “Legacy INS;” former INS General Counsel; former BIA Chair; former BIA Members and “Temporary BIA Members;” former Acting INS General Counsel; former INS Deputy General Counsel; Former Principal Deputy Director, International Section of the DOJ; former Principal Deputy Chief Immigration Judge, two-time former Chief Trial Judge of the U.S. Army; former Acting Chief Immigration Judges; former Acting EOIR Director; former Assistant Chief Immigration Judges; former “Brooks Bros Rioter;” former Partner at Jones Day; former Managing Partner of the DC Office of Fragomen; past President of the National Association of Immigration Judges; founder and first President of the BIA Employees Union; former Chief Counsel to the Senate Subcommittee on Criminal Justice; (briefly) former EOIR General Counsel and Deputy General; former Associate Counsel at the White House Domestic Policy Council; former Assistant to the Deputy Attorney General; Adjunct Professor and former Adjunct Professors at Georgetown Law, George Mason Law, and UVA Law.That’s just what I can remember; I’m sure I’ve overlooked some.A few “legitimate celebs” passed through our doors, including Angela Jolie who was a witness in one case!
To be sure, those of us “on the way down the government food chain” or those voluntarily fleeing it far outnumbered those slated to move “up the ladder.” Of course, Arlington wasn’t above criticism. Too old, too White, too male, too many “bureaucratic retreads” to accurately reflect the diverse nature of both the “customers” and the legal community in the DMV area. I won’t deny that there was some validity to those observations.
But, we “were what we were” — the choices that led to our composition at any one time were “above our pay grade.” Heck, I didn’t even apply for the job!
I think all of us did our best to compensate for or “work around” our undoubted “blind spots.” Whether we were successful is for others to decide. As a group, regardless of gender, we all consciously tried to avoid the “grumpy old men” appellation attached to some Immigration Courts of that era.
On October 14, 2022, the Arlington Immigration Court passed into history. Its judges, staff, cases, and the lives they affect scattered, in a tidal wave of “Aimless Docket Reshuffling,”among the newly-established Sterling and Annandale Immigration Courts and the Falls Church and Richmond “Immigration Adjudication Centers.”The latter are apparently part of the current “vision “ of “migrating” EOIR back to its “INS roots” of yore by “emulating” the impersonality of USCIS “Service Centers” — while reportedly providing a level of “customer service” significantly below that which would make USCIS blush!
So, it’s a final farewell to Arlington. But, I will always remain grateful for the time I spent there, for the colleagues I worked with, for those who came before me and helped enlighten me in court, and for those whose lives and futures were entrusted to my care.
Too many Biden Administration Immigration officials appear to share Stephen Miller’s “upside down” view of the Statue of Liberty, in whole or in part! Why can’t they just follow the Refugee Act of 1980 and establish the robust, timely, generous legal approach to refugees and asylum seekers that best serves America?Bill Frelick Director Refugee and Migrant Rights Division Human Rights Watch
Refugees are people who flee for their lives. Escape from danger and abuse is usually chaotic, sudden, desperate. The Biden administration’s rollout of its new policy for Venezuelan refugees seems oblivious to this refugee reality and risks doing more harm than good.
. . . .
Announcing the program on Oct. 12, Homeland Security Secretary Alejandro N. Mayorkas said Venezuelans who enter irregularly “will be returned to Mexico.”
He didn’t mention — and appeared to disregard — U.S. law, which recognizes that anyone who arrives in the United States has the right to seek asylum “whether or not at a designated port of arrival” and “irrespective of such alien’s status.”
The impact of this announcement, “effective immediately,” was the summary return to Mexico without examination of their asylum claims of any Venezuelans entering the United States without authorization. Mexico has given no assurances that it will examine their refugee claims or provide asylum to those who fear return to Venezuela. In fact, the 4,050 Venezuelans expelled to Mexico since the implementation of the policy have been given visas valid for only one week and instructed to leave the country.
. . . .
With the Biden administration’s plan in effect, we might as well apply a blowtorch to Emma Lazarus’s welcoming poem at the foot of the Statue of Liberty and chisel in a new message: “Give me your well-rested, your well-to-do, your properly ticketed jet-setters yearning to breathe free.”
Read Bill’s complete op-ed act the link. Bill is one of many “practical experts” who would do a much better job than current Administration politicos in establishing and running a refugee and asylum program that would comply with the law, due process, human dignity, and America’s best interests.Why is Biden following the lead of his “clueless (and spineless) crew?”
The Refugee Act of 1980was enacted and amended to deal with these situations! Robust, realistic refugee programs outside the U.S. should encourage many refugees to apply, be screened abroad, and admitted legally.
Other refugees arriving at our border can be promptly screened for credible fear. Those who fail that test can be summarily removed in accordance with existing law.
