"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Paul Schmidt, who served as a board member and board chair of the Board of Immigration Appeals under the [Clinton] administration, said that Trump is not the first to manipulate the courts. In 2003, President George Bush’s Attorney General John Ashcroft removed board members whose views did not match the administration’s ideas for immigration. “You can track the downward trajectory of the immigration courts from Ashcroft,” he said. “We call it the purge. If you’re not with the program, your job could be on the line.… Ashcroft rejiggered the system so there’s no dissent.”
Schmidt said he “got bounced” because of his views, which makes him skeptical of the courts ever being independent in the current system. “How can you be a little bit independent?” he said. “It’s like being a little bit pregnant. You either are, or you aren’t.”
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Read the full article at the link.
Congrats to Marcia for recognizing that while the seeds of the current Immigration Court disaster originated in the Bush II Administration, they also grew steadily because of the Obama Administration’smismanagement and misuse of the Immigration Courts.
Given a rare chance to create a truly progressive, due-process-oriented judiciary, without any interference from Mitch McConnell and the GOP, the Obama group chose another path. They promoted “Aimless Docket Reshuffling” at EOIR to meet improper political policy objectives. At the same time, they almost totally “shut out” the human rights, clinical, and immigration bars by appointing over 90% of Immigration Judges from Government backgrounds, overwhelmingly DHS prosecutors.
Notwithstanding a process that did not require Senate Confirmation, the Obama Administration politicos took a mind boggling average of two years to fill Immigration Court judicial vacancies! They also left an unconscionable number of unfilled positions on the table for White Nationalist AG Jeff Sessions to fill!
Sure, it’s not “malicious incompetence” like the Trump regime. But, for asylum applicants and other migrants whose lives and due process rights are now going down the drain at an unprecedented accelerated rate, the difference might be negligible.
Dead is dead! Tortured is tortured! Missed opportunities to save lives are lives lost!
First, and foremost, Biden/Harris need to get elected. But, then they must escape the shadow of Obama’s immigration failures and do better for the many vulnerable and deserving folks whose lives are on the line.
Shouldn’t be that hard! The progressive legal talent is out there for a better Federal Judiciary from the Immigration Courts to the Supremes.
It just requires an Administration that takes due process, human rights, human dignity, and equal justice for all seriously and recognizes that in the end, “it all runs through immigration and asylum!” The failure to establish a sound, independent, institutionalized due process and equal justice foundation at the U.S. Immigration Courts, the “retail level” of our courts, now threatens to infect and topple the entire U.S. justice system! We need to end “Dred Scottification” before it eradicates all of our individual rights.
A federal judge in Maryland has granted an undocumented Indonesian immigrant temporary reprieve from deportation, ruling Friday evening that immigration authorities cannot remove him from the country until he has a chance to pursue religious asylum.
Binsar Siahaan, a 52-year-old father to two U.S. citizens, attracted considerable support from faith-based activists nationwide after he was arrested by U.S. Immigration and Customs Enforcement last month at his home on the grounds of Glenmont United Methodist Church in Silver Spring, Md. He and his wife, also an undocumented Indonesian immigrant, work there as church caretakers.
Siahaan’s attorneys, Elsy Ramos Velasquez and Patrick Taurel, had argued the arrest was made under false pretenses, without a warrant and in violation of ICE’s policy that typically prohibits agents from making arrests on church property. They also argued that Siahaan, who is Christian, should not be deported to majority-Muslim Indonesia until he has a chance to fully pursue religious asylum.
On Friday, U.S. District Judge Paul Grimm agreed, granting Siahaan a preliminary injunction that blocks ICE from removing him from the country until the Board of Immigration Appeals, or a higher federal court, makes a ruling on his pending appeal. Siahaan is being held at a detention center in Georgia, where he was transferred from Baltimore to await deportation. Grimm also ordered ICE to bring him back to Baltimore, where he will remain in custody closer to his family.
“When the ruling came down, we were really relieved,” said the Rev. Kara Scroggins, pastor at Glenmont United Methodist. “We’re glad that he’s closer to home at the detention facility in Baltimore, but we’re going to keep fighting until he’s home with his family.”
ICE could not immediately be reached for comment Saturday but previously said Siahaan was arrested “after he received full due process in the nation’s immigration courts.”
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Read the full article at the link.
Hats off to the litigation team and to U.S. District Judge Paul Grimm! By ordering ICE to return Siahaan to Maryland, rather than detaining him in Georgia, generally known as one of the worst places in the “New American Gulag,” Judge Grimm took the kind of effective action necessary to stop the abusive actions of ICE and to guarantee real due process!
In a functioning system with an independent U.S. Immigration Court comprised of Judges with expertise in asylum and human rights laws and a commitment to due process and the rule of law, Immigration Judges could take the actions necessary to protect fundamental rights and hold ICE accountable without constant resort to the U.S. District Courts. A “captive” Immigration Court, where Immigration Judges are subservient to Billy the Bigot Barr and pressured to act as “ICE enforcement in robes” ill-serves the national interest! It’s also highly inefficient and wasteful of public resources!
Thanks to my good friend Deb Sanders for bringing this incident to my attention!
A federal judge has ordered that the 2020 Census count continue until Oct. 31, blocking for now the government’s efforts to complete the survey in time to deliver apportionment data to the president by the end of the year.
The ruling late Thursday night by U.S. District Judge Lucy Koh of the Northern District of California follows a tense week in which the government appeared to try to circumvent a preliminary injunction against ending the count early.
