"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.
Let me tell you about some recent events in my office.
We had two cases set for individual hearings this week. Both cases involve noncitizens who have been waiting years for their decisions, both have family members abroad who they hope to bring to the U.S. if their claims are successful, and both have strong cases for asylum.
For the first case, we prepared and submitted evidence earlier in the pandemic, but the case was postponed at the last minute due to Covid. We were hoping that the new date would stick, given that restrictions are easing and the court now has a system to do cases remotely (called Webex). As the date approached, we filed additional evidence and scheduled two practice sessions for the client. We also regularly checked the Immigration Court online portal, which lists our court dates, to be sure the case was still on the docket.
“Your asylum case is cancelled. Again.”
The second case has also been pending for years. The respondent (the noncitizen in court) is from Afghanistan, and such cases are supposedly receiving priority treatment. So at the Master Calendar Hearing, the Immigration Judge (“IJ”) asked us to be sure to talk to DHS prior to the hearing, presumably in the hope that we would come to an agreement about relief. The IJ also scheduled the hearing for a relatively short time slot in anticipation of a possible uncontested hearing. As with the first case, we filed all the evidence and scheduled the practices.
Both respondents had been in touch with their families overseas and both had talked to their relatives about hopefully reuniting soon.
Then – surprise! – we checked the Immigration Court portal and noticed that both cases had disappeared from the docket. Since the portal pages are sometimes screwy, and since court dates are constantly changing, we decided to wait a bit to see whether the dates reappeared. Informing clients about court delays is always fraught, and can even be traumatic for the clients and their families, who have a lot invested in these dates. So it is better not to inform the client until we are sure a date is canceled.
After some hours, we decided to tell the first client. We had a practice session scheduled for that afternoon, and it would waste time to prepare for a hearing that was not going forward. I called the client and informed him, and as I have often experienced before, he was upset and confused. Why had the case been postponed? Was it something about him or his case? Or was it something about the Court? I could at least inform him that we had two cases canceled on the same date (from two different IJs), and so he should understand that the cancellation was not related to him personally. That is obviously cold comfort, but I guess it is better than nothing. I know it was very upsetting for him to receive this news. It was emotionally exhausting for me as well.
For the next two days, this client kept checking the online court system to see whether anything changed. Then – surprise again! – the case re-appeared on the docket for the same old day and time!
I called the court to confirm, and the clerk told me that the case had been removed by accident, and that it was back on! How lucky! The client told me how upset he had been. He hadn’t been able to sleep or eat. He did not even inform his family back home, as he feared they would not understand or would not believe him. We rescheduled the two practice sessions and mentally re-prepared to go forward.
The next day – surprise again again! – I received a message from the court. The case was definitely off. The clerk apologized for the confusion, and told me that the matter would be set for a date in the future. It would be inappropriate for me to publish here the words that came from my mouth after receiving this message, but let’s just say that I was somewhat agitated. I called the clerk and left a message informing the court how harmful this whole process had been to the respondent, how upset he was, and how he had not seen his family members for years. I also mentioned how upsetting the experience had been for me.
I should say that I do not blame the clerk. He is actually very nice and very responsive (he actually called back and said he will try to get us a new date as soon as possible). The problem is “the system” and complaining to the system is about as effective as punching the ocean. No one is ever responsible, and so there is no one who can be held accountable.
As for client number two, at least he did not suffer the on-again, off-again fate of our first client. But he and his family members were also very upset, and given the IJ’s intention of scheduling the hearing quickly because the respondent is Afghan, it is particularly frustrating that a likely approval should be pushed off until who-knows-when.
What now? For both cases, we will wait a bit to see if new dates appear. Maybe they will. If not, we will file motions to advance, and we will try to get earlier dates. All this is more expense and wasted time for the clients, more work for us, and more work for the court, which will have to review our filings. Last year, I wrote about the harm caused by cancelled hearings, and–despite the easing pandemic and the wide-spread availability of Webex–the problem persists. I’ve mentioned just two cases here, but we see this again and again and again. Not in every case, but it’s common enough that we can never be confident that any particular case will go forward, which makes it much more difficult for respondents and attorneys to prepare for court.
While the situation is bleak, I should mention that the news is not all bad. We are still having some successes. For example, over my Spring Break, I litigated a Syrian case (remotely, with very questionable internet, and in what I believe is the first Immigration Court case in the history of Shickshinny, Pennsylvania). Although it was a close case and DHS generally opposed relief, the IJ explained his reasons for granting and DHS agreed not to appeal. And just yesterday, my client from Pakistan received asylum after a contested hearing. DHS did not appeal.
So if we can actually get to a hearing, it is still possible to win. This is the hope we all need to hold on to, but it would be much easier and much fairer if the system had a modicum of respect for the people it purports to serve.
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Thanks, Jason, for your clear and compelling description of the toxic human and systemic effects of Garland’s continuing “ADR” at EOIR!
Contrary to the “nativist false narrative” promoted under Administrations of both parties, those suffering in the inexcusable EOIR backlog are NOT “evading deportation.” Many, probably the majority, are individuals who are eligible to, and should be granted, the ability to remain in the U.S.
This is particularly true of asylum applicants. Even with a system improperly skewed against them, asylum applicants were winning the majority of their EOIR court cases as recently as FY 2012.
Despite worsening conditions since then in almost all “sending countries,” that rate cratered by about 50% during the Trump regime. It’s fairly obvious that the increased denial rates resulted from perversions of the law, ADR, and an intentional “dumbing down” of both the administrative law and EOIR personnel at all levels.
Garland has taken, at best, “baby steps” to improve the Immigration Courts. He’s merely “nibbling at the edges” where radical house cleaning 🧹and progressive reforms ⚖️ were absolutely necessary, recommended by experts, and achievable — at least had Garland “hit the ground running!”
EOIR should long ago have been replaced with an independent Article I Immigration Court based on the principles of fairness, scholarship, timeliness, respect, teamwork, and most of all, an overriding unswerving commitment to due process and best practices. Judges and administrators should be selected competitively, with private bar input, and exclusively on a merit basis from among those who have demonstrated expertise in immigration and human rights.
As long as EOIR inappropriately continues to reside in the U.S. Department of Justice, there should never, NEVER, again be another Attorney General who does not possess significant experience representing individuals in Immigration Court — the fundamental “retail level” of our entire justice system. Garland ‘s failure to “get the job done for due process and equal justice” — not even close — is “Exhibit A” in what happens when the wrong person is appointed to oversee the Immigration Courts!
At a time when America needed enlightened, inspirational, informed, and courageous legal and ethical leadership for the Immigration Courts, Garland has been “MIA!” American justice, at all levels, is paying the heavy price!☹️
Merrick Garland: “What, me worry? I’ve spent my entire law career in the ‘ivory tower.’ What’s ‘aimless docket reshuffling?’ Who cares about asylum seekers?” PHOTO: Wikipedia Commons
“This case arises out of an in absentia order against two Petitioners who allege to have arrived one hour and five minutes late to their individual hearing scheduled for several hours. Neither the immigration judge (“IJ”) nor the Board of Immigration Appeals (“BIA”) addressed this argument. For the reasons that follow, we find that the BIA abused its discretion when it made no mention of the alleged late arrival in its decision to dismiss the motion to reopen proceedings on appeal. Thus, we reverse and vacate the BIA’s order and remand for further proceedings consistent with this opinion. … We vacate and remand with instructions to the BIA to consider Petitioners’ motion to reopen. In doing so, the BIA should determine whether Petitioners arrived late, and if so, whether the surrounding circumstances show that this late arrival constitutes a failure to appear for the purposes of the statute’s preclusive effect.”
