"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Ethics Prohibited Beyond This Point! “The naked self-interest was so rampant that Trump’s West Wing could be considered a nudist colony where decency was shed instead of clothing.” CREATIVE COMMONS.
Documents seized from Donald Trump’s Florida home (credit: Department of Justice)
Sometimes we write a lot of words on Steady. Today will be an exception. Because for all that there is to say, for all that needs to be said, for all that an accounting for history requires we say, the general sentiments are quite simple:
They knew. They all knew.
It was clear to anyone who had an ounce of appreciation for what the job of the presidency entails, to anyone who respected the constitutional order of our government, to anyone who worried about the health and safety of this nation, to anyone with a moral compass, to anyone who prizes the common sense of purpose that great leaders can summon, that Donald J. Trump had no business anywhere near the presidency.
Now, as he melts down in the face of a serious criminal investigation, as we see pictures of how he stored classified material and his utter disregard for our nation’s most sensitive secrets, as we are left to wonder what he was up to and what damage was done, we should recognize that we would not be where we are today without his enablers, apologists, and hangers-on.
They heralded his outrageousness in a chorus of sycophancy.
They feted his vileness.
They viciously attacked those who pointed out the obvious, that Trump was mentally, emotionally, intellectually, morally, and constitutionally unfit for his office.
And who are they? They are the Republican politicians, the so-called serious ones who expressed their concerns in private even as they used Trump to achieve their desired tax cuts and judges. They are the members of his administration — senior and junior — who jockeyed to maximize their career benefit at the expense of doing the necessary work for the American people. They are the lawyers who twisted themselves into pretzels to try to legalize his inherent lawlessness. They are the media personalities who saw Trump as a printing press for their accrual of wealth and power. They are the capitalists who put corporate earnings ahead of the well-being of the nation.
While Trump’s voters were primed with a toxic stew of hatred, bigotry, and divisiveness, the small cabal playing the inside game didn’t bother with the MAGA hats. They were too busy trading access for favors. The naked self-interest was so rampant that Trump’s West Wing could be considered a nudist colony where decency was shed instead of clothing.
But make no mistake…
In their cowardice, they knew.
In their cynicism, they knew.
In their contempt, they knew.
In their rationalizations, they knew.
In their acquittals of his conduct, even for impeachment, they knew.
They knew when they could have stopped him — before he became president, and once he was president.
But they didn’t stop him. And with their inaction, they encouraged him.
As the Trump bubble begins to pop, all these people who knew what he was all along will likely scurry like cockroaches when the lights go on. They will make all sorts of excuses for their complicity. They will gaslight, lie, and try to rewrite history. You can already see it in many of their so-called tell-all books. Except what they are telling is only the story they want people to hear. It is not the truth.
The truth is that they don’t dare say what we all know. They knew.
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Throughout history, despots and would-be despots have surrounded themselves with motley crews of sycophants, toadies, and retainers. Trump has excelled at it!
The U.S. government on Wednesday ended two Trump administration policies that made it harder for immigrants fleeing violence to qualify for asylum, especially Central Americans.
Atty. Gen. Merrick Garland issued a new policy saying immigration judges should cease following the Trump-era rules that made it tough for immigrants who faced domestic or gang violence to win asylum in the United States. The move could make it easier for them to win their cases for humanitarian protection and was widely celebrated by immigrant advocates.
“The significance of this cannot be overstated,” said Kate Melloy Goettel, legal director of litigation at the American Immigration Council. “This was one of the worst anti-asylum decisions under the Trump era, and this is a really important first step in undoing that.”
Garland said he was making the changes after President Biden ordered his office and the Department of Homeland Security to draft rules addressing complex issues in immigration law about groups of people who should qualify for asylum.
Gene Hamilton, a key architect of many of then-President Trump’s immigration policies who served in the Justice Department, said in a statement that he believed the change would lead to more immigrants filing asylum claims based on crime and that it should not be a reason for the humanitarian protection.
. . . .
In the current fiscal year, people from countries such as Russia and Cameroon have seen higher asylum grant rates in the immigration courts than those from El Salvador, Guatemala and Honduras, the data show.
One of the Trump administration policies was aimed at migrants who were fleeing violence from nonstate actors, such as gangs, while the other affected those who felt they were being targeted in their countries because of their family ties, said Jason Dzubow, an immigration attorney in Washington who focuses on asylum.
Dzubow said he recently represented a Salvadoran family in which the husband was killed and gang members started coming after his children. While Dzubow argued they were in danger because of their family ties, he said the immigration judge rejected the case, citing the Trump-era decision among the reasons.
Dzubow welcomed the change but said he doesn’t expect to suddenly see large numbers of Central Americans winning their asylum cases, which remain difficult under U.S. law.
“I don’t expect it is going to open the floodgates, and all of a sudden everyone from Central America can win their cases. Those cases are very burdensome and difficult,” he said. “We need to make a decision: Do we want to protect these people?”
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Read the full article at the link.
You know for sure you’re doing the right thing when anti-asylum shill and Stephen Miller crony Gene Hamilton criticizes it!
I tend to agree with my friend Jason that under present conditions, asylum cases for women refugees from Central America are likely to continue to be a “tough slog” at EOIR. The intentionally-created anti-asylum, misogynist, anti-Latino, anti-scholarship, anti-quality, anti-due-process culture at EOIR that emerged under Sessions and Barr isn’t going to disappear overnight, particularly the way Judge Garland is approaching it. He needs to “get out the broom,🧹 sweep out the current BIA and the bad, anti-asylum judges, get rid of ineffective administration, and bring in human rights and due process professionals to get this system operating again!
Jason, for one, would be an outstanding judicial choice for building a functioning, fair, efficient Immigration Court; one that would fulfill the long-abandoned vision of “through teamwork and innovation, being the world’s best tribunals guaranteeing fairness and due process for all.” Under the Trump regime, EOIR was the antithesis of that noble vision!
Cases such as that described by Jason (incorrectly decided by the Immigration Judge) utilizing A-R-C-G- and “family friendly” precedents from the Fourth Circuit were usually well-represented and well-prepared by attorneys like Jason, Clinics, and NGOs like CLINIC, CAIR Coalition, Human Rights First, and Law School Clinics. After review by ICE Counsel, many were candidates for my “short docket” in Arlington where asylum could easily be granted based on the documentation and short confirming testimony.
To their credit, even before the BIA finally issued A-R-C-G-, the Arlington Chief Counsel’s Office was not opposing well-documented asylum grants based on domestic violence under what was known as the “Martin Brief” after former DHS/INS Senior Official, renowned immigration scholar, and internationally recognized asylum expert, now emeritus Professor David A. Martin of UVA Law. I remember telling David after one such case that his brief was still “saving lives” even after his departure from DHS and return to academia.
Professor (Emeritus) David A. Martin UVA Law PHOTO: UVA Law
Rather than building on that real potential for efficiency, cooperation, quality, and due process, under Sessions those things that were working at EOIR and represented hope and potential for future progress were maliciously and idiotically dismantled. From the outside, throughout the country, I saw DV cases that once would have been “easy short docket grants” in Arlington require lengthy hearings and often be incorrectly decided in Immigration Court and the BIA. Sometimes the Circuits corrected the errors, sometimes not.
At best, what had been a growing census around recognizing asylum claims based on DV became a “crap shoot” with the result almost totally dependent on what judges were assigned, what Circuit the hearing was held in, and even the composition of the Circuit panel! And, of course, unrepresented claimants were DOA regardless of the merits of their cases. What a way to run a system where torture or death could be the result of a wrong decision!
But, it doesn’t have to be that away! Experts like Jason and others could get this system functioning fairly and efficiently in less time than it took Sessions and Barr to destroy it.
However, it can’t be done with the personnel now at DOJ and EOIR Headquarters. If Judge Garland wants this to function like a real court system (not always clear to me that he does), he needs to recruit and bring in the outside progressive experts absolutely necessary to make it happen. At long last, it’s time for “Amateur Night at the Bijou” to end its long, disgraceful, debilitating “run” @ EOIR!
Time for this long-running show at DOJ/EOIR to end! PHOTO: Thomas Hawk Creative Commons Amateur Night
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber Style“She struggled madly in the torturing Ray” Amazing StoriesArtist Unknown, Public domain, via Wikimedia CommonsBIA Members Unwind After Harassing Another Expert, Overruling Circuit Court, & Aiding Their “Partners” At ICE In Demeaning Justice https://www.flickr.com/photos/rasputin243/ Creative Commons LicenseBIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
‘White Nationalism’ In Immigration Courts Must Go: Ex-Judge
By Jennifer Doherty
Law360 (January 28, 2021, 9:48 PM EST) — A former immigration judge called on the Biden administration to reorient the mission of immigration courts on Thursday, saying that a “white nationalist program” had taken root under the Trump administration and needs to be eradicated.
Speaking on a panel about a new report showing that the vast majority of non-detained migrants appear at their immigration court hearings, retired Judge Paul Wickham Schmidt called out Trump administration officials over “big lies and bogus narratives” promoted by the U.S. Department of Homeland Security and the Executive Office of Immigration Review, including claims that detention was necessary to prevent migrants from disappearing.
Judge Schmidt, who used to be the chair of the Board of Immigration Appeals, pointed to former Attorney General Jeff Sessions’ intervention in immigration cases to relitigate cases such as whether women who suffer domestic abuse in regions with high rates of femicide qualify for asylum, as well as the former administration’s messaging to immigration judges that their role was an extension of DHS’ enforcement mechanism.
“It’s all been part, I think, of the Stephen Miller white nationalist program, that there is no such thing as a good immigrant; all the immigrants are here to take our jobs or to evade the system,” Judge Schmidt said, referring to one of former President Donald Trump’s senior advisers.
Meanwhile, Thursday’s report from the American Immigration Council, an advocacy nonprofit group, confirmed what many immigration judges have known for years, according to Judge Schmidt.
Relying on a sample of 2.8 million immigration court cases where migrants were either released or were never detained, the report found that 83% of respondents with pending or completed removal cases showed up for every hearing, a share that increased to 96% for immigrants represented by counsel.
“Represented asylum-seekers appearing before fair, knowledgeable judges show up for virtually all of their EOIR merits hearings,” Judge Schmidt said.
Based on those findings, the report recommended four policy reforms, including reducing immigration detention and ending the Migrant Protection Protocols, which have forced over 70,000 people to wait in Mexico for decisions in their asylum cases.
The report also called for additional training for immigration judges and the rollback of a law requiring judges to issue orders of removal for migrants who failed to appear, an occurrence the authors found was frequently due to faulty notices to appear.