Those who pass that test should have access to counsel and receive timely, expert adjudications, with full appeal rights, under the generous “well founded fear” (1 in 10 chance) international standard established by the Refugee Act. See, e.g., INS v. Cardoza-Fonseca (Supremes); Matter of Mogharrabi (BIA).
It’s not “rocket science!” With dynamic, experienced refugee experts running the system and “practical scholars” with expertise in refugee processing and human rights laws serving as USCIS Asylum Officers and EOIR judges at the trial and appellate levels the legal system should be flexible enough to deal with all refugee situations in an orderly manner.
Many, probably a majority, of today’s asylum seekers should be granted asylum and admitted to the U.S. in full legal status, authorized to work, and on their way to green cards and eventual citizenship. Like those admitted from abroad, they could also be made eligible for certain resettlement assistance to facilitate integration into American communities who undoubtedly will benefit from their presence.
The more robust, realistic, and timely our overseas refugee programs become, the fewer refugees who will be forced to apply for asylum at our borders. Also, real, bold, dynamic humanitarian leadership, including accepting our fair share of refugees and asylees, could persuade other countries signatory to the Geneva Refugee Convention to do likewise.
No insurmountable backlogs; no bewildered individuals wandering around the U.S. in limbo waiting for hearings that will never happen; few “no shows;” no long-term detention; no botched, biased “any reason to deny” decisions from unqualified officers and judges leading to years of litigation cluttering our legal system, no diverting Border Patrol resources from real law enforcement, no refugees huddled under bridges or sitting on street corners in Mexico!
It’s not “pie in the sky!” It’s the way our legal system could and should work with competent leadership and the very best available adjudicators and judges! It would support the proper, important role of refugees as an essential component of LEGAL IMMIGRATION, not an “exception” or “loophole” as racists and nativists like to falsely argue.
Instead of demonstrating the competence and integrity to use existing law to deal with refugee and asylum situations, the Biden Administration resorts to ad hoc political gimmicks. Essentially, the “RA80” has been repealed “administratively.” Effectively, we’re back to the “ad hoc” arbitrary approaches we used prior to ‘80 (which I worked on during the Ford Administration, and where I recollect I first heard of Bill Frelick).
I doubt that the late Senator Ted Kennedy, former Rep. Elizabeth Holtzman, and the rest of the group who helped shepherd the Refugee Act of 1980 through Congress would have thought that using Border Patrol Agents as Asylum Officers or packing the Immigration Courts and the BIA with judges prone to deny almost every asylum claim, regardless of facts or proper legal standards, was the “key to success!”
Congress specifically intended to eliminate the use of parole to deal with refugees except in extremely unusual circumstances, not present here. Biden’s latest ill-advised gimmick violates that premise. It’s totally inexcusable, as the refugee flow from Venezuela is neither new nor unpredictable. I was granting Venezuelan asylum cases before I retired in June 2016. Even then, there were legions of documentation, much of it generated by the USG, condemning the repressive regime in Venezuela and documenting the persecution of those who resisted!
A better AG would say “No” to these improper evasions of existing law. But, we have Merrick “What Me Worry” Garland! His botching of the Immigration Courts has been combined with a gross failure to stand up for equal justice for migrants (particularly those of color) across the board! America and refugees deserve better from our chief lawyer.
The Refugee Act of 1980 actually provides all the tools and flexibility the Biden Administration needs to establish order on the border and properly and fairly process refugees and asylees. Why won’t they use them?
AG Merrick Garland has “looked the other way” while the Biden Administration flaunts applicable protection laws in and outside the U.S. He also runs a dysfunctional “court system” where anti-asylum bias, worst practices, poorly qualified decision makers, and grotesque inconsistencies undermine the legal rights of asylum seekers and other refugees. Doesn’t America deserve more competence from its top lawyer? PHOTO: Wikipedia Commons
Every fall, the U.S. president sets a refugee ceiling — the maximum number of refugees that may be resettled annually to the United States. For the new fiscal year that started Oct. 1, President Biden plans to resettle up to 125,000 refugees. Because of dramatic cuts to the refugee program during the prior administration, that goal will be hard to meet. A year ago, Biden set the same target, but more than 100,000 refugee slots went unused.
Historically, only the U.S. government, working with international refugee agencies and nonprofits, has determined which refugees will be admitted to the United States. That’s a mistake. To meet its goal of admitting 125,000 refugees this fiscal year, the United States should also promptly allow private sponsorships of refugees.
In February 2021, Biden issued an executive order to rebuild our refugee program, including through private refugee sponsorships. Subsequently, the State Department announced plans to start a pilot program, but the launch has been delayed. Over a year after the first announcement, and close to the end of 2022, the State Department has not decided on the funding of prospective partners or issued guidelines on the pilot. The clock is ticking.
