"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
President Joe Biden would make a mistake if he issued a new executive order to block asylum seekers in the hope of improving his election standing. It is unlikely the order would be lawful or effective. Instead, the Biden administration should focus on policies that have worked by expanding legal pathways. Individuals and families allowed to enter lawfully do not immigrate illegally.
The Associated Press reports, “The White House is considering using provisions of federal immigration law repeatedly tapped by former President Donald Trump to unilaterally enact a sweeping crackdown at the southern border.” The effort shows how pressure over the upcoming rematch with Donald Trump influences U.S. immigration policy.
The president may declare that individuals crossing the southwest border are ineligible to apply for asylum. A court would block it, given the experience when Donald Trump tried a similar approach via regulation.
. . . .
America needs workers. A recent study by economist Madeline Zavodny concluded that the slowdown in the working-age foreign-born starting in 2017 under Donald Trump’s immigration policies (and compounded by COVID-19) likely shaved off a significant amount of real GDP growth in 2022. Real GDP growth, or economic growth, is needed to improve living standards.
Zavodny, an economics professor at the University of North Florida, found that U.S. real GDP growth was lower by an estimate of up to 1.3 percentage points in 2022. In other words, the growth rate was only 1.9 percent but could have been as high as 3.2 percent if “the working-age foreign-born population had continued to grow at the same rate it did during the first half of the 2010s.”
Congress should create temporary work visas for year-round jobs in sectors like hospitality and construction to complement the current seasonal visas that cover jobs mostly in agriculture and summer resorts.
The loudest voices in the room are usually not the ones with the best solutions. On immigration policy, those shouting have called for more enforcement measures, even if such policies are ineffective. The Biden administration should focus on a policy that has worked by expanding humanitarian parole programs and other legal pathways.
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Read Stuart’s full article at the link!
Unfortunately, the Biden Administration has lacked consistent, dynamic, expert leadership on immigration. Consequently, cycles of modest successful positive steps are followed by irrational, failed “deterrence only.”
The Trump Administration turned immigration policy over to notorious White Nationalist restrictionist Stephen Miller and let him have his way. By contrast, the Biden Administration has shown little leadership on this important issue, despite having access to what is probably the greatest intellectual “brain trust” of proven immigration expertise and innovative “practical scholars” in American history!
Preferring to avoid the discussion, the Administration has bounced aimlessly from modest improvements to proven failed cruelty and repression. It’s what happens when an issue of fundamental values that requires vision, courage, consistency, and creative leadership is improperly relegated to the realm of “political strategy” controlled by those who have never personally experienced the human trauma of failed immigration enforcement feeding into a dysfunctional, due-process-denying “court system.”
Stuart understands the issue far better than anyone I’m aware of in Administration leadership. The Biden campaign should “give him a call” and heed his advice!
Cate Scenna Director of PBRC’s Maryland Immigrant Legal Assistance Project (MILAP) PHOTO: Linkedin
From the Pro Bono Resource Center of Maryland:
Cate Scenna, Director of PBRC’s Maryland Immigrant Legal Assistance Project (MILAP), and Bill Meyer, a longtime volunteer with MILAP, spoke to the Baltimore Banner about the state of the Baltimore Immigration Court, and how the overwhelmed system is affecting asylum seekers’ lives.
“One group — attorneys with the Pro Bono Resource Center of Maryland — has established a presence on the fourth floor of the George Fallon Federal Building, where the immigration court in Baltimore is located. This is where the five Salvadoran sisters waited.”
Read more the growing and persistent need for pro bono representation at the Baltimore Immigration Court: https://lnkd.in/et63PTxe
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A system that lets kids face Immigration Court alone has lost touch with justice and common sense.
Rekha Sharma-Crawford ESQUIRE Partner and Co-Founder Sharma-Crawford Law Kansas City, KS
Rekha Sharma-Crawford writes in Linkedin:
The Clinic at Sharma-Crawford Attorneys at Law Immigration Court Trial Advocacy College Faculty, 2024. Kick ass trial lawyers sharing their wisdom and knowledge to elevate the practice before the immigration courts. Blessed to call them all friends! Thank you my friends!! 🙏🏽🗽⚖️💕
Sharma-Crawford Faculty 2024
Paul Schmidt Lory Rosenberg Elina Magaly Santana Erich Straub Michael Sharma-Crawford Kelli Stump Lindsay Gray David Bell Kelly Driscoll Nathan Dayani Davorin Odrcic Michelle Saenz-Rodriguez Sarah Owings Genevra Alberti Susan Roy Patrick Lewis Angel Marie Graf
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Immigration Court Trial Advocacy College Defensive Asylum Day 2!
Sharma-Crawford 2024 Day 2Sharma-Crawford 2024 Day 2
It’s incredible to witness the dedication and passion of our attendees as they dive into the world of defensive asylum cases.
#TheClinicSCAL #KansasCity #TrialCollege …see more
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The Clinic @ Sharma-Crawford Law
Immigration Court can, quite intentionally on the part of its “political handlers,” be intimidating, particularly for newer litigators.
Among the many “user unfriendly/due process denying features:”
Arbitrary, “make ‘em up as you go along” rules that apply to individuals, but not to DHS or EOIR;
Cosmically inconsistent adjudications;
Lack of universal asylum expertise among judges at both the trial and appellate levels;
Institutional bias against asylum seekers and failure to follow generous precedents such as Cardoza-Fonseca and Mogharrabi;
Shifting political priorities driving “Aimless Docket Reshuffling” and creating unmanageable backlogs;
Permissive lack of discipline at DHS in intentionally overloading system;
Grotesque overemphasis of “bogus productivity” over due process, quality, and fundamental fairness;
One-sided “disciplinary procedures” that give DHS counsel a “free pass;” and
A “permissive culture” of racial bias and “any reason to deny” decision-making.
Yet, despite this intentional, unethical “tilting of the playing field’ against migrants, particularly asylum seekers of color, and their representatives, well-represented individuals win their cases against the odds at all levels of this system every day!
The faculty of the Sharma-Crawford Immigration Court Trial College is a unique blend of experienced, hard-nosed, gutsy, immigration advocates, criminal defense attorneys, former prosecutors and judges, teachers, and coaches. We teach skills and instill fearless attitudes that have proven to be successful in criminal, civil, and immigration litigation!
The Trial College now has more the 150 “alumni” nationwide who are using their enhanced talents to force due process on a reluctant system, save lives, and “build America,” one case at a time! The “Class of 2024” was larger than usual and showed exceptional seriousness, dedication, creativity, and commitment to changing the course of American Justice for the better at the oft-ignored but existentially important “retail level.”
I was particularly pleased to be “reunited” on the faculty with my colleagues and “EOIR Alums” retired Judges Lory Rosenberg, Sue Roy, and “new recruit” Ed Kelly! I also appreciate the courtesy of Assistant Chief Immigration Judge Jayme Salinardi and the Kansas City Immigration Court in arranging for the students and faculty to observe some Master Calendar hearings.