After a surprise announcement Monday that the bureau was moving the end date by just five days, from Sept. 30 to Oct. 5, plaintiffs in the case asked Koh to provide clarification of her earlier order and other sanctions.
Rejecting the government’s argument that the request was “an attempt to radically modify the preliminary injunction,” Koh’s new ruling clarified that the end date for collection must revert to Oct. 31, as the bureau had originally planned.
It also ordered that on Friday, the government must send text messages to all Census Bureau employees notifying them of the Oct. 31 end date, and that Director Steven Dillingham must file a declaration by Monday that “unequivocally confirms Defendants’ ongoing compliance with the Injunction Order and details the steps Defendants have taken to prevent future violations of the Injunction Order.”
The suit, brought by the National Urban League and a group of counties, cities and others, said a truncated schedule would irreparably harm communities that might be undercounted.
On Friday, Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, which is arguing the case, said, “Once again, the court has stopped the administration in its tracks.”Noting that some states with significant minority populations still face an undercount, she added, “Much work remains to be done to achieve an accurate census count that satisfies constitutional standards.”
The Justice and Commerce departments did not respond to requests for comment.
The government had appealed Koh’s Sep. 24 injunction to the U.S. Court of Appeals for the 9th Circuit, which denied the appeal Tuesday.
Nevertheless, Koh found that after her injunction, the government continued to tell employees to wind down operations by Sept. 30, and the Census Bureau’s website, “which is updated daily,” continued for four days after her injunction to say that data collection would end that day.
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Read the rest of the article at the link.
So, when is Judge Koh going to jail Wilber Ross, his census toadies, Billy the Bigot, and the DOJ lawyers who continue to defend clearly lawless, dishonest, and contemptuous actions in court? Why have corrupt Federal officials and their lawyers become exempt from ethical requirements and, in the case of lawyers, their role as “officers of the court?”
In the absence of any justifying change in fact or law, the Attorney General (“AG”) has reopened Mr. Chowdhury’s case fourteen (14) years after he received a final decision on the merits of his claim for asylum following a full evidentiary hearing before the Immigration Judge (“IJ”) and a complete and fair review by the Board of Immigration Appeals (“BIA” or “Board”).
The AG’s invocation of his self-referral authority is wholly improper here. As an initial matter, the AG lacks the authority to reopen and terminate asylum cases once asylum has been granted by an IJ or the Board. But even if the AG had such authority, doing so in this case constitutes ultra vires conduct in violation of Mr. Chowdhury’s due process rights given the excessive and unreasonable delay in referral. The referral is additionally improper because, under the principles of res judicata, there should be a finality and certainty to judgments, particularly where there is no change in fact or law and so much time has passed. In addition, it appears that the AG is succumbing to political pressure from the Executive branch and is reopening the case to align with its foreign policy to aid Bangladesh. Such bias and political motivation is contrary to our immigration system, and indeed our entire legal system. Lastly, the unjustified and excessive delay in reviewing Mr. Chowdhury’s case violates his due process rights and runs contrary to the humanitarian intent of the law.
The AG’s decision to intervene unfairly and unlawfully in a long-settled asylum case infringes the sense of safety, security, and wellbeing of not only Mr. Chowdhury and his family, but also tens of thousands of other asylees who have made their homes in the U.S. in reliance on asylum and protection from persecution and in many cases, violence, in their countries of origin. The Amici Curie respectfully urge the AG to leave Mr. Chowdhury’s asylum case undisturbed, thereby respecting his rights as well, as the rights of the tens of thousands of asylees who have been granted refuge here, and maintaining the fair and impartial adjudication process in place.
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Read the entire brief at the above link.
Many thanks again to Nancy and her pro bono team at Arent Fox!
“The Trump administration proposed its annual refugee admissions ceiling just before midnight on Wednesday, September 30, committing to resettle just 15,000 individuals in Fiscal Year 2021, which would be the lowest admissions ceiling since the inception of the U.S. Refugee Admissions Program (USRAP).
The announcement comes on the heels of what was previously the lowest level of refugee admissions in American history. For FY 2020, which ended on September 30, the administration had set a goal to welcome just 18,000 refugees, in stark contrast to the average admissions ceiling of approximately 95,000 since the beginning of the USRAP. Despite this historically low target, the administration barely attained 65% of allotted admissions – resettling only 11,814 refugees this fiscal year, according to Lutheran Immigration and Refugee Service.
“In just four years, this Administration has cut the refugee resettlement program from 110,000 to a historic low of fifteen thousand. At a time of unprecedented global need, today’s decision to further cut the refugee admissions ceiling is a complete abdication of our humanitarian and moral duty.” said Krish O’Mara Vignarajah, president and CEO of Lutheran Immigration and Refugee Service, a resettlement agency that has welcomed hundreds of thousands of refugees since 1939. “Let this serve as a wake-up call to those who believe this administration supports avenues of legal immigration. Refugees go through extreme vetting and have done everything our government has asked of them, yet they continue to be met with open hostility and egregious processing delays from this administration”
The record-low admissions figures have also disproportionately impacted certain groups. Admissions of Muslim refugees have declined to just 2,503, down from approximately 38,900 in FY 2016 and approximately 4,900 in FY 2019. Additionally, the Trump administration set aside 4,000 slots for Iraqi allies who assisted U.S. interests in their home country. However, it fell drastically short, resettling only 123 individuals in this category, or just 3% of the admissions goal.
“It shows the tragic extent to which we have abandoned our Iraqi allies who risked their lives, and those of their family members, to assist U.S. government and military personnel,” noted Vignarajah. “This further undermines our diplomatic and military efforts, rendering it nearly impossible to garner support from regional allies moving forward.”
