"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.
Patrick J. McDonnell, Molly O’Toole and Cindy Carcamo report for the LA Times:
MEXICO CITY — More than half the deportees flown back to Guatemala by U.S. immigration authorities have tested positive for coronavirus, the top Guatemalan health official said Tuesday.
Speaking to reporters in Guatemala City, Hugo Monroy, the minister of health, did not specify a time frame or the total number of deportees who had arrived home with infections.
But hundreds of Guatemalans have been returned in recent weeks, including 182 who arrived Monday on two flights from Texas.
Monroy said that on one flight — which he declined to identify — more than 75% of the deportees tested positive.
But he made clear this was not an isolated incident and said many deportees arrived with fevers and coughs and were immediately tested.
“We’re not just talking about one flight,” he said. “We’re talking about all the flights.”
In video later released by the government, Monroy contradicted his earlier statements and said he was referring to just one flight.
The Guatemalan Foreign Ministry said through a spokesman Tuesday that the “official” number of deportees diagnosed with COVID-19 is four, including one who arrived on one of the flights Monday.
A high number of infections among deportees would cast doubt on the official tally of how many of the more than 33,000 migrants in U.S. detention are infected. U.S. immigration officials have said that 77 have tested positive, noting that some of those may no longer be in custody.
The U.S. Department of Homeland Security did not respond to requests for comment.
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Read the rest of the article at the link.
For four decades, the U.S. has been deporting its problems to the poorest and most unstable countries in Central America. Gangs such as MS-13 and the 18th Street Gang actually originated in Los Angeles and were “exported” to Central America. Once there, they flourished, grew more powerful, became “de facto governments” in some areas, and instituted a reign of terror and persecution that sent hundreds of thousands of new refugees fleeing north to the United States over the years.
Now, Trump and his cronies once again believe that often illegal and irresponsible deportations to the Northern Triangle countries will allow us to escape accountability. But, it won’t.
Irresponsibly spreading disease in poor countries where public health services are dismal at best will eventually have consequences throughout the Americas. And, we will not be immune from the long-term effects of empowering theTrump kakistocracy and its White Nationalist cronies. What goes around come around. Neither wealth nor arrogant ignorance will save us from paying a price for our lack of concern for humanity.
Due Process Forever! Malicious Incompetence Never!
The Trump administration’s novel COVID-19 border ban invokes public health authority to erect a shadow immigration enforcement power in violation of the Refugee Act, legal safeguards for unaccompanied minors, and fundamental procedural rights. Relying on an obscure 1944 provision that provides no authority for immigration removals, the Centers for Disease Control purports to authorize summary Border Patrol expulsions of asylum seekers.
On March 20, the Centers for Disease Control (“CDC”) issued a largely unnoticed but sweeping order authorizing the summary expulsion of noncitizens arriving at the border without valid documents. The Order operates wholly outside the normal immigration removal process and provides no opportunity for hearings or assertion of asylum claims. It deploys a medical quarantine authorization to override the protections of the immigration and refugee laws through the use of an unreviewable Border Patrol health “expulsion” mechanism unrelated to any finding of disease or contagion.
How the COVID-19 Expulsion Policy Works
The CDC Order is based on an emergency Department of Health and Human Services (HHS) Interim Final Rule issued simultaneously with the Order under the authority of an obscure provision of the 1944 Public Health Service Act. Section 362 of that Act authorizes the Surgeon General to suspend “introduction of persons or goods” into the United States on public health grounds. Based on an unprecedented interpretation of the 1944 Act, the CDC regulation invokes the COVID-19 pandemic to redefine what constitutes “introduction of persons” and “introduction of communicable diseases” into the United States. It establishes a summary immigration expulsion process that ignores the statutory regime governing border arrivals and disregards the protections and procedures mandated by the 1980 Refugee Act and Refugee Convention as well as the special safeguards for unaccompanied minors under the Trafficking Victims Protection Reauthorization Act (“TVPRA”).
The CDC Order “suspending introduction of certain persons” applies to land travel from two countries, Mexico and Canada, and only to those noncitizens defined as “covered aliens.” That definition is unrelated to infection or disease. It includes only those who arrive by land without valid travel documents and immediately “suspends” their “introduction” for a renewable period of 30 days. In actuality the Order singles out those who seek asylum – and children – to order them removed to the country from which they entered or their home country “as rapidly as possible.” A recently leaked Customs and Border Protection directive makes clear that expulsion is the goal and that no process is provided.
The Order’s stated rationale is the risk alleged from “covered aliens” being crowded in “congregate settings.” The apparent justification for bypassing all legal protections and procedures is the CBP’s assertion that Border Patrol officers are “not operating pursuant to” their authority under the immigration laws.
This shadow immigration expulsion regime is not part of some coherent public health or safety plan to seal our borders or to diminish the risk of COVID-19’s introduction into the U.S. A web of other proclamations and restrictions leave open many avenues for other travelers to enter the United States. The risk of processing in congregate settings is a function of DHS’s own practices and policies; it is also not unique to landborders.