I am privileged to be part of this amazing and inspiring multi-disciplinary effort! Thanks to Rekha Sharma-Crawford, Michael Crawford, Genevra Alberti, and the Clinic Staff for their leadership in making this happen!😎
Genevra W. Alberti, Esq. The Clinic at Sharma-Crawford Attorneys at Law Kansas City, Mo. PHOTO: The Clinic
We are looking to connect with immigration attorneys who have clients who crossed the border in recent years and have sought asylum in immigration court.
Specifically, we are looking to talk to asylum-seekers who have waited years/months for their cases to be heard in immigration court and are STILL waiting for a final decision.
Please comment or send me a message if you have a client who would be interested in speaking with us.
. . . To tell Hamed Aleaziz at The NYT the truth about the “under the radar” mess at EOIR that is systemically treating those with valid claims and sound defenses unfairly and threatens, with its unrelenting disorder and “deterrence bias,” to destabilize the entire U.S. Justice System! Public Domain
The (largely avoidable), backlog building, due-process-denying mess at Garland’s EOIR is one of the “unsung drivers” of bad immigration policies and myths about migrants, particularly asylum seekers.
To the extent that this glaring problem is covered at all by the so-called “mainstream media,” it’s usually superficial: reference to the 3.5 million case backlog, long delays, and the need for more Immigraton Judges and court personnel.
Here’s your chance to correct that “cosmetic coverage” by giving Hamed input on the overall unfairness, unnecessary inefficiencies, “user-unfriendliness,” and grotesque lack of overall legal expertise, consistency, and common sense in this broken system! It has improperly become a tool of “deterrence” in behalf of DHS Enforcement and has lost sight of its only proper role of insuring Constitutionally-required due process and fundamental fairness for individuals comingbefore the Immigration Courts!
Angel of Death Artist: Evelyn De Morgan 1880 Public Realm The Angel of Death (“AOD”) comes for another asylum seeker at the border. American border policies have needlessly and heedlessly created “full employment” for the AOD!
Arelis R. Hernandez, Mariana Dias, Danielle Volpe report from Eagle Pass, TX for WashPost:
“If they’ve been in the water awhile, their skin gets pruned and webby and starts to peel off. Their eyes, nose and mouth get swollen,” [Sgt. Aaron] Horta said with a far-off look in his eyes. “For a while, I couldn’t sleep.”
By the end of 2022, Horta had recorded 225 deaths. He said it bothers him when no one claims a body, so he tries to do what he can. This past Thanksgiving, 11-year-old Cristal Tercero Medrano of Nicaragua drowned while wearing a bright-yellow Tweety Bird sweater. Horta worked with Border Patrol agents to identify her. Not long after, they found the girl’s family. Relatives sent in a photo of Cristal wearing the same yellow sweater.
“I get mad, as the father of a little girl,” Horta said. “There should be a process that isn’t the river. It gets to me, but I have to be a professional.”
. . . .
As she swiped through the images in her photo album, she landed on one of a boy in his late teens who had been in the river so long that the current had wiped the features of his face away. In another, the braces inside the mouth of a sun-scorched child were still visible. Behind [Justice of the Peace Jeannie] Smith were rows of folders detailing each death.
“River. River. Ranch. Ranch,” she said as she thumbed through the files. “John Doe. Jane Doe. John Doe. Fetus, the mother gave birth at the river, but the baby didn’t survive. They come from everywhere. I say a little prayer for each one.”
. . . .
“There’s no dignity in this,” [forensic scientist Kate]Spradley said. “But this is what our state deems acceptable.”
. . . .
As for the total fiction that immoral politicos dishonestly present (and the “mainstream media” too often mindlessly and uncritically repeats) that “deterrence — even by death” will stop forced migrants from seeking legal refuge:
[Evelin Gabriella] Gue [of Guatemala] said she and her relatives are still struggling with denial and hoping that the body Texas officials found was not her mother. They want her home, if for nothing more than to be absolutely sure it is her as they grieve. Consular officials have confirmed to the family that it is her body, though they have not submitted DNA for further verification.
Cú Chub’s family is still in debt. To pay off the loan they took out for her to migrate, they may soon make the same journey that cost them their matriarch.
So much for the deadly, irresponsible “bipartisan BS” spouted by politicos who have lost their humanity and their sense of decency!
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Everyone should read the stomach-churning complete report at the link.
It has lots of dramatic color photography, so folks can get “face to face” with this preventable human carnage. These are the truths and consequences that should — but aren’t —being heard and heeded as border enforcement is discussed.
For the same amount, or likely much less, that governments at all levels are squandering on uncoordinated “proven to fail, illegal, gonzo enforcement and false deterrence,” that enriches cartels and human smugglers while killing legitimate refugees and harming our national psyche, the U.S. could build a first-class, timely, legally compliant, processing and resettlement system for forced migrants here and abroad that would reduce unnecessary border tragedies while capitalizing on the positive power of migration in today’s world.
“Gagged” Garland’s DOJ has taken extreme steps to stop Immigration Judges from publicly criticizing his dysfunctional Immigration Courts! PHOTO: Public Domain via Creative Commons
Joe Davidson, “Federal Insider,” from p. 2 of today’s WashPost (print edition):
. . . .
In a February email to New York-based immigration Judge Mimi Tsankov, the union president, and Judge Samuel Cole, the union’s executive vice president in Chicago, Sheila McNulty, the chief immigration judge in the department’s Executive Office for Immigration Review (EOIR), said they are prohibited from making public statements “without supervisory approval and any Speaking Engagement Team review your supervisor believes necessary.”
That warning came after Tsankov in October told a Senate Judiciary immigration subcommittee hearing that “Democrat and Republican administrations share the failure of the DOJ’s immigration court management,” saying “immigration courts have faced structural deficiencies, crushing caseloads, and unacceptable backlogs for many years.” Matt Biggs, president of the International Federation of Professional and Technical Engineers (IFPTE), NAIJ’s parent union, cited Tsankov’s congressional testimony as an example of giving “judges a voice” that’s now silenced.
McNulty referred to a controversial and hotly contested Trump administration action that led to the decertification of the immigration judges’ union, when she wrote “any bargaining agreement … that may have existed previously is not valid at present.”
On Nov. 2, 2020, the day before Trump, who waged war on federal unions, lost his reelection bid, the Federal Labor Relations Authority ruled that immigration judges are management employees precluded from union representation. That means, according to McNulty, they cannot speak out as union leaders because she considers their association to be a “group” and not a recognized labor organization. IFPTE has asked the Biden administration to reverse the immigration review office’s “inappropriate and misguided application of the agency speaking engagement policy.”
This must be an embarrassment to proudly pro-union President Biden, who reversed other anti-federal labor organization policies put in place under Trump.
McNulty’s action drew heated reaction from three Republicans who often vote against union interests. “The Committee takes seriously the Department’s effort to silence immigration judges,” wrote Reps. Jim Jordan (R-Ohio) and Tom McClintock (R-Calif.), chairmen of the House Judiciary Committee and its immigration subcommittee, respectively. In a letter to the attorney general, Sen. Chuck Grassley (R-Iowa) said any effort “to silence immigration judges … is absolutely unacceptable.”