Unfortunately, you have to get “down to the fine print” (page 13 of 20) find the paragraph that should be the “centerpiece of restoring the rule of law” — a functional legal asylum processing at ports of entry that would encourage refugees to present themselves there for fair and humane processing rather than seeking irregular entry with the help of smugglers.
Port of Entry Processing
The imposition of the Title 42 public health Order severely restricted the ability of undocumented noncitizens to present at POEs for inspection and processing under Title 8. The closure of this immigration pathway for much of the time Title 42 has been in effect has driven people between POEs at the hands of the cartels. Returning to robust POE processing is an essential part of DHS border security efforts. Beginning in the summer of 2021, DHS restarted processing vulnerable individuals through POEs under Title 8, on a case-by-case basis for humanitarian reasons, pursuant to the exception criteria laid out in CDC’s Title 42 Order. These efforts, which we have recently expanded, offer individuals in vulnerable situations a safe and orderly method to submit their information in advance and present at POEs for inspection and subsequent immigration processing under Title 8. We also have enhanced Title 8 POE processing through the development of the CBP One mobile application, which powers advanced information submission and appointment scheduling prior to an individual presenting at a POE. We will make this tool publicly available and continue to expand its use to facilitate orderly immigration processing at POEs.
13 of 20
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The failure of Garland to appoint a new, expert BIA committed to due process and providing fair, practical positive guidance on the generous application of asylum law foreshadowed by INS v. Cardoza Fonseca a quarter of a century ago, but never realized in practice, is likely to become a millstone around the Administration’s neck. There is no substitute for due process and fundamental fairness. The current dysfunctional, mismanaged, and inappropriately staffed EOIR is not capable of providing the necessary leadership, consistency, and accountability.
Also, in light of U.S. District Judge Robert Summerhays’s“off the wall” decision in Arizona v. CDC, it’s not clear that Title 42 will ever be lifted.
(1) The Supreme Court’s construction of “physical force” in Johnson v. United States, 559 U.S. 133 (2010), and Stokeling v. United States, 139 S. Ct. 544 (2019), controls our interpretation of 18 U.S.C. § 16(a) (2018), which is incorporated by reference into section 237(a)(2)(E)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(E)(i) (2018); the Court’s construction of “physical force” in United States v. Castleman, 572 U.S. 157 (2014), is inapplicable in this context.
(2) Because misdemeanor domestic abuse battery with child endangerment under section 14:35.3(I) of the Louisiana Statutes extends to mere offensive touching, it is overbroad with respect to § 16(a) and therefore is not categorically a crime of domestic violence under section 237(a)(2)(E)(i) of the INA, 8 U.S.C. § 1227(a)(2)(E)(i).
PANEL:CREPPY, LIEBOWITZ, and PETTY, Appellate Immigration Judges.
OPINION: Judge Petty
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Sometimes, the BIA decides to “blow off” the Supremes! But not this time!
Stacy Caplow Associate Dean of Experiential Education & Professor of Law Brooklyn Law PHOTO: Brooklyn Law website
“Sir Jeffrey” Chase reports:
Hi all:A new volume of the AILA Law Journal was released yesterday.It contained an article by Stacy Caplow, co-director of Brooklyn Law School’s Safe Harbor Project, called The Sinking Immigration Court: Change Course, Save the Ship.I’m not sure if all can access it, but the link is:
The Round Table of Former Immigration Judges, “a group of 51 former Immigration Judges and Members of the Board of Immigration Appeals who are committed to the principles of due process, fairness, and transparency in our Immigration Court system,” bears witness to the degrading of the court and, speaking with the voice of years of experience, has been an increasingly active and vocal critic of recent developments at the court both before Congress and as amicus curiae.
There are also citations to a couple of our group’s statements (including one to Congress) and an amicus brief filed with the Supreme Court in the footnotes.
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How come the Biden Administration, and particularly AG Garland, don’t “get it?”
“In a decision dated May 21, 2020, an Immigration Judge found the respondent to be removable as charged, denied her application for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(h) (2018), and ordered her removed from the United States. On appeal, the respondent contests the Immigration Judge’s determination that her Virginia conviction for distributing a controlled substance renders her ineligible for a section 212(h) waiver, arguing that a State court issued a nunc pro tunc order reflecting that she was not convicted of distributing a substance controlled by Federal law. The Department of Homeland Security (“DHS”) opposes the appeal. Because the nunc pro tunc order reflects the respondent has not been “convicted” of an offense relating to a controlled substance within the meaning of the INA, the respondent’s appeal will be sustained and the record will be remanded for further proceedings.”
Many congrats, Ben!😎 A rare win for the rule of law and the “good guys” at the BIA. And, give the BIA panel (Judges Goodwin, Gorman, & Greer) credit for rejecting the ICE position and getting this one right under the categorical approach.
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Hello all,
Just wanted to share some good news! A client had her merits hearing yesterday afternoon in Seattle. Her asylum claim was based on her PSG of being an immediate family member of a police officer. She had been threatened by some maras and approached because the maras knew her husband was an officer. She fled within 2 weeks. The judge granted and DHS surprisingly did not put up much of a fight.
Sincerely,
Ramon Trujillo
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Ramon Trujillo
Law Offices of Ramon Trujillo
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Many congrats, Ramon! Clearly the correct result under Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988). A former policeman is a PSG; so, undoubtedly the immediate family is also. And certainly, that relationship was “at least one central reason” for the persecution.
Imagine what a “Better Immigration Court” could look like if everyone had the awareness and integrity of the group in court for this case. Justice is a “team effort,” and it sounds like that’s what happened in your case.
That’s what should happen every day in every case at EOIR!
Also, I’ll bet there are more cases like this that were unfairly “locked out of our refugee/asylum system” by abusive use of Title 42 by the Trump and Biden Administrations.
The latest guidelines of ICE are welcomed by the American Immigration Lawyers Association (AILA). The memo will allow prosecutors to resolve cases immediately. It will help in reducing the backlog in immigration court proceedings. Thousands of people are waiting in line for years to get asylum or a green card. The Doyle Memorandum offers clear guidelines for prosecutors.
In the past, ICE Prosecutors have not always closely adhered to PD memos issued by OPLA. In addition, federal courts have, at times, intervened and enjoined prosecutorial discretion policies by ICE.
But one thing is clear. With nearly 1.7 million cases currently pending in immigration courts and the Board of Immigration Appeals, let’s hope that ICE Prosecutors will “do justice,” conserve scarce administrative resources best used against high priority cases, and remove low priority cases from the deportation process. This will not only make the U.S. a more safe and equitable nation, but will help keep peaceful and hardworking families together.
