"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.
On August 30, 2023, Judge Leo A. Finston of the Newark Immigration Court granted asylum to a Cravath pro bono client persecuted by gang members in El Salvador.
Cravath’s client overheard the murder of his neighbors by a Salvadoran gang and, fearing retaliation from the gang, subsequently refused to provide police with information. Even so, he was repeatedly attacked and continued to receive threats to “cooperate with the gang.” He fled El Salvador and arrived at the Texas border in December 2017, turning himself in to United States immigration officials and requesting asylum. He was detained, and Human Rights First represented him before the Immigration Court in Newark, New Jersey.
In September 2018, Judge Finston denied the application for asylum, finding that, while the man was credible and had suffered PTSD from the events in El Salvador, “complaining witnesses against major Salvadoran gangs” were not a “particular social group” for purposes of asylum, and there was not sufficient probability that he would be tortured upon his return to El Salvador. In March 2019, the Board of Immigration Appeals (BIA) dismissed the initial appeal. Cravath became involved at this stage, briefing and arguing the appeal before the Third Circuit Court of Appeals.
On April 17, 2020, the Third Circuit issued a precedential opinion (see related news item here) granting the client’s petition for review, vacating the BIA’s removal order and remanding the case to the BIA for further proceedings. The Court held that “persons who publicly provide assistance against major Salvadoran gangs do constitute a particular social group” for purposes of asylum, and that the BIA erred in denying relief under the Convention Against Torture, finding that “it is clear to us, viewing the record as a whole, that [he] suffered torture”. The Court remanded the case to the BIA, and in December 2021, the BIA remanded the matter to the Newark Immigration Court for further proceedings.
By that time, Cravath’s client was living in hiding in El Salvador, and the Cravath team spent the next year and a half trying to secure his return for a new merits hearing, consistent with the Third Circuit’s opinion.
On July 20, 2023, at a Master Calendar Hearing before Judge Finston, the Cravath team argued the man had a meritorious case and constitutional due process and statutory rights to be present at his merits hearing, but the Department of Homeland Security took the position that it had no obligation to allow him to return. On August 30, 2023, the Cravath team appeared on the client’s behalf at a second Master Calendar Hearing, where Judge Finston found that, in light of the Third Circuit’s opinion and based on the record before him, it was clear the man qualified for asylum and no further proceedings were necessary.
The Cravath team was led by partner Wes Earnhardt and included associates Brian P. Golger and Ana C. Sewell.
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Many congrats to Cravath!
I told the BIA that witnesses were a PSG more than a decade ago! They wouldn’t listen, but the Fourth Circuit did! See Crespin-Valladares v. Holder, 632 F. 3d 171 (4th Cir. 2011). When will they ever learn?
With proper guidance from a competent BIA, this case should have been a “slam dunk grant” five years ago. This also illustrates the absurdity of those who disingenuously claim that asylum applicants can receive due process without competent representation! It also shows the legal and moral bankruptcy of “expedited docket gimmicks” that attempt to rush cases to denial and deportation without a realistic chance to get representation and prepare!
The U.S. asylum system would work much more fairly and efficiently with a BIA of recognized asylum experts! They are out here! Why hasn’t Garland reformed and reconstituted the BIA to get the job done?
Lives and the future of American law are at stake here!
It’s a huge deal! Dems must “lose” the arrogant “it’s only immigration” attitude that has prevented Dem Administrations from doing the correct, courageous (and smart) thing on immigration, human rights, social justice, and civil rights! Migrants’ rights are human rights are civil rights are everyone’s rights!
Judge Finston did the right thing on remand from the Circuit. I’d like to believe that with better guidance from the BIA he would have done it five years ago. The human impact of the abject failure of the BIA to provide positive leadership on GRANTING asylum in recurring situations is an incomprehensible drag on our justice system at many levels.
Better judges for a better America! And, it starts at the “retail level” with EOIR!
Because an appeal accepted under section 460.30 of the New York Criminal Procedure Law is classified as a direct appeal, a respondent with a pending appeal under this section does not have a final conviction for immigration purposes. Brathwaite v. Garland, 3 F.4th 542 (2d Cir. 2021), followed.
While a welcome victory for the respondent, notably, this precedent only happened because the Second Circuit had reversed and remanded the BIA’s incorrect application of the finality standards!Brathwaite v. Garland, 3 F.4th 542 (2d Cir. 2021). Without great pro bono lawyering on his side, this respondent would have joined the many others wrongfully removed by EOIR’s sloppy approach to the law and justice for persons who happen to be migrants.
In other words, the “good enough for government” approach, despite some improvements in judicial hiring, still infects EOIR under Garland. Rather than pouring more money into walls, prisons, false “deterrents,” and trying to strip rights from migrants, Congress and the Administration should be focused on solving these glaring due process and quality control issues in the current system!
As I say over and over, unlike some aspects of human migration, this is a solvable problem! It’s not rocket science! 🚀 It’s just good government, dynamic, courageous leadership, and common sense! Better judges 👩🏽⚖️ for a better America!🇺🇸
Many congrats to NDPA star attorney John Peng of Prisoners’ Legal Services of New York!
John Peng Esquire Staff Attorney Prisoners’ Legal Services of NY PHOTO: PLSNY
John is a terrific example of the importance of immigration clinical education and the Immigrant Justice Corps! Here’s his bio:
John Peng, Federal Litigation & Appellate Staff Attorney
John joined the Immigration Unit in August 2019 as an Immigrant Justice Corps Fellow. He received his J.D. from the University of Pennsylvania Law School. There, John was an active participant in the Transnational Legal Clinic and focused his coursework on immigration and international human rights law. John was admitted to practice law by the New York State Bar in January 2020.
Approximately four years out of law school, John is establishing legal precedents, saving lives, and leading the way for others! This type of “impact leadership by example” is exactly the vision that led to the establishment of the Immigrant Justice Corps! It’s also why aspiring lawyers who “want to make a difference” right off the bat should consider careers in immigration, human rights, and social justice!
WASHINGTON — An immigration judge and lawyer told a U.S. Senate Judiciary panel on Wednesday that an independent immigration court would help ease a backlog of more than 2 million pending cases.