Grassley also noted that McNulty’s order “failed to include the anti-gag provision as required by law.”
That’s a key point in the Office of Special Counsel’s notice.
. . . .
[IFPTE President Matt] Biggs called the Justice Department office’s policy “an outrageous act of censure and an attack on freedom of the press and transparency.”
“Intentionally or not,” he added, the directive “resulted in a not-so-subtle message to rank-and-file immigration judges to think carefully before talking to congressional lawmakers as whistleblowers or otherwise.”
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Hon. Mimi Tsankov President, NAIJ — She “blew the whistle” on the continuing “bipartisan due process mess at EOIR” during recent Congressional testimony. Her “DOJ handlers” were not amused!
Read Joe’s complete column at the above link.
Both Parties, Congress, the Executive, and the Article III Courts share blame for the current untenable mess at EOIR, where Due Process, fundamental fairness, quality control, expertise, and practical efficiency are mere afterthoughts, at best! Although there is no sign that it will happen in the near future, the answer is clear and has been for decades: Congress must put aside partisan differences, stop “jockeying for advantage,” and create an independent Article I Immigration Court with a merit-based selection system for judges and professional court administration. Then, let the system work and the chips fall where they may!
You can’t “run” a court system like a “Vatican-style” bureaucratic agency! How many times does that have to be proved for Congress to finally act? Yes, it’s a “big deal!’ Probably the biggest, most widely ignored, most achievable, most important (millions of lives and futures are literally at stake here) piece of solving the “immigration puzzle!”
Due Process is a true team effort! PHOTO: Tahirih Justice Center
Maria Daniella Prieshoff writes on LinkedIn:
Maria Daniella Prieshoff Managing Attorney Tahirih Justice Center Baltimore, MD PHOTO: Tahirih
Want to level up your #advocacy skills for your #genderbased #asylum cases in #immigrationcourt?Want to learn from a real immigration judge the basics of presenting your case before the immigration court?Then join me for Tahirih Justice Center’s”Advancing Justice: Gender-Based Violence Asylum Litigation in Immigration Court” webinar series!
Part 1 of the series is on April 23, 12-1:30pm. It will focus on the case law and strategy you’ll need to present your best gender-based asylum case, including how to handle credibility, competency, and stipulations.Monica Mananzan from CAIR Coalition will join me in this webinar. To register for Part 1: http://bit.ly/3xvwPyt
Honorable Lisa Dornell U.S. Immigration Judge (Retired) Member, Round Table of Former Immigration Judges
Part 2 of the series is on April 25, 12-1:30pm. Retired Immigration Judge Lisa Dornell will explain the best practices of litigating gender-based asylum cases before an immigration judge, as well as recommendations for direct examination, cross-examination, and how to handle issues with a client’s memory, trauma, or court interpretation.To register for Part 2: https://bit.ly/3PXJqRn
Please share with your networks!Our goal for this webinar series is to help pro bono attorneys and advocates enhance their the advocacy for #genderbasedviolence to have #immigrationjustice – we’d love for you to join us!
Wonderful learning opportunity! Many thanks to everyone involved in putting it together!
Litigating gender-based asylum cases can still be an “ordeal” at EOIR, despite some decent precedents. Learn how to avoid this fate for your clients! 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Wonder whatever happened to the “gender-based regulations” that Biden ordered to be drafted by Executive Order issued shortly after taking office? At this point, given his “lobotomized/running scared/retrograde/Trumpy Lite” position on asylum seekers and immigrants’ rights, probably just as well that they died an unheralded bureaucratic death (just as similar assignments have in the last three Dem Administrations over a quarter century).
Outside of a few Immigration Judges, who, because they understand the issue and have worked with asylum-seeking women, would never be asked anyway, I can’t really think of anyone at DOJ who would actually be qualified to draft legally-compliant gender-based regulations!
GOP are misogynists. Dem politicos are spineless and can’t “connect the dots” between their deadly, tone-deaf policies and poor adjudicative practices aimed at women of color in the asylum system and other racist and misogynistic polities being pushed aggressively by the far right! While, thankfully, it might not “be 1864” in the Dem Party, sadly, inexplicably, and quote contrary to what Biden and Harris claim these days, it’s not 2024 either, particularly for those caught up in their deadly, broken, and indolently run immigration, asylum, and border enforcement systems!
As safe corridors for migration disappear, more people risk their lives crossing the U.S.-Mexico border. And more people die. A new report by the nonprofit No More Deaths, along with a searchable map and database, documents the increasing number of migrant deaths at the border in New Mexico and far West Texas. Until now, not much research has been done on the deaths of people migrating through this section of the border. The project was led by Bryce, a No More Deaths volunteer (who asked that we not use his last name because the Far Right has recently been targeting the group). He, along with several others, have created the most comprehensive database to date of deaths in the Border Patrol’s El Paso Sector, which includes New Mexico and two counties in Texas, El Paso and Hudspeth. The report covers 15 years, from 2008 to 2023, and it shows many disturbing trends, including the acceleration of deaths that has accompanied “prevention through deterrence,” the U.S. government’s strategy implemented in the 1990s to push migrants into more remote, dangerous crossings. That strategy is now morphing into something all the more tragic as people, increasingly women and children, are barred from accessing asylum and are dying at the doorstep of American cities and towns. In this Q&A, Bryce talks about documenting these deaths, and the discoveries that both shocked and angered him in creating this new report.
Why did you study this particular part of the border in New Mexico and far West Texas?
A couple of years ago, a few of us started getting interested in what’s happening in New Mexico, and whether there’s any need for humanitarian aid out there, just because we hadn’t really heard anything but assumed there must be something happening out there. Quickly, we noticed that there was not much data in general about the area. So I started doing public records requests. And pretty quickly, just with the first batch of data, we got about 20 deaths for 2022. We went to some of those locations to see if we’d see trails. And while we were checking out some of these locations, we found human remains right across the street from a cemetery and about 50 feet from a main road in Sunland Park [New Mexico]. It was not a remote place. It was right in town. So we started looking at the Sunland Park Fire Department’s social media page, and quickly realized that there was a lot happening and quickly. And then 2023 ended up being this record deadly year for the area.
It’s shocking that you found a dead person right there in the middle of Sunland Park. Can you tell me more about this person? Were they identified? How long had the person been there? And how could this have been missed by people who live there?
He was later identified as a man from Colombia. [His name was Johan Orozco Martinez, age 36.] He had been there for a couple of days. I’m not joking when I say he was right across the street from the Memorial Pines Cemetery, and near the shoulder of the road. Many cars drive this road, but I think typically people look toward the cemetery, and I guess they didn’t see him because they were looking in the other direction. He was in his 30s and so older than many of the usually young men you see, for instance, crossing through southern Arizona.
Two findings that really stand out to me from your report are the number of women who have died, and how increasingly people are dying within city limits and no longer just in remote areas that are hard to access. I mean, you found a person in the middle of Sunland Park. What’s going on, do you think?