On May 12, 2022, ICE Principal Legal Advisor Kerry Doyle and ICE Detroit Chief Counsel Tara Harris will hold a community meeting with interested legal services providers, non-governmental organizations (NGOs), and community stakeholders who work with immigrant communities in Michigan and Ohio.
This meeting presents a unique opportunity to hear directly from PLA Doyle on her recently issued guidance to ICE attorneys on enforcing the civil immigration laws and prosecutorial discretion. It is anticipated that specific guidance on process will be provided.
For more information on how to submit a request for PD, please see the ICE Website.
Richard Herman is a nationally renowned immigration lawyer, author, and activist. He has dedicated his life to advocating for immigrants and helping change the conversation on immigration. He is the founder of the Herman Legal Group, an immigration law firm launched in 1995 and recognized in U.S. World News & Report’s “Best Law Firms in America.” He is the co-author of the acclaimed book, Immigrant, Inc. Why Immigrant Entrepreneurs Are Driving the New Economy (John Wiley & Sons, 2009). Richard’s poignant commentary has been sought out by many national media outlets, including The New York Times, USA Today, BusinessWeek, Forbes, FOX News (The O’Reilly Factor), National Public Radio, Inc., National Lawyers Weekly, PC World, Computerworld, CIO, TechCrunch, Washington Times, San Francisco Chronicle and InformationWeek. He serves as counsel to the Consulate of Mexico, Michigan/Northern Ohio.
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Read the rest of Richard’s outstanding and very informative analysis at the link.
It’s critical that Immigration Judges and the BIA take an active role in “encouraging and motivating” parties to maximize the use of PD. One possible tool is proactively closing certain types of cases without waiting for motions.
Either party that wants the case back on the docket can, of course, make a motion to redocket. Based on my experience with several past similar programs at the BIA, I anticipate that such motions would be relatively rare. Moreover, I would be reluctant to “redocket” a case without a joint agreement from the parties that it will be resolved in a “short hearing,” or a compelling reason to proceed in Immigration Court (e.g., the respondent failed to apply, committed a crime, or was denied TPS).
It’s going to take teamwork, cooperation, and creative thinking among the parties and the courts to get dockets back in shape so that Immigration Judges can do their jobs in something “approaching real time.”
PD could be the key to success; or, it could become just another in the long line of things that looked good on paper but never achieved full potential. Time, and the efforts of all parties concerned to solve the problem in the most constructive and practical ways possible, will tell.
Contact: Communications and Legislative Affairs Division Phone: 703-305-0289 PAO.EOIR@usdoj.gov
www.justice.gov/eoir @DOJ_EOIR April 13, 2022
EOIR Announces New Appellate Immigration Judge
Attorney General Garland Continues to Appoint Highly-Qualified Judges
FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced that Attorney General Merrick B. Garland has appointed Beth Liebmann as a Member of EOIR’s Board of Immigration Appeals (BIA).
The BIA is the highest administrative body for interpreting and applying immigration laws, having nationwide jurisdiction to hear appeals of decisions by adjudicators, including Immigration Judges.
EOIR recognizes the many benefits of a diverse and inclusive workforce and is looking for qualified candidates from all backgrounds to join our team. Individuals interested are invited to sign up for job alerts sent when new opportunities become available.
Biographical information follows:
Beth Liebmann, Appellate Immigration Judge
Attorney General Merrick B. Garland appointed Beth Liebmann as an Appellate Immigration Judge in April 2022. Judge Liebmann earned a Bachelor of Arts in 1981 from Brandeis University and a Juris Doctor in 1984 from the University of Miami School of Law. From June 2009 through the time of her appointment, she served as a Senior Legal Advisor with the Board of Immigration Appeals (BIA). During her tenure at the BIA, she also served as a temporary Immigration Judge and a temporary Appellate Immigration Judge. From 1995 to 2009 she was an attorney team leader at the BIA, and gained broad agency experience through details to the Office of the General Counsel and the Office of Immigration Litigation, Civil Division, Department of Justice. From 1985 to 1995, she served as an Attorney Advisor for the BIA. She began her career with the Department of Justice in 1984 as a Judicial Law Clerk at the Miami and Miami Krome immigration courts as part of the Attorney General’s Honors Program. Judge Liebmann is a member of the District of Columbia Bar and the Florida Bar.
Associate Provost/Co-Director of the Immigration Clinic/Professor of the Practice Laila L. Hlass Tulane Law
Laila, my friend, everywhere I look you’re making news! Here’s Dan Kowalski @ LexisNexis on Layla’s well-deserved Lisa Brodyaga Award from the National Immigration Project:
Laila was a “guest lecturer” in my Refugee Law and Policy class during her time as a Fellow at the CALS Asylum Clinic at Georgetown Law. Since then, I have “returned the favor” by traveling to Tulane Law, both virtually and in person, to speak to Laila’s class and other immigration events. Laila has been recognized for “putting Tulane Law on the map” for innovative practical scholarship in immigration and international human rights and excellence in clinical teaching. No wonder she carries a “string of titles” at Tulane Law!
Laila is also one of many exciting examples of how clinical immigration and human rights professors have not only moved into the “academic mainstream” at major American law schools, but have been recognized as leaders and innovators by the larger academic communities in which they serve. Immigration law teaching has come a long way since the late INS General Counsel Charlie Gordon’s Immigration Law Class at Georgetown was the “only game in town.” (Historical trivia note: My good friend the late BIA Judge Lauri Filppu and I “aced” Charlie’s class in 1974, thus “besting” our then-supervisor at the BIA. That could have been a “career limiting” move. But, we both ended up on the “Schmidt Board” in the 1990s.)
Many congrats, Laila, on an already amazing career with even more achievements and recognition in your future. Thanks for being such a brilliant, inspiring, and dynamic role model for the New Due Process Army!
“Like this gentleman of yore, AG Garland takes a rather “laid back” approach to the ongoing due process disaster in his Immigration Courts.”Scott Bixby National Reporter The Daily Beast
As the immigration court system strains under the weight of its biggest case backlog in history, the Biden administration is racing to fix it before it breaks entirely.
But breaking the system might be the only way to save it.
On the campaign trail, Joe Biden repeatedly vowed to create a “fair and humane immigration system,” replacing a faltering and faceless bureaucracy with swift due process. the Biden administration has since announced measures intended to alleviate the increasing pressure on a strained system once deemed “death penalty cases in a traffic court setting.”
But the sweeping, by government standards, tactics announced by the administration last month—which include adding as many as 100 new immigration court judges to the bench under Biden’s latest budget proposal, allowing asylum officers to evaluate some cases instead of those same overburdened judges, and encouraging Immigration and Customs Enforcement attorneys to clear “low priority” cases—may still not be enough to make a real dent in the backlog of cases that has reached its highest point ever.
“Trial dates that used to be scheduled out two, three, even five years sometimes, now don’t even get a hearing or a judge assigned,” said Michael Wildes, a second-generation immigration attorney who has represented high-profile clients from Pelé to Melania Trump. “My litigation team leader was in court this past Monday in Newark, where a judge there advised that she has cases open from the ’90s!”