Because the immigration court system is an arm of the U.S. Justice Department — the Executive Office for Immigration Review — each presidential administration has set immigration policy, and often those courts are subject to political interference, said Mimi Tsankov, an immigration judge, and Jeremy McKinney, an immigration attorney.
In the immigration court system, judges hold formal court proceedings to determine whether someone who is a noncitizen should be allowed to remain in the United States, or should be deported.
“Every administration has interfered with the courts. This undermines the courts’ integrity, and many of the executive branch’s manipulations of judges and their dockets simply backfire,” said McKinney, the former president of the American Immigration Lawyers Association.
Tsankov, the president of the National Association of Immigration Judges, said in order to alleviate the backlog of immigration court cases, Congress should establish an independent immigration court under Article I of the U.S. Constitution.
. . . .
“An independent board will begin the process of healing this broken system,” she said.
The witnesses also argued that many people going through the immigration system lack legal representation, which can greatly impact their outcome.
The top Republican on the Senate panel, John Cornyn of Texas, argued that most cases are without merit, as opposed to asylum cases, which are based on a credible fear of death or harm. He said that people are “clogging the courts” and are aware the severe backlogs will allow them to stay in the country. Some courts have backlogs until 2027.
Sen. Mazie Hirono, Democrat of Hawaii, pushed back.
“People who have attorneys are 10.5 times more likely to be granted relief,” she said. “So it is when they have attorneys that they can proceed with their asylum claims.”
She added that another issue is that many children who are unaccompanied, even some toddlers, are expected to legally represent themselves.
“There is no guarantee that children will also have a lawyer, and this is alarming because children are some of the most vulnerable people in our immigration system,” she said.
Cornyn said he did not believe that “the taxpayer should be on the hook” for paying for legal fees and representation.
McKinney said that those who have representation and are not detained are five times more likely to gain relief. Immigrants who are detained and have legal representation are 10 times more likely to be granted relief than those who do not have representation.
“The point is that representation ensures due process,” he said. “It also makes the system more efficient when all the parties know the rules and know how to present a case. Cases move faster.”
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Read the full article at the above link. You can also check out the full video of the hearing here:
In his opening statement, ranking GOP Sen. Cornyn made it very clear that fixing the Immigration Courts is a nonstarter for the GOP.
Instead of engaging on this critically important initiative, he wasted much of his introduction disingenuously repeating the oft-debunked claim of a connection between asylum seekers and fentanyl smuggling. See, e.g., “Who is sneaking fentanyl across the southern border? Hint: it’s not the migrants,”https://www.npr.org/2023/08/09/1191638114/fentanyl-smuggling-migrants-mexico-border-drugs.
Obviously grasping at straws, in the absence of any empirical support for his nativist “scare scenario,” Cornyn went so far as to suggest — of course without a shred of evidence — that perhaps “go-arounds” were smuggling fentanyl.
This theory appears particularly questionable in light of evidence that most fentanyl is successfully smuggled through ports of entry by U.S. citizens and legal residents. Why would cartels abandon proven successful methods of port of entry smuggling to entrust their cargos to individuals who might not even survive the border crossing and, if apprehended, would certainly be searched? Cornyn had no answer.
What does seem likely is that by concentrating border law enforcement largely on “apprehending” and fruitlessly trying to “deter” those merely seeking to turn themselves in to exercise legal rights, the USG has diverted attention and resources from real law enforcement like an anti-fentanyl strategy. That almost certainly would require undercover infiltration of smuggling rings — dangerous and sophisticated law enforcement operations far removed from “apprehending” folks who WANT to be caught because they were forced to leave their home countries, are unsafe in Mexico, and can’t wait to schedule asylum appointments at ports of entry through the badly flawed and inadequate “CBP One App!” Building a fair and efficient asylum system should even help CBP apprehend more of Sen. Cornyn’s “go arounds!”
But, Cornyn’s misdirection isn’t just a distraction; it’s actually dangerous! As the GOP has shown over and over, if you repeat a lie or myth enough times, folks start to believe it. Witness the demonstrably totally frivolous claims of election interference that drive much of the GOP’s agenda and has become “truth” for their misguided “base.”
A case in point is the outrageous political boondoggle recently carried out by Virginia’s right-wing Governor Glenn Youngkin. In response to Texas Gov. Greg Abbott’s White Nationalist plea, Youngkin wasted two million taxpayer dollars on a bogus detail of the National Guard to the Texas border, ostensibly to “protect Virginians from the scourge of fentanyl.”
What if Youngkin had spent the same amount of money supporting NGOs in Virginia struggling to resettle and represent migrants aimlessly bussed to the DMV by Abbott and DeSantis as part of a political stunt? Community social justice NGOs generally use funds more carefully and efficiently than GOP blowhards like Youngkin and co.
The GOP claim that most asylum claims are frivolous also is misleading. For those who can actually get a merits hearing on asylum at EOIR — often in and of itself no mean feat given the prevalence of “Aimless Docket Reshuffling” — TRAC statistics for FY 2022 show that 46% are granted. Seehttps://trac.syr.edu/whatsnew/email.221129.html#. And, this is in a system that is still heavily tilted against asylum seekers. EOIR still has many “holdover judges” from the Trump years who were hired not because of their expertise, qualifications, or reputations for fairness, but because their backgrounds indicated that they were likely to be unsympathetic to asylum seekers!
Admittedly, the manner in which EOIR keeps asylum statistics can make meaningful analysis difficult. For example, more than half of asylum “dispositions” are listed as “other” — which covers“abandoned, not adjudicated, other, or withdrawn,” a facially, at least partially, circular definition! Seehttps://www.justice.gov/media/1174741/dl?inline.
Moreover, since EOIR procedures generally require that all potential relief be stated at the time of pleading or presumptively be waived, prudence requires that the right to appply for asylum be protected, even if it is unlikely that the case will proceed to the merits on that application.
Also, it’s worth remembering that the Government already has a powerful tool for both identifying and quickly tossing frivolous asylum claims and expeditiously granting clearly meritorious claims to keep them out of the Immigration Court. It’s called the Asylum Office at USCIS! That despite much ballyhooed regulatory changes, DHS has failed to obtain “maximum leverage” from the credible fear/Asylum Office process is not a reason for eschewing EOIR reform!
