Executive Office for Immigration Review (“EOIR’) – Page 12

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

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

Dan Kowalski reports for LexisNexis Immigration Community:

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

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

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

[Hats off to Eric Suarez!]

Eric Suarez ESQUIRE
Partner
Sanabria & Associates
PHOTO: Firm website

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

🇺🇸 Due Process Forever!

PWS

06-28-23

👎🏼9TH CIR. SAYS “NO CHEVRON DEFERENCE FOR YOU BIA!” — Misinterpretation Of Citizenship Removal Ground “Unmoored,” “Unreasonable,” “Untenable,” “Incoherent!” — (But, Evidently “Good Enough For Government Work” @ Garland’s EOIR!)

Dan Kowalski reports for LexisNexis Immigration Community:

CA9: BIA’s Application of Richmond Untenable, Unmoored, Unreasonable, Incoherent: Ramírez Muñoz v. Garland

June 26, 2023

(1 min read)

Ramírez Muñoz v. Garland

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/06/26/21-70431.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca9-bia-s-application-of-richmond-untenable-unmoored-unreasonable-incoherent-ramirez-munoz-v-garland

“We must decide whether Ramírez’s conduct—lying to local authorities about U.S. citizenship—was for a “purpose or benefit under” a particular law. The BIA, relying on its Richmond decision, concluded that Ramírez lied about his citizenship “for the purpose of avoiding removal proceedings.” See In re Richmond, 26 I. & N. Dec. 779, 788 (B.I.A. 2016) (holding that a “purpose” under a law “includes the avoidance of negative legal consequences— including removal proceedings”). The BIA’s interpretation of § 1182(a)(6)(C)(ii)(I) is untenable. We agree with our sister circuit that “the BIA’s construction of the ‘purpose or benefit’ language [is] . . . ‘unmoored from the purposes and concerns’ of the statute.” Castro v. Att’y Gen., 671 F.3d 356, 370 (3d Cir. 2012) (quoting Judulang v. Holder, 565 U.S. 42, 64 (2011)). … We conclude that Richmond’s construction of “under” is unreasonable and do not afford it any deference. Consequently, we reject Richmond’s derivative holding that “[t]he term ‘purpose’ . . . includes the avoidance of negative legal consequences—including removal proceedings.” … We therefore grant the petition for review and remand to the agency to either grant Ramírez’s application for adjustment of status or explain, consistent with this opinion, why not.”

[Hats way off to Marco A. Jimenez!]

—

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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Trust the BIA under Garland to come up with “teaching examples” of what’s wrong with EOIR!

Just last week we were discussing “Chevron deference” (a/k/a “Article III judicial task avoidance”) in my Immigration Law & Policy class at Georgetown Law. “Unreasonable interpretation” was one of the three ways we discussed for the Article IIIs to avoid giving Chevron deference to the BIA (the other two being “plain meaning” and “not your field of expertise”).

This is a classic (if rather brutal) example of the “unreasonable” exception to Chevron.

One reason why the “21st Century BIA” has become “unmoored” is that it is basically “tethered” to whatever DHS Enforcement wants and what appears to line up with an Administration’s “immigration enforcement agenda.” In other words, the BIA tends to interpret ambiguous statutes with “career preservation” rather than “best interpretations” in mind. That’s generally bad news for individuals seeking due process and fundamental fairness in life or death matters before EOIR!

As I recently pointed out, there is a BIA Appellate Immigration Judge position open for applications until July 5, 2023. See https://immigrationcourtside.com/2023/06/23/🇺🇸⚖️🗽👩🏽⚖️👨🏻⚖️-calling-ndpa-practical-scholars-experts-no/.

That’s a chance for NDPA “practical scholar/experts” to start counteracting what has been a two-decade downward spiral of due process, fundamental fairness, and best practices at this oft-ignored “life or death tribunal” with nationwide jurisdiction.

🇺🇸 Due Process Forever!

PWS

06-27-23

⚖️🗽INSPIRING AMERICA: NDPA SUPERSTAR 🌟 & BRILLIANT GEORGETOWN REFUGEE LAW & POLICY ALUM BREANNE PALMER “GETS IT!” — “For me, the line between the so-called ‘Great Replacement Theory,’ the targeting of Black Americans in Buffalo in May 2022, and the deleterious, disproportionate effects of Title 42 on Black asylum seekers couldn’t have been brighter.”

Breanne Justine Palmer, Esquire
Senior Legal Policy Advisor
Democracy Forward
PHOTO: Linkedin

https://www.linkedin.com/posts/breannepalmer_career-retrospective-the-leadership-conference-activity-7074007461837340672-_0EI?utm_source=share&utm_medium=member_ios

Breanne writes:

People talk frequently about forward and backward movement in one’s career, but less so about the gift of lateral moves. I have been lucky enough to make at least one facially “lateral” move that drastically changed the scope and reach of my immigration advocacy work: as the first Policy Counsel for Immigration at The Leadership Conference on Civil and Human Rights!