Creating an Article I, also called a legislative court, would also give immigration judges more independence in their review of individual cases and relieve them from pressure to meet case quotas, according to the report.
UCLA School of Law professor Ingrid Eagly, co-author of the report, said that additional training would serve to reduce inconsistencies between immigration courts and ensure that judges held the
government accountable for its responsibility to notify migrants of their court dates.
. . . .
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Those with access can read the rest of Jennifer’s article on Law360.
Jennifer Doherty Reporter Law 360 Photo: Twitter
I was talking to a lawyer/reporter this afternoon. Her comment was: “Could anybody have designed a worse system for deciding life or death cases?” She was told in “pro bono training” to observe how certain judges like the chairs arranged in the courtroom because it could affect the outcome of her client’s asylum case!
Another attorney I spoke with who had practiced personal injury law couldn’t believe that no immigration cases ever “settled.” Even those with clear merit bounce around the system for years and then go to full hearings, sometimes with inconsistent results!
How can a system operate like this? It can’t! That’s why doubling the number of questionably qualified “judges” has resulted in at least doubling, perhaps tripling, the “backlog.”
Under pressure from White Nationalists like Miller, Sessions, Hamilton, and Barr, EOIR has generated an artificially created “backlog” consisting largely of : 1] cases that could have easily been granted in a fair, functional, practical system; 2) cases that could be granted or placed in line at USCIS (another broken and dysfunctional agency); and 3) cases that never should have been filed in a rational system!
An incompetent BIA has failed to set forth the precedents for granting asylum and other relief that are necessary to restore the rule of law and common sense to a broken system! And they have totally failed to hold biased anti-asylum and nativist-enabling judges accountable! That’s because the BIA itself has become an organ of White Nationalist restrictionist bias bearing little, if any, resemblance to a “court” within the common understanding of the term. “Judicial independence,” impartiality, expertise, due process, and rationality have become “bad jokes” at EOIR!
And, for the past four years, the folks “running” this godawful system haven’t set foot in a courtroom in years (if ever) and don’t have a clue about asylum law or representing humans (rather than “agencies” or “nativists” as clients). It’s a friggin’ inexcusable disaster. FUBAR+++++++!
McHenry informed EOIR employees last Friday that he was returning to his position as an OCAHO Administrative Law Judge. Can’t imagine there were too many tears shed, except within the “inner circle” of the “EOIR kakistocracy.”
OCAHO has long been viewed as EOIR’s “Siberia equivalent” and has been used to “exile” other “out of favor” Senior Execs in the past (ironically including King). Given OCAHO’s traditionally rather limited docket, it appears that McHenry’s ability to further damage our justice system and demean humanity will be restricted.
Notably, he was appointed Director by former Attorney General and notorious child abuser Jeff “Gonzo Apocalypto” Sessions without any known qualifications to manage one of America’s largest, most important, and totally screwed-up court systems. Over his four-year tenure, he proved to be every bit as unqualified for the job as his embarrassingly-thin resume originally suggested he would be.
He was part of the remarkably unqualified aptly-named “Atlanta Mafia” at EOIR. They degraded justice and humanity in equal portions as part of their nativist crusade to expand the “Atlanta Asylum Free Zone” nationwide. Basically, only the courageous hard work of talented immigration advocates stopped their nefarious program from reaching its objective, although that’s not to minimize in any way the lasting damage they did to our legal system and human lives.
Among McHenry’s many negative achievements was driving already-low EOIR morale and poor working conditions to depths never before seen or imagined. And, that was for his own employees! Imagine what it was like for foreign nationals and their courageous, determined, yet beleaguered attorneys consigned to this “hell on earth” specially designed to chew up lives and degrade humanity as part of as vile “strategy” to use “courts as deterrents” to those with audacity to seek justice in America.
Jean King, by contrast, is an experienced public servant known for her commitment to due process, fundamental fairness, sound scholarship, ethical standards (something that has “gone AWOL” at the DOJ over the past four years), and the “lost art of good government” which the Biden-Harris Administration appears committed to re-establishing.
Jean served on the on the BIA staff when I was Chair. She advanced in EOIR during the tenure of the late Juan Osuna as BIA Chair and then Director. She reportedly chose “exile to OCAHO” after she refused as General Counsel to “go along get along” with some of McHenry’s more outrageously illegal regulatory/administrative moves. He also retaliated by cutting the authority of the OGC and assigning it instead to his bogus “Office of Policy.” (Talk about “fraud, waste, and abuse” of government resources –- while the Immigration Courts lacked, and still lack, a functioning e-filing system, McHenry found time and resources for shenanigans like this, obscene “Immigration Judge dashboards,” and pursuing “decertification” of the NAIJ which had “blown the whistle” on his “maliciously incompetent” management!)
McHenry’s continuing presence as Director following the inauguration and his “in your face audacity” in issuing memos attempting to define “judicial independence” as obedience to the White Nationalist restrictionist agenda he had been implementing rightly drew outrage from all immigration experts who understand the ongoing contempt for due process and abuses of humanity that have somehow become “institutionalized” as “acceptable behavior” at EOIR during the last four years. https://www.politico.com/news/2021/01/27/biden-replaces-immigration-court-463053
If nothing else, Jean King should be able to stop the flood of illegal regulations, false and misleading policy memos and bogus “fact sheets,” and further deterioration of due process until “Team Garland” gets its “EOIR Reform Group” in place.
All of us who care about American justice and due process should be heartened that somebody on the Biden Team is aware of the due process disaster at EOIR, has taken bold, decisive action, and apparently plans to fix it, sooner rather than later!
Here is Jean’s bio from the EOIR website:
Jean King Chief Administrative Law Judge
Jean King was appointed as the chief administrative law judge in June 2019. Immediately prior to assuming her current duties, she served as general counsel of the Executive Office for Immigration Review (EOIR) beginning in September 2015. Ms. King received a bachelor of arts degree in 1988 from Brown University and a juris doctorate in 1995 from the College of William and Mary. From July 2015 to August 2015, and previously from December 2012 to October 2014, Ms. King served as deputy general counsel, EOIR. From November 2014 to June 2015, she served as acting general counsel, EOIR. From October 2011 to December 2012, she served as a counsel to the director, EOIR. From March 2011 to October 2011, she served as acting director of operations, Board of Immigration Appeals (BIA), EOIR. From 2009 to March 2011, Ms. King served as a temporary board member, BIA. From 2006 to 2009, she was a senior legal advisor at the BIA. From 1996 to 2006, she served as an attorney advisor at the BIA. Prior to joining the BIA, Ms. King spent one year as a judicial law clerk with the Superior Court of Connecticut. Ms. King is a member of the Connecticut and New York State bars.
Good luck Jean! Please don’t forget the “Old EOIR Vision” that used to at the top of our internal web page– “through teamwork and innovation, be the world’s best tribunals guaranteeing fairness and due process for all.” It’s still the right vision for EOIR and America, and with the right team, in place, it still can be achieved!
“She struggled madly in the torturing Ray” Amazing StoriesArtist Unknown, Public domain, via Wikimedia CommonsBIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
Tal Kopan reports for the SF Chronicle:
Bad conduct, leering ‘jokes’ — immigration judges stay on bench
Chronicle investigation: U.S. Justice Department lacks strong harassment oversight for judges
WASHINGTON — One judge made a joke about genitalia during a court proceeding and was later promoted. Another has been banned for more than seven years from the government building where he worked after management found he harassed female staff, but is still deciding cases.
A third, a supervisor based mostly in San Francisco, commented with colleagues about the attractiveness of female job candidates, an internal investigation concluded. He was demoted and transferred to a courtroom in Sacramento.
The three men, all immigration judges still employed by the Justice Department, work for a court system designed to give immigrants a fair chance to stay in the U.S. Every day, they hear some of the most harrowing stories of trauma in the world, many from women who were victims of gender-based violence and who fear that their lives are at risk if they are deported to their native countries.
These judges’ behavior toward women is not an isolated phenomenon in the immigration courts system. A Chronicle investigation revealed numerous similar instances of harassment or misconduct in the courts, and found a system that allows sexually inappropriate behavior to flourish.
In response to detailed questions before President Biden took office, the Justice Department declined to comment on specific allegations against judges, citing the privacy of personnel matters in some instances and the lack of written complaints in others, but said generally that it follows department procedures on misconduct. The Biden White House did not immediately respond to a request for comment.
Interviews with dozens of attorneys across the country and current and former government officials, as well as internal documents obtained by The Chronicle, show the problems have festered for years. The Justice Department has long lacked a strong system for reporting and responding to sexual harassment and misconduct.
And when such behavior has come to its attention, the department has in some instances simply transferred the offenders elsewhere.
The judges’ behavior appears to violate the department’s conduct policies and raises questions about the immigration courts’ ability to function fairly. Attorneys who have been the victims of harassment say they fear that if they try to hold judges accountable, they risk severe consequences, not only for themselves but for vulnerable clients.
“In the moment, you just know that you have to stay calm,” said Sophia Genovese, who has been an immigration attorney for three years and worked in the field of immigration policy for five. “You know if you do anything to piss him off, that’s going to ruin your reputation in his eyes. In that moment, am I thinking that I might be perpetuating sexism in the system? No, I’m thinking, I just need to get through this.”
She added, “If all you have to do is force a smile so that your client is not deported, the answer is obvious what practitioners are going to do.”
Michelle Mendez of the Catholic Legal Immigration Network, which provides legal representation to immigrants and helps attorneys report allegations of judicial misconduct, said lawyers face tremendous pressure not to call out judges’ bad behavior, even though they know ignoring it means it is likely to continue.
“An immigration judge might retaliate against the advocate by punishing her clients — and these are people fleeing persecution, rape and even death,” Mendez said. “It’s quite literally a Sophie’s choice that should never happen in the American legal system.”
The Trump administration did little to change the pattern, The Chronicle found, and in one case even promoted a judge who many women have said made them feel uncomfortable in open court and behind the scenes for years. Justice Department data shows the administration dismissed more complaints against judges than its predecessor.
It’s a problem that Biden’s administration has inherited. The very structure of the courts creates the conditions that allow bad actors to escape consequences, experts say. But that leaves Biden with a problem, they add: Does he reform the system to be independent of political influence, or does he use his political control over it to clean it up?
Not to “plug too shamelessly” for one of my all-time favorite journalists, but for those of you who aren’t subscribers, “The Chron” is running a “99 Cent Special” on digital subscriptions right now, and having “full access” to Tal and her colleagues would be “cheap at twice the price!”