What we can tell from the available data is that, rather than wasting more money on expensive and ineffective “deterrence gimmicks,” the best “bang for the buck” for the USG would be to invest in representation for asylum seekers and in a better, professionally-managed EOIR with better, independent judges, acknowledged experts in asylum law, who could “keep the lines moving” without denying due process or stomping on individual rights.They could also set helpful precedents for the Asylum Office. That’s what Congress and the Administration should be investing in.
Reforming the Immigration Courts and creating an independent Article I Court should be a high national priority. While no single action can bring “order to the border” overnight, fixing EOIR is an achievable priority that will support the rule of law and dramatically improve the quality and efficiency of justice at the border and throughout the U.S.
As Chairman Padilla (D-CA) said, this should be a bipartisan “no-brainer.” Just don’t look to today’s White-Nationalist-myth-driven GOP for help or rational dialogue on the subject.
EOIR HQ, Falls Church, VA (a/k/a “The Tower of Babel”) — EOIR and their DOJ handlers imposed designed-to-fail “dedicated dockets” on the public over the objections of advocates. Now they need the same experts they “blew off” to help them save their “due-process-denying rocket dockets!” By Pieter Bruegel The Elder Public Domain
Contact: Communications and Legislative Affairs Division Phone: 703-305-0289 PAO.EOIR@usdoj.gov
www.justice.gov/eoir @DOJ_EOIR
Oct. 17, 2023
EOIR to Host National Stakeholder Meeting Seeking to Increase
Pro Bono Representation for Immigration Courts with Dedicated Dockets
SUMMARY: The Executive Office for Immigration Review (EOIR) invites immigration law school clinical communities and pro bono organizations to attend a national stakeholder meeting for an open discussion on how to increase pro bono representation in immigration courts with Dedicated Dockets.
At this meeting, EOIR seeks input and recommendations on how the agency can better encourage and facilitate pro bono advocacy, either in person or remotely, at the following immigration courts with established Dedicated Dockets: Boston, Denver, Detroit, El Paso, Los Angeles – N. Los Angeles Street, Miami, New York – Broadway, New York – Varick, Newark, San Diego, San Francisco, and Seattle. See EOIR’s Policy Memorandum 21-23 for more details on this initiative.
EOIR continues to work to increase the representation rate and the number of practitioners available to represent noncitizens in immigration proceedings. Practitioners who volunteer their time to help those unable to afford counsel are a critical part of that effort.
Please join us for a targeted discussion with the goal of strengthening pro bono representation for the Dedicated Dockets.
DATE: TIME: LOCATION:
Oct. 26, 2023
1 p.m. – 2 p.m. Eastern Time
Live via Webex – Meeting Registration
All media inquiries should be directed to pao.eoir@usdoj.gov.
In reality, these ill-conceived and poorly-planned dockets have been “dedicated” to maximizing denials, minimizing due process, impeding effective representation, and developing an unfriendly atmosphere that will discourage asylum seekers from fully exercising their legal rights.
Some DOJ politicos and EOIR bureaucrats must belatedly be worrying about their “legacy,” future employability, or eventually being held accountable for plotting to deny due process to thousands of the most vulnerable humans! As usual, the immigration bureaucracy creates unnecessary problems, then leaves it to the NGO/advocacy community to bail them out!
It’s a deadly, counterproductive, wasteful, frustrating “downward cycle” that needs to stop! Why not “cut out the nonsense” by putting in charge those with the comprehensive knowledge, creative ideas, advanced skills, moral courage, and realistic foresight to solve these problems BEFORE they become self-created “crises?” Those needed leaders and judges are primarily OUTSIDE the USG right now. They need to be brought on board to solve the problems that are demonstrably beyond the ability, will, and skill set of the current immigration bureaucracy at DOJ and DHS!
Only those Immigration Judges granting at or above the (already substantially suppressed) national average should be allowed to hear asylum cases.
Reassign those BIA Appellate Judges who are not recognized asylum experts, and replace them with qualified asylum experts committed to providing and enforcing some positive guidance and best practices for asylum adjudication.
Identify and promptly grant the hundreds of thousands of meritorious asylum cases now moldering in the EOIR backlog (many victims of EOIR’s ADR) so that these refugees can get on with their lives and contribute fully to American society and our economy.
Dems have the power to reform EOIR — a huge “Federal Court system” that they exclusively control! Why are they afraid to use that power “to promote justice and resist evil?”
In the meantime, please take advantage of this chance to “enlighten” EOIR bureaucrats about what it’s really like to attempt to provide pro bono representation on “dedicated dockets” while dealing with their ADR on already-prepared cases that could and should have been granted long ago. Hopefully, some members of the media will also tune in to get a dose of the challenges of trying to fight for justice in America’s worst and least-user-friendly “courts!”
Honorable Mimi Tsankov U.S. Immigration Judge President, National Association of Immigration Judges (“NAIJ”)Hon. Samuel B. Cole Executive Vice President NAIJ PHOTO: NAIJ
Federal immigration judges Mimi Tsankov and Samuel B. Cole to address immigration courts backlog at Headliners Newsmaker, Oct. 18
October 16, 2023, 5:13 pm
WASHINGTON, Oct. 16, 2023 /PRNewswire/ — Judges Mimi Tsankov, a federal immigration judge in New York City, and Samuel B. Cole, a federal immigration judge in Chicago, will speak Wednesday, Oct. 18 at 10 a.m. at a National Press Club Headliners news conference about the pressures of the migrant crisis on the federal immigration court system.
NATIONAL PRESS CLUB LOGO. (PRNewsFoto/NATIONAL PRESS CLUB) (PRNewsfoto/National Press Club) (PRNewsfoto/National Press Club)
An unprecedented surge in migration has created a backlog of 2.6 million cases in the nation’s immigration courts resulting in long waits for hearings. Among other topics, the judges will address the recent assignment of judges to areas along the border. They will provide an update on the judges’ union efforts to restore rights lost during the previous administration.