Through the work of incredible jacks-of-all-trades on staff like Rob Randhava, The Leadership Conference has played an integral role in a number of major moments in the immigration space and maintained an Immigration Task Force. The organization wanted to concretize this work by hiring a full-time staffer, and on the heels of my work at the UndocuBlack Network, I felt this role was the right fit. I grew up in a distinctly Jamaican household, visiting our home country most of my childhood summers, but I also sought a sterling education in the Black American experience.

One of my proudest moments at The Leadership Conference was also one of the most complex, challenging moments of my career—trying to connect the dots between seemingly disparate, painful topics to highlight the interconnectivity of our racial justice and immigrant justice movements. For me, the line between the so-called “Great Replacement Theory,” the targeting of Black Americans in Buffalo in May 2022, and the deleterious, disproportionate effects of Title 42 on Black asylum seekers couldn’t have been brighter. I felt The Leadership Conference was perfectly poised to connect those dots in a public way, by co-leading a sign-on letter to the Biden Administration. But I had to make my case with both internal and external partners with care and finesse, drawing on all of my education and experiences to guide me. No community wants to feel as though another community is opportunistically seizing a moment to elevate its interests while riding on the backs of others. I am proud to say that I persuaded a number of skeptics, many of whom were rightfully protective of their communities and civil rights legacies, to see the urgency of drawing these connections for those in power. Through this effort I was reminded that the work of connecting the Black diaspora is arduous, but can bear powerful fruit.

Read the rest on my blog!

https://breannejpalmer.squarespace.com/blog/career-retrospective-the-leadership-conference-on-civil-and-human-rights

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I’ve said it many times: There will be neither racial justice nor equal justice for all in America without justice for migrants!

Breanne obviously “gets it!” So do leaders like Cory Booker (D-NJ).

Sadly, however, many Democrats, including notable African-American leaders like President Barack Obama, Vice President Kamala Harris, AAG Civil Rights Kristen Clarke, and former AGs Eric Holder and Loretta Lynch don’t! They all blew or are squandering opportunities to make due process and equal justice for asylum seekers and other migrants a reality, rather than a hollow, unfulfilled promise!

In particular, the “intentional tone-deafness” of the Biden Administration on treatment of asylum seekers and other migrants of color has been astounding and shocking! Speaking out for justice for George Floyd and others while denying due process and the very humanity of Blacks and other people of color seeking legal asylum at the Southern Border is totally disingenuous and counterproductive!

Additionally, while there recently have been some improvements in merit-based selections by AG Garland, the U.S. Immigration Courts, including the BIA, are still glaringly unrepresentative of the communities affected by their decisions and the outstanding potential judicial talent that could and should be actively recruited from those communities. An anti-immigrant, pro-enforcement, uber-bureaucratic “culture” at EOIR, which metastasized during the Trump Administration, discouraged many well-qualified experts, advocates, and minorities from competing for positions at EOIR.

The inexplicable failure of Vice President Harris to establish herself as the “front person” to actively encourage and promote service in the Immigration Courts among minorities and women is highly perplexing. Additionally, the failure of the Biden Administration to recognize the potential of the Immigration Courts as a source of exceptionally-well-qualified, diverse, progressive, practical scholars for eventual Article III judicial appointments has been stunning!

Meanwhile, for an “upgrade” of the struggling EOIR, one couldn’t do better than Breanne Palmer: brilliant practical scholar, forceful advocate, courageous, creative innovator, and inspirational role model. As Breanne says on her website:

I try to live by one of Audre Lorde’s creeds:

“I am deliberate and afraid of nothing.”

Sure could use more of that intellectual and moral courage and “leadership by example” on the bench at EOIR! And, as I mentioned yesterday, there are or will be more judicial positions available at EOIR at both the appellate and trial levels. See, e.g., https://wp.me/p8eeJm-8KK.

Thanks Breanne for choosing to use your tremendous skills and abilities to further due process, equal justice for all, and racial justice in America. So proud of you!

🇺🇸 Due Process Forever!

PWS

06-23-23

🇺🇸⚖️🗽👩🏽‍⚖️👨🏻‍⚖️ CALLING NDPA PRACTICAL SCHOLARS/EXPERTS: NOW’S YOUR CHANCE TO BECOME A BIA APPELLATE IMMIGRATION JUDGE AND HELP CHANGE THE TRAJECTORY OF AMERICAN LAW! — The “Supreme Court of Immigration” Needs Supremely Qualified, Expert Judicial Talent!

I want you — Don’t just complain about the awful mess @ the BIA! Get on the appellate bench and do something about it!
Public Domain

Summary

The Executive Office for Immigration Review (EOIR) at the Department of Justice (DOJ) is seeking a highly-qualified individual to join our team of expert professionals who serve as Appellate Immigration Judges.

This is an Excepted Service position, subject to a probationary period. The initial appointment is for a period not to exceed 24 months. Conversion to a permanent position is contingent upon appointment by the Attorney General.

Learn more about this agency

https://www.usajobs.gov/job/733279200

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

Although there was no formal announcement from EOIR, it appears that Appellate Immigration Judge William Cassidy has finally retired from the BIA. As many of you know, Judge Cassidy, appointed by AG Billy Barr, was notoriously hostile to asylum seekers and to a fair application of the generous well-founded-fear standard for asylum enunciated by the Supremes in INS v. Cardoza-Fonseca and by the BIA in Matter of Mogharrabi. His “final” TRAC Immigration asylum denial rate as an Immigration Judge in Atlanta was an appalling and bone-chilling 99.1%! https://trac.syr.edu/immigration/reports/judge2022/00004ATD/index.html.