Given FY2020’s record-low admissions numbers and an FY2021 proposed admissions ceiling of only 15,000, refugee advocates are deeply concerned by the human toll on the most vulnerable.
“In real terms, this means that families who have already waited years are forced to postpone reunification. It means that thousands who would otherwise find safety on our shores are left to languish in refugee camps, with no end in sight,” concluded Vignarajah. “This heartless decision is diametrically opposed to our values as a welcoming nation and it dishonors our common humanity at a time of dire need.”
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Here’s then”Trump Regression” — From international leader, to outlier, to outlaw state!🏴☠️
This Fall, vote for a return to humanity and the rule of law!
A federal judge on Thursday ordered the Trump administration not to release a report by the Presidential Commission on Law Enforcement and the Administration of Justice, finding that the group ― comprised entirely of current and former members of law enforcement ― had been “far from transparent.”
Senior U.S. District Judge John Bates, a George W. Bush appointee, issued a 45-page ruling finding that commission ― which President Donald Trump announced with fanfare at a police conference last year ― had violated the Federal Advisory Committee Act (FACA), which requires that committees be “fairly balanced” in the viewpoints represented.
Attorney General William Barr said there was a need to hear from a “diversity of backgrounds and perspectives,” but the commission was full of law enforcement officials. Bates’ order requires Barr “to ensure the Commission has a fairly balanced membership.”
Last month, as HuffPost previously reported, an elected prosecutor quit one of the commission’s working groups because he worried that it was “providing cover” for a predetermined law-and-order agenda that “will only widen the divisions in our nation.”
Bates wrote that the commission’s membership “consists entirely of current and former law enforcement officials” and that no commissioner “has a criminal defense, civil rights, or community organization background.”
“Especially in 2020, when racial justice and civil rights issues involving law enforcement have erupted across the nation, one may legitimately question whether it is sound policy to have a group with little diversity of experience examine, behind closed doors, the sensitive issues facing law enforcement and the criminal justice system in America today,” he wrote.
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Read the full article at the link.
YOUR tax dollars being squandered by corrupt AG on White Nationalist political propaganda. But, given that Billy the Bigot is siphoning off money from the public to fund the campaign of a racist President and his racist GOP “party,” that should be little surprise!
Billy is a one-man illegality machine. 🏴☠️ But, rarely does a Federal Judge call out his personal illegal and unethical conduct this clearly!
Days before they were to go into effect, a federal court in the Northern District of California issued a national injunction blocking a dramatic fee hike for appliations for naturalized citizenship, permanent residency, asylum, and access to other immigration benefits. The new fees would have made immigration benefits unattainable for many. It would have nearly doubled citizenship from $640 to $1,170; increased lawful permanent residency and related application fees from $1,125 to $2,270; and added a $50 fee for asylum applications (the first time a fee has been assessed for asylum applications). The rule would have also eliminated most fee waivers for immigrants who cannot afford to pay the fees.
Judge Jeffrey White ruled that the nonprofit organizations that had challenged the fee increases would be likely to prevail in showing that Wolf’s appointment as Acting Director of the U.S. Department of Homeland Security, without Senate confirmation, violated the rules of succession. As a result, the fees ordered under his stewardship cannot take effect while the litigation progresses. Similar reasoning had been used in a separate lawsuit regarding Ken Cucinelli and his asylum directives.
MHC
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MHC = Professor Ming Hsu Chen one of the all-star ⭐️ team of bloggers at ImmigrationProf Blog. Thanks, Professor, for this timely item! These illegal and clearly punitive fee increases were scheduled to into effect at the beginning of October!
Ming Hsu Chen Associate Professor of Law Colorado Law Courtesy Appointment in Political Science Ethnic Studies Faculty Affiliate Faculty-Director, Immigration and Citizenship Law Program Photo: ImmmigrationProf/ Col. Law
This is also a great illustration of why, totally contrary to the nonsense GOP party line and folks like GOP-owned Justices Thomas and Gorsuch, the nationwide injunction is an essential tool for achieving justice. According to the GOP’s false dogma, plaintiffs, many pro se, or appearing with pro bono or “low bono” representation, should be required to win their cases before over 650 U.S. District Judges and in 12 Circuits to get effective relief from the Trump regime’s unrelenting war on our Constitution and the rule of law.
While Trump and his GOP toadies and sycophants spout BS platitudes about “law and order” the truth is simple: This is a party of arrogant, immoral “scofflaws” from top to bottom!
This Fall, vote like your life and our future as a nation depend on it! Because they do! Vote the GOP kakistocracy out at every level! Don’t let their dark & dishonest plans become YOUR future!☠️⚰️
Bill Barr Consigliere Artist: Pat Bagley Salt Lake Tribune Reproduced under license“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
From the EOIR website:
Garry Malphrus
Deputy Chief Appellate Immigration Judge
Attorney General William P. Barr appointed Garry Malphrus as a deputy chief appellate immigration judge in September 2020. Judge Malphrus earned a Bachelor of Arts in 1989 from the University of South Carolina and a Juris Doctor in 1993 from the University of South Carolina. From August 2008 to September 2020, he served on the Board of Immigration Appeals, Executive Office for Immigration Review, including as acting board chairman from October 2019 to May 2020. From 2005 to 2008, he served as an immigration judge at the Arlington Immigration Court. From 2001 to 2005, he served as associate director of the White House Domestic Policy Council. From 1997 to 2001, he worked for the U.S. Senate Committee on the Judiciary, which included serving as chief counsel and staff director on the Subcommittee on Criminal Justice Oversight and the Subcommittee on the Constitution. From 1995 to 1997, Garry served as a law clerk for the Honorable Dennis W. Shedd, U.S. District Judge for the District of South Carolina. From 1994 to 1995, he was a law clerk for the Honorable William W. Wilkins of the U.S. Court of Appeals for the Fourth Circuit. From 1993 to 1994, he was a law clerk for the Honorable Larry R. Patterson, Circuit Judge for South Carolina. Judge Malphrus is a member of the South Carolina Bar.