Federal immigration judges are generally barred from speaking out on issues that affect their courts. Tsankov and Cole will speak in their capacity as president and executive vice president of the National Association of Immigration Judges (NAIJ), an affiliate of the International Federation of Professional and Technical Engineers (IFPTE).
The National Press Club is located on the 13th Floor of the National Press Building at 529 14th St., NW, Washington, D.C.
PRESS CONTACT: Cecily Scott Martin for the National Press Club; cscottmartin@press.org; (202) 662-7525
Yet, the mainstream media, Democrats, Civil Rights organizations, and commentators often pay scant attention to the outrageous dehumanizing chaos in our Immigration Courts. One contributing factor is that the DOJ has “muzzled” Immigration Judges from speaking out publicly about what’s happening in their courts, a questionable 1st Amendment suppression that a Federal District Judge recently “shrugged off.” See, e.g., https://knightcolumbia.org/cases/naij-v-neal.
This is a rare opportunity for the public to get insights on this critically important yet “below the radar screen court system” from two sitting judges. They apparently have “sidestepped” the DOJ’s censorship by appearing “solely in their capacity as officers of the National Association of Immigration Judges (“NAIJ”).” (Full disclosure: I am a retired NAIJ member.)
The NAIJ strives to provide professional training, encouragement of best practices, more independence, better working conditions, and more cooperation with parties appearing before the Immigration Courts. These positive efforts, among the few happening at EOIR, earned the NAIJ a “decertification” of their status as a union representing Immigration Judges during the Trump Administration.
Ironically, although the Biden Administration touts itself as the most “union-friendly Administration in history,” three years in, the NAIJ has yet to regain full recognition as a union.
For six years, I have represented adults, children and families who have fled persecution in their home countries and sought protection in the United States. My clients have traveled thousands of miles from countries including Nicaragua, Venezuela, Cameroon, Togo, Haiti, El Salvador, Honduras and Guatemala, arriving at the U.S.-Mexico border to seek asylum. They leave their homes, communities and culture because the pain and risks of fleeing pale in comparison to the dangers they will face if they stay.
I have seen the difference between the outcomes for clients who have meaningful access to legal counsel and due process, who are able to safely settle into a community as they pursue their cases, and people who are deprived of these basic human rights. But over the past several months there has been an onslaught of Biden administration policies designed with one goal: to rapidly deport people. These programs block people from a fair asylum process, and I am deeply concerned that thousands of individuals fleeing persecution will never be able to tell their stories and have a chance at safety in our country.
For the clients I have helped win asylum, the key to my representation was consistent and thorough communication. Through multiple sessions, we built a rapport, I provided them with information about their legal rights and the immigration system and they provided me with the details of their lives. These details formed the basis of their legal claims, which I assisted them in presenting to the immigration judge. The judge decided whether they could stay in the United States based on an individualized determination of their future risk of harm if deported.
When one of my clients and her six-year-old daughter completed their two-month journey from El Salvador to Texas, Customs and Border Protection detained them for three days and then released them with notice of their obligation to appear in immigration court. They made their way to the Midwest, where they sought legal representation.
At the National Immigrant Justice Center, my colleagues and I worked with the mother over several months to document her experiences of being raped, impregnated, beaten and locked up at home by her older relative. Finally safe in the United States, she started therapy and began working at a restaurant to support herself and her daughter. At her final immigration court hearing, she bravely testified about her traumatic past, and the immigration judge granted both mother and daughter asylum.
. . . .
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Read the rest of Stephanie’s article at the link.
On the basis of reports like this, there is reason to believe that not only should many more of the individuals allowed to enter the U.S. be granted asylum under a properly functioning system, but that many of those barred, rejected, and deported are erroneously being returned to life-threatening situations.
This, of course, directly contradicts the restrictionist myths peddled by most GOP politicos and even some Dems. It also contradicts the fear-mongering and scare tactics employed by the right-wing media that has unfortunately spilled over into the so-called “mainstream media.”
The real “border crisis/tragedy” is the lack of a legitimate, well-functioning, fair, efficient system to carry out our legal obligations to asylum seekers under both domestic and international laws. Calls for more “deterrents, cruelty, walls, harsh imprisonment, lawless deportations, and truncations of already-routinely-violated rights” are not going to solve the real problems! Indeed, they are likely to make things even worse!
Proud to be a member of this great group fighting for due process. Also grateful for all the great lawyers and firms who have provided pro bono drafting assistance to “give us a voice that needs to be heard!”
When Carolina’s captors arrived at dawn to pull her out of the stash house in the Mexican border city of Reynosa in late May, she thought they were going to force her to call her family in Venezuela again to beg them to pay $2,000 ransom.
Instead, one of the men shoved her onto a broken-down bus parked outside and raped her, she told Reuters. “It’s the saddest, most horrible thing that can happen to a person,” Carolina said.
A migrant advocate who assisted Carolina after the kidnapping, who spoke to Reuters on condition of anonymity due to security concerns, confirmed all the details of her account.
The attack came amid an increase in sexual violence against migrants in the border cities of Reynosa and Matamoros, both major transit routes for immigrants seeking to enter the U.S., according to data from the Mexican government and humanitarian groups, as well as interviews with eight sexual assault survivors and more than a dozen local aid workers.
“The inhumane way smugglers abuse, extort, and perpetrate violence against migrants for profit is criminal and morally reprehensible,” U.S. Department of Homeland Security (DHS) spokesperson Luis Miranda said in response to questions about the rise in reported rapes.
Criminal investigations into the rape of foreign nationals, excluding Americans, were the highest on record in the two cities this year, according to state data from 2014 to 2023 obtained by Reuters through freedom of information requests.
The U.S. State Department considers Tamaulipas, where the two cities are located, to be the most dangerous state along the U.S.-Mexico border.
. . . .
A Venezuelan migrant said he was kidnapped in May in Reynosa by a cartel while traveling to the border for his confirmed CBP One appointment. He couldn’t raise the full $800 ransom, so he was forced to work for two months to pay off the remaining $200, he said.
Two other migrants who said they were held at the house during the same time period confirmed the man was forced to work against his will, and that they heard female migrants being raped.