The CDC order is designed to accomplish under the guise of public health a dismantling of legal protections governing border arrivals that the Trump administration has been unable to achieve under the immigration laws. For more than a year, the administration has sought unsuccessfully to undo the asylum system at the southern border claiming that exigencies and limited government resources compel abrogating rights and protections for refugees and other noncitizens. The courts have rebuffed those attempts in critical respects. Now the administration has seized on a public health crisis to impose all it has been seeking – and more.
Unquestionably, the United States faces a pandemic of unknown scope and duration that has led to the greatest social and economic disruption and restrictions on personal movement in our lifetime. The hospital and healthcare system is under siege and threatened with collapse in some areas. Infected persons can be asymptomatic and may not be detected. The addition of contagious individuals can exacerbate spread of the virus, place additional strains on hospitals, pose dangers to healthcare workers and law enforcement officers, and increase the risk of infection for others.
But the COVID-19 ban is an act of medical gerrymandering. It is crafted to override critical legal rights and safeguards in singling out only those arriving at the border without authorization and deeming that class of people a unique and unmitigable public health threat. It tries to justify an end-run around congressionally mandated procedural rights and protections essential for refugees and unaccompanied minors and it does so to achieve an impermissible goal. What’s additionally shocking here: the statutory provision does not actually give the executive branch expulsion authority.
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Read the rest of Lucas’s “mini treatise” at the above link.
The law is clearly against Trump here, as Lucas so eloquently and cogently sets forth. But, that doesn’t necessarily mean much in an era of a feckless GOP-stymied Congress and an authoritarian-coddling righty Supremes’ majority led by Roberts and his four sidekicks.
The Supremes have delivered a strong message to the lower Federal Courts that Trump can do just about anything he wants to migrants. He just has to invoke some transparently bogus “national security” or “emergency” rationale for ignoring the Constitution and statutes.
It’s “Dred Scottification” in full force. Largely the same way the courts buried the rights and humanity of African Americans to enable a century plus of “Jim Crow” following the end of the Civil War. The “law of the land” just became meaningless for certain people and in certain jurisdictions. “Any ol’ justification” — states’ rights, separate but equal, no jurisdiction, etc. — was more than enough to read Africans-American citizens out of their Constitutional and other legal protections.
Don’t kid yourself. That’s exactly what Trump, the GOP, and the Supremes’ majority are up to here.
And, the amazing thing, here in 21st Century America, they are getting alway with it! In plain sight!
This November, Vote Like Your Life Depends On It! Because It Does!
Andrea Castillo and Brittny Mejia report for the LA Times:
For weeks, as the coronavirus spread, Jose Hernandez Velasquez worried about the dangers of being detained inside the Adelanto ICE Processing Center 80 miles east of Los Angeles.
The 19-year-old Guatemalan immigrant listened uneasily as other men called their families, begging them to do everything possible to get them released so as to reduce their odds of contracting the deadly illness.
Ultimately, in light of the pandemic, a federal judge ordered immigration authorities to release Hernandez, an asylum seeker with hypertension who had spent nearly 21/2 years at the facility. When a guard came to tell him the news, Hernandez was speechless. Other detainees burst into applause.
“I was really worried,” he said in a phone call after his release. “It was so difficult to be inside.”
As an increasing number of Immigration and Customs Enforcement detainees across the country test positive for COVID-19, California lawyers are working to free as many clients as they can by invoking constitutional rights and arguing on humanitarian grounds. In the last two weeks, U.S. District Judge Terry Hatter Jr. ordered at least 10 people released from Adelanto, one of the country’s largest detention centers, holding nearly 2,000 people.
It’s unclear how many detainees have been released nationwide because of coronavirus concerns. In recent weeks, federal judges across the country have ordered the release of more than 40 detainees.
Like Hernandez, most have been released after lawyers petitioned federal courts on their behalf. Others have been released on bond or through humanitarian parole, which is free to people with a compelling emergency.
In response to the pandemic, ICE has instructed field offices to assess and consider for release those deemed to be at greater risk of exposure, reviewing cases of individuals age 60 and older, as well as those who are pregnant.
In court filings, ICE has argued that concern about detainees contracting COVID-19 is “based on mere speculation” and that releasing large numbers of them would set a precedent that would persist even after the virus subsides.
Until ICE agrees to release more detainees, “you’re going to keep seeing petitions like this,” said Jessica Bansal, senior staff attorney at the American Civil Liberties Union of Southern California, which got Hernandez and others released from Adelanto. “Because people need to get out.”
The ACLU has sued ICE facilities in multiple states over coronavirus concerns.
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Read the rest of the article at the above link.
Empowering a regime that functions in such a contemptuous, cruel, and incompetent manner is insane and wasteful to boot. Everyone, including the legitimate needs of DHS enforcement (not much resemblance to the current racially-driven scofflaw mess) would benefit from a professionalized, accountable, and properly focused DHS and an independent, due process with efficiency-oriented U.S. Immigration Court.
Immigration enforcement could focus on priorities that actually relate to the safety and security of our nation, the private and NGO immigration bar could expand individual case representation before the Immigration Courts thus promoting efficiency with due process, and the U.S. District Courts could return to other cases. It would be a win-win-win, notwithstanding the bogus blather of the White Nationalist restrictionists who seek to use the pandemic as a weapon to “zero out” legal immigration and force all migration into the “black market” where it can more easily be exploited and abused by them and their cronies.