The dynamics of migration are complex. But one thing that seems pretty clear is that the asylum policies in the last few years have led to an increase in some of these deaths, just from people trying to get asylum and being prevented either by metering or by turnbacks. And then feeling they have no choice but to cross through the desert. A lot of people who are crossing are older, they’re women, they’re people with health problems. The demographics, we found, were much different in the El Paso sector than in southern Arizona, with people being older and more than 50 percent of the deaths in 2023 being of women, which is unusual.
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When did the deaths start increasing? And has the increasing militarization of the border and Operation Lone Star in El Paso contributed to these deaths?
Up until 2015, there were very few deaths in this area. But especially since 2018, the deaths have just been ramping up every single year. We were in New Mexico watching Operation Lone Star soldiers put up a barbed-wire fence between New Mexico and El Paso in an area where a lot of people cross. So once you’re in the United States, even crossing into Texas from the New Mexico side has become more deadly. And you can see National Guard in El Paso patrolling and pushing people back. The more enforcement, the more the deaths increase. In El Paso, there are what I call “moats” because if people climb the border wall, there’s an irrigation canal right on the other side, which at times can be moving very quickly. Then beyond that there’s multiple highways and more canals. So if someone is being chased by Border Patrol or Operation Lone Star, there are multiple deadly obstacles.
In 2022 there was a two-week period when 15 people died in the canals, one right after the other. This was during irrigation season in El Paso. Water is released from a reservoir in New Mexico into the canals and the river to irrigate farmland further east of El Paso. When that happens, the water can be going like 20 miles per hour. Unless somebody physically rescues you, there’s no way of getting out once you’ve fallen in. I watched a news broadcast in El Paso where they made a public service announcement about drowning deaths in El Paso, saying like, “Irrigation season is here, stay away from the canals, watch out for drowning.” But if you read all the autopsy reports, it’s almost all migrants dying. Because the medical examiner doesn’t flag whether it’s a migration-related death, you end up getting these weird statistics about drowning deaths being on the rise in El Paso. And so they’re directing these public safety messages toward El Paso residents who are actually in very little danger of drowning. And the people who are in danger of drowning, the migrants, have no idea.
Did you also find an increase in the deaths of children?
Definitely, yes. In 2018, two eight-year-old Guatemalan kids died. There’s a lot of teenagers dying, crossing the border wall, a lot of them drowning in El Paso city itself. For instance, there was a Russian man and his teenage daughter who both fell into a canal and drowned. They were running from Border Patrol agents. I believe that happened in 2021. We saw fewer deaths of younger people in New Mexico.
You also found that Customs and Border Protection is significantly undercounting deaths related to enforcement. Can you talk about this finding?
CBP is supposed to keep track of migrant deaths and CBP enforcement-related deaths, but we found that the agency is severely undercounting them. There’s been a lot of documentation in the past, talking about that fact, but there hasn’t been a whole lot of quantifying that undercount. Aside from the Arizona data that the Pima County Office of the Medical Examiner and Humane Borders have reported. For example, in one year we found 39 deaths, while CBP reported only 10 deaths.
We looked at investigator reports and so we were able to read the narratives, and learn circumstances around the deaths. We were able to see if someone was chased by Border Patrol, either on foot or by vehicle, or if they died in Border Patrol custody. We found that Border Patrol had tried to underplay some of these deaths.
We found that 15 percent of all migrant deaths in the El Paso sector were caused directly by Border Patrol due to chases or use of force, also due to custody deaths, or falls from the border wall. Humane Borders doesn’t track deaths related to Border Patrol enforcement. So this is the first instance that I’m aware of, where we are able to quantify the CBP undercount of Border Patrol-related deaths.
For 2022, for instance, we found 16 deaths that should have been reported by CBP as CBP-related deaths. CBP had only reported six of those deaths. Of the 16 we found, I think it’s still an undercount, because a lot of the investigative reports use vague or passive language about a person “jumping into the canal,” for instance. So you don’t know if the person was actually chased. So we only included cases where it’s very explicit.
What surprised you most in working on this report?
It’s really just shocking how close to help a lot of people died. I’m used to southern Arizona, where the terrain and trails are very remote. But we found people dying across the street from the cemetery, people dying a short walk from the Dollar General store. We’ve had this narrative of “prevention through deterrence” for the last few decades, which has pushed people away from cities into remote areas where they’re more prone to dying from heat exposure or something else. But now the border is militarized to the point where even Sunland Park, this suburb of El Paso, can be as deadly as the middle of nowhere in southern Arizona.
Last June, for instance, something like 40 percent more people died in Doña Ana County in New Mexico than the entire state of Arizona. Most of these deaths were close to the highway or close to a town. It’s a dynamic that has not really been studied. And the fact that it’s been happening for years without anybody really noticing is really scary.
With these findings, are No More Deaths and other humanitarian groups mobilizing to do search-and-rescue and water drops in this area?
Like Texas, much of the land in New Mexico where people are dying is privately owned land, so it’s difficult to access for humanitarian groups.
We’ve been going there about once a month for the past year to try to organize some support. There’s a group that doesn’t have a name yet that we’ve started to work with, that’s putting out water in some of these areas. There’s another group from southern Arizona that has moved over to New Mexico to search for remains in the desert.
We’re hoping the news will spread and that others will join to help. We have some money to help out some groups that are forming. We’re really hoping that groups will form on their own for search-and-rescue and putting out water. Because right now, Border Patrol is the only game in town if you call 911 as a migrant. And Border Patrol has a horrible track record of actually helping anybody.
To get involved, learn more, or support humanitarian efforts, contact No More Deaths here.
A complete lack of accountability for the misguided politicos and bureaucrats who are dishonestly pushing these immoral and ineffective policies without “owning up” to both the known deadly consequences and the lack of long-term “deterrent” value (even assuming, as I do not, that effective deterrence could justify immoral and illegal policies) of the actions they are touting; and
A complete abdication of professional journalistic standardsand performance from the many members of the so-called “mainstream media” who fail to include in each report on draconian “border control” proposals and “policies” the deadly, well-documented human consequences of those policies and who provide a toxic forum for politicos and supposed “pundits” spouting myths andnativist propaganda about “border enforcement,” without presenting experts like Melissa, Todd Miller and many others who have actual experience with the unending trauma and futility caused by our current misguided, often flatly illegal, and clearly immoral approach to “border enforcement.”
While most of the debate over immigration focuses on the U.S.-Mexico border, one of President Joe Biden’s most effective policies so far has occurred elsewhere ― at airports.
For a little over a year, Biden has used what’s called “parole” authority to collectively allow up to 30,000 vetted Cubans, Haitians, Nicaraguans and Venezuelans per month into the country, mostly via air travel, for a temporary two-year window.
The program is based on the authority held by the federal government under the 1952 Immigration and Nationality Act to grant temporary admission to foreigners on a “on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” And, the Biden administration touts, it has been accompanied by drops in the number of nationals from each of these countries who’ve crossed the U.S.-Mexico border on foot.