Several countries, including Canada, Australia, Argentina, Germany, Ireland, New Zealand, the United Kingdom and Spain, already allow private sponsorships of refugees. Under private sponsorships, individuals and community groups collaborate to provide financial, emotional, and practical support for refugees. Some countries also empower sponsors to nominate specific refugees to enter and stay in their country.
Canada’s experience shows that private sponsorships can work. A 2020 study confirmed that privately-sponsored refugees are more likely than government-sponsored refugees to be working within the first year after entering Canada, with an employment rate at 90% for men and 71% for women. Findings from Canada also suggest that privately-sponsored refugees are more likely to stay at their initial destinations and private sponsorships could contribute to geographic dispersal of resettled refugees.
Americans are already engaged in private sponsorships for Afghans and Ukrainians through the Sponsor Circles initiative. This initiative supports Americans who decide to become sponsors by assisting them in the application process, offering temporary housing credits through Airbnb.org, as well as ongoing expert guidance and other sponsor tools and resources. More than 123,000 Americans have applied to financially sponsor Ukrainians, and over 87,000 Ukrainians have been granted permission to travel to the United States. The number of arrivals will likely exceed 100,000 by the end of 2022.
While technically most Ukrainians and Afghans have not entered the United States as refugees, lessons learned from the Sponsor Circles initiative could help establish a formal private refugee sponsorship model. Because most Ukrainians enter the United States under parole power, they can be authorized for travel in as little as two weeks. However, prospective sponsors have recently reported longer processing times.
To transform private sponsorships from an emergency one-time program to a formalized program where beneficiaries enter as refugees, with access to long-term residence and citizenship, the backlog issue becomes even more concerning. Current tests of 30-day streamlined visa processing for Afghans in Doha could be expanded and serve as a role model for both parolees and refugees. Moreover, to mobilize private refugee sponsors and enable them to prepare, the U.S. government needs to move forward quickly and specify a program design for private refugee sponsors, including financial requirements, sponsorship time commitments, and concrete sponsor responsibilities.
Once a private refugee sponsorship program gets launched, sponsors will have to accomplish challenging tasks. They will have to deal with language barriers, find affordable housing and help new refugees apply for public benefits. For such a process to work, it is important to set up communication streams between private refugee sponsors and existing refugee resettlement agencies.
Public-private partnerships work in other areas. For example, they have become an increasingly popular way to upgrade infrastructure and address the challenges of climate change. By incorporating a private refugee sponsorship model, the U.S. government can supplement its own efforts to admit 125,000 refugees this fiscal year.
More importantly, private refugee sponsorships would allow Americans to participate directly in welcoming refugees and facilitating their successful integration. Experience in the United Kingdom shows that private sponsorship can be a powerful tool in expanding communities’ understanding and capacity for welcoming newcomers. It can reduce fears about others more generally, change working practices to make them more inclusive for diverse populations, and bring new perspectives into relatively homogeneous communities. Involving U.S. citizens in the immigration process could thus be a way to dampen the current heated debate about immigration and allow Americans to see the mutual benefits of immigration.
Janine Prantl is an immigration postdoctoral associate in the Cornell Law School Immigration Law and Policy Research Program. Stephen Yale-Loehr is professor of immigration law practice at Cornell Law School.
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Lots of creative ideas out here on how to improve our broken refugee and asylum systems! But, from those in charge of migration policy in the Biden Administration, not so much!😢
No, they are stuck in reverse. A small-time “overseas” refugee program forVenezuelans (24k “slots” for a refugee crisis that has generated more than 6 million refugees)🤯; a heavy dose of cruel and discredited “Stephen Miller Lite” Title 42 for those who exercise their legal right to apply for asylum at or near the border 🤮; more “due process free” illegal returns to abusive conditions in Mexico☠️.
Perhaps inadvertently, a recent NBC Nightly News report on the border mentioned a widely ignored fact. It pictured and described desperate Venezuelans patiently waiting in line toturn themselves in to CPB to exercise their legal rights to apply for asylum and other protections in the U.S. That’s right — “turn themselves in!”
This is NOT real law enforcement, nor does it present a security crisis! Nor are the oft repeated “record numbers” of border “apprehensions” legitimate!
Since individuals are often returned to Mexico with neither proper processing nor due process, many of these “apprehensions” are inflated — representing repeated “apprehensions” of the same individual merely seeking to apply for asylum — a legal right denied to them by both the Trump and Biden Administrations!
One might also ask whether an individual turning him or herself in and requesting legal asylum is “apprehended” at all? That’s why CBP has started using the more ambiguous term “encounter” to disguise what’s really happening at the border.
Under the Biden Administration’s latest discriminatory and brain dead application of Title 42, those Venezuelans who voluntarily turn themselves in at ports of entry or near the border will be illegally returned to Mexico to rot — as a “reward” for attempting to follow the law. Does this make sense? Of course not. And the consequences of this horrible “policy” are dire for both the refugees and our nation. In many ways, the Biden Administration inexplicably has gone even beyond the cruel stunts of DeSantis and Abbott in making “political footballs” 🏈out of vulnerable Venezuelan refugees! It’s an ongoing national disgrace, masquerading as “policy!”