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Every day that McHenry and his EOIR gang — acolytes of the “Miller-Hamilton-Sessions Branch” of the”Waffen SS” (all notorious child abusers among other “crimes against humanity”) — remain in power and authorized to abuse migrants, asylum seekers, women, and attorneys is an ongoing national disgrace and a cancer upon our nation and our system of justice!
Great article, Tal! Thanks!
Disgusting problem! How would YOU like to be a woman refugee or female attorney appearing before this ongoing, evil EOIR Clown Show🤡🦹🏿♂️? Ties in completely with the continuing gratuitous attacks on Ms. A-B- and her lawyers by outrageously unqualified chauvinists like Jeffrey Rosen!
What an ongoing national disgrace! The arrogance, audacity, and belief that there will be no accountability for abusing “the other” is both stunning and totally in line with four years of the Trump/Miller/Sessions/Barr/Hamilton/McHenry (surprise, all white males whose collective, genuine immigration and judicial “expertise” would fit in a thimble with room left over) kakistocracy and institutionalized abuses of migrants and their attorneys at EOIR and DOJ.
And many thanks to heroes like Michelle Mendez, Sophia Genovese, and other courageous members of the NDPA, and many “Knightesses” of our Round Table of Former Immigration Judges for having the courage to speak out in so many different and effective ways about the ongoing abuses inflicted by EOIR!
We must keep fighting and publicizing until these abuses end, and justice is restored to this ludicrously abusive, biased, openly misogynistic, anti-asylum, anti-due-process, and intentionallydehumanizing system.
The solution to the “problem” posed in Tal’s last sentence is not rocket science!
There is nothing wrong with using Executive authority to get rid of the kakistocracy, putting in experts and widely respected “due-process warriors and warrior-queens” as judges and judicial administrators, and giving them independence to reform and reformulate every aspect of this totally broken system and the disgraceful anti-migrant jurisprudence it has spawned. Get rid of the “deadwood” (or worse), put the right folks in charge, and then trust them to solve judicial problems without political interference. That’s how any “real” independent court system works, for Pete’s sake!
That certainly can and should include a new “merit selection system” for Immigration Judges that values immigration scholarship, human rights expertise, experience representing migrants and asylum seekers in Immigration Court, courage to oppose abuses, diversity, and a demonstrated lifetime commitment to due process and equal justice under our Constitution for all persons in the United States!
Over time, every judge currently in the system should be required to re-compete for their job under the new merit system. That system must be open, transparent, and involve public input in the selection process. (Unlike the current, largely closed, system designed to favor prosecutors and other government attorneys, and which has produced a remarkably, shockingly non-diverse, non-expert, and non-representative “judiciary,” particularly in light of the communities most involved in, and affected by, the Immigration Court process).
Those incumbent judges who have demonstrated a commitment to guaranteeing fairness and due process for all should have no trouble being retained. But, those who have carried out the departed regime’s “dump on asylum seekers and their lawyers program” should and will be removed and replaced by better-qualified judges. Human lives simply are too important to be at the mercy of bad judges — and, without knowing exactly how many, there are some “bad judges” operatingin the EOIR system!
Remove the Clown Show🤡🦹🏿♂️☠️! Put Michelle, Sophia Genovese, and/or other leading members of the NDPA in charge of EOIR & the BIA and let them solve the problems! Empower them to root out the “bad actors” (including members of the “90% Asylum Denial Club” — some disgracefully ensconced at the BIA) in the judiciary, support reform of the process and the law without interfering with judicial independence, then get 100% behind the legislative push for an Independent Article I Immigration Court with expert, due-process-committed, diverse, courageous judges!
There are hundreds, perhaps thousands, of well-qualified lawyers in the NDPA out there who could solve these pressing problems!
Stay tuned! Courtside will have lots to say about this until somebody in the Biden DOJ takes notice and solves the problem! The Clown Show has got to go!
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
I hear the cries of pain from those subjected to this degrading and entirely unnecessary national disgrace! It’s an affront to our Constitution, human dignity, and our entire justice system!
Thanks, Tal, Michelle, Sophia, and others for all you do, and due process 🇺🇸🗽⚖️ 🧑🏽⚖️ forever!
Tal Kopan Washington Reporter, SF ChronicleMichelle Mendez Defending Vulnerable Populations Director Catholic Legal Immigration Network, Inc. (“CLINIC”)Knightess of the Round Table
BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons“She struggled madly in the torturing Ray” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
A Parting Shot At Women
As the Trump Administration comes to an end, let’s remember how it began. On the day following the inauguration, millions participated in Women’s Marches around the world. There is sadly no need to list the reasons why women in particular would feel the need to respond in such a way to a Trump presidency.
It was therefore no surprise that Trump’s first Attorney General issued a decision intended to strip protection under our asylum laws from women who are victims of domestic violence. That decision, Matter of A-B-, was so soundly rejected by U.S. District Court Judge Emmet Sullivan that the U.S. Court of Appeals for the Sixth Circuit relied on his reasoning to conclude that Sessions’s decision had been abrogated. The First and Ninth Circuits further rejected Sessions’s view that the particular social group relied upon in A-B- was legally unsound. The Eighth Circuit rejected Sessions’s description of the standard for proving a government’s inability or unwillingness to control an abusive spouse, for example, as requiring evidence that the government condones his actions, or is completely helpless to prevent them.
The administration tried to codify the views expressed in A-B- and in another case, Matter of L-E-A-, by issuing proposed regulation designed to completely rewrite our asylum laws, with the purpose of making it virtually impossible for domestic violence and gang violence victims to qualify for asylum protection. Those rules, which were rushed out with very little time for public comment, were blocked on January 8 by a U.S. District Court judge.
There are at least two important cases presently before the U.S. Court of Appeals for the Fourth Circuit involving the issues raised in both A-B- and L-E-A-. Had these decisions been issued by, e.g., U.S. District Court judges, the Department of Justice would be representing the government (in the form of the Attorney General), but not the judge who issued the decision below. But as to A-B-, the government attorneys represent an Attorney General acting as judge, and a judge with extraordinary powers. As a result of those powers, the official presently filling the position on an acting basis (who had come to the job a few weeks earlier from the Department of Transportation with absolutely no background in immigration law) was able to unilaterally issue a new decision in the case, in an attempt to shore up issues of concern before the circuits.
So what does the new decision of the recent Deputy Transportation Secretary say? It addresses two issues: the “condone or complete helplessness” language used by Sessions, and the proper test for when persecution can be said to be “on account of” an asylum seeker’s gender, familial relationship, or other group membership.
As to the first issue, the Acting AG now states that Sessions did not change the preexisting legal standard for determining whether a government is unwilling or unable to provide protection. The Acting AG accomplishes this by explaining that “condone” doesn’t actually mean condone, and that “complete helplessness” doesn’t mean complete helplessness.
I’m not sure of the need for what follows on the topic. Perhaps there is an Attorney General Style Guide which advises to never be succinct when there are so many more exciting options available. Besides from sounding overly defensive in explaining why Sessions chose to use terms that sure sounded like they raised the standard in order to supposedly signal that he was doing no such thing, the decision also feels the need to remind us of what that preexisting standard is, in spite of the fact that no one other than perhaps a Deputy Transportation Secretary pretending to be an asylum law scholar is in need of such a recap. Yes, we understand there are no crime-free societies, and the failure to prevent every single crime from occurring is not “unwilling or unable.” No court has ever said that it was. Let’s move on.
The second part of this new A-B- decision addresses a conflict between the views of the Fourth Circuit and the BIA in regard to when a nexus is established. This issue arises in all asylum claims, but the BIA addressed it in a case, Matter of L-E-A-, in which an asylum applicant was threatened by a violent gang because it wished to sell drugs in a store owned by his father. The question was whether the asylum seeker’s fear of harm from the gang was “on account of” his familial relationship to his father.
Our laws recognize that persecution can arise for multiple reasons. A 2005 statute requires a showing that one of the five specific bases for a grant of asylum (i.e. race, religion, nationality, membership in a particular social group, or political opinion) must form “one central reason” for the harm. The BIA itself has defined this to mean that the reason was more than “incidental, tangential, superficial, or subordinate to another reason.”
In the context of family membership, the Fourth Circuit has repeatedly held that this “one central reason” test is satisfied where the family membership formed the reason why the asylum seeker, and not someone else, was targeted for harm. Using the L-E-A- example, the gang members were obviously motivated most of all by their desire for financial gain from the selling of the drugs in the store. But under the Fourth Circuit’s test, the family relationship would also be “one central reason” for the harm, because had the asylum seeker not been the son of the store owner, he wouldn’t have been the one targeted. This is known as a “but for” test, as in “but for” the familial relationship, the asylum seeker wouldn’t have been the one harmed
In L-E-A-, the BIA recognized the Fourth Circuit’s interpretation in a footnote, but added that the case it was deciding didn’t arise under that court’s jurisdiction. The BIA thus went on to create its own test, requiring evidence of an actual animus towards the family. The BIA provided as an example of its new test the assassination of the Romanov family in 1917 Russia, stating that while there were political reasons for the murders, it would be difficult to say that family membership was not one central reason for their persecution.
I’m going to create my own rule here: when you are proposing a particular legal standard, and the judge asks for an example, and all you can come up with is the Romanov family in 1917 Russia, you’re skating on thin ice. The other thing about legal standards is in order for judges to apply them and appeals courts to review them, they have to be understandable. I’m not a student of Russian history, but it would seem to me that (as the BIA acknowledged), the main motive in assassinating the Romanovs was political. I’m not sure what jumps out in that example as evidence of animus towards the family itself. How would one apply the Romanov test to anyone ever appearing in Immigration Court? By comparison, the Fourth Circuit’s test is a very clear one that is easy to apply and review on appeal.
Of course, this is just my humble opinion. The assistant Transportation czar feels differently. Drawing on his extensive minutes of experience in the complex field of asylum, he concluded: “I believe that the Fourth Circuit’s recent interpretation of ‘one central reason’ is not the best reading of the statutory language.”
I am guessing that by saying this in a precedent decision in the final days of this Administration, Transportation guy is hoping that the Fourth Circuit will feel compelled to accord his opinion Brand X deference. Legal scholar Geoffrey Hoffman has pointed out that no such deference is due, as the requirement that the statute be ambiguous is not satisfied. (Geoffrey’s excellent takedown of this same decision can be found here, and is well worth reading).
But the term in question, “on account of,” is also not one requiring agency expertise, which is of course a main justification for judicial deference. It is instead a legal standard not specific to asylum or immigration law.