One hundred new judges, Wildes said, “will be a drop in the bucket compared to the problem.”
“The current structure of the system is fatally flawed,” said Judge Dana Leigh Marks, the former president of the National Association of Immigration Judges who served for 35 years on the bench. “In the immigration removal system, any violation of law, no matter how minor and no matter how strong counterbalancing equities are, has resulted in placing people in removal proceedings. As long as that situation persists, it would be reasonable to anticipate that the court will be unable to clear its backlog or stay current.”
Marks, who coined the “traffic court” description of the immigration legal system, joined nearly a dozen other leading figures in the immigration law space in telling The Daily Beast that the long-term solution to the backlog of cases pending before immigration courts lies not in hiring more judges, but in removing the courts from the Department of Justice’s jurisdiction entirely.
“The cases are growing in complexity, the average judge is less experienced than ever, and every new surge of filings results in a new prioritization system imposed on the courts,” said David Bier, a research fellow with a focus on immigration at the Cato Institute and an expert on the immigration legal system, who said that even doubling the number of judges, as Biden once promised, wouldn’t be sufficient to stop the growth in the backlog.
“Staffing matters,” Bier said, “but the courts need structural reforms to improve their efficiency.”
With a little more than six weeks until the end of Title 42, the much-maligned public health order that has effectively barred asylum admissions at the U.S. southern border since the beginning of the coronavirus pandemic in March 2020, the administration is bracing for a massive uptick of crossings at the U.S. southern border.
That surge—estimated by the Department of Homeland Security to reach as many as 18,000 people apprehended at the U.S.-Mexico border a day—will further heap cases on top of the largest backlog in immigration cases in history, now at 1.7 million cases and counting. That’s more than double the number of pending cases half a decade ago.
The Biden administration has taken steps to reduce the pressure on immigration judges to reduce the backlog at the expense of due process, eliminating a Trump-era requirement that judges clear at least 700 cases per year and requesting that more than 80 percent of a requested budget increase for U.S. Citizenship and Immigration Services go towards caseload and backlog reductions.
But increasing the number of immigration judges by 15 percent, as Biden did in his first year in office, has yet to change the stalled pace of case clearance. The estimated processing time for asylum cases—which make up roughly one in four cases in the backlog—is now at longer than 63 months, according to U.S. Citizenship and Immigration Services.
“It’s basically a big mess,” summed up Jason Dzubow, an immigration attorney in Washington, D.C., “and so far, throwing more immigration judges at the problem has not reduced the backlog.”
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Read Scott’s full article at the link.
One could tire of saying the same things over and over. But, with “Team Garland” the obvious becomes the unattainable.
White Nationalists Jeff“Gonzo Apocalypto” Sessions and “Billy the Bigot” Barr more than doubled the number of IJs while tripling the already out of control backlog.
As every expert told the Biden Administration from the “git go,” more judges without drastic personnel changes and major structural, procedural, “cultural,” attitude, and quality control reforms won’t solve the problem. Indeed, all empirical indications are that it will make things worse!
While Garland hasn’t accomplished much in his time in office, he did prove the truth of the latter statement. While increasing the number of IJs by a modest 15%, he has built new backlog at the fastest rate ever, with more than 1.8 million pending cases!
But, that’s not all folks. Even in the “garden days” of EOIR “off docket” cases were an issue. Now, following four years of “maliciously incompetent” Trump regime meddling with EOIR, I’ve got to believe that there are thousands, if not hundreds of thousands, of “off docket” cases floating around the bowels of EOIR, maybe never to be heard of again. So, it’s almost certain that EOIR’s “official numbers” (ask TRAC experts about the reliability of EOIR stats) understate the real scope of the problem.
One essential reform that was needed right off the bat that Garland ignored was better judges, not necessarily more judges!It should be obvious, even to someone as willfully blind as Garland, that the Sessions/Barr program of “packing” the BIA and the Immigration Courts with judges who lacked immigration and human rights expertise, were biased against asylum seekers, would “go along to get along” with stomping due process and immigrants’ rights, or all of the foregoing was a prescription for disaster.
What “moves” a system is expert, “practical scholar” judges, operating with some independence and courage, who can recognize the many pending grantable cases on the docket, also identify those that don’t belong on the docket, group them using “practical precedents” on what a successful case looks like, and motivate, or if necessary cajole or force the parties to get together and complete these cases. Many of them could be completed, without appeals, on “short dockets” or returned to DHS for completion.
Then, the courts could concentrate on the much smaller number of cases that actually have issues needing litigation and requiring expert decision-making.
Instead, the EOIR system, from top to bottom, screws around trying to come up with specious ways of limiting relief, avoiding jurisdiction, creating procedural and evidentiary hurdles, or denying grantable cases. Additionally, gimmicks like “Aimless Docket Reshuffling” and “expedited dockets” are mis-used to “max out” the number of in absentia orders. But, as many of those latter must be reopened, some only after protracted litigation all the way up to the Courts of Appeals, that only adds to the chaos, false narratives, and squandered resources. Not to mention that it makes the entire system chronically unfair — a parody of justice!
There is absolutely no reason why Garland shouldn’t have installed a merit-based “re-competition” system for many of the judges hired or promoted during the Trump regime — starting with the precedent-setting BIA — a gang of “Dr. Nos and Don’t Buck the Party Liners” if I’ve ever seen one!
There are plenty of “other” attorney positions in the DOJ or elsewhere in the Executive branch for attorneys who can do certain types of legal work, but aren’t “best qualified” to be Immigration Judges under today’s conditions. IJs are DOJ attorneys in the so-called “excepted service;” they certainly are not entitled to “life tenure” in any particular attorney position. At most, those who aren’t selected after merit re-competition could expect “reassignment” to another government attorney position at the same pay. Happens all the time, particularly at the DOJ!
A merit selection system for Immigration Judges at both the trial and appellate levels requires substantial outside expert participation. That’s a marked change from the opaque, highly bureaucratic, too often “insider tilted” system used by DOJ and EOIR.
Fortuitously for Garland, there are good “models” out there for such a merit system that could be “tweaked” for EOIR. The DC Courts, U.S. Magistrate Judges, and U.S. Bankruptcy Judges merit-selection systems are among them. Sadly, however, Garland has been “asleep at the wheel” as hisbroken “court” system veers off the road and goes down the embankment.
It’s not just immigrant justice that is dying here. While Garland and his lieutenants might choose to be “in denial,” the Immigration Courts are the “retail level” of today’s American justice system. When they finally give way and crumble, as they surely will do without Congressional intervention or better-performing Attorney General, the rest of our legal system is likely to come crashing down with them.
But, you’ve heard it all before on Courtside. Just tragic for our nation that the right folks aren’t paying any attention while there is still time to rescue the system.
EOIR Announces Appointment of Mary Cheng as Deputy Director
FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced the appointment of Mary Cheng as the agency’s Deputy Director. Judge Cheng has served EOIR since 2009, including as a Deputy Chief Immigration Judge for the past five years.
“Judge Cheng brings a welcome combination of experience and expertise, preparing her for certain success as EOIR’s deputy director,” EOIR Director David L. Neal said. “Her experience on the immigration bench, her expertise as a managing judge, and her appreciation for the view from both counsels’ tables perfectly position her to help lead the agency to a reinvigorated commitment to our mission and to public service.”