Due Process Forever! Malicious Incompetence Never!
ENSHRINED IN law for four decades, the system that allows persecuted migrants to seek refuge in the United States has survived sustained assaults since the Trump administration took office. Now Mr. Trump, having weaponized a public health crisis to ignore long-established statutes, rules and procedures, has finally managed to crush it.
For the past three weeks, virtually every category of migrant without papers has been turned back at legal ports of entry along the southern border or expelled immediately upon apprehension by border agents; 10,000 have been thrown out so far in the crisis. They include minors who may have been trafficked and asylum seekers, individually or in families, who may face persecution in their home countries. Immigration courts are suspended, deportation procedures have been ditched, and due process is a thing of the past.
For years, President Trump has disparaged unauthorized migrants as disease carriers, with paltry evidence. Now he justifies the brutal measures, imposed March 21, by insisting that in the midst of a pandemic, migrants could ignite a “perfect storm” of contagion that would endanger border agents, the health-care system and the public. “Left unchecked,” he warned, they could even “cripple our immigration system” — the very immigration system he has tried by every means to dismantle since taking office.
[[Full coverage of the coronavirus pandemic]]
The evidence for that is, so far, scant; a hundred times more people have tested positive for the coronavirus in the United States than in Mexico, El Salvador, Honduras and Guatemala combined — the countries of the overwhelming majority of migrants at the southern border. That adds weight to the suspicion that Mr. Trump, contemptuous of what he calls “the worst immigration laws ever,” is obliterating them through the legally dubious means of a health emergency measure enacted in 1944.
It is reasonable in the face of this pandemic to exercise extreme caution in screening those who are admitted to the United States, and even barring most foreign travelers from Western Europe and China, some of the world’s most ravaged regions. It’s a different thing to impose a systematic, draconian, extralegal regime, one never contemplated by Congress, whose effect is to ignore and override 40 years of asylum and immigration law.
Mr. Trump had severely tightened asylum procedures before the pandemic but had not, and could not, expunge the possibility that migrants with reasonable asylum claims could apply and be heard in court. Respecting those asylum procedures, like respecting civil liberties, presents few challenges during prosperity and peacetime. It is more difficult, and requires political courage, when the country is reeling economically, and on what amounts to a war footing, as it is today.
Yet it is precisely in times of emergency that any country faces its most severe tests — ones that call into question the nation’s essential character and values. It shames itself when it fails to live up to those qualities and values, as the United States did when it forcibly imprisoned more than 100,000 Japanese Americans in internment camps during World War II. That is what Mr. Trump is doing now by betraying this country’s long tradition as a beacon to those fleeing oppression.
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Four decades of progress, uneven and imperfect as it was, in implementing the Refugee Act of 1980 undone in less than four years. Notably, Trump obliterated the Act without Congressional participation. Also, he took advantage of the Supremes failure to force the Executive to comply with the letter and spirit of its landmark 1987 decision in INS v. Cardoza-Fonseca establishing a generous, humanitarian reading of the “well-founded fear” standard for asylum seekers under the Refugee Act of 1980. When the Executive can simply eliminate laws he doesn’t like without Congress and without effective resistance from the Supremes, democracy is definitely on the ropes.
The “mainstream media” is finally picking up on what the “New Due Process Army” and Courtside have been saying for the better part of three years. And, the dissolution of American democracy started with the assault on immigration and refugee laws. But, it won’t end there unless we vote the regime out in November and start rebuilding an America that honors Due Process, the rule of law,competency, and the dignity and rights of all humans.
Due Process Forever! Vote Like Your Life Depends on It! Because, It Does!
A federal judge ruled Saturday that immigration enforcement officials must allow confidential telephone calls between detainees at the Adelanto ICE Processing Center and their attorneys in light of the coronavirus outbreak.
The 15-page ruling by U.S. District Judge Jesus G. Bernal found that U.S. Immigration and Customs Enforcement must reverse a policy that critics said made it virtually impossible for detainees and their attorneys to confer in private at the facility, about 80 miles east of Los Angeles in San Bernardino County.
Bernal wrote that the agency must provide “free, reasonably private legal calls on unrecorded and unmonitored telephone lines, and must devise a reliable procedure for attorneys as well as detainees to schedule those calls within 24 hours of a request.”
The decision came after the American Civil Liberties Union Foundation of Southern California and others sought a temporary restraining order late last month, noting the risks posed by in-person visitation amid the COVID-19 pandemic.
Attorneys for the detainees, which included the Immigrants’ Rights Clinic at Stanford Law School and the law firm Sidley Austin, hailed the ruling for opening other methods for them to communicate with the outside world during the pandemic.
“This order will protect detained immigrants’ constitutional right to speak with their lawyers — enabling them to fight deportation and regain their freedom,” Eva Bitrán, staff attorney with the ACLU, said in a statement.
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“Nibbling around the edges” of the real problem we’re not addressing: far too much unnecessary, and now dangerous, so-called “civil” immigration detention.
Trump’s“New American Gulag” is a stain on our nation. Phone access is good, but doesn’t address the reality that most of the individuals in the Gulag shouldn’t be there at all.