For example, last June, the Supreme Court decided Bostock v. Clayton County, a case involving employment discrimination based on sexual orientation or identity. In a 6-3 decision authored by Justice Gorsuch, the Court explained that the statutory term in question, “because of,” carries the same legal meaning as “on account of,” the relevant phrase for asylum purposes. In determining nexus, the Court stated:
It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.
That last sentence – “if changing the employee’s sex would have yielded a different choice by the employer” – is essentially the same “but for” standard applied by the Fourth Circuit in the asylum context. What would give an Acting Attorney General the authority to hold otherwise?
A conservative commentator observed a difference between the discrimination required in Bostock and the persecution required in L-E-A-, stating that discrimination can involve favoring one group without necessarily hating the group being passed over, whereas persecuting someone requires an animus towards them.
However, the BIA recognized nearly 25 years ago that persecution can be found in harm resulting from actions intended to overcome a characteristic of the victim, and that no subjective punitive or malignant intent is required. The BIA acknowledged this in L-E-A-, noting that a punitive intent is not required.
Furthermore, the legislative history of the REAL ID Act (which created the requirement in question) shows that Congress amended the original proposed requirement that the protected ground be “the central motive” for the harm, to the final language requiring that it be “one central reason.”1 While animus would fall under “motive,” “reason” covers the type of causation central to the Fourth Circuit’s “but for” test. The history seems to undermine the former Transportation official’s claim that under the Fourth Circuit’s test, the “one central reason” language would be “mere surplusage.” This is untrue, as that additional language serves to clarify that the reason can be one of many (as opposed to “the” reason), and that the relevant issue is reason and not motive. Perhaps the author required more than three weeks at the Department of Justice to understand this.
I write this on the last full day of the Trump presidency. Let’s hope that all of the decisions issued by this administration will be vacated shortly; that the BIA will soon be comprised of fair and independent immigration law scholars (preferably as part of an independent Article I Immigration Court), and that future posts will document a much more enlightened era of asylum adjudication.
Note:
1. See Deborah Anker, The Law of Asylum in the United States (Thomson Reuters) at § 5:12.See also Ndayshimiye v. Att’y Gen. of U.S., 557 F.3d 124 (3d Cir. 2009) (recounting the legislative history and rejecting a dominance test for determining “one central reason”).
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Copyright 2021 Jeffrey S. Chase. All rights reserved.
Republished by permission.
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Judge Garland and his team must address systemic failures at the dysfunctional DOJ well beyond the festering, unconstitutional mess @ EOIR (“The Clown Show” 🤡) that requires an immediate “remove and replace.” The ethical failings, bad lawyering, dilatory litigating tactics, anti-American attitudes, racism, misogyny, intellectual dishonesty, coddling of authoritarianism, and complicity in the face of tyranny are in every corner of the disgraced Department.
Withdrawal of every bogus, biased, unconstitutional, racist- motivated “precedent” issued during the Trump regime and turning the proper development and fair interpretation of immigration and asylum laws over to a “new BIA” — consisting of real judges who are widely recognized and respected experts in immigration, human rights, and due process — must be a “day one” priority for Judge Garland and his team.
The Clown Show🤡🦹🏿♂️ that has made mincemeat out of American justice — not to mention legal ethics and human morality — must go! And, the problem goes far beyond the “Falls Church Circus!”🎪🤹
🇺🇸⚖️🗽Due Process Forever! Institutionalized misogyny, 🤮☠️never! No more Jeffrey Rosens @ DOJ —ever!
And, firms like Kirkland & Ellis need to think twice about re-employing a sleazy “empty suit” like Rosen who represents everything that is wrong with American law in the 21st century! Public disgrace should not be mistaken for “public service.”
“Normalizing” political toadies, “senior executives,” government “lawyers,” and other “public officials” who carried the water and willingly (often, as in Rosen’s case, enthusiastically, gratuitously, and totally unnecessarily) advanced the objectives of a White Nationalist, anti-American regime whose disgraceful and toxic rule ended in a violent, unhinged, failed insurrection against our democracy encouraged by a Traitor-President, his supporters, and members of the GOP would be a HUGE, perhaps fatal, mistake!
Make no mistake about it! Brave, determined refugee women like Ms. A-B- and her lawyers (superstars like Professor Karen Musalo and Blaine Bookey of the Center for Gender and Refugee Studies) are the true American heroes 🦸🏻 of the resistance to White Nationalist, racist, xenophobic policies of cruelty, hate, and disparaging of the rule of law. Toadies and traitors like Rosen are the eternal villains!🦹🏿♂️ Picking on refugees on the way out the door is an act of supreme cowardice that will live in infamy!🐓🤮
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”Trump Regime“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
CLINIC v. EOIR, USDC D DC, 01-18-21 (Judge Amit P. Mehta)
KEY QUOTE:
The court holds that EOIR acted arbitrarily and capriciously by disregarding the Final Rule’s impact on legal service providers and their capacity to provide legal services to persons subject to removal proceedings. EOIR was obligated to address these concerns as part of the notice-and-comment process but it failed to do so. In short, EOIR “entirely failed to consider an important aspect of the problem.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. (State Farm), 463 U.S. 29, 43 (1983). The court also finds that, absent equitable relief, Plaintiffs will suffer irreparable harm, and that the balance of the equities and the public interest favor staying the effective date of a portion of the Final Rule.
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Kind of says it all!
Congrats to the heroes at CLINIC and their NDPA colleagues!
Michelle Mendez Defending Vulnerable Populations Director Catholic Legal Immigration Network, Inc. (“CLINIC”)
And, while you’re at it, Judge Garland, you must examine the role of the sleazy DOJ lawyers who mounted an essentially frivolous defense for this nonsense in Federal Court. Sadly, you’re looking at systemic failure here, as well as a totally disrespectful and unwarranted effort to “beat the clock” in implementing the Miller/Hamilton White Nationalist, racist, anti-due-process, xenophobic agenda!
Obviously, EOIR cut corners and tried to rush these bogus changes into effect before the well-established “end date” of the Trump kakistocracy on Jan. 20, 2020. EOIR also of acted in full knowledge that the incoming Biden Administration would go a “different direction” on immigration matters.
In plain terms, this was an illegal bad-faith effort to undermine the incoming Biden Administration and illegally punish legal service providers by making them use time and resources in undoing the illegal mischief EOIR intentionally inflicted. This is neither “normal” nor”acceptable.” It must be forcibly and swiftly addressed by “Team Garland.”
CLINIC and their allies should be devoting resources to representing individuals in Immigration Court, not to fending off a bad-faith racist agenda sponsored by no less than a Department of “Justice” that has completely lost its way and impedes the public good.
This is a very serious ongoing national disgrace and abuse of the legal process by the DOJ. It needs to stop! Now! And those responsible for this outrage must face accountability for their unwarranted and illegal actions!
🇺🇸⚖️🗽Due Process Forever! The EOIR Clown Show 🤡🦹🏿♂️☠️ Never!
President-elect Joe Biden will roll out a sweeping overhaul of nation’s immigration laws the day he is inaugurated, including an eight-year pathway to citizenship for immigrants without legal status and an expansion of refugee admissions, along with an enforcement plan that deploys technology to patrol the border.
Biden’s legislative proposal, which will be sent to Congress on Wednesday, also includes a heavy focus on addressing the root causes of migration from Central America, a key part of Biden’s foreign policy portfolio when he served as vice president.
The centerpiece of the plan from Biden and Vice President-elect Kamala D. Harris is the eight-year pathway, which would put millions of qualifying immigrants in a temporary status for five years and then grant them a green card once they meet certain requirements such as a background check and payment of taxes. They would be able to apply for citizenship three years later.
. . . .
The focus on Central America reflects the message that Biden has relayed to senior officials in the region: that he will advocate for policy changes aimed at what drives scores of migrants there to come to the United States illegally to seek safe harbor.
“Ultimately, you cannot solve problems of migration unless you attack the root causes of what causes that migration,” one official said, pointing to the various reasons — from economic to safety — that drive migrants to flee their home countries. “He knows that in particular is the case in Central America.”
Transition officials are aware of recent reports of the increased numbers of migrants at or heading to the border in anticipation of the end of Trump’s presidency, and urged them to stay in their home countries. They emphasized that newly arriving immigrants would not qualify for the legalization program that Biden proposes.
Biden wants to move the refugee and asylum systems “back to a more humane and orderly process,” the official said. But “it’s also been made clear that that isn’t a switch you flip overnight from the 19th to the 20th, especially when you’re working with agencies and processes that have been so gutted by the previous administration.”
Biden hopes to reinstate a program granting minors from Central America temporary legal residence in the United States. The Trump administration terminated the program in August 2017, officials said. The administration also wants to set up a reunification program for Central American relatives of U.S. citizens that would allow those who have been already approved for U.S. residency to be admitted into the country, rather than waiting at home for an opening. The program would be similar to ones that existed for Cubans and Haitians but also were ended by the Trump administration.
The Biden proposal also would put in place a refugee admissions program at multiple processing centers abroad that would better help identify and screen those who would qualify to be admitted as refugees into the United States.
As for border enforcement, the plan calls on the Department of Homeland Security to develop a proposal that uses technology and other similar infrastructure to implement new security measures along the border, both at and between ports of entry. Biden has long vowed not to expand the border wall Trump has marginally extended.
“This is not a wall; this is not taking money from [the Department of Defense],” a transition official said, referring to how Trump helped to finance his wall after pledging Mexico would pay for it. “It’s a very different approach.”
. . . .
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Read the complete article at the link.
This is a welcome change from the poorly conceived, often ill-informed approach to immigration by the Obama Administration. It appears that Biden and Harris have actually “listened to the experts” and acted a accordingly.
The concentration on addressing the reality of Central American migration and dealing honestly and constructively with its root causes in a sensible and humane way is also refreshing. Using intelligence and technology to address real border security issues (as opposed to squandering resources on politically manufactured ones) also shows promise.
Julia Edwards Ainsley NBC Correspondent Justice & DHS Outside Justice Dep’t Photo: Victoria Pickering https://www.flickr.com/photos/vpickering/
Many of the latter wereenergized by the Trump/DHS program of White Nationalist racist fear-mongering and intentionally false anti-immigrant, anti-due-process narratives. That’s what “applied malicious incompetence” looks like — DHS and EOIR are two of the most egregious examples in a regime that raised it to an “art form.” It will take an aggressive and far-reaching “house cleaning” to get these agencies that have abandoned the common good and now operate “on the dark side” back on track.