As Deputy Director, Judge Cheng will assist Director Neal in supervising and managing all EOIR components, and developing and implementing agency policies and short- and long-term strategies.
Since April 2021, Judge Cheng has served as the Regional Deputy Chief Immigration Judge for the Eastern Region at EOIR. She previously served as a Deputy Chief Immigration Judge from 2017 to 2021, and she was the Acting Principal Deputy Chief Immigration Judge from August 2020 to February 2021. Judge Cheng has also served in the New York Immigration Court both as an Assistant Chief Immigration Judge from 2015 to 2017, and as an Immigration Judge from 2009 to 2015. Before joining EOIR, she served as Assistant Chief Counsel for the Department of Homeland Security, Immigration and Customs Enforcement, from 2002 to 2009; and before that, she practiced immigration law in New York from 2000 to 2002. Judge Cheng received her Bachelor of Arts from New York University and a Juris Doctor from the New York Law School. She is a member of the New York State Bar.
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Judge Cheng had a 71.5% asylum grant rate while on the bench in NYC. That makes her an “outlier” (in a good way) among EOIR HQ “honchos” with significant Immigration Court experience.
Judge Cheng spent two years in the private practice ofimmigration law, albeit several decades ago, as well as serving as a JLC at the NY Immigration Court and an ICE prosecutor. So, she has a more “balanced perspective” on the system than many in EOIR.
Interestingly, Judge Cheng’s record on asylum cases is the “inverse” of the nationwide rate, where 2/3 of the asylum cases are denied and many IJs disgracefully reject almost every asylum case coming before them. So, she knows the system is broken, biased, unfair, and unprofessional!
The question is whether she will use her knowledge and skills to stand up for due process and fair treatment of asylum seekers? Or, will she become another in the long line of EOIR “go along to get along bureaucrats” — willing to sacrifice immigrants’ lives for job security and career advancement?
Hopefully, Judge Cheng will implement some “attitude changes” in an agency still far too committed to the Sessions/Barr “culture of denial” and to misusing, abusing, and mismanaging the Immigration Courts as a “deterrent” — carrying out Administration enforcement “priorities” —rather than acting as an independent court system using “enlightened practical scholarship” to guarantee due process and fundamental fairness for the individuals coming before it. EOIR has lost sight of its mission and Garland doesn’t seem interested in or capable of changing that.
As for the “certain success,” predicted by Director Neal, that’s been elusive for some previous Deputy Directors. Three previous Deputies have gone on to become EOIR Director: The late Kevin Rooney, Judge Kevin Ohlson, and the late Juan Osuna. But, “success” in an organization in failure that lacks a dynamic plan for long overdue fundamental personnel, procedural, and structural reforms looks like a tall order. It’s probably“Mission Impossible!”
The only true measure of “success” is whether the community that EOIR is supposed to serve comes to view the courts as fair, humane, and professional. That depends on changing the results of EOIR’s anti-asylum, often anti-immigrant “assembly line” approach to justice and its chronic, backlog-building“Aimless Docket Reshuffling” produced by attempting to please DOJ politicos at the expense of justice. Bureaucratic metrics and bogus DOJ and Administration political goals and agendas are meaningless in the “real world.”
What kind of “short and long-term strategies” will work in a struggling “court” system plagued by a burgeoning 1.8 million case backlog, endemic “Aimless Docket Reshuffling,” an appellate body stuck in reverse, a byzantine “agency management” structure, institutionalized “worst practices,” and too many judges who were the product of a poor selection process and inadequate training? There are some measures that potentially could succeed. But, “Team Garland” has pointedly ignored them with predictably bad consequences.
No one person can change the disastrous trajectory of EOIR. But, someone willing to take risks and give due process and fundamental fairness a chance could make a difference in the lives of the most vulnerable among us. Could Judge Cheng be that person? We’ll see.
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
NIJC: On Friday (4/8) we learned from the government that it would not file an appeal in AsylumWorks v. Mayorkas. This means, happily, that the EAD Rules that delayed and in some cases denied access to EADs for asylum seekers are fully vacated. The vacatur applies to both the 30-day adjudication rule and the larger rule that had more than a dozen changes to EAD eligibility for asylum seekers.
NY EOIR Asks ICE to Submit PD Stance 3 Days Before Hearings
EOIR: In an effort to reduce our interpreter non-usage and our continuance rates, the New York – Federal Plaza Immigration Court has asked DHS that PD positions be provided to the court on matters scheduled for a hearing at least three days before the hearing. This would allow cancellation of the interpreter order without cost to the court, and would permit another previously scheduled case to be advanced into the open hearing slot. In addition, the court is endeavoring to identify cases already scheduled which are likely to be granted PD based upon DHS guidelines. We have requested DHS’s assistance in this endeavor. [It is unclear whether other courts will request the same.]
NYT: The C.D.C. finally announced at the beginning of April that it would lift its public health border restrictions on May 23, around the time of the year when migration typically increases. But this past week, the issue of Title 42 flared up again as Senate Republicans and some Democrats in Congress held up Covid funding in an effort to protest the administration’s decision to lift the health rule and tensions over the issue flared in both parties. See also The Democratic revolt over Biden’s border policy.
Hill: Sens. Thom Tillis (R-N.C.) and Dick Durbin (D-Ill.) told The Hill that they want to bring together a group of senators interested in trying to revive immigration discussions — a perennial policy white whale for Congress — after a two-week recess.
NPR: Visitations at federal and state prisons have largely resumed. Last year, for example, the Washington state Department of Corrections determined it was safe to reinstate visitations. But those who want to talk to loved ones in ICE detention must still rely on old-fashioned phone calls or video.
WaPo: Although the Florida Keys have been an entry point for refugees fleeing communist Cuba since the 1960s, officials say the increase in arrivals of migrants by boat represents a shift in migration patterns. Since the start of the year, more than 800 Haitians have landed in the 113-mile-long Florida Keys, made up 1,700 small islands. Two of the landings occurred in Ocean Reef, an exclusive gated community near Key Largo that is home to some of nation’s wealthiest residents, officials said.
WaPo: Cuban migrants are coming to the United States in the highest numbers since the 1980 Mariel boatlift, arriving this time across the U.S. southern land border, not by sea.
AP: Texas Gov. Greg Abbott on Wednesday delivered new orders along the U.S.-Mexico border and promised more to come as former Trump administration officials press him to declare an “invasion” and give state troopers and National Guard members authority to turn back migrants.
Reuters: U.S. appeals court on Wednesday said federal agencies properly withheld documents related to how they vet applicants for immigration benefits with the aim of uncovering possible terrorist ties, reversing a judge who ordered their disclosure.
Law360: The Third Circuit declined to halt the deportation of a man from India claiming he suffered political persecution there, reasoning that the immigration judge was correctly skeptical of his inconsistent accounts of the violence he claimed to have experienced.