This is a chance for a “real judge” with impeccable academic knowledge, practical solutions, and actual experience representing asylum applicants in the EOIR quagmire to bring some long-overdue and absolutely essential positive, progressive, change to the BIA – a group overall known for its too-often stilted, sloppy, improperly pro-Government, “go along to get along,” “don’t rock the boat by standing up for due process and human rights” decision-making.

The BIA’s lousy performance on the “stop time rule,” where they were twice rebuked by the Supremes for ignoring the language of the statute and the Court’s own holdings, is a classic example of why we need fundamental change at the top of EOIR. This substandard performance generated more unnecessary backlog and “Aimless Docket Reshuffling” in a system that can ill afford it (2 million case backlog). It also created unnecessary confusion and uncertainty in a situation where clarity was both required and achievable. I daresay, it’s hard to imagine any NDPA “practical scholar” getting sidetracked the way the BIA did in its misguided rush to please DHS Enforcement and its political “handlers” at DOJ!

Also, because of “jurisdiction stripping” legislation over the years, limiting the review of the Article IIIs in many areas, the BIA often represents the last realistic chance for individuals to obtain justice and fair treatment! That the BIA too often acts like an “assembly line,” doesn’t diminish its potential to become part of the solution rather than a source of further problems and unfairness.

Don’t let this important Federal Judgeship, with real life or death power over the lives of individuals and the future of our democracy, go by default to another “insider” or asylum denier.

I hear complaints from practitioners nationwide about the BIA’s poor scholarship and failure to issue realistic, positive guidance. But, it’s not going to change unless the “best and the brightest” from the NDPA apply for these critical jobs at EOIR and become agents of change.

Don’t let this chance go by to make a difference in the lives of others and to use your hard-earned expertise and practical skills to fundamentally change our failing U.S. judicial system — starting at the critical “retail level.”

The deadline is July 5, 2023, conveniently during the July 4 holiday. But, don’t let mindless bureaucratic tactics and feeble efforts at recruitment deter you. Force the USG to recognize and employ “judicial excellence” – once the “vision” of EOIR (before “good enough for government work” became the motto). I urge well-qualified minority candidates to apply for this key position!

🇺🇸 Due Process Forever!

PWS

06-23-23

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

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

ACCESS DENIED

Hamed Aleaziz reports for the LA Times:

https://apple.news/AnR6bRRRoSxm4nMAHyNOLXQ

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

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

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

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

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

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

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

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

. . . .

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Read Hamed’s full story at the link.

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

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

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

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

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

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

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

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

Nick Miroff & Joanna Slater report for WashPost:

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

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

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

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

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

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

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

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

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

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

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

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

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

. . . .

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

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

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

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

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

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

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

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

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

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

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

GIULIA MCDONNELL NIETO DEL RIO reports for Documented:

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

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

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

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

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

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

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

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

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

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

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

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

. . . .

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

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

. . . .

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Read Giulia’s complete article at the link.

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

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

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

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

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

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

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

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

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

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

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

PWS

06-21-23

🇺🇸⚖️🗽📚 CMS PROUDLY ANNOUNCES THE OSUNA COLLECTION: “Honoring The Late, Great Juan Osuna on Access to Justice, the Rule of Law and Due Process!”

Juan P. Osuna (1963-2017)
Judge, Executive, Scholar, Teacher, Defender of Due Process

Special Collection on Access to Justice, Due Process and the Rule of Law in Tribute to Juan Osuna

On November 15, 2018, CMS hosted an event on access to justice, due process and the rule of law to honor the legacy of Juan Osuna, a close colleague and friend who held high-level immigration positions in four administrations over a 17-year period. Prior to his government service, Mr. Osuna served as a respected editor and publisher and a close collaborator with many civil society organizations. As a follow-up to its gathering, CMS is publishing a series of blogs, essays, talks, and papers on the values and issues to which Mr. Osuna devoted his professional life. It will ultimately compile these papers into a CMS special collection in Mr. Osuna’s memory. CMS hopes that this special collection will contribute to the development of a removal adjudication system that operates in a fair, equitable, effective, and rights-respecting way.

Publications

Access to Justice, the Rule of Law, and Due Process in the US Immigration System: A Tribute to Juan Osuna
By Donald Kerwin
Date of Publication: June 16, 2023

The US Immigration Courts, Dumping Ground for the Nation’s Systemic Immigration Failures: The Causes, Composition, and Politically Difficult Solutions to the Court Backlog
By Donald Kerwin and Evin Millet
Date of Publication: May 25, 2023

Charitable Legal Immigration Programs and the US Undocumented Population: A Study in Access to Justice in an Era of Political Dysfunction
By Donald Kerwin and Evin Millet
Date of Publication: September 28, 2022

Strengthening the US Immigration System through Legal Orientation, Screening and Representation: Recommendations for a New Administration
By Donald Kerwin
Date of Publication: August 26, 2020