The immediate “knee-jerk opposition” to rational, practical, fact-based immigration reform by notorious White Nationalist racist Sen. Tom Cotton (R-ARK) shows that Team Biden is on the right track to disavow the toxic institutionalized racism and biased policies of the Trump regime and move America along the path to racial justice and realistic, progressive immigration policies that will further the national interest and lead to a better future for all!
It’s a great, if long overdue, start to getting beyond Jim Crow and “Dred Scottification” and saving and enhancing our democracy! But, the proof will be in the results!
Biden, of course, will also face the formidable challenges of dealing with the human carnage left behind by the Trump regime’s disastrous mis-handling of COVID-19, economic inequality, the environment, racial justice, and foreign policy where American “prestige” has plummeted to levels not seen since the days of the Barbary Pirates.
He also must address a failing Federal Justice System that, particularly at its appellate levels, did not effectively stand up to the Trump regime’s unrelenting assault on human decency and American democracy. Indeed, Justice Sonia Sotomayor, a consistently competent and courageous Justice among our failing Supremes, offered this final harsh but true assessment of her GOP colleagues’ malfeasance in a death penalty case: “This is not justice.”https://www.nbcnews.com/news/latino/not-justice-justice-sonia-sotomayor-offers-fierce-dissent-death-penalty-n1254554
You could say that about almost everything in the departing, defeated White Nationalist regime!
I’ll note for the record that among other things, the Supremes’ tone-deaf majority has been responsible for letting bona fide asylum seekers rot in squalor in camps in Mexico while waiting for non-existent “due process,” and also authorized the imposition of potential death sentences and torture on asylum seekers within our jurisdiction without any whit of due process.
The GOP majority’s disgraceful failure to stand up for voting rights of African Americans, Latinos, and other voters of color has also deepened racial injustice in America and helped usher in a horrible “Jim Crow Revival” pushed, incited, and enabled by the GOP, “The Party of the Failed Insurrection.”
Any competent first-year law student might ask “How could this happen in America?” That’s a question that Roberts and his gang of fellow Trump enablers and apologists will have to answer before the “court of history!”
Trump RegimeTrump’s Legacy Kiddie GulagJeff Sessions’ Cage by J.D. Crowe, Alabama Media Group/AL.com Republished under licenseJeff “Gonzo Apocalypto” Sessions “Police Brutality? What Police Brutality?”Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com, Republished under licenseStephen Miller & Count Olaf Evil Twins, Notorious Child Abusers“Gauleiter Muller & Eva Braun” Yuck it Up In The Comfort Of “Public Welfare Dole” While Looking Forward to Planning Together for More “Crimes Against Humanity,” Abusing Children, Dehumanizing Persons of Color, Spreading Lies & False Narratives, & Targeting World’s Most Vulnerable Refugees 🤮☠️⚰️🦹🏿♂️ — Sure Looks Like “Welfare Fraud” to Me!
WASHINGTON, D.C. – Senator Jeff Merkley of Oregon has called for the investigation and prosecution of current and former Trump administration officials afterthe Department of Justice Office of the Inspector Generalreleased “a disturbing report confirming that the Trump administration knew their zero tolerance policy would lead to family separations,” the Oregon Democrat said in a statement.
“We finally have more answers about how this diabolical plan came to be,” Merkley said. “It is crystal clear that Jeff Sessions, Stephen Miller, Chad Wolf, Kirstjen Nielsen and other senior Trump administration officials were not only fully aware that their policy would have traumatizing impacts on families, but also that their intention was to inflict that trauma as a means to deter people from coming to America in search of a better life.”
The senator added “it’s now confirmed that they committed perjury by lying to Congress about their intentions and actions in order to avoid accountability for their monstrous initiative.”
“The intentional infliction of harm on innocent children is unforgivable and has no place on our soil,” Merkley said Thursday. “The architects should be investigated and prosecuted to the full extent of the law for any crimes connected with both the atrocities and the cover-up.”
Merkleyreturned to the border 6 more timesand advocated for families to be reunited – and for people seeking refuge “from gang violence, murder, rape, and extortion in their home countries” be allowed to make their case – something the senator alleges the Trump adminitration has not allowed in keeping with the law.
“America is at its strongest when we embrace our historic role as a beacon of hope for persecuted people from around the world,” Merkley said. “I am determined to work with the Biden administration to ensure that we turn that vision into a reality, and to hold the perpetrators of the Trump administration’s cruelty fully accountable.”
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Couldn’t have said it better myself, Senator! Right on! Remarkable how all it takes is an armed insurrection against our Capitol and our democracy generated by the Traitor Prez and supported by far, far too many cowardly, anti-American members of his “Party of Treason” to get folks “thinking like Courtside.”
Even if the criminals described by the IG escape prosecution for their crimes, the new IG Report and the additional documents that certainly will come to light once the Trump kakistocracy is removed should provide enough evidence to keep these wretched fascist creatures and their families tied up in civil litigation for the rest of their miserable and worthless lives!
To date, only Senator James Langford (R-OK) has had the decency to apologize for his role in supporting Trump’s beyond bogus, treasonous, insurrectionist claims of “election fraud” or a stolen election. Where are the apologies from the rest of the cowardly GOP traitors and toadies who supported and/or enabled Trump and his band of racist thugs over the past four years? Why is scumbag Rep. Jim Jordan walking around with a bogus “Medal of Freedom” for spreading lies and encouraging sedition, rather than sitting in a jail cell awaiting trial?
WHERE ARE THEY NOW?
“Gonzo Apocalypto” Sessions. Child abuser and racist plotter remains at large, after having the shameless audacity to run for the U.S. Senate again, being defeated by Magamoron “Coach TubbyTraitorville” (a blithering idiot who obviously got hit by one too many flying tackling dummy).
“Gauleiter Stepan Muller.” Hiding out on the public dole in the seat of corruption and insurrection (formerly and soon again to be known as the “White House”) with his repulsive “Eva Braun substitute” and carrying out more “crimes against humanity” to the end.
Rod Rosenstein. Hiding out, hanging his head in (belated, fake)shame and making the big bucks at King & Spaulding. Will need them after he is dismissed from his law firm, disbarred, and has to pay legal fees and damages to the families he traumatized.
Gene (No Relation to Alex) Hamilton. Still grifting on public welfare at the DOJ until next Wednesday. First cowardly “Waffern SS Member” to publicly take the “Nuremberg defense:” “I was only following Der Fuhrer’s orders.”But, he won’t be the last.
Donald J. “Big Loser/Traitor” Trump. Hiding out in White House basement and planning flightfrom DC after initiating botched coup attempt against his own Government.
Victims of Failed Regime’s “Crimes Against Humanity.” Already sentenced to a lifetime of pain, suffering, and trauma by Large Banana Republic that shirked its legal and moral duties.
Accountability for this “gang of White Nationalist thugs” is important!
Also, Judge Garland needs to look into the conduct of the DOJ lawyers who defended the regime’s transparent lies and false claims that there was “no child separation policy.” These turkeys 🦃 took no responsibility for their clients’ ongoing crimes and cover ups. Indeed, outrageously, they got away with making it the burden of the plaintiffs’ lawyers to reunite families the Government intentionally and illegally separated without any plans for reunification.
The invidious racist, unconstitutional motives of criminals like Trump, Miller, Sessions, Hamilton, and Rosenstein was no secret. Except for the degree of Rosenstein’s involvement, it was widely reported at the time. Trump was a well-established liar whose public statements and rationales should have been assumed false until proven true. (Ask yourself what would happen to a corporate lawyer who took at face value and presented to a court as “facts” or a “defense” in a civil suit false statements by a corrupt CEO with a long-standing record of fraud, racism, and dishonesty.)
Also, what was the a racist hack like Sessions (the report also reveals that he was as totally incompetent as a lawyer as he was devoid of human decency) doing running border enforcement programs that had intentionally been removed from the AG’s portfolio by Congress when DHS was created? How does that fit with “Gonzo’s” transparently unethical and unconstitutional actions as a “quasi-judicial officer” in interfering with due process at the EOIR Clown Show🤡/Star Chamber🦹🏿♂️?
This IG report is just the “tip of the iceberg” of the institutionalized racism and systemic misconduct that polluted the immigration kakistocracy at DOJ and DHS during the Trump regime. The failings of the U.S. Justice system from top to bottom, starting with the Supremes’ consistent failure to critically examine the regime’s transparent pattern of unconstitutional, racist, biased behavior culminating in an insurrection can’t be “swept under the carpet.”
Nor can their enabling of the White Nationalist immigration agenda of “Dred Scottification” pushed by unethical SG Noel Francisco! In a well-functioning democracy, the Trumpist thugs’ child abuse should have been stopped in its tracks. Thanks to the failure of legal, ethical, and moral leadership by Roberts and his righty GOP buddies, it wasn’t!
The entire beyond disgraceful and patently illegal “zero tolerance program” instituted by Gonzo was a grotesque misuse of public funds and abuse of prosecutorial discretion. Real crimes (the Trump regime has been an absolute boon to serious criminals from the Oval Office on down) went un-prosecuted and un-investigated. The conduct of U.S. Attorneys, Federal Judges, and U.S. Magistrate Judges along the border who shirked their duties and participated in the legal farce taking place in our criminal justice system also needs to be examined.
Those of us who lived through Watergate can see that this time around, under extraordinarily poor leadership generated by an anti-American GOP, the response of all three branches of our Federal Government to the overt threats to our Constitution and democracy posed by a dishonest Executive fell disturbingly below the bipartisan levels that saved our nation from Nixon.
That’s why the critical democratic standard of a “peaceful and orderly transfer of power” has fallen by the wayside and the Biden-Harris Inauguration will take place in an armed camp. Ironically, the man administering the oath to President Biden, Chief Justice John Roberts and his GOP colleagues on the Supremes bear a major responsibility for democracy’s peril and the pain and suffering of those like separated families whom they failed to protect from Executive abuses!
As I’ve said before, although it won’t happen, the resignations of Roberts and his fellow GOP Justices should be on President Biden’s desk on the morning of January 21. That would be a real start on healing, restoring democracy, and reinstituting human decency and respect for human lives and the rule of law in America.