CA5: [W]hether an applicant’s subjective belief that authorities would be unwilling or unable to help them is sufficient for asylum eligibility when paired with country condition evidence supporting that belief, notwithstanding that the underlying events do not support that conclusion. We think not… When she checked in, the police informed her “that the process would take at least two weeks.” She fled before those two weeks expired, and there is no evidence of what happened with the claim. Thus, the evidence supports the BIA’s finding that Sanchez-Amador “successfully reported one incident with the gang member to the police, but did not pursue the issue.”
LexisNexis: “Petitioner Jose Santos Boch-Saban, a citizen of Guatemala, seeks review of a Board of Immigration Appeals decision dismissing, as untimely, his appeal of an immigration judge’s order denying, as time and number barred, his motion to reopen and dismiss. We VACATE the Board’s decision and REMAND the case for consideration in the first instance of the issue of equitable tolling.”
DHS: Al Otro Lado v. Mayorkas is a lawsuit that relates to the U.S. government’s use of “metering” at land ports of entry on the U.S.-Mexico border. The Court in this lawsuit issued a Preliminary Injunction(PI) prohibiting the U.S. government from applying a rule known as the “third-country transit rule”(TCT)to certain people who were subject to “metering” before the rule took effect on July 16, 2019.
AP: Pennsylvania State Police settled a federal lawsuit alleging troopers routinely and improperly tried to enforce federal immigration law by pulling over Hispanic motorists on the basis of how they looked and detaining those suspected of being in the U.S. illegally, officials announced Wednesday.
NYT: Clients paid fees up to $30,000 as part of the yearslong scheme, an affidavit said. Some applications falsely claimed the clients had been abused by their spouses, prosecutors said.
Law360: The city of San Antonio, Texas, has agreed to pay the state $300,000 to settle both allegations lodged by the state’s attorney general that it was violating the state’s “anti-sanctuary city law,” and a subsequent lawsuit seeking to remove the police chief from office for the alleged violations.
Law360: People who were banned from the U.S. under now-defunct Trump-era travel restrictions urged a California federal judge to order the Biden administration to revisit their denied visa applications, saying the administration’s attempts to redress the harm don’t go far enough.
Law360: A D.C. federal judge extended the stay of his order directing the State Department to issue more than 9,000 diversity visas while the Biden administration appeals to the D.C. Circuit, but he unfroze his directive for the department to update the technology for processing the visas.
Law360: The House Judiciary Committee voted to advance a bill that would eliminate the Immigration and Nationality Act’s per-country cap for employment-based visas and raise similar caps on family-based visas, aimed at trimming immigration backlogs.
AILA: On 4/1/22, CDC released an order to terminate its Title 42 public health order on 5/23/22. The document assesses the current state of the COVID-19 pandemic, provides legal considerations, and describes plans for DHS to mitigate COVID-19 and resume use of Title 8. (87 FR 19941, 4/6/22)
AILA: On 3/11/22, CBP issued a memo to its Office of Field Operations stating that noncitizens in possession of a valid Ukrainian passport or other valid Ukrainian identity document, and absent national security or public safety risk factors, may be considered for exception from Title 42.
AILA: USCIS is issuing individual notices to certain TPS Syria beneficiaries whose applications to renew Form I-766 are pending. The notices extend the validity of their EADs until September 24, 2022. Guidance on filing Form I-9 is available.
DHS: The U.S. Customs and Border Protection (CBP) Unified Immigration Portal (UIP) provides agencies involved in the immigration process a means to view and access certain information from each of the respective agencies from a single portal in near real time (as the information is entered into the source systems). CBP is publishing this Privacy Impact Assessment (PIA) to provide notice of implementation of the UIP and assess the privacy risks and mitigations for the UIP.
USCIS: U.S. Citizenship and Immigration Services (USCIS) today announced a policy update to adopt a risk-based approach when waiving interviews for conditional permanent residents (CPR) who have filed a petition to remove the conditions on their permanent resident status.
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Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
The issue in Sanchez-Amador is whether a reasonable person in her position would believe that the Government of Honduras is “unwilling or unable” to protect her. On the facts set forth in the court’s decision, any reasonable person in her position would hold such a objectively reasonable view. Therefore asylum should have been granted.
The Honduran Government is so totally corrupt, inept, and disinterested in protecting its citizens, particularly women, that recent past “President Juan Orlando Hernandez [is] on the United States’ Corrupt and Undemocratic Actors list, under Section 353 of the United States–Northern Triangle Enhanced Engagement Act.” https://www.state.gov/u-s-actions-against-former-honduran-president-juan-orlando-hernandez-for-corruption/
Ricardo Zuniga, the U.S. Special Envoy to Central America recently said: “‘All we’re trying to do now is halt the slide’ of democracy and accountability, Zúniga said in an interview with The [L.A.] Times, ‘so that we can have some place to build from.’” https://apple.news/A9FpzsjRAQ2OoAyQZzHZm1A.
In other words, any a semblance of the rule of law and honest, minimally effective government in the Northern Triangle has long disappeared. Conditions are rapidly getting worse, rather than better. Conditions are so bad, that a better Administration or a better BIA could probably establish a “rebuttable presumption of failure of state protection in the Northern Triangle,” thus properly shifting to the DHS the burden of establishing, against all odds, that “state protection” against gangs and other basically uncontrolled third-party actors would actually be effective in a particular case.
This common sense action would also facilitate rapid, efficient, consistent, and correct approval of many credible, valid asylum claims now stuck in the endless, largely self-inflicted, backlogs at the Asylum Office and in Garland’s dysfunctional courts, not to mention at the border following two years of illegal suspension of our asylum laws. That’s as opposed to the unseemly “Institutionalized Refugee Roulette” now being played by Garland and his subordinates.
According to the Supremes in Cardoza-Fonseca and the BIA itself in Matter of Mogharrabi, asylum law is supposed to be generously applied to grant protection even where persecution, although reasonably possible, is significantly less than likely. But, in Garland’s dysfunctional “courts,” the current reality for vulnerable asylum seekers has moved far, far away from those supposed “norms.”
Although most asylum applicants come from nations with well-established records of serious endemic human rights abuses, “asylum denial rates” at EOIR range from 10% or less to a beyond outrageous 98% or more denials! Cases with basically the same facts might be routinely granted in one courtroom while being uniformly denied, usually for specious reasons, in the next.
Moreover, while the overall nationwide grant rate of around 37% appears unreasonably low but perhaps still within the outer bounds of “plausibility,” most of those grants are “concentrated” in a relatively small number of Immigration Courts, basically in the Northeast and in California. A disturbing number of IJs and courts are allowed, perhaps even encouraged, by Garland and his denial-oriented, Trump-holdover BIA to establish “asylum free zones.” In other words, Garland has looked the other way while some of “his courts” have basically become de facto “asylum death squads.”
Back to Ms. Sanchez-Amador. Under the circumstances shown by Ms. Sanchez-Amador, a “reasonable woman” would not expect any effective protection from the Honduran Government. The respondent has shown that her “expectation of no protection” was “fulfilled” in this case.
The respondent credibly testified that a gang member said she had a week to either pay him money or become “his woman,” join the gang, and have involuntary sex with him, that is, he threatened to rape her. When she dutifully reported this to the police (despite their well-deserved reputation for indifference to attacks on women), she was told that they would investigate but that it would take two weeks, and offered her no other protection or options in the interim.