The only avenue for legal refugee for these Venezuelans fleeing a repressive left-wing dictatorship is to hire a smuggler to get them past the border where they can lose themselves in the interior of the U.S. That is, under the Biden policy, “do it yourself, black market refuge” substitutes for a variable legal system and adds to the unscreened and often unknown underground population of undocumented migrants. in the U.S.
A robust, realistic refugee program for Venezuela, operating both in Mexico and in or near Venezuela, might well reduce the incentives for extralegal migration. It could also take some pressure off of other “receiving” countries in the Hemisphere. But, the “token” — unduly limited — program proposed by the Biden Administration will do nothing of the sort!
Extralegal entries and underground populations are not good. Robust, realistic, timely, refugee and asylum programs — properly focused on using existing laws for protection, not rejection — would reduce the incentive for extralegal migration while reaping the many potential benefits and strengths that refugees and asylees “bring to the table.”
Such a beneficial program is achievable — under current law. But, not without a radical shakeup in both the leadership and substance of the Biden Administration’s so-called human rights bureaucracy!
“Can’t anybody here play this game,” wonders Casey Stengel about the cruel, clueless crew in charge of human rights and immigration (non)policy in the Biden-Harris Administration.
PHOTO: Rudi Reit
Creative Commons
When nearly 50 Venezuelan migrants were left stranded in Martha’s Vineyard last month after Florida GOP Gov. Ron DeSantis flew them to the island from Texas, they had no employment, housing or clear pathway to citizenship.
But this week, the Bexar County Sheriff’s Office, which oversees the San Antonio area and previously opened an investigation into the flights, agreed to certify that the migrants had sufficiently cooperated with its investigation and are now eligible to apply for “U” visas, a kind of immigration status for victims of certain crimes that occur on U.S. soil.
The visas require that a law enforcement officer sign the application before it can be sent to U.S. Citizenship and Immigration Services.
Rachel Self, a Martha’s Vineyard-based attorney who has been coordinating the migrants’ immigration cases, said Wednesday that she flew to San Antonio to obtain the required signatures from the sheriff’s office.
“I now hold in my hand certifications for every one of Perla’s victims,” Self wrote in a statement, referring to Perla Huerta, the woman believed to be responsible for recruiting migrants in San Antonio on behalf of DeSantis.
. . . .
The U visa process, however, won’t be easy or quick, either. According to Department of Homeland Security data, more than 285,000 U visa petitions are pending as of fiscal year 2021, and Congress has capped the visas at 10,000 per year. Once the visas are approved, the migrants must wait three years to apply for a green card and five more years for citizenship.
But once the Venezuelans submit their applications, they will likely be allowed to work and protected from deportation. Last year, the federal appellate court that covers Massachusetts ruled that a Honduran man could not be removed from the country while his U visa application was pending.
“Ironically by choosing to transport the migrants to Martha’s Vineyard […], all of these victims are now protected from removal while their U visa application is pending due to the Granados Benitez case,” Self wrote in her statement. “These certifications will ensure that the migrants can continue to help our law enforcement officials, and that they will be able to process and heal from the incredibly traumatic experiences they have suffered as a result of the cruel, heartless acts committed against them.”
The Biden Administration thinks carrying out his policies is A-OK. Many of those who,helped put them in office disagree. Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
WASHINGTON — The Biden administration will expand its use of a public health rule to start expelling to Mexico thousands of Venezuelans who illegally cross the U.S. border and announced a new humanitarian parole program to provide a narrow legal pathway to the United States for up to 24,000 Venezuelans.
The administration hopes that Venezuelans will apply for the parole plan remotely and fly to the United States rather than making the dangerous trek to the southwest border.
But the reliance on a Trump-era pandemic rule to deny entry to many others crystallized the Biden administration’s balancing act in both helping refugees and tightening border restrictions in the face of Republican attacks on President Biden’s immigration policy and record numbers of illegal border crossings. And there is no guarantee that just 27 days before the midterm elections, it will have the desired effect.
Until now, the majority of Venezuelans who crossed into the United States have not been expelled under the public health authority, known as Title 42. Instead, they were screened and released into the country temporarily to face removal proceedings in immigration court, where they have the option to apply for asylum.
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In addition to being cruel and illegal, the new policy won’t please anyone on the immigration issue. Biden is selling his erstwhile supporters “down the river,” while neither mollifying critics on the right nor winning over independents.
Expect refugees to suffer and die. I also predict that extralegal entries aiming for “do it yourself” refuge in the interior will increase. And, our immigration and asylum systems will remain a dysfunctional mess.