(Let’s not forget that ethics-challenged Justices Thomas and Coney Barrett showed up at what essentially was a “MAGA campaign rally” at the White House on the eve of the election that eventually resulted in impeachable acts of insurrection and sedition by a patently dishonest and dangerous Chief Executive whose unfitness to govern was more than clear by that time. Honestly, it’s going to take more than a black robe to cover the shame of these dudes who stand for protecting and enabling tyranny and against justice for the people. If nothing else, it’s high time for a Democrat-led Congress to impose at least some minimal ethical standards on the Supremes, since they appear to have none to mention. That’s, of course, after they come to grips with the treason of GOP guys like Cruz and Hawley who should be expelled and barred from public “service” (treason?) for life.)
🇺🇸⚖️🗽👎🏻Due Process Forever! Cowardly thugs, 🥷🏻magamorons, 🦹🏿♂️ and their enablers, never!
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify information on the relevant government websites and with colleagues as best you can.
EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, February 5, 2021. NYC non-detained remains closed for hearings.
CBS: Another federal judge on Friday ruled that Chad Wolf was likely unlawfully appointed to his position at the helm of the Department of Homeland Security (DHS), issuing a decision that blocked a set of broad asylum limits slated to take effect Monday.
WaPo: The U.S. Court of Appeals for the 4th Circuit said the administration’s policy undermines the national resettlement program created four decades ago by Congress.
WaPo: President-elect Joe Biden plans to nominate federal judge Merrick B. Garland, a Democratic casualty of the bitter partisan divide in Washington, to be the next attorney general, tasked with restoring the Justice Department’s independence and credibility, according to people familiar with the decision.
Law360: Democratic victories in Georgia’s heated Senate runoffs gave the party a slim majority in Congress, but without enough votes to end a filibuster.
WaPo: More than 2,500 detainees, most with no serious criminal history, have given up their cases since March, according to records from the Transactional Records Access Clearinghouse, a research group at Syracuse University. Those records also show that detainees put in deportation proceedings in July 2020 were twice as likely to opt for voluntary departure than those from a year before.
WaPo: Over 170 new applicants have become the first individuals in several years to win approval to the Obama-era Deferred Action for Childhood Arrivals program for immigrants brought to the U.S. as young people, the U.S. government revealed in a court filing Monday.
Guardian: US federal prosecutors have filed motions saying the Honduran president, Juan Orlando Hernández, took bribes from drug traffickers and had the country’s armed forces protect a cocaine laboratory and shipments to the US.
NY: This year, Governor Cuomo will continue to support the Liberty Defense Project to keep fighting for immigrants seeking a better life for themselves and their families. New York’s strength, character, and pride are found in the diversity and rich culture that makes us the Empire State.
A federal district court in California preliminarily enjoined the government from implementing, enforcing, or applying the 12/11/20 final rule, “Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review.” (Pangea Legal Services, et al. v. DHS, et al., 1/8/21) AILA Doc. No. 21011107
EOIR issued a memo (PM 21-13) updating and replacing OPPM 17-01, Continuances, to account for legal and policy developments subsequent to its issuance. The memo provides a non-exhaustive list of legal and policy principles as an aid to adjudicators considering common types of continuance requests. AILA Doc. No. 21011101
Law360: The U.S. Supreme Court on Monday threw out a Ninth Circuit ruling that detained asylum seekers who clear an initial fear screening must be given a prompt bond hearing, sending the case back to the appeals court for reconsideration.
SCOTUSblog: The case asks whether a grant of Temporary Protected Status authorizes eligible noncitizens to obtain lawful-permanent-resident status if those noncitizens originally entered the United States without being “inspected and admitted” – a term of art referring to lawful entry and authorization by an immigration officer.
ImmProf: There are four immigration related cases set to be considered, with three being petitions by the government (more SG petitions on distinct immigration issues than one would usually expect in the course of an entire year), and the other involving a case in which the SG is agreeing that certiorari is appropriate (also a rare position for the SG). The SG’s position in each of these cases shows an unusual aggressiveness towards the role of the Supreme Court.
The BIA found that IJs may find a document to be fraudulent without forensic analysis if it contains obvious defects or readily identifiable hallmarks of fraud, and the party submitting the document is given an opportunity to explain the defects. Matter of O-M-O-, 28 I&N Dec. 191 (BIA 2021) AILA Doc. No. 21010801
The court held that a conspiracy or attempt to commit fraud or deceit involving over $10,000 in intended losses is an aggravated felony, and remanded to determine whether petitioner’s convictions under 18 USC §1037(a) reflected over $10,000 in intended losses. (Rad v. Att’y Gen., 12/21/20) AILA Doc. No. 21010500
The court reversed the district court opinion and disagreed with CA6 and CA9 interpretations of the statute, by holding that a grant of TPS does not constitute an “admission” into the United States under INA §1255. (Sanchez v. Wolf, 7/22/20) AILA Doc. No. 21011100
The court upheld the BIA’s denial of petitioner’s motion to reopen based on changed country conditions in Somalia, finding that the BIA did not fail to consider al-Shabaab’s increase in power or ISIS-Somalia’s emergence and growing violence from 2011 to 2018. (Mohamed v. Barr, 12/23/20) AILA Doc. No. 21010502
The court held that the Vietnamese petitioner had waived review of the BIA’s discretionary denial of asylum relief, and that his proposed social group comprised of “known drug users” was not legally cognizable because it lacked particularity. (Nguyen v. Barr, 12/21/20) AILA Doc. No. 21010503
The court reversed an injunction of PP 9945, which requires IV applicants to demonstrate acquisition of health insurance or ability to pay for future healthcare costs. The court found the proclamation within the president’s executive authority. (Doe, et al., v. Trump, et al., 12/31/20) AILA Doc. No. 21010436
President Trump issued a memorandum directing the Secretary of State to assess whether to classify Antifa as a terrorist organization under 8 USC §1182(a)(3)(B)(vi), and to take steps to consider listing Antifa in 9 FAM 302.5-4(B)(2)(U), Aliens Who Are Members of an Identified Criminal Organization. AILA Doc. No. 21010635
USCIS provided additional updates about lockbox operations, noting that applicants may face delays of four to six weeks in receiving receipt notices for some applications and petitions filed at a USCIS lockbox facility. Delays may vary among form types and lockbox locations. AILA Doc. No. 20121534
I sure hope that Judge Garland and Secretary-Designate Mayorkas are paying close attention!
Because unless they take some immediate forceful action to disable the “regime’s immigration kakistocracy” and make the radical bureaucratic changes necessary to regain control, their “dream jobs” are going to turn into “Nightmare on Elm Street” overnight!
Human rights are being violated and taxpayer funds (in an already “over budget” USG) are being poured down thetoilet 🚽by the minute by the out of control, maliciously incompetent kakistocrats at EOIR, DHS, and in the SG’s Office to name just a few of the most obvious “national disgraces” that need an immediate fix!
The defeated anti-American, neo-Nazi regime was “not normal” and neither Garland nor Mayorkas can afford to treat the wreckage of democracy and human decency and those who did the regime’s bidding at DOJ and DHS as “acceptable” for another minute!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleBIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia CommonsBIA Members Celebrate After Dismissing Appeal Of Arbitrary & Capricious Continuance Denial To Asylum Seeker, Thus Achieving “Death Without Due Process” The “Ultimate White Nationalist Deterrent” To Legitimate Refugees https://www.flickr.com/photos/rasputin243/ Creative Commons License
Check out the lies, false claims, bogus “reasoning,” and mis-statements in McHenry’s attempt to “redefine due process by encouraging judges to deny continuances to respondents.” Meanwhile, the real cause of many, perhaps most, “big time” delays and disorder in Immigration Court — “Aimless Docket Reshuffling” to accommodate improper DHS enforcement initiatives and politically motivated DOJ priorities, is swept under the rug and goes unaddressed.
Here’s an example of some amazing nativist, White Nationalist legal gobbledygook put out by the “Tower Toadies:”
The general standard for a continuance is good cause, 8 C.F.R. § 1003.29. By statute, however, “[i]n the absence of exceptional circumstances, final administrative adjudication of [an] asylum application, not including administrative appeal, shall be completed within 180 days after the date an application is filed.” INA § 208(d)(5)(A)(iii). “Exceptional circumstances” is a higher standard than “good cause.” PM 19-05, Guidance Regarding the Adjudication of Asylum Applications Consistent with INA § 208(d)(5)(A)(iii) (Nov. 19, 2018) at 2-3 (“A continuance does not automatically justify exceeding the 180-day timeline in INA § 208(d)(5)(A)(iii), however, because the statute’s ‘exceptional circumstances’ standard is higher than the ‘good cause’ standard for continuances.”). Thus, “if granting a continuance would result in missing the 180-day deadline, the Immigration Judge may only grant the continuance if the respondent satisfies both the good-cause standard of 8 C.F.R. §1003.29 and also shows the ‘exceptional circumstances’ required by INA § 208(d)(5)(A)(iii).” Id. at 2.
Translation: “Good cause” which is a constitutionally-based standard, actually means “exceptional circumstances” not “good cause” when dealing with asylum seekers, the most vulnerable among us, whose lives are in your hands. Therefore, the Constitution be damned, go ahead and deny the asylum applicant a legitimate continuance but claim that you had “good cause” for not finding “exceptional circumstances.” Oh, and while you’re at it, don’t bother to factor in the ongoing public health crisis and the lives of the individuals, attorneys, staff, and certainly not your own worthless life in reaching your pre-determined decision to deny a continuance. Denying asylum to refugees, for any reason, no matter how specious or disingenuous, outweighs human life and your meaningless oath to uphold the Constitution.
Sort of reminds me of “Gruppenfuhrer Rudy’s” famous “Truth isn’t truth” declaration to Chuck Todd on “Meet the Press!” Only in the kakistocracy is this type of absurdist “logic” considered normal and acceptable.
What a real judge might say: “Good cause” for a continuance exists where failure to grant one would make the proceedings fundamentally unfair or unduly impinge on a full and fair consideration of the respondent’s case. The need to grant a continuance to avoid a denial of constitutionally required due process is obviously an “exceptional circumstance.” This is especially true in dealing with applicants for asylum and others seeking protections from persecution and torture. Additionally, the ongoing public health crisis and the overriding need to protect the health and safety of those coming before you and your dedicated professional court staff should always be paramount in considering continuance requests.
No legitimate court system in America is mismanaged in this grotesque, nonsensical manner without considering the input, or indeed the health, safety, and lives, of either the parties appearing before the court or the judges themselves!
To be frank, Judge Garland, the EOIR Tower Kakistocracy is delivering you “the big middle finger”🖕 in advance. They are acolytes of the racist, White Nationalist, “myth based” xenophobic immigration agenda set forth by Stephen Miller and Gene Hamilton. As far as they are concerned, you and your “return justice and professionalism to Justice” agenda can “go pound sand.”
