"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
The UW Law School launched a new center to support Wisconsin’s DREAMers, an all-encompassing term describing individuals who have lived in the United States without official lawful status since coming to the country as a minor. The Center for DREAMers was awarded a grant through the Baldwin Wisconsin Idea Endowment, a competitive grant program that fosters public engagement and the advancement of the Wisconsin Idea.
Clinical Professor and Director of the Immigrant Justice Clinic at the Law School Erin Barbato, together with Erika Rosales of the School of Education, will lead the Center for DREAMers.
Erika Rosales School of Education University of Wisconsin, Madison PHOTO: UW Law
The center will serve the approximately 11,000 DREAMers in Wisconsin, working with organizations to coordinate the provision of legal representation, mental and social services, and career and educational counseling to ease the burden of some of the uncertainty experienced by undocumented immigrants who came to the U.S. as children.
Barbato, who teaches second- and third-year law students to represent individuals in removal proceedings and with humanitarian-based immigration relief, says the center will become an important resource for the community.
“The Center for DREAMers will bring together comprehensive resources for students that have DACA in Wisconsin,” says Barbato. “Currently, no organization in Wisconsin exists that has the capacity to serve the unique educational and legal needs of DACA recipients. We hope the center will serve this population in a manner that will allow them to fulfill their potential in a state and country they call home. We are honored to have the opportunity to serve this population so they no longer have to live in fear and one day they will have equity in educational opportunities as well as citizenship.”
As a part of its community-focused approach, the center provides outreach events and support on different campus and community locations, including the South Madison Partnership. A particular focus includes outreach to DACA communities throughout the state of Wisconsin, including bi-monthly information events.
The center’s mission also aligns with the Law School’s law-in-action tradition.
“The University of Wisconsin Law School is renowned for its law-in-action approach to legal education, and the Center for DREAMers aligns with that practical approach to learning and the pursuit of equal justice,” says Dean Dan Tokaji. “We’re grateful for the Baldwin Wisconsin Idea Endowment’s support for the center and are thrilled by the opportunities this will provide for our students and the community.”
Located in the Law School’s Economic Justice Institute, the center opened in October and began providing office hours and counseling services. Clinical law students in the Immigrant Justice Clinic play an instrumental role in the center’s work, says Barbato. Under her guidance, the students provide direct representation to people with DACA in renewals and may provide representation to people with DACA who are eligible for pathways to citizenship through family, employment, or for humanitarian-based reasons.
Congratulations, Erin, my friend, on your continuing extraordinary leadership, creativity, and overwhelming commitment to achieving social justice in America. You are indeed an inspiring role model for America’s new generation of lawyers! So proud of what you and your colleagues are doing at my alma mater! Go Badgers!
Elizabeth Keyes Associate Professor Director, Immigrant Rights Clinic U of Baltimore Law Photo: U of Baltimore Law Website
Friends,
I have the best job in the legal profession. Maybe this could be your best job in the legal profession.
I’m excited to share a hiring announcement for the director of the Immigrant Rights Clinic at University of Baltimore, which has been my own beloved position for the last decade. (I’m staying at UBalt, but shifting to purely doctrinal teaching for a host of reasons that have nothing to do with how much I love our clinical program and community at UBalt). We are looking for a dynamic junior or pre-tenure lateral person for this position.
As you probably know, UBalt is an exceptionally good place to be a clinician. We are on a unitary tenure-track, with case coverage over the breaks. Our clinicians lead the law school in all kinds of ways, from committee-leadership to scholarship and beyond. We also have a beautifully collegial clinical faculty, with weekly brown-bag lunches focused on everything from pedagogy to workshopping our own scholarship. In the next four weeks alone, we have one lunch devoted to the pedagogy of Bell Hooks, another on clinics and emergency response, and another workshopping two articles by our teaching fellows. We have a lot of independence within our clinics, but we also share the same deep roots in non-directive, client-centered pedagogy.
Please share the announcement widely with your networks.