And, one might well ask why this is an issue at all. Why are officials acting with impunity to deny basic constitutional rights? Why are lawyers required to sue for basics that should be provided in any detention system?
I actually remember a time in the past where every finding by a Federal Court that an Immigration Judge had violated an individual’s legal rights automatically generated a review by the DOJ’s Office of Professional Responsibility and sometimes disciplinary action. Why are Trump law enforcement officials immune from ethical and professional responsibilities and never held accountable (except, apparently, where they follow the law rather than Trump’s whims and desires)?
They are children who were caught crossing the southwest border without papers and sent to migrant shelters in New York when the coronavirus was silently spreading. Now the city is a pandemic epicenter in lockdown, but the Trump administration is pressing ahead with their deportation cases, forcing the children to fight in immigration court to stay.
In two courthouses in the center of the besieged city, hearings for unaccompanied children—migrants who were apprehended without a parent—are speeding forward. The U.S. Department of Justice, which controls the immigration courts, has said it has no plan to suspend them.
This week an 8-year-old, a 5-year-old, and a teenage single mother with an infant were preparing for imminent court dates and deadlines in New York, lawyers representing them said. With children trapped indoors in shelters and foster-care homes, many young migrants who don’t have lawyers may not even be aware of ongoing court cases that could quickly end with orders for them to be deported.
Hearings for unaccompanied children are also proceeding in courts in other COVID-19 hotspots, including Los Angeles, San Francisco, Seattle, Chicago and Boston.
The Executive Office for Immigration Review, the Justice Department agency in charge of the immigration courts, has rejected calls from judges, prosecutors and immigration lawyers to shut down courts nationwide. Although hearings for immigrants who are not detained have been suspended through May 1, cases of people in detention are going forward at the same accelerated pace as before the pandemic.
That includes many unaccompanied children. Since last year, Trump administration officials have instructed the courts to treat those children as detained if they are in shelters or foster care under the custody of the Office of Refugee Resettlement, or ORR, a federal agency. Immigration judges are under pressure to complete detained cases within 60 days—warp speed in immigration court—with no exception for children.
Across the country, about 3,100 unaccompanied children are currently in the custody of the refugee agency. Many have run from deadly violence and abuse at home and hope to find safety with family members in the United States. The demands for them to meet fast-moving court requirements are causing alarm among lawyers, caregivers and families.
“It is inexplicable and dangerous that the Trump administration has insisted that detained unaccompanied children are still required to go to court,” said Wendy Young, president of Kids in Need of Defense, or KIND, which helps provide lawyers for unaccompanied children. Unlike in criminal courts, in immigration court children have no right to a lawyer paid by the government if they cannot afford one.
On April 8, the American Immigration Lawyers Association, the immigration bar, and other legal groups asked a federal court for a temporary restraining order to force the Justice Department to suspend in-person hearings of detained immigrants during the pandemic.
Justice Department officials say they are holding hearings for immigrants in detention, including for children, so they can get their cases decided and perhaps be freed quickly.
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Read the rest of Julia’s report at the link.
The idea, as DOJ claims, that this is being done to facilitate the “freeing” of kids is preposterous on its face.
First, there is nothing stopping them from arranging placements for children without the Immigration Court hearings being completed. It used to be done all the time.
Second, the DOJ has intentionally and unethically rewritten asylum laws through “precedents” aimed primarily at making it harder to qualify for asylum. This abuse of process particularly targets those fleeing persecution resulting from various types of systematic government and societal violence in Central America. The approval rates for these types of cases have fallen to minuscule levels under Trump.
Third, no child has any chance of succeeding in Immigration Court without a lawyer. Almost all lawyers who represent children in Immigration Court serve “pro bono” — or work for NGOs who can only provide minimal salaries.
Yet, the Administration is making these lawyers risk their health and safety, while artificially accelerating the process, all of which actively and aggressively discourages representation.
Added to that is the constant “Aimless Docket Reshuffling,” with Immigration Courts closing, reopening, and re-closing on a moment’s notice and dockets constantly being rearranged as judges, court support staff, interpreters, and DHS lawyers fall ill.
The Administration could work with groups like KIND and other NGOs to arrange placements, and schedule hearings in a manner that promotes health and safety for everyone while maximizing due process. But, the Administration refuses to do this.
Instead, those seeking to inject sanity, common sense, best practices, and human decency into the process are forced to sue the Administration in Federal Court. This further dissipates and diverts already scarce legal resources that could have been used to actually represent children in Immigration Court and arrange safe placements for them.
Finally, as I have noted previously, the Administration has simply suspended the operation of the Constitution and the rule of law at the borders. This means that thousands, including unaccompanied children, are “orbited into the void” without any process whatsoever or any effort to ascertain their situations or best interests.
All of this gives lie to the Administration’s bogus claim that this is about looking out for the best interests of these kids. No, it’s about maximizing cruelty, destroying lives (considered an effective and acceptable “deterrent” in nativist circles), and carrying out a noxious racist White Nationalist restrictionist immigration agenda.
And, to date, Congress and the Federal Courts, both of which have the power to put an end to this disgraceful, unlawful, and unconstitutional conduct have been largely “MIA.”