But to hear some right-wingers talk about it, the “CHNV parole” program — the name an acronym for the nationalities it encompasses — is a secret, treasonous endeavor that utilizes government-funded charter flights to transport “illegal” migrants into the United States. None of that is true, but that doesn’t seem to be the point.
“I don’t know of anyone in Congress who knew this!” exclaimed Sen. Ted Cruz (R-Texas) on a podcast episode, just 14 months after Biden himself announced the CHNV parole program during a public press briefing and despite regular publications of data on the program by the Department of Homeland Security.
The false accusations of secret taxpayer-funded charter flights ferrying unvetted migrants to new lives in the United States plays into Republican attempts to cast immigration issues as a major crisis — and one on which Democrats are failing — ahead of the 2024 election.
. . . .
The precedent to the CHNV parole program was introduced in October 2022, when the Department of Homeland Security created a parole program for Venezuelans that was modeled on the Ukrainian program, requiring applicants to have a U.S.-based sponsor who’s financially able to support them and to pass vetting and background checks. In January 2023, the White House announced the program would expand to include Cuba, Haiti and Nicaragua.
Individuals from those four counties who meet the requirements and haven’t attempted to cross the U.S.-Mexico border between ports of entry are allowed to fly from their home countries into the United States rather than appearing in person at land border crossings.
Since January 2023, more than “386,000 Cubans, Haitians, Nicaraguans, and Venezuelans arrived lawfully and were granted parole under the parole processes,” U.S. Customs and Border Protection wrote in a February 2024 update.
“There’s no doubt that the CHNV program is by far the largest-scale parole program that any administration has done in decades,” said Aaron Reichlin-Melnick, policy director at the American Immigration Council, a research and legal advocacy organization.
And data supports the administration’s claim that the parole program, as part of a larger package, has helped discourage “irregular” migration.
As the Cato Institute reported in September, illegal entries by Venezuelans fell 66% from September 2022 to July 2023 and from December 2022 to July 2023, illegal entries fell 77% for Haitians, 98% for Cubans and 99% for Nicaraguans. Compared with peaks in CHNV numbers in 2021 and 2022, the report added, July 2023 arrests for those four nationalities were down 90%.
“There has not been a single month where unlawful entries of the four countries combined has been above the level it was in December 2022,” Reichlin-Melnick said.
The White House announced the policy as part of a package explicitly meant to “increase security at the border and reduce the number of individuals crossing unlawfully between ports of entry.” The Biden administration grouped the program with others meant to encourage “legal pathways” into the United States ― such as increased refugee admissions and asylum opportunities in other countries ― and alongside harsher border enforcement for migrants who broke the rules.
Naree Ketudat, a spokesperson for the Department of Homeland Security, told HuffPost in a statement that the CHNV parole process was part of a strategy to “combine expanded lawful pathways with stronger consequences to reduce irregular migration, and [has] kept hundreds of thousands of people from migrating irregularly.”
And yet many on the right have misrepresented ― or simply lied about ― what the parole program is, playing on anxieties about race and national identity to paint it as part of a supposed scheme by Democrats to overwhelm the country with new residents or somehow displace American citizens.
. . . .
***************************
Read the complete article at the link.
Beyond the barrage of racially-driven GOP lies, Dems have failed to capitalize on the success of Biden’s efforts and its benefits to the U.S. economy. Significantly, rather than just “moaning and groaning” about the so-called “immigration problem,” the Biden Administration actually took innovative action to address the situation.
The GOP claim that the program is “secret” is a blatant lie! Yet, you would be hard pressed to find any recent examples of Biden, Harris, their campaign officials, or Dem politicos touting the success of the parole program or the critical role of immigration of all types in the continuing strong performance of the U.S. economy.
You would would be much more likely to come across disingenuous statements blaming the GOP for not giving Biden “authority” to close the border, violate human rights, inflict more needless cruelty, and otherwise dehumanize asylum seekers at the Southern Border. In this way, Dems unwisely are playing along with the GOP nativists and giving them “cover” for their lies.
I’ll admit to initially being somewhat skeptical about the parole program, mainly because it could be seen as deflecting attention from much needed reforms and revitalization of existing legal programs for the admission of refugees and asylees that had been intentionally “kneecapped” by the Trump Administration.
Of course, no “pilot program” like this — particularly one with nationality restrictions and somewhat arbitrary numerical limits — can solve overnight problems allowed to fester for years. Yet, the parole program has demonstrated important principles that should form the basis for more durable legislative reforms of our legal immigration system:
Given realistic options, most individuals would choose to be pre-screened and apply from abroad (i/o/w “If you build it, they will use it!”);
Private sponsorships can play a key role in the selection, welcoming, resettlement, and integration process for legal immigration;
Allowing immigrants to work immediately upon arrival — rather than forcing them into an overburdened and over-bureaucratized work authorization process — benefits everyone;
More robust legal immigration opportunities will reduce pressure on the border and keep cases out of the backlogged Immigration Courts.
Rather than being a “false bone of contention” in the “immigration debate,” innovations like the parole program should form an empirical basis for bipartisan legal immigration reform and expansion that will benefit our nation and those who seek to become part of it in the 21st Century.
Nevertheless, Cruz argues correctly that Isidro-Zamorano, 25 I. & N. Dec. 829, leaves open the possibility for adjudication of the merits of a cancellation application where the qualifying relative aged out of qualifying status because of undue procedural delays. As explained below, the facts are unclear as to why briefing and decision were delayed. As such, we remand for the BIA to address in the first instance whether the delays on appeal in this case were undue and attributable to the agency, and if they were, for the BIA to review the IJ’s denial of cancellation of removal in the first instance.
**********************************
This is yet another in a long list of examples of how the Circuit actually did a better job than the BIA of locating, understanding, and following binding BIA precedent potentially favorable to the respondent!
I wouldn’t bet on today’s BIA adopting on remand an interpretation favoring the applicant, even though, as pointed out by the Second Circuit, such an interpretation would be legally possible. Perhaps, this is a case where amici need to “weigh in” before the BIA on remand.
In my mind, it also raises questions of whether the numerous unnecessary delays, backlogs, and confusion caused by the BIA’s failure to follow the statutory language on the “stop time rule” for 42B cancellation, as twice found by the Supremes, could be categorized as “unnecessary — and totally foreseeable — delay?” Both courts and advocates warned the BIA — in vain — that ignoring the clear language of the statute was a huge mistake that would create more unnecessary disorder in the already dysfunctional EOIR system! But, in their haste to rule in favor of DHS Enforcement, the BIA once again ignored the experts.
🇺🇸 Due Process Forever!
PWS
04-07-24
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ADDENDUM FROM “SIR JEFFREY:”
“Thanks, Paul (and hi to everyone!), but credit to Ray Fasano for flagging this.
Best, Jeff”
Thanks, Ray!
H. Raymond Fasano, Esquire PHOTO: Super Lawyers Profile
Becky Wolozin Senior Attorney, National Center For Youth Law PHOTO:Linkedin
Becky Wolozin, Senior Attorney, National Center For Youth Law, posted on LinkedIn:
I feel so privileged to have been part of this, to do something a good thing for people in this cruel world. Immensely proud of the advocates, migrants, and colleagues who worked together to hold the government to account and protect immigrant children caught in the fray of politics and an uncaring immigration system. It is a professional dream come true to be a member of Flores Counsel with National Center for Youth Law!