While the EOIR kakistocracy might be openly contemptuous of your incoming leadership, your supporters our here in the New Due Process Army(“NDPA”) are also aware of what’s happening. For better or worse, your commitment to and effectiveness in restoring justice will be judged initially on the number of hours, minutes, and seconds it takes you to oust the current Clown Show 🤡🦹🏿♂️☠️in Falls Church, including the failed and compromised BIA; replace them with professional, independent judicial administrators and real judges with expertise in immigration, asylum, and human rights and a nationally-recognized, unswerving commitment to due process, best practices, and practical scholarship in support of social justice.
EOIR might not be the most “sexy” item on your incoming agenda, Your Honor. But, the fate of one of the largest, perhaps most important “Federal Court Systems” is probably the most important and consequential item on which your tenure ultimately will be judged. As all of us who have served the public know, many of our “achievements” that occupied so much of our time and attention in office are forgotten or disappear before the door closes behind us at the end of of our tenure. But, being the “Father of the Independent Immigration Court” 👨🏻⚖️⚖️🗽🇺🇸👍🏼😇— bringing in a group of experts to fix the current ungodly mess and then advocating tirelessly for Article I legislation — is the kind of lasting legacy of which you could be proud!
Judge Garland, you don’t want to “own” this national disgrace and mockery of our Constitution, rational, professional court administration, honest, competent civil service, and simple human decency — the obligations that we owe to our fellow humans. Please get some real judges and professional administrators over to Falls Church immediately, put the EOIR Clown Show 🤡🦹🏿♂️out of its misery, 🧹🪠 and end the crimes against humanity☠️⚰️ they are visiting on the most vulnerable among us and their attorneys! History (as well as the NDPA) is watching!
Best wishes for a due process⚖️ and best practices 👍🏼filled tenure! Be remembered for the justice you have promoted and the evil ☠️🦹🏿♂️⚰️👎🏻you have resisted and eradicated!
Pangea Legal Services v. DHS (“Pangea II”), N.D. CA (USD Judge James Donato), 01-08-21
KEY QUOTE:
Wolf has not spent his time idly at DHS. During his relatively brief tenure, he has attempted to suspend the Deferred Action for Childhood Arrivals (DACA) program, and impose administrative fees for immigration services and eliminate fee waivers, among other actions. These efforts resulted in several lawsuits in federal courts across the United States, each of which challenged Wolf’s rulemaking authority on the same grounds presented by plaintiffs here. In all of these cases, the district courts have concluded that Wolf was not a duly authorized Acting Secretary, and that his actions were a legal nullity. See Batalla Vidal v. Wolf, No. 16-CV-4756 (NGG) (VMS), 2020 WL 6695076, at *9 (E.D.N.Y. Nov. 14, 2020); Nw. Immigrant Rights Project v. United States Citizenship & Immigration Servs., No. CV 19-3283 (RDM), 2020 WL 5995206, at *24 (D.D.C. Oct. 8, 2020); Immigrant Legal Res. Ctr. v. Wolf, No. 20-CV-05883-
United States District Court Northern District of California
Case 3:20-cv-09253-JD Document 66 Filed 01/08/21 Page 7 of 14
JSW, 2020 WL 5798269, at *7 (N.D. Cal. Sept. 29, 2020); Casa de Maryland, Inc. v. Chad F. Wolf, Case No. 8:20-cv-02118-PX, 2020 WL 5500165, at *23 (D. Md. Sept. 11, 2020).3
This Court is now the fifth federal court to be asked to plow the same ground about Wolf’s authority vel non to change the immigration regulations. If the government had proffered new facts or law with respect to that question, or a hitherto unconsidered argument, this might have been a worthwhile exercise. It did not. The government has recycled exactly the same legal and factual claims made in the prior cases, as if they had not been soundly rejected in well-reasoned opinions by several courts. The government initially appealed two of these decisions, both of which it later voluntarily dismissed, and appears to have only one appeal pending. In the main, the government contents itself simply with saying the prior courts were wrong, with scant explanation. See, e.g., Pangea Dkt. No. 48 at ECF p. 11 (“the various courts that have embraced this argument are mistaken”); Immigration Equality Dkt. No. 37 at 14 (same).
This is a troubling litigation strategy. In effect, the government keeps crashing the same car into a gate, hoping that someday it might break through. To be sure, one court decision alone does not necessarily close the door to any further cases or arguments along similar lines. Our common law system contemplates that more than one judicial examination of facts and issues is often merited. But our system has no room for relitigating the same facts and law in successive district court cases ad infinitum. That is what the government is doing here. The Court took pains at oral argument to discuss this with counsel for the government, and specifically asked how their arguments here are in any way different from the ones made and rejected in the preceding cases.4 Counsel responded mainly with a disparaging comment to the effect that the other district courts had shirked from working their way through the record. That is untrue. Each of the prior decisions conducted a painstaking analysis of the facts with respect to the Acting Secretary
3 The Government Accountability Office (GAO) has also found that Wolf’s appointment was invalid under the Homeland Security Act. See Matter of Dep’t of Homeland Security, Gov’t Accountability Office (Aug. 14, 2020), https://www.gao.gov/assets/710/708830.pdf, at 2.
4 Attorney August Flentje at DOJ handled this portion of the government’s argument at the hearing.
United States District Court Northern District of California
Case 3:20-cv-09253-JD Document 66 Filed 01/08/21 Page 8 of 14
position at DHS, with full attention to the unprecedented efforts to validate Wolf’s claim to the job, irrespective of governing law and procedures.
A good argument might be made that, at this point in time, the government’s arguments lack a good-faith basis in law or fact. But the Court need not reach that conclusion to reject those arguments yet again. The Court’s independent review of the record indicates that Batalla Vidal, 2020 WL 6695076, which is the latest decision before this order, correctly identified and analyzed the salient points vitiating Wolf’s claim of rulemaking authority, and the Court agrees with it in full.
********************
Wolf’s continuing impersonation of a Cabinet Officer and Barr’s knowingly illegal, ultra vires approval of clearly unlawfully promulgated regulations that actually threaten the lives of bona fide asylum seekers should be dealt with as criminal offenses after Jan. 20, 2021. Every Government official who participated in this travesty, as well as the unethical DOJ officials and their supervisors who were involved in the frivolous and unethical “defense” of this clearly unlawful, and invidiously motivated, action should be removed from Federal Service. Clearly, prosecutions should be explored against racist mastermind “human rights criminal” Stephen Miller.
As the regime of treason and insurrection comes to an end, those who knowingly helped further its gross illegalities should be held fully accountable under the law. Criminals have no right to government lawyers to defend their scofflaw behavior in civil actions like this!
The EOIR Clown Show 🦹🏿♂️🤡 must go! But, there also must be some accountability for those who abused their government positions and violated their oaths of office to illegally inflict harm and suffering on the most vulnerable among us.
We have seen a serious breakdown of legal ethics and bar policing responsibility at all levels of the Federal Government during the regime. That breakdown extends to Federal Judges all the way up to the indolent Supremes who have consistently failed to hold U.S. Government attorneys (including, specifically, the highly unethical former Solicitor General and his staff) accountable for their unethical behavior in engaging in frivolous civil litigation, advancing “bad faith” defenses for clearly illegal actions, seeking unjustified stays, manufacturing and arguing clear “pretexts” for unconstitutionally discriminatory Executive actions, failing to do even minimal “due diligence,” putting forth factually erroneous and misleading arguments, and allowing the government to abuse, harass, and waste the time of private counsel for improper purposes.
This case also reinforces the absolute necessity of nationwide injunctive relief against Government abuses like this. The “solicitation” of cases challenging and improperly narrowing this necessary form of relief, a corrupt project of the Federalist Society and the former Solicitor General, should raise serious questions of the judicial qualifications of the two “GOP Justices” who recently engaged in this form of rancid, immoral, and legally defective political pandering in their “separate opinion.” Better Justices for a Better America!
What really held the American legal system together for the last four perilous years was the tenacity of lawyers, many of them arguing Immigration or human rights cases pro bono, and the legal scholarship and courage of some U.S. District Judges who stood tall even in the face of a spineless and complicit Supremes’ majority that all too often failed to support them and could barely move fast enough to give a patently lawless, corrupt, racist, treasonous, and clearly unqualified President and his neo-Nazi minions carte blanch to abuse humanity and “Dred Scottify” persons of color. Leadership, moral courage, and integrity count. But for Sotomayor, Kagan, Breyer, and the late RBG, the Supremes came up disastrously short of fulfilling their Constitutional rule in far, far too many cases, and innocent people suffered and died because of it. This is simply unacceptable in our highest level judges.
It’s high time for law schools to reexamine and beef up obviously inadequate ethical training, for a review of the failure of basic ethics throughout Government, and for review and reform of the scurrilous and unacceptable abdication of ethical norms and responsibilities by Federal Judges at every level of our floundering and failing Federal legal system. Criminals like Wolf and Miller and clowns like EOIR officials violate the laws and degrade humanity because they have every reason to believe they will get away with it. They must be held accountable if we want the abuses that came close to destroying our democracy this week to be stopped!
Jacob Soboroff NBC Correspondent Jacob Soboroff at the ABC News Democratic Debate National Constitution Center. Philadelphia, PA. Creative Commons License
Jacob Soboroff reports for NBC News:
Inside the effort to provide mental health care to migrant families
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Seneca Family of Agencies provides mental health care to migrant families separated by the Trump administration. NBC News’ Jacob Soboroff reports on the obstacles faced by the nonprofit in locating families.
Jacob and his terrific NBC News colleague Julia Edwards Ainsley have been at the forefront of exposing the irreparable human carnage and lasting trauma caused by the regime’s unlawful, racist, White Nationalist immigration policies (some of which were unconscionably “greenlighted” by an immoral and irresponsible Supremes GOP majority that views themselves and their rotten to the core, inhumane, right-wing ideology as above the needless human suffering they further and encourage).
The “perps” like,”Gonzo” Sessions, Grauleiter Miller, Kirstjen Nielsen, “Big Mac With Lies” McAleenan, Noel Francisco, Rod Rosenstein, et al, walk free while the victims continue to suffer and others, like the Christ-like folks at Seneca Family of Agencies, are left to pick up the pieces! How is this “justice?”
Our national policies have truly abandoned Christ’s values of self-sacrifice, mercy, generosity in spirit and deed, courage in the face of oppression, human compassion, justice, and assistance for the most vulnerable among us under the perverted and immoral “leadership” of a man and his party without humane values or respect for truth who stand for absolutely nothing that is decent in the world.