On the nights the Venezuelan man was tasked with standing guard over the other migrants, he said he watched the cartel members ask the man in charge of the house for permission to rape the women of their choosing.
He said the answer was always the same: “Take her.”
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Read the full article at the link.
Walls, detention, eliminating the right to asylum aren’t going to solve this. But, solving it doesn’tseem to be the objective. Blaming the victims is a lot easier than treating them as human beings.
As my friend Debi Sanders (who alerted me to this report) said: “Terrifying!”Yup! 🤯🏴☠️
Yet, just a few days earlier, in deciding to extend TPS to nearly a half million Venezuelans in the US, that same DHS found:
Overview
Venezuela continues to face a severe humanitarian emergency due to a political and economic crisis, as well as human rights violations and abuses and high levels of crime and violence, that impacts access to food, medicine, healthcare, water, electricity, and fuel, and has led to high levels of poverty. Additionally, Venezuela has recently experienced heavy rainfall in the spring and summer of 2023 which triggered flooding and landslides. Given the current conditions in Venezuela, these issues contribute to the country’s existing challenges.
Venezuela is experiencing “an unprecedented political, economic, and humanitarian crisis.” [5] “Venezuela is suffering one of the worst humanitarian crises in the history of the Western Hemisphere,” which has been characterized by “[h]igh levels of poverty, food insecurity, malnutrition, and infant mortality, together with frequent electricity outages and the collapse of health infrastructure.” [6] Though there were some positive developments in Venezuela in 2022 “as the economy stabilized and showed signs of economic growth,” the effects of these changes were not felt across the Venezuelan population and did not offset the impact of the large-scale economic contraction which resulted in significant humanitarian challenges that continue today and will take time to address.[7]
Political Repression and Human Rights
The Maduro regime has closed off channels for political dissent, restricting enjoyment of civil liberties and “prosecuting perceived opponents without regard for due process.” [8] The UN Human Rights Council’s Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela (IIFFM) found in its September 2022 report, “Venezuela’s military and civilian intelligence agencies function as well-coordinated and effective structures in the implementation of a plan” to “repress dissent.” [9]
Crime and Insecurity
Venezuela has one of the highest rates of violent deaths in the world.[10] Additionally, “Venezuelans face physical insecurity and violence from several sources, including irregular armed groups, security forces, and organized gangs.” [11] Corruption in Venezuela exacerbates insecurity. InSight Crime has reported that “criminal groups and corrupt state actors together form a hybrid state that combines governance with criminality, and where illegal armed groups act at the service of the state, while criminal networks form within it.” [12] Human trafficking remains a serious concern. Traffickers exploit and subject Venezuelans, including those fleeing the country, to egregious forms of exploitation, including sex trafficking and forced labor.[13] Members of non-state armed groups that operate in the country with impunity, subject Venezuelans to forced labor and forced criminality, and recruit or use child soldiers.[14]
Economic Collapse
Since 2014, Venezuela has suffered from an “economic recession marked by hyperinflation, shortages of basic goods and a collapse in public services such as electricity and water.” [15] Recently, Venezuela’s economy has shown some signs of recovery; however, it is still in a precarious condition.[16] In a report covering the period from May 2022 through April 2023, the Office of the High Commissioner for Human Rights (OHCHR) noted that while economic growth which occurred in 2022 “would bring hope for improved economic prospects, persistent challenges and other factors continued to negatively affect essential public services, transport, education, and health.” [17]
In its annual report covering 2022, the Inter-American Commission on Human Rights (IACHR) noted “the high rates of poverty and inequality in the country, in which there are estimates that more than 90% of the population lives in poverty.” [18] The same report stated that “as of March 2022, HumVenezuela estimated that 94.5% of the population would not have sufficient income to cover items such as food, housing, health, education, transportation and clothing.” [19]
Health Crisis
Various sources have referred to severe problems with health systems in Venezuela, including the IACHR, Human Rights Watch, and the Congressional Research Service (CRS).[20] Per The Associated Press, Venezuela’s “health care system crumbled long before” the start of the COVID–19 pandemic.[21] Likewise, in its 2022 annual report, the IACHR acknowledged that while the COVID–19 pandemic “has had significant impacts on the health sector and the population, the serious affectations of the system preceded the health emergency.” [22] Elaborating on this topic, the IACHR identified “shortages of medicines, supplies, materials and medical treatment” as of 2018, and that the “situation has been worsening since 2014, and it is important to highlight that the health system has reportedly collapsed due to its persistent precariousness, which would have been exacerbated by the pandemic.” [23]
According to OHCHR, health centers in Venezuela “report structural underfunding and understaffing resulting in for example, regular blackouts and water shortages.” [24] In its report on the humanitarian situation in Venezuela in 2022, the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) noted that “[h]ealth services continue to be affected by insufficient water and sanitation conditions and the lack of electricity supply in facilities.” [25] Similarly, Human Rights Watch stated in its annual report covering 2022 that “[p]ower and water outages at healthcare centers—and emigration of healthcare workers—were further weakening operational capacity.” [26] Furthermore, the IACHR has reported that “98% of the hospitals in the country lack medicines, electrical plants and water, as well as failures in laboratories, reagents and wards. As a result, it is estimated that only between 3 and 10% of the hospitals have medical and surgical material to solve medical circumstances.” [27]
Food Insecurity
In a humanitarian response plan published in 2023, the Food and Agriculture Organization of the United Nations (FAO) identified food insecurity as “the most pressing challenge for the population.” [28] Human Rights Watch stated in its annual report covering 2022 that HumVenezuela reported in March 2022 that “most Venezuelans face difficulties in accessing food, with 10.9 million undernourished or chronically hungry. Some 4.3 million are deprived of food, sometimes going days without eating.” [29] Moreover, the IACHR noted in its 2022 annual report that “32% of children live in a situation of chronic malnutrition.” [30]
Heavy Rains and Flooding
Since May 26, 2023, as hurricane season began, Venezuela has experienced heavy rains which resulted in flooding that affected several areas of the country.[31] According to ACAPS, “Between June and July there have been 19 tropical waves, that have brought heavy rains, floods and landslides across the country.” [32] As of July 11, 2023, the meteorological situation in Venezuela indicated “that rainfall and resulting damages are expected to be more severe than previous years.” [33] Reports of the damage caused by the heavy rains include 5,100 people affected with damage to houses and blockages in the drainage system in the state of Portuguesa.[34] In another area—Delta Amacuro state—around 7,500 people are affected by the 2023 floods.[35]
In summary, extraordinary and temporary conditions continue to prevent Venezuelan nationals from returning in safety due to a severe humanitarian emergency which has resulted in food insecurity and the inability to access adequate medicine, healthcare, water, electricity, and fuel. Additionally, human rights violations and abuses, high levels of poverty, high levels of crime and violence, and heavy rains and flooding prevent Venezuelan nationals from returning in safety and permitting Venezuelan noncitizens to remain in the United States temporarily would not be contrary to the interests of the United States.