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No surprise here, folks, as Courtside had predicted this back in May:
This appears to be the “penultimate step” in the ongoing process of “benching” the long-time “holdover” Vice Chair Chuck Adkins-Blanch. First, he was “passed over” when Judge Malphrus became the BIA’s Acting Chair following the hasty departure of former Chair David Neal. Now, Malphrus basically has been “layered in” to be the “real Deputy,” who will faithfully continue to carry out Billy’s nativist political agenda, presumably until Adkins-Blanch reaches retirement and finally pulls the plug.
Needless to say, Judge Adkins-Blanch’s name has been conspicuously absent from the BIA’s most recent barrage of anti-immigrant, anti-asylum “precedents.” That is, of course, the “precedents” that Billy lets the BIA write as opposed to the ones that he and his fellow political hacks at “Main DOJ” issue as “AG precedents.”
More and more, the AG, whom nobody except, perhaps, a few intentionally tone-deaf Circuit Court of Appeals Judges, would mistake for an “expert” in immigration law, has taken over the BIA’s precedent setting function. That leaves the BIA basically to do the “mop-up work” of maximizing the impact of Billy’s anti-immigrant policies and insuring that just and fair results below favoring immigrants are reversed upon demand of “EOIR’s masters” at DHS Enforcement.
Talk about the need for an Article I Court with a new cast of characters selected on a merit basis for their demonstrated immigration expertise, and established commitment to due process, fundamental fairness, equal justice, human rights, and practical applied scholarship! That so many Article III judges continue to “go along to get along” with this vile legal charade says some pretty sad things about the overall state of justice and the judiciary in America!
An Article I Court requires judicial leadership that replaces “built to fail ‘Vatican Style’ (or “Legacy INS Style”) hierarchical bureaucracy” with professional court administration and a much “leaner and flatter” judicial structure. A judicial structure where most resources are devoted to actually fairly and efficiently deciding cases, establishing “best practices,” and leading by example. That would eliminate the “Mickey Mouse” demeaning “control freak supervision (“suppression”)” of supposedly senior level “judges” who, if properly selected, would need effective support, but little to no “supervision” in the normal bureaucratic sense of the term.
In the meantime, expect the backlog to grow unabated and the Article IIIs to continue to reverse and return an essentially random selection of the BIA’s reliably “one-sided” jurisprudence for “redos!” That will further increase the backlog without effectively addressing the fundamental problem of an unconstitutional system with a clearly established anti-immigrant political bias!
Just more signs of an Americanjustice system now in the throes of institutional failure!
The Board of Immigration Appeals has issued a decision in the Matter of J-G-T-, 28 I&N Dec. 97 (BIA 2020)
(1) In assessing whether to admit the testimony of a witness as an expert, an Immigration Judge should consider whether it is sufficiently relevant and reliable for the expert to offer an informed opinion, and if it is admitted, the Immigration Judge should then consider how much weight the testimony should receive.
(2) In considering how much weight to give an expert’s testimony, the Immigration Judge should assess how probative and persuasive the testimony is regarding key issues in dispute for which the testimony is being offered.
PANEL:MALPHRUS, MULLANE, and CREPPY , Appellate Immigration Judges.
OPINION BY: MALPHRUS, Appellate Immigration Judge
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In this case, the BIA sent an asylum grant well-supported by expert opinion back to the IJ for no particular reason other than the DHS didn’t like the result.
The message: The IJ should always look for reasons to disallow, disbelieve, or diminish the weight of the asylum applicant’s persuasive evidence. The IJ should always be looking for “any reason to deny” asylum applications because that’s what Billy wants from his wholly-owned. “judges.”
To quote my friend and Round Table colleague retired IJ Jeffrey S. Chase:
[The BIA], McHenry, and Barr are engaging in tag-team destruction of asylum.So this gives the signal to ignore country experts when their opinions support grants of asylum.Which was stated more explicitly in the proposed 161-page asylum regs.And then if the IJ relies on the DOS report, the Board or AG will say the quoted passage was too vague and generalized to support a finding of social distinction or nexus.
The good news is that a number of brigades of the NDPA are hard at work on comprehensive alternative expert country reports that are much more accurate and well-documented than current DOS propaganda. A number of Courts of Appeals already have “called out” the BIA for routinely ignoring evidence and expert opinions favorable to asylum applicants.
I certainly hope they will see through and expose this rather transparent attempt to further “game the system” against asylum applicants. Actually, under the U.N. Handbook asylum seekers are supposed to receive the “benefit of the doubt.” But, not from this scofflaw regime and their toadies masquerading as “judges.”
It’s also worth noting that this case has already been pending for almost a decade. Obviously, time is no object for EOIR when it comes to looking for ways to deny asylum.
The Times obtained Donald Trump’s tax information extending over more than two decades, revealing struggling properties, vast write-offs, an audit battle and hundreds of millions in debt coming due.
Donald J. Trump paid $750 in federal income taxes the year he won the presidency. In his first year in the White House, he paid another $750.