As Americans suffer and die from the pandemic he mocked, downplayed, and mishandled; unemployed Americans are dissed and shortchanged by his party of underachieving, out of touch fat cats, liars, cowards, and truth deniers; asylum seekers needlessly suffer in squalid camps in Mexico; refugees scorned, unlawfully and immorally abandoned and abused by the world’s richest country face persecution, torture, despair, and death; and non-criminals rot in DHS’s “New American Gulag,” the immoral Grifter-in-Chief lives it up at taxpayer expense for one last Christmas at his Florida resort; fumes about a fair and square election that he lost big time; savors a rash of holiday executions; delays bipartisan COVID relief; ferments treason against our republic; and pardons a wide range of scumbags, felons, war criminals, family members, cronies, fraudsters, and other totally undeserving characters.
But, there is hope for our world at Christmas: 27 days and counting to the end of the kakistocracy, expulsion of the unqualified con-man and his motley crew of criminals and cronies, and the ascension of a real President and Vice President, Joe Biden and Kamala Harris, to lead us, and perhaps our world, out of the current mess to a kinder, brighter future. That might be the best present of all this Christmas.
Watching the Trump campaign’s attacks on the election results, I now see what might have happened if, rather than nip and tuck the Trump agenda, responsible Justice Department attorneys had collectively — ethically, lawfully — refused to participate in President Trump’s systematic attacks on our democracy from the beginning. The attacks would have failed.
. . . .
*******************
Read the full op-ed at the link. That’s right Erica. Lack of ethics, morality, and failing to uphold the Constitution and the rule of law have consequences. Helping to “custom design” obvious pretexts for racist and hate inspired policies, for consumption by right-wing judges who only seek “cover” for going along to get along with fascism, is wrong. Duh!
It’s no surprise that the clearly unconstitutional and racially and religiously bigoted “Travel Ban,” willingly embraced by an intellectually dishonest and morally compromised Supremes majority, was first on the list in Erica’s “confession.”
But, don’t expect any apologies from the vast majority of Trumpist lawyer/enablers who violated their oaths of office or from the big time law firms (one where I was formerly a partner) who have granted them undeserved refuge at fat salaries! Nor should we expect large-scale redemption from the legions of Government lawyers in DOJ, DHS, and elsewhere who will assert the “Nuremberg defense” of “just following orders.”But, that doesn’t mean that the rest of us can’t demand some accountability for participation inwhat are essentially “crimes against humanity.”
Erica’s article largely echoes what my friend and colleague Judge Jeffrey Chase, many of our colleagues in the Round Table of Former Immigration Judges, ⚔️🛡 and numerous members of the New Due Process Army (“NDPA”) have been saying throughout this Administration. Indeed, I frequently have noted that the once-respected Solicitor General’s Office and EOIR operated as basically “ethics free zones” under the disgraced “leadership” of Sessions, Whitaker, and Barr.
It’s also why the the Biden-Harris team that takes over at DOJ must:
immediately remove all the current “executives” (and I use that term lightly) at EOIR as well as all members of the BIA and transfer them to positions where they can do no further damage to asylum seekers, migrants, their (often pro bono or low bono) lawyers, or the rest of humanity;
replace them with qualified individuals from the NDPA; and
be circumspect in eventually making retention decisions for Immigration Judges, taking into account public input as to the the degree to which each such judge’s jurisprudence during the Trump kakistocracy continued to reflect adherence to constitutionally required due process and fundamental fairness to migrants, respect for migrants and their representatives, best practices, and interpretations that blunted wherever reasonably possible the impact of the kakistocracy’s xenophobic, racist, White Nationalist policies.
American justice has been ill-served by the DOJ and the Immigration Courts over the past four years. That’s something that must not be swept under the carpet (as is the habit with most incoming Administrations).
The career Civil Service overall, and particularly complicit and often ethics-free government lawyers,failed to put up the necessary resistance to an overtly anti-American regime with an illegal and immoral agenda. Lives were lost or irreparably ruined as a result. That’s a big-time problem that if not addressed and resolved will likely make continuance of our national democratic republic impossible.
⚖️🗽🧑🏽⚖️👍🏼🇺🇸Due Process Forever! Complicity Never☠️🤮🏴☠️👎🏻!
PWS
12-21-20
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
Dumping Asylum Seekers in Honduras Artist: Monte Wolverton Reproduced under license“Sheltering in Cages” by John Darkow Reproduced under licenseJeff Sessions’ Cage by J.D. Crowe, Alabama Media Group/AL.com Republished under license
CRUELTY TO migrant children, a trademark of the Trump administration’s immigration policy, did not cease when officials reversed course in the face of public outrage two years ago and stopped wrenching toddlers, tweens and teens from their parents — with no plan or process to reunite them. It has continued apace under cover of the pandemic, which the White House has used as an all-purpose pretext for ignoring child-protection laws and diplomatic agreements governing asylum, and, without even a nod to due process, expelling unaccompanied children who cross the border seeking refuge.
A federal judge has now halted that practice even as he acknowledged the administration’s far-reaching powers in the midst of a public health emergency. Those powers are broad, U.S. District Judge Emmet G. Sullivan ruled, but do not enable the government to send minors packing without affording them a chance to have their asylum claims heard.
At least 13,000 children have been detained by Border Patrol officers and swiftly thrown out of the country under an emergency decree that has effectively sealed off the southern border to most migrants since the spring. Administration officials justified the measure in the name of protecting the country from a potential influx of migrants carrying the coronavirus — but performed no testing, and provided no data, to substantiate their stance.
Given infection rates in Mexico and Central America, it may be reasonable to assume that some migrants, including unaccompanied minors, might have contracted covid-19. It may also be the case, however, as the ACLU argued in court, that the practice of expelling young migrants actually exposes U.S. border authorities to more risk — in the course of holding them while flights are arranged to their home countries in Central America or elsewhere — than they would otherwise face if the migrants were placed in shelters that have the capacity to adopt social distancing and other precautions. Judge Sullivan, for his part, said the government had asserted its “scientific and technical expertise” to justify its policy of evicting young migrants — but provided none by way of actual evidence.
As it happens, it occurred to at least some administration officials, early on in the pandemic, that migrant children deserved some special consideration. When the policy of suspending asylum was first rolled out, children who crossed the border were exempted. That was quickly reversed, however, with a spokesman saying that minors would be returned to their countries of origin on a “case by case basis.” In the ensuing months, however, virtually all have been expelled.
Anti-trafficking and other laws provide for protections for unaccompanied minors who arrive in this country. The administration has seized on the pandemic to disregard those, along with other long-standing measures and practices that set procedures for migrants seeking refuge here. A more humane approach, in line with American traditions and values, would have established a process for testing and quarantining, at least for migrant children, as they pursued asylum claims. But humane policy is anathema to the Trump administration, and the result is thousands of children who have been subjected to unwarranted hardship and risk.
*********************
Remembers, the victims are largely dead, deported, or still suffering! The “perps” — including the “Perp in Chief,” “Gruppenfuhrer Miller,” Jeff “Gonzo Apocalypto” Sessions, “Wolfman the Illegal,” and “Billy the Bigot” remain at large, even profiting from and bragging about their “crimes against humanity.” This is a “functioning democracy?” No way!
We’ve all been subjected to the disingenuous writings of pundits babbling on about the resilience of American democracy in the face of a fascist president and his corrupt anti-democracy party of cowards and enablers. Hogwash!
Make no mistake about it, American democracy is on the ropes! Basically, we’re watching a corrupt President who lost the election by over 6 million votes and 74 electoral votes engage in systematic frivolous, abusive, baseless litigation intended to destroy our nation, undermine our national security, and disenfranchise voters. It’s a disgusting, overtly racist, dishonest performance that would have any other individual in America and his motley band of unethical lawyers in jail for contempt and conspiracy to obstruct justice! But, Trump and his cronies continue to operate outside the law!
We owe our existence as a nation less to any “structural integrity” and much more to a relatively few courageous, smart, highly motivated members of the resistance: immigration, human rights, and civil rights lawyers; African American women; non-right-wing journalists; Democratic legislators; scientists and medical professionals; a limited number of Federal Judges, mostly at the District Court and Immigration Court levels (and specifically excluding any current BIA Member, EOIR “Manager,” or Supreme Court Justice not named Sotomayor, Kagan, and (sort of) Breyer); courageous DACA kids; and some Federal Career Civil servants not working at ICE or CBP.
The “resilience of American institutions” view is largely that of a privileged minority who haven’t been deported to possible torture or death without any process at all (let alone “due” process), haven’t been illegally separated from beloved family members, aren’t rotting in private prisons (the “New American Gulag”) for the “crime” of seeking justice, aren’t struggling with unemployment or difficulty putting food on the table while Moscow Mitch and his elites focus on confirming unqualified Federal Judges, haven’t had family members shot by the police, haven’t had family members unnecessarily suffer and die because of the worst President in U.S. history’s maliciously incompetent failure to provide leadership and any systematic strategy for controlling a pandemic, and haven’t had to put their lives and professional reputations on the line in a failing Justice system that has enabled grotesque abuses by the likes of Jeff “Gonzo Apocalypto” Sessions, Billy the Bigot Barr, Noel Francisco, and the rest of their band of unethical Government lawyers.
The Biden Administration must do a thorough housecleaning of the corrupt DHS and DOJ bureaucracies that carried out the illegal, immoral, racist, White Nationalist agenda developed by neo-Nazi Stephen Miller and his cowardly gang of brownshirts!
And, as a nation, we need to think carefully about the implications of a life-tenured Supreme Court majority that, since their initial feckless performance on the “Muslim Ban” cases, time and time again failed to forcefully and unanimously stand up for our democracy, human decency, and those defending them in the face of overt, racism and hate driven, Executive tyranny! A Supremes’ majority that has disgracefully and spinelessly embraced the “Dred Scottification” of “the other” (mostly immigrants and those of color). It’s not rocket science! And some of our “elite law schools” seemed to have forgotten to teach “Con Law 101” and “Basic Ethics” to aspiring right wing judges!
It’s less about institutions than it is about the courageous individuals who uphold them! And, our future depends on the Biden-Harris Administration putting these folks “in the game” to insure that an unmitigated disaster like the Trump regime, it’s rampant illegality and inhumanity, and its “malicious incompetence” can never, ever, happen again! And, we must at least start the process of developing a better and more courageous Federal Judiciary for the future!
Due Process Forever! Complicity in the face of tyranny, never!