Based on this review and after consultation with appropriate U.S. Government agencies, the Secretary has determined that:
• The conditions supporting Venezuela’s designation for TPS continue to be met. See INA sec. 244(b)(3)(A) and (C), 8 U.S.C. 1254a(b)(3)(A) and (C).
• There continues to be extraordinary and temporary conditions in Venezuela that prevent Venezuelan nationals (or individuals having no nationality who last habitually resided in Venezuela) from returning to Venezuela in safety, and it is not contrary to the national interest of the United States to permit Venezuelan TPS beneficiaries to remain in the United States temporarily. See INA sec. 244(b)(1)(C), 8 U.S.C. 1254a(b)(1)(C).
• The existing designation of Venezuela for TPS (Venezuela 2021) should be extended for an 18-month period, beginning on March 11, 2024 and ending on September 10, 2025. See INA sec. 244(b)(3)(C), 8 U.S.C. 1254a(b)(3)(C).
• Due to the conditions described above, Venezuela should be redesignated for TPS beginning on October 3, 2023, and ending on April 2, 2025. See INA sec. 244(b)(1)(C) and (b)(2), 8 U.S.C. 1254a(b)(1)(C) and (b)(2).
For the redesignation, the Secretary has determined that TPS applicants must demonstrate that they have continuously resided in the United States since July 31, 2023.
Initial TPS applicants under the redesignation must demonstrate that they have been continuously physically present in the United States since October 3, 2023, the effective date of the redesignation of Venezuela for TPS.
There are approximately 243,000 current Venezuela TPS beneficiaries who are eligible to re-register for TPS under the extension.
It is estimated that approximately 472,000 additional individuals may be eligible for TPS under the redesignation of Venezuela. This population includes Venezuelan nationals in the United States in nonimmigrant status or without immigration status.
Does this sound like a country that will “ensure orderly, safe and legal repatriation?” Duh!
As for the DHS attempt to “blame the victims” for not taking advantage of legal opportunities, the legal right to apply for asylum in the U.S. attaches at the border to ANYONE “who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status.”INA, section 208.
With huge backlogs at both the Asylum Office and EOIR, and some problematic adjudicators, judges, administrators, and poor precedents, just how could hundreds of thousands of legal removals take place without huge systemic changes that to date the Administration has failed to make at either DHS or EOIR?Sounds like a prescription for massive legal and human rights violations!☠️
Yes, we’re going to hear chants of “we can’t take them all” from all sides. But, the truth that few acknowledge is that we haven’t and won’t be “taking them all” — not by a long shot! Of the more than 7 million who have fled the Maduro regime in Venezuela, only approximately 10% (about 750,000) have come to the U.S.!https://www.bbc.com/news/world-us-canada-66875264. The vast, vast majority — approximately 90% — have taken refuge elsewhere in Latin American, in poorer countries far less able than the U.S. to absorb them! But, hey, when does truth and reality ever enter into the U.S. political debate on immigration?
The Afghan man speaks only Farsi, but he wasn’t worried about representing himself in U.S. immigration court. He believed the details of his asylum claim spoke for themselves.
Mohammad was a university professor, teaching human rights courses in Afghanistan before he fled for the United States. Mohammad is also Hazara, an ethnic minority long persecuted in his country, and he said he was receiving death threats under the Taliban, who reimposed their harsh interpretation of Sunni Islam after taking power in 2021.
He crossed the Texas border in April 2022, surrendered to Border Patrol agents and was detained. A year later, a hearing was held via video conference. His words were translated by a court interpreter in another location, and he said he struggled to express himself — including fear for his life since he was injured in a 2016 suicide bombing.
At the conclusion of the nearly three-hour hearing, the judge denied him asylum. Mohammad said he was later shocked to learn that he had waived his right to appeal the decision.
“I feel alone and that the law wasn’t applied,” said Mohammad, who spoke to The Associated Press on condition that only his first name be used, over fears for the safety of his wife and children, who are still in Afghanistan.
. . . .
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Former immigration judge Jeffrey Chase, who reviewed the transcript, said he was surprised John-Baptiste waived Mohammad’s right to appeal and that the Board of Immigration Appeals upheld that decision. Case law supports granting protection for people who belong to a group long persecuted in their homelands even if an individual cannot prove specific threats, said Chase, an adviser to the appeals board.
But Andrew Arthur, another former immigration judge, said John-Baptiste ruled properly.
“The respondent knew what he was filing, understood all of the questions that were asked of him at the hearing, understood the decision, and freely waived his right to appeal,” Arthur, a fellow at the Center for Immigration Studies, which advocates for immigration restrictions, said via email.
Chase said the hearing appeared rushed, and he believes the case backlog played a role.
“Immigration judges hear death-penalty cases in traffic-court conditions,” said Chase, quoting a colleague. “This is a perfect example.”
Overall, the 600 immigration judges nationwide denied 63% of asylum cases last year, according to Syracuse University’s Transactional Records Access Clearinghouse. Individual rates vary wildly, from a Houston judge who denied all 105 asylum requests to a San Francisco one denying only 1% of 108 cases.
John-Baptiste, a career prosecutor appointed during the Trump administration’s final months, denied 72% of his 114 cases.
. . . .
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Read Julie’s complete article at the link.