He had paid no income taxes at all in 10 of the previous 15 years — largely because he reported losing much more money than he made.
As the president wages a re-election campaign that polls say he is in danger of losing, his finances are under stress, beset by losses and hundreds of millions of dollars in debt coming due that he has personally guaranteed. Also hanging over him is a decade-long audit battle with the Internal Revenue Service over the legitimacy of a $72.9 million tax refund that he claimed, and received, after declaring huge losses. An adverse ruling could cost him more than $100 million.
The tax returns that Mr. Trump has long fought to keep private tell a story fundamentally different from the one he has sold to the American public. His reports to the I.R.S. portray a businessman who takes in hundreds of millions of dollars a year yet racks up chronic losses that he aggressively employs to avoid paying taxes. Now, with his financial challenges mounting, the records show that he depends more and more on making money from businesses that put him in potential and often direct conflict of interest with his job as president.
The New York Times has obtained tax-return data extending over more than two decades for Mr. Trump and the hundreds of companies that make up his business organization, including detailed information from his first two years in office. It does not include his personal returns for 2018 or 2019. This article offers an overview of The Times’s findings; additional articles will be published in the coming weeks.
The returns are some of the most sought-after, and speculated-about, records in recent memory. In Mr. Trump’s nearly four years in office — and across his endlessly hyped decades in the public eye — journalists, prosecutors, opposition politicians and conspiracists have, with limited success, sought to excavate the enigmas of his finances. By their very nature, the filings will leave many questions unanswered, many questioners unfulfilled. They comprise information that Mr. Trump has disclosed to the I.R.S., not the findings of an independent financial examination. They report that Mr. Trump owns hundreds of millions of dollars in valuable assets, but they do not reveal his true wealth. Nor do they reveal any previously unreported connections to Russia.
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Read the full report at the link.
Duh! According to NBC’s Stephanie Ruhle, an American who actually worked for a living and made $18,000 would pay $760 in taxes.
Not much of a surprise to those familiar with Trump’s endemic lies, corruption, and dishonesty. You can be sure that whatever lies and misdirection Trump spews forth about this report, it will have little or nothing to do with truth.
Sorry for the small print. But, well worth the read.
Compare the courage and fidelity to due process, fundamental fairness, equal justice for all, and defense of human dignity demonstrated by brilliant lawyers like Michelle Mendez, Aimee Mayer Salins (former BIA JLC), and the terrific CAIR litigators with the warped right wing, anti-constitutional, anti-humanity jurisprudence of Trump’s Supreme Court choice, Judge Amy Coney Barrett:
Faced with two plausible readings of a law, fact, or precedent, Barrett always seems to choose the harsher, stingier interpretation. Can job applicants sue employers whose policies have a disproportionately deleterious impact on older people? Barrett said no. Should courts halt the deportation of an immigrant who faced torture at home? Barrett said no. Should they protect refugees denied asylum on the basis of xenophobic prejudice? Barrett said no. Should they shield prisoners from unjustified violence by correctional officers? Barrett said no. Should minors be allowed to terminate a pregnancy without telling their parents if a judge has found that they’re mature enough to make the decision? Barrett said no. Should women be permitted to obtain an abortion upon discovering a severe fetal abnormality? Barrett said no.
There is no question that, if confirmed, Barrett would cast the fifth vote to either hollow out Roe v. Wade or overturn it altogether. Similarly, there is no doubt that Barrett would dramatically expand the Second Amendment, invalidating gun control measures around the country. It’s quite possible, perhaps even likely, that within a year of her confirmation, Americans will be forbidden from terminating a pregnancy in 21 states—but permitted to purchase assault weapons and carry firearms in public in every state.
In other words, guns yes; human rights and human dignity, no! Some lawyers spend their lives saving lives and advancing humanity; others spend them pursuing and spreading anti-humanitarian, right wing dogmas. Why are commitments to cruelty, inhumanity, and a fundamentally unjust society things to “tout” in a judicial candidate? You need to look inside the deep perversity of the GOP minority who control our nation and are running it into the ground to get the answer.
There are thousands of progressive lawyers, many of them women and minorities, committed to standing up for equal justice for all who are better qualified than Judge Barrett. There is something wrong with a system that elevates the wrong people to the judiciary and other high offices.
It’s time to establish meritocracy and save our democracy. Vote to throw the GOP out of office and end the selection of far-right judges whose reactionary views and lack of empathy for the most vulnerable in society are far outside both the reality of our diverse nation and our future as a vibrant, progressive democracy that will promote equal justice and human rights at home and abroad!
Keep the future Judge Barretts where they belong — on the sidelines and in the margins of our legal system, while those with a better view of the Constitution, the rule of law, and human progress take their rightful places in positions of power and progressive influence in all there branches of our Government.
Judge Barrett parrots great admiration for RBG while aiming to trash her legacy of fairness and equality with a far-right, exclusive, intolerant agenda. In the future, we need Federal Judges who will constantly confront Judge Barrett, her soon-to-be-fellow GOP Supremes, and other righty judges bent on taking us back to the darkest corners of our past. Make them face the truly courageous and enlightened legacy of RBG and others like her. Force the “Barretts of the world” to reckon with their own smugly disingenuous jurisprudence and their lack of commmitment to humanity and true equality before the law for all persons in the U.S.! Constantly confront complicit courts for change!
Better judges for a better, fairer America!
This Fall, vote like your life and the future of humanity depend on it! Because they do!