“Let us do something, while we have the chance! It is not every day that we are needed. Not indeed that we personally are needed. Others would meet the case equally well, if not better. To all mankind they were addressed, those cries for help still ringing in our ears! But at this place, at this moment of time, all mankind is us, whether we like it or not. Let us make the most of it, before it is too late!” ~ Waiting for Godot, Samuel Beckett
Thanks, Becky, for your talent, dedication, and humanity, all of which stand in sharp contrast to border bureaucrats, DOJ Attorneys, and scofflaw nativists who have “weaponized” myths, dehumanization, dereliction of legal duties, and abdication of moral responsibility! This is a great example of the type of expertise and teamwork to get the job done that is all too seldom seen from the Administration, Congress, and the Judiciary in today’s toxic and too often fact- and morality-free immigration (non) debate! I’m glad that Judge Gee saw through the Garland DOJ’s pathetic attempt to evade legal responsibilities by making arguments that easily could’ be characterized as frivolous!
You can check it out yourself as quoted from the above NYT:
In response, lawyers for the Department of Justice argued that because the children had not yet been formally taken into custody by American customs officials, they were not obligated to provide such service. They did not dispute that the conditions in the encampments were poor.
Come on, man!👎🤯
Samuel Beckett’s “Waiting for Godot,” and “Theater of the Absurd,” perhaps surprisingly, have continuing relevance to today’s “off the rails” immigration “debate.” Naseer’s Motley Group in The Rose Bowl Merlaysamuel Creative Commons Attribution-Share Alike 3.0 Waiting for Godot in Doon School.jpg Copy [[File:Waiting for Godot in Doon School.jpg|Waiting_for_Godot_in_Doon_School]] Copy December 8, 2011I also loved the quote from “Waiting for Godot!” As Courtside readers may know, the “Theater of the Absurd,”Samuel Beckett, and “Waiting for Godot” have previously found their way into my postings about Garland’s incredibly lackadaisical approach to “justice @ Justice!” See, e.g., https://immigrationcourtside.com/2023/12/22/%e2%9a%96%ef%b8%8f-followng-scathing-report-on-abuse-of-kids-in-immigration-court-eoir-announces-some-reforms-rekha-sharma-crawford-reports/.
Paulina Vera and Alberto Benítez joined Alexander Love, a former client of the Immigration Clinic at GW Law, for his naturalization ceremony—“the happy part of immigration cases,” in Vera’s words. (Contributed photo)
Comedies often end with a wedding, and there’s a marriage in this story, but it’s not a comedy. This is an immigration story, and it ends in a naturalization ceremony, with some painful, dramatic scenes along the way. It begins in the Soviet Union with a gay boy called Sasha, and ends in the United States with a gay man named Alexander. They’re the same person, with a lot of credit for that transformation due to students and faculty of the Immigration Clinic at GW Law.
Alexander Love, as he is now known, was born in Ukraine when it was still part of the Soviet Union. His family moved to suburban Moscow, where he grew up and was expected to become highly educated. As a young teen, he realized he is gay, but he came out only to a few trusted friends and, aged 18, began serving in the Soviet Army. After being discharged in 1991, just as the Soviet Union was breaking apart, he went back to school.
“I was artistic and the majority of my subjects were things like physics, chemistry and mathematics,” Love said. “The only classes I passed were English classes.” Following his passion for working with textiles, he quit school and began sewing clothes for himself and for friends who ordered garments from him. He also taught English.
In these years just after the fall of the Berlin Wall, the Soviet Union dissolved and Mikhail Gorbachev, then the Russian president, instituted major reforms. Gay bars and clubs opened (and have since closed) and Western values were embraced. Love befriended Americans living in Moscow and realized how different his life was from theirs. Though Russian society was more relaxed in this period, it could still be very difficult and even dangerous for LGTBQ individuals. In 1998, Love visited the United States for the first time, returning in 1999 and again in 2000, when he first came to Washington, D.C.
“I had been to Spain a few times, so I knew how different it was for gay people outside of Russia,” he said. Gay life at home, even in the more open climate at that time, was risky. “Verbal and physical harassment was always there. You could be stopped on the street or followed by a police car, mostly for the bribes. Sometimes they put some kind of powder in your car.” In taxis, on public transportation, even in gay clubs, he said, people were harassed just because they looked different.
Today, Love prefers not to dwell on the worst abuses he suffered. In 2001, he came to GW Law’s Immigration Clinic for help with his asylum application. Applicants fleeing persecution of LGBTQ people in their home countries need to prove past persecution or that they have a well-founded fear of persecution. Though ill treatment of LGBTQ individuals in Russia is well documented, Love’s application was denied.
Faculty and students in the Immigration Clinic didn’t give up. They assisted him in getting a work permit that allowed him to stay in the United States while they worked on his case. Because he was a clothing designer who had worked with singer Mariah Carey and other persons of note, he was approved for a work permit based on his special skills. But fate quickly intervened.
“Unfortunately,” Love said, “I was diagnosed with HIV, and at that time, you could not apply for a work visa if you had HIV.” (A year later, the law was changed.)
Years passed, and GW Law students came and went with the natural rhythm of matriculation and graduation, but professor Alberto M. Benítez, director of the Immigration Clinic, was a steady presence. So was the man Love said brought stability to his life, his boyfriend (now husband) Michael Love. When same-sex marriage was legalized in 2013, they had been together for eight years. Benítez told Alexander (whose last name then was Sozonov) that if he and Love were married, the clinic could work on obtaining a marriage-based adjustment to his request for permission to remain in America. The partners eagerly wed, but to get their marriage recognized as legitimate in the eyes of the immigration system, both men had to make many court appearances.
A high-stakes version of ‘The Newlywed Game’
Marriage to an American citizen did not automatically mean Love could be granted status as a permanent resident and issued a green card. Sydney Josephson, J.D. ’14, was one of the students who worked on his case. One of her significant contributions to Love’s case was filing a motion to get an approved marriage-based immigrant petition establishing that his union was made in good faith.
Sydney Josephson, J.D. ’14, is flanked by Alexander Love and Michael Love in April 2014 on the day of their interview in support of their marriage-based immigrant petition, which was approved soon after. (Contributed photo)
The process of gaining such recognition can be tricky, according to Josephson, who now practices immigration law with the Fragomen firm in Atlanta. “Sometimes they’ll put people in separate rooms,” she said, “and ask questions like, ‘What color is your fridge?’ One person will say white and the other person will say black. And immigration officials say, ‘This isn’t a good faith marriage. You don’t live together.’”
But Love’s application went smoothly. He and his husband did not go through interviews in separate rooms. They had been together for so long by then that there was little doubt about the nature of their marriage.