Hazaras are an historically persecuted group in Afghanistan whose already perilous situation has demonstrably worsened under the Taliban. See, e.g., https://www.ushmm.org/genocide-prevention/blog/urgent-action-needed-hazaras-in-afghanistan-under-attack. This case should have been a “slam dunk grant” under a proper application of precedents like Cardoza and Mogharrabi! Additionally, Hazara claims should be routinely grantable under the “pattern or practice of persecution” regulations that EOIR judges are supposed to apply (but seldom do).
No wonder this system builds incredible unnecessary backlogs when it botches the easy grants, wastes time on specious, disingenuous reasons for denial, and allows questionably-qualified judges to run roughshod over due process, the rule of law, and binding precedents.
Here’s additional commentary from “Sir Jeffrey:”
Thankfully, the amazing Steve Schulman at Akin Gump took on Mohamed’s case after his pro se hearing, and Human Rights First provided additional support.
(The Round Table was prepared to file an amicus brief on this one at the Fifth Circuit, but an agreement was reached to reopen the case at the IJ level before briefing was due.)
That the Government agreed to reopen this case basically “says it all” about the absurd result in the original hearing and the bogus “waiver” of appeal.
“Petitioner Srecko Pesikan argues that the Board of Immigration Appeals (“BIA”) erred in concluding that his 2018 Pennsylvania conviction for driving under the influence (“DUI”) of marijuana constituted an offense involving a “controlled substance,” as defined in the federal Controlled Substances Act (“CSA”), thereby rendering him removable under the Immigration and Nationality Act of 1952, 8 U.S.C. § 1227(a) (“INA”). We agree and will grant his petition for review. … In sum, because the identity of the specific controlled substance is not an element of the Pennsylvania DUI statute, the state statute of conviction is indivisible and cannot serve as the basis for Pesikan’s removal under the INA. … For the foregoing reasons, we will grant Pesikan’s Petition for Review in case number 21-1262 and will reverse the order for removal.”
These are important cases with high stakes! They deserve expert analysis from expert judges.
Eliminating unnecessary Circuit reversals and remands like this would also help address the backlog-building, due-process-denying phenomenon of “Aimless Docket Reshuffling” at EOIR. Avoidable mistakes at the “retail level” are systemically costly to our justice system in more ways than one!
And, remember, that for every EOIR mistake that gets “caught” by the Article IIIs, dozens of these injustices probably go uncorrected! Circuit review is a luxury that isn’t available to most individuals who lose at the BIA level. Even here, Mr. Pesikan would have had no chance at the Circuit except for court-appointed pro bono counsel Stephen A. Fogdall and his team at Dillworth & Paxon, LLP, another luxury unavailable to litigants at the EOIR level.
Moreover, even when Circuit review does take place, the inappropriately deferential standards established by Congress allow (or even require) some Circuit panels to merely sweep glaring injustices under the rug without grappling with the overall constitutional implications of this shoddy, due–process-denying system. Why on earth would “deference” be given or review restricted over the “gang that can’t shoot straight” at EOIR?”
Would you give “deference” to these guys? Theatrical poster from Wikipedia
Some folks who should be applying for these jobs tell me they “couldn’t work with such an unfair law.” I say “poppycock.” To a large extent, the law and the unfair results are only as bad as EOIR judges choose make them.
But, it doesn’t have to be that way! For example, you can choose to:
Apply Cardoza-Fonseca, Mogharrabi, Kasinga, A-R-C-G-, and other precedents favorable to applicants fairly and robustly;
Honestly apply the presumption of future persecution set forth in 8 CFR 208.13 and actually put the burden on DHS to rebut it with evidence, not mere conjecture;
Carefully consider the possibility of a discretionary grant of asylum under the regulations (“so-called Chen grant”), even where the government rebuts the presumption of a well-founded fear;
Make realistic, practical, proper credibility determinations based on “the totality of the circumstances and all relevant factors;”
Require only “reasonably available” corroborating evidence;
Actually follow the legal principle that credible testimony, in an of itself, can be enough to grant relief;
Apply the “reasonableness of internal relocation” regulation set forth at 8 CFR 208.13(b)(3) honestly;
Fairly apply the properly generous interpretation of the “well founded fear” standard required by the Supremes in Cardoza and described by the BIA in Mogharrabi to cases where there is no past persecution;
Incorporate the latest scholarship on “country conditions,” rather than “cherry picking” DOS Country Reports looking for ways to deny;
Use the latest body of scholarship on “best interests of the child” in deciding cancellation of removal for non-LPRs;
Schedule cases in a reasonable manner, in consultation with both counsel, to eliminate endemic “aimless docket reshuffling;”
Take measures to promote and facilitate representation of individuals, rather than throwing up roadblocks;
Make ICE counsel do their jobs, rather than doing it for them, particularly in cases where ICE unilaterally declines to appear at the merits hearing;
Use all of your practical skills and knowledge of the law and practice to solve problems and promote efficiency;
Consider all interpretations available to you, not just “defaulting” to the one offered by ICE;
Make careful, analytical, findings of fact, rather than just glossing over facts favorable to the individuals and over-emphasizing or fabricating the facts most favorable to DHS;
Make your “courtroom a classroom” where exceptional scholarship, due process, fundamental fairness, teamwork, practical solutions to human problems, and best practices are promoted and institutionalized.
You might well find, like I did, that being guided by Cardoza and Mogharrabi, sticking to your guns, providing full due process, and faithfully following the law actually leads to grants of relief in the majority of individual hearings. Notably, ICE seldom appealed my grants, and I was rarely reversed by the BIA, no matter who appealed.
I actually did better with my former BIA colleagues as an IJ than I had during my eight years of service on the Board. Indeed, as I sometimes quipped, as an IJ, I finally got that which my colleagues often denied me during my tenure as BIA Chair and an Appellate Judge/BIA Member: deference!
Worried about “life after EOIR!” Yes, there is such a thing!
And, a quick survey of our Round Table of Former Immigration Judges and BIA Members 🛡⚔️would show everything from partners and of counsel in law firms, professors and educators, major NGO supervisors and attorneys, community activists, consultants and coaches, to those, like me, who claim to be “fully retired and just enjoying life.” The Round Table actually has great credibility with the Federal Courts and the media because, unlike sitting judges and their “handlers,” we can actually speak truth to power outside the courtroom!