Hon. Ilyce Shugall U.S. Immigraton Judge (Retired) Director, Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration JudgesHonorable Joan Churchill Retired U.S. Immigration Judge Member Round Table of Retired JudgesHon. Cecelia M.Espenoza Former Appellate Immigration Judge, BIA Source: Denverdemocrats.orgHon. Rebecca Jamil U.S. Immigration Judge (Ret.) Source: Twitter
The Round Table of Former Immigration Judges is composed of 47 former Immigration Judges and Appellate Immigration Judges of the Board of Immigration Appeals. We were appointed by and served under both Republican and Democratic administrations. We have centuries of com- bined experience adjudicating asylum applications and appeals. Our members include nation- ally-respected experts on asylum law; many regularly lecture at law schools and conferences and author articles on the topic.
Our members issued decisions encompassing wide-ranging interpretations of our asylum laws during our service on the bench. Whether or not we ultimately reached the correct result, those decisions were always exercised according to our “own understanding and conscience,”1 and not in acquiescence to the political agenda of the party or administration under which we served.
We as judges understood that whether or not we agreed with the intent of Congress, we were still bound to follow it. The same is true of the Attorney General, Secretary of Homeland Security, and for that matter, the President.
INTRODUCTION
Initially we note that the current practice of reducing the time for notice and comment, severely undermines the ability for the public to digest and comment on rules. The reduction of time to
1 See Accardi v. Shaughnessy, 347 U.S. 260, 266-67 (1954). 1
30 days violates the intent of Congress to give full deliberation to regulatory changes. As experi- enced adjudicators, we are in a unique position to contextualize these changes, but even with our experience, the breadth of these proposed regulations should allow for additional time to review and comment.
Next, we note that the Notice of Proposed Rulemaking (NPRM), contains changes that continue to diminish the role and function of the Board of Immigration Appeals (BIA) as an independent adjudicatory body free from political pressure. For example, the granting of certification author- ity to judges who are supposed to be subject to the appellate review of the BIA, does not further the objectives of finality or due process. Further, these rules are slanted in ways that diminish actions and take away tools used by Immigration Judges and Board to manage dockets and en- sure consideration of changed circumstances that might arise for either party. Under the NPRM, the Department of Homeland Security is invited to utilize unlimited power to reopen cases for negative information, and all opportunity for respondents to obtain reopening for new infor- mation have been removed.
In our review we do not object to the clarifications and changes regarding: 1) finality; 2) the ex- pansion of the authority to grant voluntary departure to the BIA; and 3) having cases that only need security checks being placed on hold by the BIA.
However, we do object to: 1) the proposed shortened briefing schedule; 2) simultaneous briefing in non-detained cases; 3) the prohibition from receiving new evidence on appeal, remanding a case for the immigration judge to consider new evidence in the course of adjudicating an appeal, or considering a motion to remand based on new evidence; 4) the elimination of the ability of immigration judges to consider issues beyond the express scope of the remand; 5) giving Immi- gration Judges Certification Authority over BIA decisions; 5) the proposed elimination of admi- nistrative closures; 6) the proposed elimination of the delegation of sua sponte reopening author- ity; 7) removal of BIA certification authority; 8) the imposition of new deadlines and timeframes for adjudication of appeals with those failing to be adjudicated in the specified time being re- ferred to the EOIR Director for adjudication; and 9) the elimination of Immigration Judge review of transcripts.
In short, there is little in the NPRM, that furthers the interests of ensuring a fair and neutral adju- dication. We are concerned with the overall diminishment of the BIA as an appellate body.
Read the full 17-page comment with the names of all the signers here:
The Attorney General has issued a decision in Matter of A-C-A-A-, 28 I&N Dec. 84 (A.G. 2020)
In conducting its review of an alien’s asylum claim, the Board of Immigration Appeals (“Board”) must examine de novo whether the facts found by the immigration judge satisfy all of the statutory elements of asylum as a matter of law. See Matter of R‑A‑F‑, 27 I&N Dec. 778 (A.G. 2020).
When reviewing a grant of asylum, the Board should not accept the parties’ stipulations to, or failures to address, any of the particular elements of asylum—including, where necessary, the elements of a particular social group. Instead, unless it affirms without opinion under 8 C.F.R. § 1003.1(e)(4)(i), the Board should meaningfully review each element of an asylum claim before affirming such a grant, or before independently ordering a grant of asylum. See Matter of L‑E‑A‑, 27 I&N Dec. 581, 589 (A.G. 2019).
Even if an applicant is a member of a cognizable particular social group and has suffered persecution, an asylum claim should be denied if the harm inflicted or threatened by the persecutor is not “on account of” the alien’s membership in that group. That requirement is especially important to scrutinize where the asserted particular social group encompasses many millions of persons in a particular society.
An alien’s membership in a particular social group cannot be “incidental, tangential, or subordinate to the persecutor’s motivation . . . [for] why the persecutor[] sought to inflict harm.” Matter of A‑B‑, 27 I&N Dec. 316, 338 (A.G. 2018) (citations omitted). Accordingly, persecution that results from personal animus or retribution generally does not support eligibility for asylum.
To state the obvious, “personal animus” and “retribution” often are involved in cases where race, religion, nationality, membership in a particular social, or political opinion is “at least one central reason” for the persecution. That’s what the “mixed motive” doctrine is all about.
Look at Nazi Germany where many of the persecutors stood to gain personally or professionally or to extract retribution from the removal of their Jewish neighbors or former colleagues from society. What do you think happened to the property, possessions, and positions of those sent off to be gassed?