Universal Representation: Systemic Benefits and the Path Ahead
By Lindsay Nash
Date of Publication: August 19, 2019

An Overview and Critique of US Immigration and Asylum Policies in the Trump Era
By Paul Wickham Schmidt
Date of Publication: August 14, 2019

Reflections on a 40-Year Career as an Immigration Lawyer and Judge
By Hon. Dana Leigh Marks
Date of Publication: April 8, 2019

Access to Counsel and the Legacy of Juan Osuna
By Ingrid V. Eagly
Date of Publication: February 5, 2019

Access to Justice in a Climate of Fear: New Hurdles and Barriers for Survivors of Human Trafficking and Domestic Violence
By Kathryn Finley
Date of Publication: January 29, 2019

Moving Away from Crisis Management: How the United States Can Strengthen Its Response to Large-Scale Migration Flows
By Rená Cutlip-Mason
Date of Publication: January 23, 2019

No Agency Adjudication?
By Jill E. Family
Date of Publication: December 18, 2018

Immigration Adjudication: The Missing “Rule of Law”
By Lenni B. Benson
Date of Publication: August 8, 2018

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Juan was my friend, colleague, fellow Adjunct Professor at Georgetown Law, and one of my successors as BIA Chair. My tribute to Juan at the time of his untimely death in 2017 was, I believe, the “most viewed item ever” on “Courtside.” For those who missed it, here it is. https://wp.me/p8eeJm-1gd.

I am honored to have one of my articles included with those of amazing immigration “practical scholars” in this connection!

Many thanks to Don Kerwin for alerting me to this “Tribute Collection” and for his work in putting it together. I know that Don was a close friend and admirer of Juan’s comprehensive and inspiring body of work! Don’s heartfelt introduction, Access to Justice, the Rule of Law, and Due Process in the US Immigration System: A Tribute to Juan Osuna, and several of his original works are included in this collection!

🇺🇸 Due Process Forever!

PWS

06-18-23

🇺🇸⚖️🗽🦸‍♀️🎖 AMERICAN HERO: REP. HILLARY SCHOLTEN (D-MI) WINS 2023 MICHAEL MAGGIO AWARD HONORING HER COMMITMENT TO JUSTICE FOR IMMIGRANTS! — Former EOIR Attorney’s Star Continues To Shine!

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I knew Michael as a friend, colleague, litigator, and sometimes worthy opponent from his days in law school until his untimely death in 2008! Michael’s wife, Candace Kattar, was actually a law student intern in the “Legacy INS” Office of General Counsel during the “Crosland/Schmidt Era” of the Carter Administration! Together they founded the highly-respected firm Maggio & Kattar.

Knowing both Michael and Hillary, I can’t think of a more deserving recipient for this prestigious honor. Congratulations, Hillary!!!😎👏

🇺🇸 Due Process Forever!

PWS

06-17-23

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

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

https://www.aila.org/highstakesasylum

Introduction

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

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

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

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

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

Jeremy McKinney President, American Immigration Lawyers Association (AILA)

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

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

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Executive summary and recommendations

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

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

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

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

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

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

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

iv See Appendix II.

High-Stakes Asylum How Long an Asylum Case Takes and How We Can Do Better 4 AILA Doc. No. 23061202. (Posted 6/14/23)

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

Key findings

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

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

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

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

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

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

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

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

Do not expend finite prosecutorial resources on cases that can be resolved more expeditiously. Immigration and Customs Enforcement’s (ICE) Office of the Principal Legal Advisor (OPLA) attorneys should engage in pretrial negotiations and exercise prosecutorial discretion to avoid unnecessary litigation.
High-Stakes Asylum How Long an Asylum Case Takes and How We Can Do Better 5 AILA Doc. No. 23061202. (Posted 6/14/23)

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Legal access and representation improve fairness and government efficiency

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

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

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

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

Improve the asylum process

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

🇺🇸 Due Process Forever!

PWS

06-16-23

🤯 CAIR COALITION COGENTLY CONCLUDES: CANNED CLAPTRAP CAN’T CHANGE CRATERING CLOWN COURTS! 🤡

Kangaroos — “We don’t need immigration expertise to be hired, and now we don’t need it to deny cases either. Just have to slap any old attachment on it! EOIR is the ‘paint by numbers’ of judging!”
https://www.flickr.com/photos/rasputin243/
Creative Commons License

https://www.caircoalition.org/2023/06/12/breaking-attorneys-advocate-better-due-process-response-immigration-judges-making

BREAKING: Attorneys advocate for better due process in response to immigration judges making conveyor-belt deportation decisions

June 12, 2023

Immigration attorneys nationwide have witnessed a concerning increase in immigration judges issuing deportation decisions without individualized analysis. Instead, these barebones decisions often rely on boilerplate “form addenda,” which are standardized summaries of immigration law not specific to any noncitizen’s case.

This week, in response to these concerning practices, Capital Area Immigrants’ Rights (CAIR) Coalition and pro bono counsel O’Melveny & Myers, along with over 50 partner organizations, have submitted a letter advocating that the Executive Office for Immigration Review (EOIR) reform its policies governing the use of form addenda.