Nevertheless, thanks to courageous and dedicated journalists like Julia and organizations like KIND, a public record is being made. While those responsible for implementing and enabling these abuses directed at the “most vulnerable of the vulnerable” among us are likely to escape legal accountability, they will eventually be tried and found wanting in the “court of history.”
John A. Freedman Senior Counsel Arnold & PorterHon. Ilyce Shugall U.S. Immigraton Judge (Retired) Director, Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Retired Immigration JudgesKnightess of the Round Table
Key Excerpt:
We are in the midst of a nationwide pandemic. From the approach of the Executive Office for Immigration Review (EOIR) headquarters, one would never know that. Through a series of chaotic and inconsistent announcements, EOIR —the office that manages the procedural components of the immigration court system on behalf of the United States Department of Justice2—has continued to schedule non-essential proceedings, requiring judges, court staff and security personnel, litigants and case participants, attorneys, witnesses, interpreters, and interested members of the public to come immigration court, exposing them, their families, and their communities to unnecessary risk of COVID-19.
1 In accordance with Local Rule 7(o), no party’s counsel authored this brief in whole or in part, nor did any party or party’s counsel, or any other person other than amici curiae, contribute money that was intended to fund preparing or submitting this brief.
2 See 8 C.F.R. § 1003.0(b) (setting forth the authority of the Director of EOIR).
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The madness of EOIR s approach is evident in one example, representative of its
approach. Yesterday – April 8 — the immigration court in Elizabeth, New Jersey was open for business as usual. This court is across the Hudson River from New York City, and is near the epicenter of the largest COVID-19 hotspot on the planet, and is in a jurisdiction that has had a mandatory shelter-in-place” order since March 21. Yet EOIR insisted that proceedings continue
yesterday. Until it was learned that two detainees in the courthouse were positive for COVID- 19. Only then did EOIR accede to the obvious, scrambling to order the court to shut the Elizabeth court down. But immigration courts were open in many other jurisdictions yesterday, and are scheduled to be open today and for the foreseeable future.
EOIR’s intransigence defies the practice of numerous federal and state courts, the
recommendations of public health officials, and the orders of dozens of Governors who have ordered all non-essential business be deferred. As Judge Samuel Cole, a spokesperson for the National Association of Immigration Judges warned, everyone is being put at risk.” Close immigration courts? Lawyers and judges push to stop in-person hearings amid coronavirus spread, Fortune (Mar. 26, 2020) (describing how attorneys are wearing swim googles and masks to comply with EOIR orders).
The current EOIR approach manifests this disarray because there was not, and has never been, any meaningful continuity planning by EOIR. EOIR, and therefore the immigration court system itself, has sacrificed due process in favor of rapid removals, leaving the court without any incentive at all to plan to protect the public health or the individuals and participants in the system.
Amici urge the issuance of a temporary restraining order to allow for development of a more comprehensive, systemic, and scientifically sound policy that respects due process and the
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public health. We offer a framework for what a legally and scientifically sound policy could look like and why a court-ordered pause on all non-essential activities for a short 28-day period could allow for such a policy to emerge in deliberations with stakeholder communities.
Read the entire brief, which contains our proposed solution for how the Immigration Courts could conduct essential operations consistent with health, safety, and due process during this pandemic: Amicus brief_NIPNLG
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Again, many, many thanks to John Freedman and his group at Arnold & Porter as well as Ilyce & Jeffrey for their leadership.
The Hidden Impact of Removal Proceedings on Rural Communities
Although the Immigration Courts with the largest backlogs of cases are located in large cities, the latest Immigration Court records show that when adjusted for population, many rural counties have higher rates of residents in removal proceedings than urban counties. In fact, of the top 100 US counties with the highest rates of residents in removal proceedings, nearly six in ten (59%) are rural. In these communities, residents facing deportation may find themselves in rural “legal deserts[1]” where there are few qualified immigration attorneys, longer travel times to court, and high rates of poverty.
The Immigration Court data used in this report was obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University in response to its Freedom of Information Act (FOIA) requests to the Executive Office for Immigration Review (EOIR).
Mapping Pending Immigration Court Cases
TRAC recently mapped the Immigration Court’s current active backlog—over 1.1 million cases—to show the number of residents in each county who are awaiting their day in court. In this follow-on report, TRAC used the same data set to map the proportion of residents (“rate”) with pending immigration cases as a fraction of total residents[2].
When the total number of backlog cases is mapped, urban areas such as Los Angeles, New York City, and Chicago emerge as areas with large numbers of pending cases. This makes sense, because the total number of immigration cases is driven by the geographic concentration of large numbers of people in urban areas. However, when the number of pending immigration cases is mapped relative to county population, a different picture emerges. Many large urban counties are revealed to be more average, while many rural counties are shown to have much higher concentrations of removal cases.
In these rural counties, residents may have a heightened sense that immigration enforcement is impacting their community. This, in fact, would be an entirely rational perception since the odds are indeed greater.
Figure 1 below includes a map of the proportion of residents in each county currently in the backlog (top) and the total number of cases in each county in the backlog (bottom, reprinted from our previous report). The county-level rate is represented as the number per 100,000 residents who are currently in removal proceedings.
Particularly striking is how many counties in Southern California and the New York City-Boston corridor, which are prominent in the map of the number of cases, look more typical once population is taken into account. Also striking is how counties in the Great Plains regions from Southwest Minnesota to western Oklahoma pop off the map as places where higher percentages of the community are facing deportation proceedings today.