Some applicants see less happy results, Josephson said. “A colleague told me about a woman who was asked, ‘What does your husband wear to sleep in?’ She said, ‘Pajamas,’ and the man said, ‘I sleep in gym shorts and a T-shirt.’ And that was one of the reasons they were denied because the officer didn’t think they actually lived together. But I think someone who grew up in another country may think of sweatpants and T-shirt as pajamas.”
Working in immigration law can be extremely rewarding, according to Josephson, because it feels good to help people like Love.
“He’s an amazing person,” she said. “He has a beautiful relationship with Michael, and they’re wonderful people.”
Love was granted status as a permanent resident of the United States in 2016. He enjoys working as a textile librarian for the Washington Design Center.
“It’s a library, but instead of books you have tons of fabrics, trims, leathers and wallpapers,” Love said. “You have to know where everything is at and how to handle them. I’m very happy in this position.”
Clients from around the world
Alumna Paulina Vera, B.A. ’12, J.D. ’15, is a professorial lecturer in law and a supervising attorney of the Immigration Clinic. Since returning to GW seven years ago, she has supervised the students working on Love’s case and others.
“I actually was a student in the Immigration Clinic in my third year at GW Law,” Vera said. “I went to law school because I wanted to be an immigration attorney. I’m the daughter of two immigrants. My mom is from England; my dad, rest in peace, was from Peru. I grew up in Tucson, an hour away from the U.S.-Mexico border. So, immigration has always been a pretty big part of my personal life.”
The Immigration Clinic at GW Law started in 1979 and has helped countless people seek asylum or resist deportation. Clinic members have assisted victims of trafficking as well as DREAMers and youth covered by the Deferred Action on Childhood Arrivals (DACA) program. They have worked with clients from El Salvador, Ghana, Mozambique, Nigeria, Indonesia, China and elsewhere. Recently, they helped a returning client—a woman they successfully represented in her application for asylum in 2018—bring her four children to the United States from Honduras.
Benítez and Vera currently have a cert petition before the U.S. Supreme Court, asking it to review the decision of the 4th U.S. Circuit Court of Appeals in the case of Moisés Cruz Cruz, an undocumented Mexican man living in Virginia. During a routine traffic stop, a police officer asked Cruz his name. In a nervous moment, Cruz combined his own name with his brother’s name. Though he immediately corrected his mistake and wrote his correct name and date of birth on a piece of paper, the officer charged him with false identification, a misdemeanor. On the advice of a lawyer, Cruz entered a guilty plea, and as a result he is now facing deportation. Three of his children are U.S. citizens.
“To me,” Vera said, “this case is very indicative of the overarching immigration consequences that fairly minor criminal convictions can have. Are we going to separate a man from his family of five who has a partner who’s not from Mexico, so could not go back to Mexico with him, over something that stemmed from a traffic stop?”
Benítez said the Immigration Clinic staff unsuccessfully tried, through a different lawyer, to get Cruz’s guilty plea withdrawn. The case hinges on the question of whether Cruz committed a “crime involving moral turpitude,” which justifies deportation in immigration cases. Such crimes are typically defined as depraved acts involving child pornography, rape and other violent crimes such as murder.
“He did plead guilty, and he is in violation of the Virginia state code,” Benítez said. “We’re not disputing that. But is it an immigration violation? We hope that the Supreme Court agrees with us that it is not. State criminal law and federal immigration law are two different things. If the Supreme Court agrees with us, Moisés would be eligible to apply for—not necessarily get—a remedy that we call an immigration law cancellation of removal. That is for long-term residents of the United States who have no status, who establish ties to the United States and establish that they are good citizens.”
‘These folks are not criminals’
Growing up in Buffalo, New York, as the child of Mexican parents, Benítez never discussed immigration with them. His interest in immigration law was piqued when he was in college and learned that applications for asylum were processed with political rather than humanitarian concerns uppermost at play. He went to law school during the Reagan years and has taught at GW since 1996. After practicing immigration law for decades, Benítez said he knows at least one thing for sure.
“There is no border crisis,” he said. “These folks are not criminals. They do not bring disease. They are people trying to save themselves and save their kids. And the way that certain elements in our society demonize them is just plain wrong.”
There is never a shortage of clients at the Immigration Clinic, he said. On the contrary, they sometimes have to make wrenching decisions about which cases to take and which to decline. On average, he estimates that the clinic helps about 50 people per year, including the family members of clients. The clinic’s efforts on behalf of clients, Love among them, can stretch over several years.
“As long as the clients are prepared to continue fighting,” Benítez said, “we are prepared to continue fighting. The student attorneys that I’ve supervised, including Paulina, are the best. Whatever they lack in experience, they make up for in zeal, intelligence, professionalism and empathy.”
Love’s gratitude for the students who helped him remains undimmed.
“The students were the stars of my case,” he said. “I should frame their pictures. I’m thankful to all of them.”
The closing scene in Love’s immigration story takes place at his naturalization ceremony in 2020. Benítez and Vera were present to congratulate him on becoming a U.S. citizen.
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I was privileged to have the GW Law Clinic appear before me in the “Legacy” Arlington Immigration Court during my 13 year tenure there. Professor Alberto Benítez is a long-time friend, neighbor, and fellow dog walker! I’m also proud that Professor Paulina Vera is an alum of the Arlington Internship Program and a “charter member” of the New Due Process Army. Additionally, Attorney Sydney Josephson, JD-‘14, instrumental in this case, now practices with Fragomen, a firm where I was a partner from 1992 until my appointment as BIA Chair in 1995.
Congrats to the GW Clinic on 45 years of spectacular success, leadership in the legal profession, and many lives saved!
“On April 1, 2020, the Department of Justice (“the Department” or “DOJ”) published an interim final rule (“IFR”) with request for comments that amended its regulations relating to the organization of the Board of Immigration Appeals (“Board”) by adding two Board member positions, thereby expanding the Board to 23 members. This final rule responds to comments received and adds five additional Board member positions, thereby expanding the Board to 28 members. The final rule also clarifies that temporary Board members serve renewable terms of up to six months and that temporary Board members are appointed by the Attorney General. DATES: This rule is effective on [April 2, 2024].”
[Note: Applicants are encouraged to apply NOW on the theory that spillover from the applicant pool for the current openings here and here might be considered for the additional five slots.]
Daniel M. Kowalski
Editor-in-Chief
Bender’s Immigration Bulletin (LexisNexis)
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Ironically, particularly for those of us directly affected, the BIA had 23 authorized members a little over two decades ago!
Then, the infamous “Ashcroft purge” cut that number back to 12, citing bogus “efficiency grounds” to cover a scheme that ousted those BIA Judges who consistently stood up for due process, fundamental fairness, and migrants’ legal rights!
That sent the EOIR system into a tailspin which shook the Circuit Courts when almost immediately flooded with a tidal wave of deficient EOIR decisions, particularly relating to erroneous “adverse credibility rulings.”