Billy the Bigot’s unethical, illegal, and immoral attempt to rewrite asylum law is part and parcel of the “any reason to deny” program aimed disproportionally at women (probably the “most persecuted social group in the world“) and applicants of color. Yet, time and again, Article III Courts fail to effectively “call out” this racism and misogyny driving an illegal rewrite of asylum laws! Asylum is intended to “protect, not reject.”
Also to state the obvious, this decision makes party stipulations, a key to fairly reducing the backlog and achieving justice in an adversary system, meaningless. Applied across the board, this would basically disable the American justice system at both the Federal and State levels.
But, of course, the Bigot’s real intent is to dump on asylum seekers, who tend to be individuals of color. The same standards won’t necessarily be applied when the interests of certain privileged White folks are at stake. It’s the unconstitutional, intentionally “unequal justice system” promoted by the GOP.
It’s another example of “Dred Scottification” of minorities and the most vulnerable by the regime and the Federal Courts. Once, a better qualified Supremes required the Executive to carry out the statutory mandate of a generous asylum system that complied with international standards (INS v. Cardoza-Fonseca). Now, it’s all about the Supremes’ majority’s furthering the regime’s White Nationalist agenda!
The Supremes’ GOP majority has been too intellectually dishonest and past Dem Administrations too “willfully dense” to connect the dots. But, this type of neo-Fascist nonsense by a bigot totally unqualified for public office, let alone purporting to serve in a quasi-judicial capacity, is a gross violation of established ethical standards that ties directly into the breakdown in the fabric of our society in a crescendo of racism, bigotry, false narratives, public mistrust, and authoritarianism! Lawyers with immigration and human rights experience recognize this, even if others are blind — whether willfully or negligently.
There is no excuse for an intentionally enfeebled, intellectually dishonest, and too often anti-democracy Federal Judiciary that has failed to hold Trump, Barr, Wolf, Miller, Francisco, and other other members of the anti-democracy, Jim Crow movement that drives today’s GOP accountable for their unethical, unconstitutional conduct, overt racism, and other gross misdeeds!
Better judges for a better America! Vote the kakistocracy out this Fall and usher in the age of the “Radical Progressive Humanitarian Judiciary” before it’s too late! Equal justice applies to all persons, not just Billy the Bigot’s favored, largely White male, class.
Convicted felons get reduced sentenced and motions to dismiss charges. Corrupt public officials avoid the law and mock ethical standards. Refugees of color get banishment and death!
“At least they weren’t asked to wear masks or socially distance; now that would have been a real crime against humanity,” says Billy the Bigot. Public realm
Washington (CNN)Democratic South Carolina Rep. Jim Clyburn got right to the point when asked about Attorney General William Barr’s comment on Wednesday that calls for a nationwide lockdown to stem the spread of the novel coronavirus were the “greatest intrusion on civil liberties” in US history “other than slavery.”
“I think that that statement by Mr. Barr was the most ridiculous, tone-deaf, God-awful thing I’ve ever heard,” Clyburn, longtime Black leader from South Carolina, said on Thursday. “It is incredible, as chief law enforcement officer in this country, to equate human bondage to expert advice to save lives. Slavery was not about saving lives. It was about devaluing lives.”
Slavery was not about saving lives. It was about devaluing lives. For hundreds of years, enslaved Africans were beaten, tortured, raped and treated as property.
Or as the author Isabel Wilkerson puts it in her new book, “Caste: The Origins of Our Discontents”: “The institution of slavery was, for a quarter of a millennium, the conversion of human beings into currency, into machines who existed solely for the profit of their owners, to be worked as long as the owners desired, who had no rights over their bodies or loved ones.”
In this system, African captives “could be mortgaged, bred, won in a bet, given as wedding presents, bequeathed to heirs, sold away from spouses or children to cover an owner’s debt or to spite a rival or to settle an estate,” Wilkerson writes.
That Barr painted a few months of being told — or as it was in many cases, asked — to stay home during a global pandemic as being even remotely in the same category as the practice of enslavement is ridiculous. (To say nothing of the fact that he skipped over, among other things, Jim Crow, Japanese internment during World War II and the slaughter of Native Americans.)
But even during a summer that’s been seized by a racial reckoning, the attorney general’s comment was the furthest thing from surprising.
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Read the rest of the article at the link.
Up until recently, it might have seemed surprising to have an Attorney General more than century and a half after the end of the Civil War spread such blatantly racist, intentionally ignorant, anti-historical nonsense! But, under the Trump regime, racist tropes and policies as well as historically and factually false claims have become the norm.
This Fall, vote like your life and the future of America depend on it. Because they do!
U.S. law and the United Nations Convention and Protocol Relating to the Status of Refugees also require the United States to accept political asylum claims presented at the U.S. border and to not return applicants to a place where their “life or freedom would be threatened.” These conditions were, of course, not met with respect to El Salvador, Guatemala, and Honduras. The Trump administration later ceased referring to the agreements with these Central American countries as “Safe Third Country” agreements and used the term “Asylum Cooperation Agreements,” perhaps in a cynical attempt to avoid U.S. law and regulations.
What Murphy’s Complaint Reveals
According to his whistleblower complaint (footnote 1 at pages 9-10) and earlier anonymous reports he filed with the DHS Office of Inspector General, career DHS intelligence official Brian Murphy presented intelligence reports to political appointees in DHS which found “high levels of corruption, violence, and poor economic conditions” in all three countries. It was no surprise that Murphy’s complaint recounts that in December 2019, as the Trump administration was sending the first asylum seekers to Central America, then Acting Assistant Secretary of DHS Ken Cuccinelli ordered Murphy to change those reports.