Because they are not specific to a person’s individual case and are instead just stapled to a deportation order as legal justification, the addenda usually include irrelevant issues and sometimes incorrect statements of the law. Plus, the noncitizen and their attorney often never see a copy of the addenda.

The sign-on letter urges EOIR to take multiple, concrete steps to change its policies governing the use of form addenda. These measures include increased training on addenda usage for immigration judges, making form addenda publicly accessible, and appointing an ombudsman to investigate addenda misuse.

“Due to the drastic consequences for immigrants in deportation cases—including family separation and possible persecution and death in people’s home countries—the law requires U.S. immigration judges to conduct an individualized analysis of each noncitizen’s case when deciding on their removal proceedings,” said Peter Alfredson, Senior Attorney at CAIR Coalition. “When the stakes are that high, noncitizens deserve to know that judges are taking their claims seriously—or even looking at their claims at all—and issuing decisions that reflect that responsibility.”

“Immigration judges merely staple these form addenda to a removal order instead of doing their job to analyze each person’s case.” said Adina Appelbaum, Program Director of the Immigration Impact Lab at CAIR Coalition. “We need clearer policies from EOIR so that if judges use these addenda, they will do so in a way that is fair and respectful to the noncitizens whose lives are in their hands.”

Adina Appelbaum
Director, Immigration Impact Lab
CAIR Coalition
Charter Member, NDPA
PHOTO: “30 Under 30” from Forbes

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Contact

Erin Barnaby, CAIR Coalition | erin@caircoalition.org

————-

About Capital Area Immigrants’ Rights Coalition

Through free legal, social, and litigation services, Capital Area Immigrants’ Rights (CAIR) works to ensure equal justice for immigrants in the Capital region who are at risk of detention and deportation.

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Crazy catastrophic courts can’t continue!

🇺🇸 Due Process Forever!

PWS

06-14-23

🏴‍☠️ EOIR DENIES DUE PROCESS TO ASYLUM SEEKER, SAYS SLIT 9TH! — Dysfunctional Agency Renowned For “Aimless Docket Reshuffling” Of Scheduled, “Ready to Try” Cases Can’t Spare Time For Same-Day Filing By Newly Retained Counsel In “Life Or Death Matter!” — Arizmendi-Medina v. Garland

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/06/07/21-298.pdfw

KEY QUOTE FROM CIRCUIT JUDGE RONALD LEE GILMAN’S MAJORITY OPINION:

. . . .

Third, the IJ was hardly inconvenienced at all. Arizmendi-Medina’s counsel offered to submit the application while the IJ was still on the bench. Although this might have required the IJ to recall Arizmendi-Medina’s case at the end of the IJ’s docket, this inconvenience was truly minimal. Cf. Jerezano, 169 F.3d at 615 (“While an IJ need not linger in the courtroom awaiting tardy litigants, so long as he is there on other business and the delay is short[,] …it is an abuse of discretion to treat a slightly late appearance as a nonappearance.”). Further, as discussed above, the December 18, 2018 hearing was a Master Calendar hearing, not a merits hearing. This means that the proceedings were ultimately not delayed at all.

And fourth, we consider the total number of continuances previously granted to Arizmendi-Medina. He received two very short continuances (only two weeks each) to find an attorney at the beginning of his immigration proceedings on July 31, 2018 and August 15, 2018. See Cruz Rendon, 603 F.3d at 1106–07, 1110 (finding that two one- month continuances were both “exceedingly short”). The proceedings were then reset at the hearing on August 29, 2018 because Arizmendi-Medina requested, and the IJ granted, a change of venue. The next hearing was scheduled for October 24, 2018 before a new IJ. Although this certainly gave Arizmendi-Medina more time to find an attorney, this delay was primarily due to the change of venue and getting the case calendared in a new court.

Finally, after Arizmendi-Medina was required to proceed pro se and was found removable at the hearing on October 24, 2018, the IJ granted another continuance so that Arizmendi-Medina could continue to look for an attorney and work on his relief application (which was presented to him for the first time at the October 24, 2018 hearing).

20 ARIZMENDI-MEDINA V. GARLAND

Arizmendi-Medina thus received only one continuance after he was found removable and presented with a relief application, and he received zero continuances after he finally secured an attorney. From start to finish, the proceedings against Arizmendi-Medina were delayed for less than five months, with nearly two months of that delay due to the change of venue.

Ultimately, all of the Ahmed factors weigh in favor of finding that the IJ abused his discretion in not granting a continuance so that Arizmendi-Medina’s recently-retained counsel could complete and submit the relief application on December 18, 2018. The abuse is especially apparent given the offer of Arizmendi-Medina’s counsel to submit the application later that same day. Such an abuse by the IJ counsels in favor of finding that Arizmendi-Medina was denied fundamental fairness. See id. at 1110 (finding that the IJ abused her discretion in part because the merits hearing was “less than one month after Cruz Rendon first appeared with counsel,” which contributed to the noncitizen’s difficulty in marshalling evidence in such a short time frame (emphasis in original)). This “prevented [Arizmendi-Medina] from reasonably presenting his case.” See Zetino, 622 F.3d at 1013 (quoting Ibarra-Flores, 439 F.3d 620-21).