Whether you serve for a year or the rest of your career, what you learn as an EOIR judge if you pay attention, will give you a “leg up” and otherwise unobtainable practical knowledge of how America’s most important, yet least understood, court system actually works (or not)!
Every week, almost every day in fact, we see in Federal Court reversals and remands to EOIR and reports from practitioners about unpublished successes the fundamental difference that great litigation and equally “great judging” can make in reaching correct results!Making it happen every day, in every court, at the “retail level,” rather than counting on the uncertainties and limitations of Circuit review, will save lives and change the delivery of justice throughout America!
NDPAers, the “EOIR train” is leaving the station. 🚅 As a nation, we can’t afford the “best and the brightest” of today’s legal profession not to be on board! So, get those “many applications” in for those “many jobs” and let’s see if we can fix this “life or death system” from both the inside and the outside! We won’t know if we don’t try!
Hon. Dana Leigh Marks U.S. Immigration Judge San Francisco Immigration Court Past President, National Association of Immigration Judges, Member, Round Table of Retired Immigration Judges
My friend might have “retired,” but “Nana Dana” as she now calls herself sure hasn’t slowed down! And, the rest of us are glad she’s still leading the way!
Dana’s retirement was a big loss for EOIR (at a time they can ill-afford to lose experienced talent), but a big gain for our Round Table, the rest of the NDPA, and Dana’s granddaughter!
Hon. Dana Leigh Marks Retired U.S. Immigration Judge San Francisco Immigration Court Past President, National Association of Immigration Judges, Member Roundtable of Retired Immigration Judges
From the Los Angeles & San Francisco Daily Journal:
The just published proposed regulation is a big deal. It begins with over thirty pages of introductory information debunking the misguided justifications for the previous version of this rule [enjoined by a Federal Court]. Point by point the flawed logic, counterproductive encroachment on judicial discretion, and unnecessary micromanagement [an endemic EOIR problem] is called out.
It appears that EOIR is slowly correcting some of the mistakes of the recent past. What’s disappointing and of great concern: 1) Should and could have been “day one stuff;” 2) Judge Dana Marks was on the EOIR payroll on Jan. 20, 2021, and she or a qualified expert like her could and should have been put in charge and empowered to kick tail, take names, clean house, bring in top judicial and administrative talent, and implement long-overdue, still absent, EOIR reforms!
Better late than never? Perhaps, we’ll see. But, I’m not betting the farm on it!
EOIR to Host National Stakeholder Meeting for Law School Immigration Clinics
SUMMARY: The Executive Office for Immigration Review (EOIR) invites faculty, staff, and students from law school immigration clinics to attend a national stakeholder meeting focused on pro bono advocacy.
EOIR continues to build upon the guidance in EOIR Director Memorandum 22-01, Encouraging and Facilitating Pro Bono Legal Services, and welcomes the public’s input in evaluating our efforts to increase representation in immigration court proceedings. During the meeting, agency leadership will summarize feedback received during its April series of listening sessions, discuss steps EOIR has taken since those meetings, and share ideas for future initiatives as we collaborate to strengthen pro bono representation in immigration courts.
Following that discussion, agency leadership will welcome stakeholder input regarding ways to increase pro bono representation for Dedicated Dockets.
DATE: TIME: LOCATION:
Sept. 21, 2023
2 p.m. – 3 p.m. Eastern Time
Live via Webex – Meeting Registration
All media inquiries should be directed to the Communications and Legislative Affairs Division at pao.eoir@usdoj.gov.
We all know that EOIR is struggling. Unrepresented and under-represented individuals are basically “cannon fodder” for a hopelessly backlogged system where due process, fundamental fairness, and meticulous scholarship are too often afterthoughts, at best.
Insuring that individuals facing this dysfunctional system are well-represented is key to both saving lives and holding EOIR accountable. It also supports those judges at both levels who are fighting to restore due process, fundamental fairness, decisional excellence, and best practices to EOIR.
EOIR is widely known for its lack of transparency. Every nugget of information about the Immigration Court system’s practices, policies, objectives, and operating plans is therefore precious.
Also, giving EOIR honest feedback about some of the “real life” roadblocks and unnecessary challenges (like, for example, endemic Aimless Docket Reshuffling, arbitrary expedited dockets, and courts located inside prisons and other obscure, largely inaccessible, locations) is a critical chance to push back against mindless bureaucracy and suggest effective, practical solutions that enhance, rather than impede, due process.
Unfortunately, few of those shaping EOIR practices have recent experience actually trying to represent pro bono clients in this often “user unfriendly” and unnecessarily chaotic system. (It’s routinely described by experienced practitioners as the “Wild West of American Law.”) This is YOUR chance to learn and to inject a “dose of reality” into an agency that too often operates in a parallel universe.
Harvesting the “low hanging fruit” — the many clearly grantable asylum cases — has proved remarkably elusive for EOIR — under Administrations of both parties! IMAGE: Creative Commons 2.0
That Mexico is one of the most dangerous countries in the world for journalists is hardly “rocket science.” 🚀 See, e.g.,https://www.nbcnews.com/news/latino/annihilating-journalism-mexican-reporters-work-attacks-killings-rcna14196. Yet, an EOIR Judge was allowed to twice wrongfully deny this “slam dunk” case —on specious grounds such as making the absurd finding that Mr. Gutierrez was not a journalist — over six years before the BIA finally ended the farce!🤡
So, let’s put this into a real world context. 15 years, two wrong IJ decisions, and two trips to the BIA to complete (actually it’s still not complete, because it was remanded for “background checks,” but that’s another saga), a case that should have taken a well-qualified Immigration Judge about 15 minutes to grant. So, what chance is there that without major leadership, personnel, structural, and substantive changes, EOIR could do “justice” on asylum cases put on an ”expedited docket.” Slim and none, as actual experience shows!
The necessary first step toward meaningful immigration reform is a complete overhaul of EOIR. Without that readily achievable administrative action, no attempt at legislative or regulatory reform can succeed. It’s not rocket science! 🚀 Just common sense, moral courage, and “good government.”