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There is little doubt that DHS Enforcement and their “partners at EOIR” have made an effort to hinder individuals’ Constitutional and statutory right to representation by counsel of their choice. From “Aimless Docket Reshuffling,” to locating so-called “detained courts” in obscure places, to arbitrary denial of continuances, to restricting bonds, to failures to provide notices and giving intentionally “bogus” notices, to rude and unprofessional treatment of attorneys, to trying to get rid of “know your rights” presentations, to skewing the law to change results to favor DHS.
All this leads to a largely “due process free” Deportation Railroad.
U.S. immigration officials must disclose the number of releases they have granted or denied from detention centers in five southern states to migrants considered at higher risk of dying from coronavirus.
The order from U.S. District Judge James Boasberg came during a hearing Thursday – days after U.S. Immigration and Customs Enforcement expanded the categories of detainees who should be considered for release beyond pregnant women and those over age 70.
On Saturday, ICE directed field offices nationwide to reassess custody of anyone over 60, as well as those of any age with chronic illnesses compromising their immune systems.
“What I’m looking for is, is it in fact happening on the ground?” Boasberg told lawyers for ICE at an emergency hearing in U.S. District Court in Washington in a lawsuit brought by immigrant advocates seeking release of asylum seekers detained in Alabama, Arkansas, Louisiana, Mississippi and Tennessee.
Boasberg, who ordered the numbers released by April 30, said ICE’s shift may “go a long way” toward releasing the most vulnerable detainees.
Assistant U.S. Attorney Jeremy Simon said ICE will determine if it can release the information. He said ICE also retains full discretion over the outcome of reviews, saying “none of the [listed] factors are determinative” of release, with public safety a high priority.
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Read the rest of the article at the above link.
Unfortunately, April 30 might be too late for some of those held in the Gulag.
The “ICE guidance” sounds like the normal DHS bureaucratic doublespeak that promotes arbitrariness and allows individual offices to do whatever they feel like doing, while providing a “smokescreen” of reasonable action. Hopefully, Judge Boasberg won’t be fooled.
The Trump administration has carried out nearly 10,000 summary deportations or “expulsions” since March 21, using emergency public health measures that have given U.S. Customs and Border Protection broad authority to bypass immigration laws, CBP officials said Thursday.
The measures have allowed the agency to quickly turn away most unauthorized migrants —sending them back across the Mexican border. The moves have dramatically slashed the number of detainees held in border stations, where they fear the coronavirus could spread, the officials said. CBP currently has fewer than 100 detainees in custody, down from nearly 20,000 at this time last year during last year’s border crisis, officials said.
[[Under coronavirus immigration measures, U.S. is expelling border-crossers to Mexico in an average of 96 minutes]]
Since the implementation of the rapid expulsions, unlawful border crossings have dropped 56 percent, said acting CBP commissioner Mark Morgan. Morgan also acknowledged that the United States has all but closed its borders to asylum seekers who are fleeing persecution, including those who attempt to enter legally at U.S. ports of entry.
“Those who are undocumented or don’t have documents or authorization are turned away,” Morgan said.
Democratic lawmakers have accused the administration of defying U.S. laws and exceeding the authority of the coronavirus public health order, but Morgan defended the emergency measures as a necessary step to stop the spread of the disease.
“This is not about immigration,” Morgan said. “This is about public health. This is about putting forth aggressive mitigation and containment strategies.”
[[Sign up for our Coronavirus Updates newsletter to track the outbreak. All stories linked in the newsletter are free to access.]]
CBP said the number of migrants detained at the border fell to 33,937 in March, down 7 percent from February. Single adults from Mexico accounted for 70 percent to 75 percent of those taken into custody, and most of the remainder were from Central America’s Northern Triangle countries: Guatemala, El Salvador and Honduras.
The Mexican government has agreed to accept the rapid return of migrants from those nations at the border under an agreement reached with the Trump administration last month.
The recent expulsions include children who would otherwise be protected from rapid removal by U.S. anti-trafficking laws. Since the emergency order took effect, the United States has expelled nearly 400 underage migrants, according to the most recent tally by the Reuters news agency. The minors were released into Mexico or boarded onto planes and flown back to Central America without being transferred to the care of the U.S. Department of Health and Human Services.
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Read the rest of Nick’s article at the link.
It’s going to take more than a letter from Sen. Pat Leahy (D-VT) and other Dems to restore the Constitution and the rule of law. Indeed, with the help of J.R. and his Trumpist GOP majority on the Supremes, I would expect that asylum laws, like voting rights, Due Process, and other individual rights will remain a “dead letter” until we get both 1) regime change; and 2) reform in the appointment of Article III Judges.
There is little, if any, data right now to support the view that asylum seekers at the Southern Border have been a significant source for the initial spread of coronavirus in the U.S.; however, their arbitrary removal to other countries might have helped the worldwide spread of the disease.
Moreover, as COVID-19 spreads into the Gulag and the Immigration Courts from the rest of America, infections in those locations could help spread the virus, given the lawyers, Government employees, and contractors exposed at those dangerous locations. Nor were Asian Americans responsible.