In other words, in response to an imminent, credible threat of harm, the police told the respondent that they would do nothing to stop the harm that would be inflicted upon her in a week. By the time the police “investigated,” assuming they ever did which seems doubtful in light of conditions in Honduras, the respondent would be either extorted or raped and forced to join a gang against her will. While police in Honduras might have a well-deserved reputation for corruption and ineffectiveness, gangs, on the other hand, have a reputation for being ready, willing, and able to carry out their threats against women, usually with impunity.
Elementary asylum law tells us that it is neither reasonable nor required that a refugee wait to actually be persecuted before fleeing to safety. That’s exactly what a “well-founded fear” is!
Yet a panel of male, right-wing judges of the Fifth Circuit nonsensically and disingenuously concludes that “one would be hard-pressed to find that the authorities were unable or unwilling to help her [because] she never gave them the opportunity to do so.” Poppycock!
The police failed to offer the respondent any semblance of effective protection. Given the conditions in Honduras, and the credible threats the respondent had received, a reasonable woman in the respondent’s position would flee to safety at the first opportunity rather than waiting for the gang to carry out its credible threat of harm and for the police to, perhaps, but likely not, investigate after the fact!
Indeed, it’s no stretch to say that under the facts of this case, NO reasonable woman would have remained in Honduras if able to escape. Moreover, NO reasonable factfinder would conclude that she lacked a reasonable possibility of persecution there!
The panel judges have perverted, perhaps intentionally, the criteria for asylum, the standard for review, and misconstrued the record to deny legal protection to this refugee woman. But, there is an even deeper problem here. And, it goes to Attorney General Garland and his mismanagement of the entire, broken Immigration Court system.
I daresay that NO asylum expert would have handled this potentially perfectly grantable case the way this Immigration Judge and the BIA did. This whole process documents an ongoing, biased, unprofessional, designed-to-deny asylum system that unfairly attacks and threatens “the most vulnerable among us” — targeting women of color in a particularly racist-misogynistic way!
I hope that this particular example of injustice, inhumanity, and unprofessionalism at all levels of the judiciary isn’t what awaits long suffering asylum seekers if and when the Administration finally lifts the illegal “Title 42 Blockade/Charade” on May 23. But, I have little reason for optimism.
Beyond long overdue reversals of several Sessions/Barr bogus anti-asylum, anti-immigrant “precedents,” neither Garland or Mayorkas has shown much inclination to actually get asylum law right. Nor have they empowered or employed the human rights and due process experts who could lead them out of the wilderness in which their entire “denial and deterrence-oriented” system now wanders.
Perhaps ironically, the all-too-often lawless Fifth Circuit refuses to acknowledge even those modest actions by Garland to correct the law, notwithstanding the supposed “great deference” they claim to show the Executive in the area of immigration. Like much that the Fifth Circuit does these days, that “deference” appears reserved for White men and is not applied to vindicate the rights of “persons” who happen to be migrants, women, or people of color.
“Dred Scottification” of “the other” is NOT a legitimate legal theory. No, it’s part of the “anti-democracy activism” that threatens to destroy our legal system and take our nation down with it! ☠️
Whatever the merits of Liadov were at the time it was issued, the Supreme Court has since made quite clear that only statutes that are set forth to be construed as jurisdictional are, in fact, jurisdictional. See, e.g., Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 21 (2017) (“‘[M]andatory and jurisdictional’ is erroneous and confounding terminology where, as here, the relevant time prescription is absent from the U.S. Code.”). Among others, the Second and Ninth Circuits have held, subsequent to Liadov, that the thirty-day BIA appeal filing rule is non-jurisdictional and subject to equitable tolling. See Attipoe v. Barr, 945 F.3d 76, 78–80 (2d Cir. 2019) (“Liadov is at odds with precedent in this Circuit and in others, as well with the Supreme Court’s repeated admonition not to treat claim-processing rules—such as the filing deadline in 8 C.F.R. § 1003.38—as jurisdictional.”); Irigoyen-Briones v. Holder, 644 F.3d 943, 946–48 (9th Cir. 2011). We agree with, and adopt, these courts’ reasoning. The BIA has the jurisdiction to hear the case if Boch-Saban establishes equitable tolling, an issue that the BIA should address in the first instance. For these reasons, we remand this case to the BIA to determine whether Boch-Saban proved entitlement to equitable tolling.
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Case started 17 years ago. R has been married to USC for 9 years. 5 years ago, the DHS agreed that the case should be terminated to allow the respondent to pursue an IV.
What if IJs routinely granted joint motions like this?
What if they were encouraged to do so?
What if the “best practice” in Immigration Court were to encourage maximum use of joint agreements by the parties?
What if the BIA actually encouraged and enforced “best practices?”
What if long residence and being eligible for legal immigration were consistently treated as“compelling equities.”
Wouldn’t those be “painless methods” for reducing the 1.7 million case backlog without gimmicks or stomping on anyone’s rights?
What if “practical scholar-litigators” like Stacy (a “complex litigation specialist”), who understand and have experienced the “dynamics” of Immigration Courts, were selected to become Immigration Judges and Appellate Immigration Judges?
Protection Delayed is Protection Denied:i Factsheet on Title 42 Expulsions, Haitian Asylum Seekers in Tijuana, and the U.S. Government’s Ongoing Evasion of Duty
April 7, 2022
An estimated 10,000 Black migrants, predominantly asylum seekers from Haiti, currently reside in Tijuana where they face discrimination and violence.ii Since the imposition of Title 42, the United States has refused to permit nearly all individuals their legal right to seek asylum and has instead conducted mass expulsions.iii Title 42 has had a particularly devastating impact on Haitians, who have been expelled en masse without being screened for their fear of harm in Haiti despite “obligations under both domestic and international law that prohibit return of individuals to persecution and torture.”iv
Most Haitians arrive in Mexico following a dangerous overland route from Brazil or Chile; these countries took in Haitian nationals in the wake of Haiti’s devastating magnitude 7.0 earthquake in 2010.v The aftermath of the 2010 earthquake remains significant: it claimed between 200,000- 300,000 lives, left over a million people homeless, and set in motion a decade of political instability, impunity, and violence.vi
In July 2021, Haitian President Jovenel Moïse was assassinated.vii In August 2021, another magnitude 7.2 earthquake struck the country.viii A devastating tropical storm followed just two days later. The destruction from the powerful natural disasters overlayed onto the political power vacuum, exacerbating the already dire conditions. 4.3 million Haitians are experiencing acute food insecurity, fuel shortages and blackouts are the norm, and 1.5 million Haitians have been affected by gang violence.ix Complicity between state officials and criminal gangs has been documented, including incidents where “perpetrators raped and tortured residents based on political associations.”x According to Human Rights Watch, “the justice system can barely operate in a context of security and institutional breakdowns” and thus people in Haiti “face a high risk of violence and have no effective access to protection or justice.”xi
The United States recognized the dangers posed to people if they are returned to Haiti and granted an 18-month Temporary Protected Status (TPS) to prevent deportations of any Haitian people already present in the country before July 29, 2021.xii Despite this limited protection, over 20,000 people have been returned to Haiti during the first year of the Biden administration.xiii Many of those expelled had been in a makeshift encampment in Del Rio, Texas in September 2021, where they were denied access to sufficient food, water, and medical care.xiv Many were also subjected to physical violence and intimidation. The last several months have seen expulsions occur unabated with the Department of Homeland Security (DHS) conducting “near daily flights to Haiti.”xv Additional flights of adults and families with babies and young children are scheduled for April. The majority of these returns occur under Title 42, denying individuals the chance to apply for asylum, even if they requested it and face dangers which would qualify them for protection.xvi
1
The information in this factsheet was compiled from interviews conducted from March 7-11, 2022, by a delegation from the University of California, Hastings College of the Law’s Hastings-to-Haiti Partnership (HHP) organization in collaboration with the Center for Gender & Refugee Studies (CGRS), the Haitian Bridge Alliance (HBA), and the École Supérieure Catholique de Droit de Jérémie (ESCDROJ). The delegation interviewed 123 Haitians across six different shelters in Tijuana. Interviewees were asked about why they left Haiti and what they have experienced as Black Kreyol-speakers traveling through Mexico and other Latin American countries.