The emasculated BIA, of course, rapidly proved too small to function in even a minimally competent manner. To “cover up” the adverse effects of Ashcroft’s political scheme, and to conceal the institutional failures of DOJ to protect individual rights of migrants, particularly those of color, Administrations of both parties resorted to the “gimmick” of quietly appointing “Temporary Board Members” from among BIA senior staff to keep the ship (sort of) afloat. Temporary Board Members were not allowed to vote at en banc conferences, had uncertain tenure, and had every incentive not to dissent or otherwise “rock the boat” if they wanted to compete for future “permanent” vacancies. (Although, arguably, the whole point of the Ashcroft purge was that all BIA judges were essentially “temporary” in the eyes of a GOP AG).
Over the decades following the purge, the DOJ gradually added permanent BIA Judge positions, without ever publicly acknowledging Ashcroft’s politicalscheme and its debilitating effects.
The clinic assisted M, a lawful permanent resident (“green card” holder) from Fiji who has lived in the United States with his family for the past 21 years. M had some minor brushes with the criminal justice system as a young adult, and DHS alleged that the government could deport M based on a 1999 conviction. M’s removal case was dismissed after the clinic submitted a brief on his behalf to immigration court arguing that M’s 1999 conviction could not lead to his deportation under Ninth Circuit case law.
Melinda Koster (’11) and Shira Levine(’11) moved to dismiss the deportation proceedings against M arguing that DHS failed to meet its burden of proof under the federal immigration laws. After extensive strategic thinking, legal research and consultation with their client, Melinda and Shira submitted a legal brief to the immigration court arguing that M’s 1999 conviction could not lead to his deportation under Ninth Circuit case law. The Immigration Judge agreed with Melinda and Shira’s reasoning and ruled that the government cannot deport M. This victory built on the success of Orion Danjuma (’10) and Jenny Kim (’11), who previously defeated DHS’s initial charge that M.A. was removable as an “aggravated felon,” a classification that would have resulted in almost certain deportation to Fiji.
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No possible way an unrepresented individual could have prevailed! It would have been a “slam dunk” for DHS.
Yet Article IIIs, Congress, the Administration all insist that due process doesn’t require representation like this! What total BS💩!
Pass Immigration 101? Understand “mixed motive” and how it should be used to protect, not reject? Willing to stand up for due process and the legal and human rights of migrants? Prepared to promote justice and resist the evil culture of “any reason to deny?” We need YOU on the BIA today! “Revolution by evolution” is a crock. We need an aggressive “Due Process Revolution” from within EOIR NOW! Public Domain
United States Court of Appeals For the First Circuit
No. 23-1443
AMGAD SAMIR HALIM KHALIL,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Gelpí, Howard, and Rikelman,
Circuit Judges.
Saher J. Macarius, with whom Audrey Botros and Law Offices of Saher J. Macarius LLC were on brief, for petitioner.
Yanal H. Yousef, Trial Attorney, Office of Immigration Litigation, with whom Brian Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.
Julian Bava, with whom Adriana Lafaille, Sabrineh Ardalan, Tiffany Lieu, American Civil Liberties Union Foundation of Massachusetts, Inc., and Harvard Immigration & Refugee Clinical Program, were on brief, for amici curiae.
March 29, 2024
RIKELMAN, Circuit Judge.
. . . .
We turn, then, to Khalil’s argument that the factual record compels the conclusion that religion was at least one central reason for his beating. We review the factual finding
– 15 –
against Khalil on this issue under the substantial evidence standard. Pineda-Maldonado, 91 F.4th at 87.
Here, a reasonable adjudicator would be compelled to conclude that Khalil’s religion qualifies as a central reason for the beating. Khalil’s attackers demanded he convert, beat him when he refused to do so, demanded again that he convert, and beat him more intensely when he again refused. The attackers’ own statements show that, regardless of whatever else prompted the beating, Khalil would not have been harmed had he agreed to convert. See Sanchez-Vasquez v. Garland, 994 F.3d 40, 47 (1st Cir. 2021) (deeming perpetrators’ statements essential to the nexus determination); Ivanov v. Holder, 736 F.3d 5, 14-15 (1st Cir. 2013) (determining persecutors were driven by a religious motive that they “recognized and gave voice to” during their attack of the applicant); Singh v. Mukasey, 543 F.3d 1, 7 (1st Cir. 2008) (explaining that perpetrators’ statements “are a crucial factor” for determining the central reason for harm); cf. Esteban-Garcia v. Garland, 94 F.4th 186, 194 (1st Cir. 2024) (finding no nexus because persecutors “didn’t say anything” about the applicant’s protected ground).
The attackers’ demands that Khalil convert to another faith and their increased violence in response to his refusal to do so make this case unlike Sompotan v. Mukasey, 533 F.3d 63 (1st Cir. 2008), which the IJ relied on in finding that the beating was
– 16 –
the result of a personal dispute only. In Sompotan, we held that the record did not compel the conclusion that those who robbed the petitioners and their restaurant while yelling “Chinese bastard, crazy Christian, crazy Chinese” were motivated by religious and racial animus rather than by a desire to rob because “[t]he fact that [robbers] would stoop to the level of using racial slurs is, unfortunately, not surprising.” 533 F.3d at 70. By contrast, the attackers here did not make just a passing reference to Khalil’s religion. Rather, they made religious demands on him during the attack and beat him more vigorously when he refused to cede to those demands.
The arguments the government offers as to why substantial evidence supports the agency’s no-nexus determination do not alter our conclusion. The government emphasizes that Khalil recounted his attackers’ demands that he convert only in his asylum interview and written declaration attached to his asylum application, but not in his testimony before the IJ. But in evaluating whether substantial evidence supports the agency’s conclusion, we are tasked with reviewing “the record as a whole.” Barnica-Lopez, 59 F.4th at 527. Further, at his hearing, Khalil described the beating exclusively during the government’s cross-examination, and the government strategically asked him only one question about what his attackers said during the beating: Did they reference the blood test results? The framing of the
– 17 –
government’s questions on cross-examination does not change our assessment of the record as a whole. The government also contends that, because Khalil testified that the imam had no issue with him until the imam found out about the blood test results, religion did not motivate the attack. But that argument ignores the attackers’ own words and actions.
For all these reasons, we find that the record compels the conclusion that Khalil’s religion played more than an incidental role in his beating. We therefore grant the petition for review as to Khalil’s asylum claim premised on mixed-motive persecution.5
. . . .
********************
Many congrats and much appreciation to the NDPA team involved in this litigation!👏🙏
Oh yeah, the BIA also screwed up the CAT analysis! 🤯
This is another classic example of deficient scholarship and an “any reason to deny culture” that Garland, inexplicably, has allowed to flourish in some parts of EOIR on his watch!
This is the REAL “immigration crisis” gripping America, and one that obviously could be solved with better-qualified judges and dynamic due-processed-focused leadership at EOIR!
“Revolution by evolution” is a meaningless piece of bureaucratic gobbledegook I sometimes heard during Dem Administrations to justify their often gutless, inept, and dilatory approach to due process at EOIR! What total poppycock! EOIR needs a dramatic “Due Process Revolution” from within! And, it needs it yesterday, with lives and the future of American justice on the line!
There’s an opportunity, open until April 12, 2024, to become a BIA Appellate Judge and start improving the trajectory of American justice at the “retail level!”
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