We do, however, have some data to show that U.S. citizens and other travelers returning from Europe were inadvertently a source of the virus’s spread in New York, and that Trump’s ineptness and failure to heed early warnings contributed to the spread.
But, science and truth seldom have any meaning for Trump and his toadies. And, we also know that while Trump often falsely claims “victories” that are either fabricated or largely someone’s else’s, he never takes responsibility for his own many mistakes and shortcomings.
As most of the country remains in lockdown to curb the spread of coronavirus, nearly 150 immigrants are fearing for their safety as they fight for their release from a North Dartmouth, Massachusetts, detention facility.
From the few hours of television news they can watch each day, the detainees have learned that social distancing, along with proper sanitation, is the only way that they can protect themselves from infection. But that’s all but impossible at the Bristol County Correctional Center, where the detainees are held together in tight quarters without the protective equipment or sanitation resources necessary to protect themselves, they argue in a class action lawsuit.
They are among the 38,000 immigrants in detention across more than 130 private and state-run detention facilities nationwide. As of April 7, 19 detainees across 11 different facilities had tested positive for the virus — none of them in Bristol, though advocates say it’s only a matter of time before it hits or testing rates improve.
Only after outcry from immigrant advocates did US Immigration and Customs Enforcement recently institute national policies encouraging social distancing in its facilities and provide soap, hand sanitizer, cleaning supplies, and personal protective equipment. The agency also announced Tuesday that it would start releasing detainees who are medically vulnerable to Covid-19, the disease caused by the coronavirus; it has released 60 so far and has identified another 600 who would qualify.
But that’s only a fraction of the detainees nationwide. Unless the agency starts releasing detainees by the thousands, that means most will remain in confinement, despite the fact that they largely have no criminal history. There is, therefore, a national advocacy push for the administration to alter its enforcement priorities to release all detainees, or at least those who haven’t committed serious crimes; while immigrant advocates campaign for their release even in the best of times, their message has become even more urgent amid the outbreak.
In the meantime, those at Bristol remain in conditions that they fear could facilitate the spread of the virus, which can be carried by those who don’t exhibit symptoms.
For the more than 30 detainees with underlying medical conditions that make them vulnerable to complications from Covid-19, it’s an especially scary situation. So far, only 18 detainees have been ordered released as part of the lawsuit, and not all of them qualify as high-risk.
“We suffer from being separated from our families and loved ones,” 47 detainees wrote in a March 20 declaration. “To add on top of this, we are now living in fear.”
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Read the rest of Nicole’s article at the link.
Sheriff Thomas Hodgson claims that there isn’t an adequate“social safety net” for these detainees in the community. But, have he and DHS worked with the advocates seeking release and the community to see what testing and safe placements might actually be available? He has responsibility for the well-being of those in his custody. But, it doesn’t sound like he has anything approaching a rational plan to carry out his legal obligations.
Hon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration Judges
Former Judge Sue Roy reports:
The [Elizabeth] court was open today (and has been for days) and they had already started hearings this morning, with detainees and others in the courtrooms and the holding areas, when 2 detainees tested positive for COVID-19. They frantically shut down the court.
The Court is inside the detention center, uses the same antiquated ventilation system, same entrance, same guards and facility employees, etc.
And last week EOIR was trying to force Newark Immigration Judges to cover in Elizabeth IN PERSON.
The callousness and disregard for their own staff, much less everyone else, is staggering.
Sue
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Thanks for speaking out, my friend!
The mindless cruelty and bad judgment just “keeps on keeping on!”
WASHINGTON, DC–Immigration groups today moved for an emergency temporary restraining order (TRO) against the Executive Office for Immigration Review (EOIR) and U.S. Immigration and Customs Enforcement (ICE) in order to protect the health of immigration attorneys, immigrants, and the public from the impact of dangerous and unconstitutional policies during the COVID-19 pandemic.
Represented by the National Immigration Project of the National Lawyers Guild (NIPNLG) and the law firm of Cleary Gottlieb Steen & Hamilton LLP, NIPNLG, the American Immigration Lawyers Association (AILA), and the Immigration Justice Campaign–a joint initiative of the American Immigration Council and AILA–filed the TRO, in NIPNLG, et al., v. EOIR, et al., to seek a brief pause of in-person hearings for detained individuals and facilitate remote confidential communication between attorneys and their clients. The pause would enable EOIR and ICE to adopt policies, practices, and procedures to enable the consistent and safe conduct of remote hearings (for example by video teleconference) that are protective of attorney-client privilege.
EOIR and ICE have repeatedly ignored recommendations regarding how to maintain health and safety in the courts and in detention, including the use of remote access. Detainees, court staff, and attorneys are subject to inconsistent practices and procedures for in-person hearings in 58 of the nation’s 69 immigration courts.
The National Immigration Project of the National Lawyers Guild (NIPNLG) is a national non-profit organization that provides technical assistance and support to community-based immigrant organizations, legal practitioners, and all advocates seeking and working to advance the rights of noncitizens. NIPNLG utilizes impact litigation, advocacy, and public education to pursue its mission. Follow NIPNLG on social media: National Immigration Project of the National Lawyers Guild on Facebook, @NIPNLG on Twitter.