. . . .

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This faux “court” system has lost sight of its sole function: To provide due process hearings to individuals whose lives and futures are on the line!

In this case, the DOJ was obviously willing to spend more time and resources on denying the respondent his day in court than it would have taken to hold a merits asylum hearing! No wonder they have built an astounding, ever-growing 2 million case backlog! Don’t let Garland & company get away with blaming the private bar or respondents (that is, “the victims”) for DOJ’s continuing screw-ups at EOIR!

No real inconvenience or delay to the IJ! Life or death for the respondent! Attorney kept on a treadmill by EOIR’s unreasonable conduct! Who would take cases, particularly pro bono, under this type of tone-deaf “double standard.” (Would Trump-appointed dissenting Judge Danielle J. Forrest, who probably never has represented an individual in Immigration Court, REALLY practice law under these abusive circumstances?)

How many of you out there in “Courtside Land” have arrived on time for a scheduled merits hearing, with respondent and witnesses in tow, only to find out that your case had been “orbited” further out on the docket, with no or inadequate notice? How many have had long-prepared cases arbitrarily shuffled to a future year while having other cases where you were recently retained mindlessly “moved up” on the docket to satisfy EOIR’s latest “priority of the day?” Pretending like “every minute counts” in this hopelessly inefficient and bolloxed system is EOIR’s and DOJ’s way of deflecting attention and shifting the blame for their own, largely self-created failures!

In the “topsy turvy” fantasy world of EOIR, the dockets are overwhelming and totally screwed up! So much, that DHS recently took the unprecedented step of unilaterally declaring that (except for a small subset of “mandatory appearances”) THEY would decide which EOIR cases to staff with an Assistant Chief Counsel. See, https://immigrationcourtside.com/2023/05/31/🤯-wacko-world-of-eoir-dhs-prosecutors-deliver-the-big-middle-finger-bmf-🖕to-garlands-feckless-immigration-courts-unilate/. Implicit in this “in your face” action is the assumption that Immigration Judges will also act as prosecutors in these cases (even though Immigration Judges clearly lack some of the authority of prosecutors, including the exercise of prosecutorial discretion and stipulation to issues or relief).

On the other hand, private attorneys are systemically jerked around by EOIR and subjected to the threat of discipline for even relatively minor transgressions. Talk about an “uneven playing field!” In a system where lack of representation and under-representation are daily threats to due process and fundamental fairness, how does EOIR’s one-sided, anti-attorney, anti-immigrant conduct encourage new generations to chip in their time pro bono or low bono to bridge the ever-present “representation gap?”

In short, it does just the opposite! Some experienced practitioners have “had enough” and reduced or eliminated their Immigration Court presence while others have changed to other areas of practice because of EOIR’s continuing dysfunction under Garland. This should be a “solvable” problem — particularly in a Dem Administration! Why isn’t it?

Why is Garland getting away with this nonsense? How can we “change the playing field” and demand that Garland finally bring the due process reforms and expert judicial and professional, common-sense administrative personnel to America’s worst and most life-threatening courts?

Thanks to attorney Shannon Englert of San Diego for taking on Garland’s dysfunctional DOJ immigration bureaucracy!

Shannon Englert, ESQ Founder DYADlaw Vista, CA PHOTO: Linkedin

🇺🇸 Due Process Forever!

PWS

06-13-23

“`

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

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

Todd writes in the Border Chron:

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

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

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

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

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

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

. . . .

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

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

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

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

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

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

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

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

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

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

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

. . . .

At the Edge of Everything — and Nothing At All

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

🇺🇸 Due Process Forever!

PWS

06-10-23

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

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

KEY EXCERPT:

INTRODUCTION

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

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

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

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

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

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

. . . .

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

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

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

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

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

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

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

🇺🇸 Due Process Forever!

PWS

06-09-23

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

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

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

Refugees International June 5, 2023

The Honorable Alejandro N. Mayorkas

Secretary

U.S. Department of Homeland Security

2707 Martin Luther King Jr. Avenue, SE

Washington, D.C. 20528

Ur M. Jaddou

Director

U.S. Citizenship and Immigration Services

5900 Capital Gateway Drive

Camp Springs, Maryland 20588

Troy A. Miller

Acting Commissioner

U.S. Customs and Border Protection

1300 Pennsylvania Avenue, NW

Washington, D.C. 20229

David L. Neal

Director

Executive Office for Immigration Review

5107 Leesburg Pike

Falls Church, VA 22041

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Respectfully,

Acacia Center for Justice

Afghans For A Better Tomorrow

African Human Rights Coalition

Al Otro Lado

Alianza Americas

Alliance of Californians for Community Empowerment, ACCE

American Friends Service Committee (AFSC)

American Gateways

American Immigration Council

Americans for Immigrant Justice (AI Justice)

Amnesty International USA

Angry Tias and Abuelas

Asian Americans Advancing Justice | AAJC

Asylum Seeker Advocacy Project (ASAP)

Bend the Arc: Jewish Action

Black Alliance for Just Immigration (BAJI)

Bridges Faith Initiative

Border Kindness

Capital Area Immigrants’ Rights Coalition

Center for Constitutional Rights

Center for Gender & Refugee Studies

Center for Victims of Torture

Central American Resource Center of Northern CA – CARECEN SF

Church World Service

Cleveland Jobs with Justice

Coalition for Humane Immigrant Rights (CHIRLA)

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

Community Legal Services in East Palo Alto (CLSEPA)

Diocesan Migrant and Refugee Services Inc.