There is a common misconception that Haitians are “economic migrants” and not refugees entitled to protection. But the stories revealed in these interviews belie such assertions. Haitians face imminent threats to their physical safety, and even death, should they be returned to the country—and face further dangers in Mexico—and they should have the opportunity to claim their legal right to asylum and reunify with family members in the United States.xvii Each day that the Title 42 policy remains in effect, it places Haitians directly in harm’s way.
But, given the extraordinarily poor performance of the Biden Administration on racial justice issues relating to asylum at the border, I’m afraid that the preparation to make the asylum system function in a fair and orderly manner come May 23 is going to fall largely to NGOs and advocates.
Of particularly disturbing note is the Garland DOJ’s total failure to intervene to stop the blatant and illegal racism at our border and to vindicate the rule of law! Indeed, Garland’s failure to reorganize EOIR and hire competent, expert administrators and judges to take charge of his broken, backlogged, and biased asylum system is likely to be a “stone around the neck of justice” as we move forward.
But, expecting the Biden Administration to stand up for racial justice for Haitians and other non-White asylum seekers at the border unfortunately appears to be wishful thinking.
Judge (now Justice) Ketanji Brown Jackson, honoree at the Third Annual Judge James B. Parsons Legacy Dinner, February 24, 2020, University of Chicago Law School. Photographer Lloyd DeGrane. Creative Commons License
It is official. There is a new justice on the United States Supreme Court, and a justice unlike any in our nation’s history.Despite all the problems this nation faces, despite the sordidness of the confirmation process, despite the rank hypocrisy, bombast, and lies Republican senators and their media echo chambers employed, let us not allow any of this to distract from a celebration of Justice Ketanji Brown Jackson and her moment.
Justice Jackson is not only a symbol, she is a person. And like so many trailblazers before her, she has had to weather attacks on her character, her values, her intelligence, her right to be part of a society still plagued by the legacy of centuries of oppression and injustice.
If ever there were a live demonstration of judicial temperament, it was Justice Jackson’s testimony in her confirmation hearings. She was in a position known all too well to marginalized segments of American society, particularly Black women. She had to be better, do better, be more poised, absorb more outrage, and bite her tongue while those with privilege are given benefits of doubt she will never be offered and allowed to act in ways that never would have been tolerated from her. Indeed, we have seen exactly this double standard in recent Supreme Court confirmation hearings.
Justice Jackson persevered. And she did so in a way that should give us confidence as to what kind of justice she will be. In a court that has been highly politicized by the actions of Republicans in the Senate and the White House, her voice will represent a very different perspective: an America of diversity, of obstacles and opportunity, of the rule of law, of humility, and of justice broadly defined.
Every Supreme Court justice represents to some extent a leap into the unknown. But recently, we have seen the entire judicial system increasingly become a competition between teams of judges whose actions are highly predictable. This is regrettable. The act of judgment should be one of listening, reading, and weighing the arguments. Everything we saw from Justice Jackson suggests she will embrace this role.
Even with the addition of Justice Jackson, we will still have a Supreme Court out of balance. It tilts heavily toward a far-right worldview that, if the polling is to be believed, is out of step with the majority of the American public.
As much as the Republicans tried to undermine Justice Jackson with epithets of being an extremist, it is they who I believe history will judge as out of touch with the heart of this nation, and especially its future.
Now, going forward, Justice Jackson will bring a new voice to those marbled halls, one who can bear witness to what this nation is, and where it is going.
Her presence itself will not fix the myriad problems we face; our challenges defy easy answers or simple remedies. But Justice Jackson personifies the hope that change is possible, that progress can be our path going forward. We celebrate her today as a unique legal mind and as someone whose service to this nation and its best traditions can give us a reason for new flickers of optimism. If she hasn’t given up on what America can be, then neither should we.
Many, many congrats to Justice Jackson, one of our greatest living jurists, whose career exemplifies that to which the Federal Judiciary should aspire!
Justice Jackson is exactly the type of judge we need not only on the Supremes and the lower Article III Courts, but also on the Board of Immigration Appeals and on the nation’s Immigration Courts!
But, in this case, the obstacle isn’t Republicans! No, it’s the Dems — the Biden Administration and AG Garland! They stubbornly refuse to treat the U.S. Immigration Courts, which they control 100%, as if THEIR lives and futures depended upon it!
I fear that in the Biden Administration’s rather half-hearted effort to restore asylum law at the border, we will see the consequences of not having acted timely to appoint a BIA of “real judges.” That is, asylum experts with the credibility, courage, independence, scholarly credentials, and practical experience in Immigration Court to establish fair, practical precedents to guide both Immigration Judges and Asylum Officers in the fair, consistent, and timely adjudication of claims for protection at the border and in the interior. They are also necessary to bring due process and best practices to a system that for years has openly mocked both — and largely gotten away with it, at the expense of the rule of law and the good of humanity.
You can be sure that the next GOP AG won’t new so hesitant and stumbling about finishing the job of “weaponizing” the Immigration Courts as a tool to be used to “Dred Scottify the other” in American society!
I have no doubt that in the future, Justice Jackson will speak out against “Dred Scottification” when it comes before her on the Court — albeit likely in dissent, given the Supremes’ far right swing. Ironically, however, the appointment of “more Justice Jacksons” to the U.S. Immigration Courts would have a much greater substantive effect than her appointment to the Supremes! Not only would such “real judges” upgrade the practice of law — throughout the nation and in all Federal Courts — but they would stop the practice of “Dred Scottification” at the retail level — where it literally affects millions of lives. It would be “outcome determinative” in thousands of cases now being incorrectly decided — or not decided at all.
That Garland is too blind and/or disinterested to understand the cosmic importance of the Immigration Courts to American justice and the need to act boldly and rapidly to reform his dysfunctional and flagrantly unfair “courts” is nothing short of a national tragedy — one for which the most vulnerable and those fearlessly assisting them continue to pay a high price!