The American Immigration Council works to strengthen America by shaping how America thinks about and acts towards immigrants and immigration and by working toward a more fair and just immigration system that opens its doors to those in need of protection and unleashes the energy and skills that immigrants bring. The Council brings together problem solvers and employs four coordinated approaches to advance change–litigation, research, legislative and administrative advocacy, and communications. Follow the latest Council news and information on ImmigrationImpact.com and Twitter @immcouncil.
The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members. Follow AILA on Twitter @AILANational.
Thanks, Laura, for sending this around and for everything you and AILA are doing to save some lives from the “malicious incompetence” of the Trump regime.
Will the Article III Courts finally do the right thing? Or will they continue their “head in the sand” approach to the ever-worsening disaster in our Immigration Courts and the New American Gulag? I’d have to say that at this point, while some U.S. District Judges notably have “stepped up to the plate” in a number of cases involving a limited number of releases or threatened releases, I have seen little to indicate an inclination toward taking the necessary bold, decisive nationwide action to save lives in the face of this crisis.
Nearly 400 migrant children intercepted at the U.S.-Mexico border have been deported in the past two weeks under new border restrictions.
WASHINGTON/NEW YORK (Reuters) ― U.S. immigration officials have rapidly deported nearly 400 migrant children intercepted at the U.S.-Mexico border in the past two weeks under new rules billed as seeking to limit the spread of the novel coronavirus in the United States, according to government data seen by Reuters.
President Donald Trump’s administration implemented new border rules on March 21 that scrapped decades-long practices under laws meant to protect children from human trafficking and offer them a chance to seek asylum in a U.S. immigration court. Under the new rules, U.S. officials can quickly remove people without standard immigration proceedings.
Overall, U.S. border officials have expelled nearly 7,000 migrants to Mexico since the new procedures took effect, according to the data and a Mexican government official, who spoke on condition of anonymity. Of those, 377 were minors, the data showed.
The overall number of 7,000 was first published by ProPublica, but the figure for children deported has not previously been reported.
Around 120 of the minors, who arrived at the U.S.-Mexico border without a parent or legal guardian, were quickly sent on planes back to Guatemala, Honduras and El Salvador, according to data from March 27 to April 2. It was not clear whether the remainder of the children intercepted at the border were pushed back to Mexico or returned to their home countries during the preceding week.
U.S. Customs and Border Protection (CBP) declined to comment. The agency in the past has said that all people caught crossing illegally, including minors, could be subjected to the new restrictions, which aim to cut the time migrants arrested at the border are held in U.S. custody.
Before the pandemic of COVID-19, the potentially lethal respiratory disease caused by the novel coronavirus, unaccompanied minors caught at the border were placed in shelters run by the U.S. Department of Health and Human Services (HHS).
Children traveling with adults other than parents or legal guardians would also be classified as “unaccompanied” and put into HHS care, even if the adults they were traveling with were family members. Under the new rules, however, they are now called “single minors” and can be sent back to Mexico, according to a CBP official.
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Read the full story at the link.
Basically, Trump has repealed U.S. asylum and protection laws by unilateral action, with almost no “pushback” from Congress or the courts.
Kate Morrissey reports for the San Diego Union Tribune:
On the same day the first person in immigration custody in San Diego was confirmed to have the new coronavirus, the American Civil Liberties Union sued for the release of certain high-risk detainees at the region’s two detention centers.
In the lawsuit, ACLU attorneys argue that specific detainees at Otay Mesa Detention Center and Imperial Regional Detention Facility who have pre-existing conditions that would make severe symptoms of COVID-19 more likely should be released in order to protect them from likely exposure to the virus. Some similar cases, filed by other groups around the country, have been successful in getting immigrant detainees released.
This coverage of the coronavirus pandemic is part of your subscription to The San Diego Union-Tribune. We also provide free coverage as a service to our community.
“During this pandemic, we’ve seen institutions at all levels take these really drastic, life-altering measures to preserve public safety and community well being,” said Monika Langarica, an attorney with the ACLU of San Diego & Imperial Counties. “(U.S. Immigration and Customs Enforcement), which oversees massive detention operations across the country, rather than follow the course of these other institutions, has done almost the opposite.”
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Read the rest of Kate’s article at the above link.
Similar suits have produced mixed results throughout the country. While some U.S. District Judges have ordered or threatened to order the release of certain detainees, others have “blown off” legitimate health concerns and the failure of DHS and DOJ authorities to follow health guidelines during the pandemic.
Of course, the idea that social distancing, universal testing, basic hygiene, or individual protective equipment is being employed in any part of the “DHS Gulag” and the Immigration “Courts” is preposterous on its face. Yet, remarkably, some U.S. District Judges prefer the “show me the dead bodies approach” as an alternative to the sensible preventive measures recommended by health professionals. After all, “they are only aliens” in the eyes of the regime and some Federal Judges.
Others, more astutely, have recognized that those stuck in the Gulag and the never-ending dysfunction of the Immigration “Courts” are actually their fellow human beings, most without serious criminal convictions. They are also “persons” under the Fifth Amendment to the U.S. Constitution, entitled to have their health, safety, and lives protected from dangerous and unreasonable actions by the Federal Government.