According to Murphy, Cuccinelli not only claimed the reports must be false, but also attributed them to forces within the intelligence community hostile to the President. He accused “unknown ‘deep state intelligence analysts’ of compiling intelligence information to undermine President Donald J. Trump’s policy objectives with respect to asylum.” According to Murphy, Cuccinelli further ordered him to identify those “who compiled the intelligence reports and to either fire or reassign them immediately” (see page 9 of Murphy’s complaint).
With respect to the policy rationale to support spending millions of dollars on a border wall, Murphy’s complaint recounts how he was asked to reinterpret and rewrite intelligence reports about Known or Suspected Terrorists (KSTs) attempting to enter the United States from Mexico to fit the White House’s policy arguments about the need for a wall. In several meetings during 2018 and 2019, Murphy delivered intelligence to then DHS-Secretary Kirstjen Nielsen and other officials that the actual number of individually-documented KSTs was very tiny. Despite Murphy’s briefings, Nielsen and other officials in DHS issued documents and gave congressional briefings in which they greatly exaggerated the numbers, inflating a figure of 3 KSTs to over 3,000. (Murphy’s attorney has provided an amended complaint to correct an error in the original version of these events.) At one meeting in December 2019, after Murphy contradicted his superiors regarding the number of KSTs crossing into the United States, he was removed from the meeting by now interim DHS Secretary Chad Wolf (as noted in his amended complaint at pages 5-8).
Brian Murphy’s Whistleblower complaint confirms what the public has seen so often: White House officials and political appointees in federal agencies willing to hide carefully investigated and proven facts in order to substitute lies more in keeping with White House policy goals.
DHS Secretary-designate Chad Wolf is supposed to testify before a House panel later this week. Let’s hope he gives truthful answers to all the questions raised in Brian Murphy’s complaint.
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Read the rest of Susan’s article at the link.
Hey, 3 known “suspected” terrorists vs 3,000!What’s the big deal? They both contain the number “3.”
This is the type of demonstrable nonsense that the Supremes’ majority disingenuously accepts in letting the regime declare bogus “immigration emergencies” and stomp all over the legal and constitutional rights of asylum seekers! Real people die, get tortured, and have their lives destroyedbecause elitist judges have removed themselves from humanity and kowtow to a scofflaw, corrupt, immoral Executive. This is what a failing democracy and a complicit judiciary look like.
I appreciate Susan’s optimistic hope in the last paragraph. But, the chance “Wolfman,” an “illegal,” will tell Congress the truth under oath is zero.
All three branches of our failing Government have conspired to insure that his lies and illegal actions will have no meaningful consequences for him or any of his co-conspirators. Only the health, safety, and lives of his, Trump’s, Miller’s, Barr’s, Session’s, and “Cooch’s” victims are on the line.
In the meantime, refugees entitled to protection under U.S. and international law continue to be returned to dangerous and deadly conditions in the Northern Triangle without due process or indeed any process whatsoever. Indeed, with the help of disingenuous Federal Courts, the regime has effectively repealed U.S. protection laws without enacting a single piece of legislation!
One of many unfortunate “practical consequences” of the Article IIIs overall lack of critical review: In addition to having to fight the unethical and often frivolous litigation “strategies and gimmicks” of the regime and the DOJ, advocates, often serving pro bono or low bono, now bear the burden of preparing their own “Country Reports” to rebut the falsified, misleading, and highly politicized versions of country conditions presented in DOS “Country Reports.”
The latter used to be considered the “international gold standard” for determining country conditions in asylum and refugee adjudications (although true expert judges and adjudicators still viewed them critically). Now, they are little more than “political propaganda screeds” for a corrupt, White Nationalist, bigoted regime.
But, most Article IIIs have been intentionally or negligently “asleep at the switch,” still disingenuously “deferring” to these deeply defective and intentionally misleading, sometimes fictionalized, accounts. For example, almost any legitimate asylum expert would say that Jeff “Gonzo Apocalypto” Sessions’s largely fictionalized account of conditions for women in El Salvador, presented in Matter of A-B-, 27 I&N Dec. 316 (AG 2018), bears little resemble to reality.
Of course, the political branches have authority to set policy — but only within Constitutional and legal limits. Clearly, that authority to direct the activities of civil servants does not include authority to ignore facts and create false narratives in support of overtly racist, religiously bigoted, or improperly politically punitive agendas. Any Federal Judge who looks the other way when such overtly invidious objectives and motives are at work is derelict in his or her duty.
Our democracy is in deep trouble. And, to get it fully functioning and finally achieve the promise of equal justice under law, we eventually will need a better qualified Article III Judiciary.
The sooner that process starts, the better. It will take years or even generations to reform the life-tenured judiciary and get better qualified women and men on the bench. Judges who actually reflect the diversity of America and are unswervingly committed to equal justice for all under our laws.
We need Federal Judges, at all levels from the Supremes to the Immigration Courts, who actually know and understand asylum and human rights laws and their human dimension. Judges who have the courage and integrity to stand up for the rights of all persons for due process, fundamental fairness, and to be treated with human dignity, free of the overt racist bias demonstrated by Trump, Miller, and others.
In the end, the rights of foreign nationals to be treated as “persons” under our law are all of our rights! The dehumanization and “Dred Scottification” of asylum seekers by the regime and the Federal Courts diminishes each of us, including those complicit “go along to get along” judges who fail to see their own humanity in the faces and lives of those they oppress and fail to protect.
For now, they are largely getting away with it. But, eventually, somewhere down the line, there will be a “judgement of history” for their inhumanity and dereliction of duty. Of that, I am certain!