Dorcas International Institute of RI

Fellowship Southwest

First Focus on Children

Florence Immigrant & Refugee Rights Project

Franciscan Action Network

Freedom Network USA

Greater Boston Legal Services

Harvard Immigration and Refugee Clinical Program

HIAS

Houston Immigration Legal Services Collaborative

Human Rights First

Human Rights Initiative of North Texas

Immigrant Defenders Law Center

Immigrant Legal Resource Center

Immigration Equality

Immigration Law & Justice Network

Immigration Hub

Innovation Law Lab

Interfaith-RISE

Interfaith Welcome Coalition – San Antonio

International Center of Kentucky

International Institute of Los Angeles

International Institute of New England

International Refugee Assistance Project (IRAP)

ISLA: Immigration Services and Legal Advocacy

JAMAAT – Jews and Muslims and Allies Acting Together

Jewish Family Service of San Diego

Jewish Vocational Service of Kansas City

Just Neighbors

Justice in Motion

Kino Border Initiative

Las Americas Immigrant Advocacy Center

Latino Community Foundation

Lawyers for Good Government

Legal Aid Justice Center

Lost and Found Church of the Nazarene

Lutheran Immigration and Refugee Services

Mariposa Legal, program of COMMON Foundation

Massachusetts Law Reform Institute

Metrowest Legal Services

Minnestoa Freedom Fund

MLPB

Mujeres Unidas y Activas

Muslim Advocates

National Employment Law Project

National Immigrant Justice Center

National Immigration Law Center

National Network for Immigrant and Refugee Rights

National Partnership for New Americans

NCLR (National Center for Lesbian Rights)

Northeastern University School of Law Immigrant Justice Clinic

Open Immigration Legal Services

Oromo Center for Civil and Political Rights

Oxfam America

Phoenix Legal Action Network

Physicians for Human Rights

Public Law Center

RAICES

Refugees International

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

Robert F. Kennedy Human Rights

Rocky Mountain Immigrant Advocacy Network

SIREN, Services Immigrant Rights and Education Network

Southwest Asylum & Migration Institute (“SAMI”)

Student Clinic for Immigrant Justice

Survivors of Torture, International

Team Brownsville

Tennessee Justice for Our Neighbors

The Advocates for Human Rights

The Catholic Legal Immigration Network, Inc.

The Reformed Church of Highland Park

UC Davis Immigration Law Clinic

Unitarian Universalists for Social Justice

Unitarian Universalist Service Committee

United Sikhs

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

USAHello

Vera Institute of Justice

Washington Office on Latin America

Wind of the Spirit Immigrant Resource Center

Witness at the Border

Women’s Refugee Commission

Young Center for Immigrant Children’s Rights

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

🇺🇸 Due Process Forever!

PWS

06-07-23

⚖️👩‍⚖️ NAIJ PREZ/EXPERT JUDGE MIMI TSANKOV TAKES YOU “INSIDE EOIR” FOR A LOOK AT THE PROS & CONS OF TELEVIDEO IN IMMIGRATION COURT — A LAW360 Special!

https://www.law360.com/articles/1509443/inside-immigration-court-the-pros-cons-of-remote-hearings

Series

Inside Immigration Court: The Pros, Cons Of Remote Hearings

By Mimi Tsankov | June 2, 2023, 6:05 PM EDT ·

Listen to article

In this Expert Analysis series, immigration judges discuss best practices for attorneys who appear before them and important developments in immigration court practice for cases involving asylum, detention, deportation and adjustment to lawful permanent resident status.

Hon. Mimi Tsankov
President,NAIJ

Mimi Tsankov

The pandemic has reset settled expectations about how we interact in the workplace, and that transformation has hurled the nation’s immigration courts on a technological voyage into the 21st century.

Despite record congressional appropriations over the past few cycles targeted, in part, on technological advances, the court has relied historically on physical files, paper communications and traditional, in-person exchanges.[1]

Although video teleconferencing has been in limited use at the immigration court since the mid-1990s, those hearings were most often in detained settings, relying typically on judges, attorneys, interpreters and legal staff who were physically present in the courthouse.[2]

Not so post-September 2021, when pandemic restraints required the U.S. Department of Justice‘s Executive Office for Immigration Review, or EOIR, home to the immigration court system, to rethink the basics of how we interact.

During the pandemic, with court staff hamstrung for months, struggling to process mountains of court-paper filings, and judges in some jurisdictions unable to hold hearings, EOIR rolled out about 100 specially equipped laptops with digital audio recording applications installed and connected to a commercially available video conferencing application called Cisco Webex.

These so-called DAR laptops enable the parties, the witnesses, the public and even the judge to appear at hearings virtually because the laptops can digitally record the video hearings in the same way as a judge in a courtroom.[3]

This powerful advance was made all the more effective with the introduction of the EOIR Courts and Appeals System, or ECAS, an online tool for filing and maintaining records of proceeding that is now operational throughout the entire immigration court system.[4]

. . . .

With improvements sure to be made as technological capabilities advance in the years ahead, the OIG has recommended that immigration courts “[c]ontinue the deployment of remote kits to immigration judges to ensure that immigration judges have the equipment necessary to adjudicate hearings efficiently from non-court settings.” This way, judges can more easily assist courts in areas overwhelmed by new cases, and mitigate health- and safety-related court cancelations.

Expansion of the remote judge corps program offers obvious efficiencies, especially if the court is able to speed up and optimize digitization of our backlogged files. Although there are some courts that are reducing reliance on the remote hearing program, as of February that appears to be an anomaly given the overwhelming support nationwide for the program.[14]

With the trial immigration judges poised to adapt and adopt these advances, it will be up to EOIR management to lead the way in determining how quickly and effectively these and other stakeholder-identified challenges can be addressed.

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Thanks, Mimi, for all you do for due process and American justice! The above link will take you to the full article, complete with citations and disclaimer.

Sadly, my friend, waiting for “EOIR management to lead the way,” is likely to be “Waiting for Godot.”

🇺🇸 Due Process Forever!

PWS

06-06-23

⚖️🧑‍⚖️ THERE’S STILL TIME (BUT NOT MUCH) TO REGISTER FOR CMS’S “DEEP DIVE” INTO EOIR’S DYSFUNCTION, WITH TRUE EXPERTS

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TOMORROW, June 6 at 12:30pm ET, the Center for Migration Studies of New York (CMS) will host a webinar and discussion on its latest paper entitled, The US Immigration Courts, Dumping Ground for the Nation’s Systemic Immigration Failures: The Causes, Composition, and Politically Difficult Solutions to the Court Backlog, by Donald Kerwin and Evin Millet.

Experts on the immigration court system will highlight the systemic problems in the US immigration system that have caused and sustained the backlog, and offer recommendations for reversing the backlog.

Speakers include:

Donald Kerwin, former executive director of CMS and Editor of the Journal of Migration and Human Security
Mimi Tsankov, President, National Association of Immigration Judges and member, Expert Advisory Group
Richard A. Boswell, Professor of Law, UC College of Law, San Francisco, and member, Expert Advisory Group

As well as additional members of the Expert Advisory Group:

Gregory Chen, Senior Director of Government Relations, American Immigration Lawyers Association
Anna Gallagher, Executive Director, Catholic Legal Immigration Network, Inc.
Karen T. Grisez, Pro Bono Counsel, Fried, Frank, Harris, Shriver, and Jacobsen, LLP
Hon. Dana Leigh Marks (retired), President Emerita, National Association of Immigration Judges (in her personal capacity)
Michele Pistone, Professor of Law, Villanova University
Andrew Schoenholtz, Professor from Practice, Georgetown University Law Center
Denise Noonan Slavin, retired judge, Adjunct Professor, St. Thomas University School of Law
Charles Wheeler, Senior Attorney/Director Emeritus, Catholic Legal Immigration Network, Inc.

Click the button below to register for FREE!

The Center for Migration Studies (CMS) is a New York-based educational institute devoted to the study of international migration, to the promotion of understanding between immigrants and receiving communities, and to public policies that safeguard the dignity and rights of migrants, refugees, and newcomers. For more information, please visit www.cmsny.org.

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Center for Migration Studies, New York · 307 East 60th Street · New York, NY 10022 · USA

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To be bluntly honest, this panel of experts appears to be the group that an Administration seriously committed to restoring due process, fundamental fairness, and best practices to the “retail level” of U.S. justice would have hired in January 2021, to clean house 🧹 and institute lasting institutional reforms at America’s worst courts!

They have been “hiding in plain sight” for the past 2.5 years while Garland has been flailing and failing to bring order and long-overdue reforms to his tragically broken system!

Clown Car — Isn’t it time to finally get the “EOIR Clown Show” off the road before it causes more fatalities? Many experts think so!
PHOTO CREDIT: Ellin Beltz, 07-04-16, Creative Commons License, https://creativecommons.org/licenses/by-sa/4.0/. Creator not responsible for above caption.

🇺🇸 Due Process Forever!

PWS

06-05-23

Dan Kowalski reports for LexisNexis Immigration Community:

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Dan Kowalski reports for LexisNexis Immigration Community:

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Breanne writes:

🇺🇸 Due Process Forever!

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Summary

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ACCESS DENIED

Hamed Aleaziz reports for the LA Times:

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

Nick Miroff & Joanna Slater report for WashPost:

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

GIULIA MCDONNELL NIETO DEL RIO reports for Documented:

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

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

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

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Crazy catastrophic courts can’t continue!

🇺🇸 Due Process Forever!

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KEY QUOTE FROM CIRCUIT JUDGE RONALD LEE GILMAN’S MAJORITY OPINION:

🇺🇸 Due Process Forever!

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Todd writes in the Border Chron:

🇺🇸 Due Process Forever!

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KEY EXCERPT:

🇺🇸 Due Process Forever!

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🇺🇸 Due Process Forever!

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