Warmly,
Liz
Elizabeth Keyes
Associate Professor, Director of the Immigrant Rights Clinic
University of Baltimore School of Law
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Great opportunity for an up and coming NDPA “practical scholar!”
Every year, on the third Monday in January, America hosts a Sadie Hawkins-style role-reversal where the entire country pretends to celebrate a man whose achievements and values they spent the previous 364 days ignoring, demonizing and trying to dismantle. Today, your favorite vote suppressors will take a brief respite from disenfranchising Black voters, denying history and increasing inequality to celebrate a real American hero.
That’s right, it’s MLK Day!
You might think it’s a little disrespectful to refer to a great American hero by his initials but, in this specific case, it’s perfectly fine. The actual Martin Luther King Jr who lived and breathed is not the man most people will be honoring today because that Martin Luther King is dead and gone. No, the man upon whom they will heap their performative praise with social media virtue-signaling is MLK, a caricature of a man whose likeness has been made palatable for white consumption. Like BLM, CRT and USA, the people who King fought against have now managed to flatten a three-dimensional symbol to a three-letter, chant-worthy phrase worthy of demonization or deification.
. . . .
Although, in death, he became one of the most revered figures in US history, for the entirety of the 39 years that King lived and breathed, there wasn’t a single day when the majority of white Americans approved of him. In 1966, Gallup measured his approval rating at 32% positive and 63% negative. That same year, a December Harris poll found that 50% of whites felt King was “hurting the negro cause of civil rights” while only 36% felt he was helping. By the time he died in 1968, three out of four white Americans disapproved of him. In the wake of his assassination, 31% of the country felt that he “brought it on himself”.
One does not have to reach back into the historical archives to explain why King was so despised. The sentiments that made him a villain are still prevalent in America today. When he was alive, King was a walking, talking example of everything this country despises about the quest for Black liberation. He railed against police brutality. He reminded the country of its racist past. He scolded the powers that be for income inequality and systemic racism. Not only did he condemn the openly racist opponents of equality, he reminded the legions of whites who were willing to sit idly by while their fellow countrymen were oppressed that they were also oppressors. “He who passively accepts evil is as much involved in it as he who helps to perpetrate it,” King said. “He who accepts evil without protesting against it is really cooperating with it.”
. . . .
“The first thing I would like to mention is that there must be a recognition on the part of everybody in this nation that America is still a racist country,” said King days before a white supremacist put a bullet in his face. “Now however unpleasant that sounds, it is the truth. And we will never solve the problem of racism until there is a recognition of the fact that racism still stands at the center of so much of our nation and we must see racism for what it is.”
See how many times someone mentions that quote today.
Oh, wait … King made that speech at Grosse Pointe High School, where Michigan’s Republican-controlled House of Representatives recently passed an anti-CRT bill making it illegal to teach that the “United States is a fundamentally racist country”.
Never mind.
. . . .
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Read the full article at the link.
Like the figure of Christ in Dostoyevsky’s The Grand Inquisitor, if Dr. King returned to earth today he would be imprisoned, interrogated, condemned and permanently banished by the corrupt and cowardly right-wing pols, religious bigots, disingenuous judges, pundits, and others who falsely claim to be honoring his memory and vision of racial equality!
So what should we tell our students? Many are dispirited and cynical because, as far into the future as they can see, this court appears likely to do more harm than good to democracy.
First, we shouldn’t hide the reality that judicial decisions often depend on who is on the bench. That has never been more true because the entrenched partisan Senate confirmation process now guarantees that a Supreme Court nominee will be chosen to carry out political and ideological aims. For the first time in American history, the ideology of the justices precisely corresponds to the political party of the president who appointed them. All six conservatives were appointed by Republican presidents and all three liberals were appointed by Democrats.
Until recently, there were moderate liberals, such as John Paul Stevens and David H. Souter, appointed by Republicans, and there were moderate conservatives, such as Byron White and Felix Frankfurter, who had been appointed by Democrats. Trump picked three of the most ideologically conservative judges on the federal bench.
If students are to one day become effective litigators on constitutional rights, they will need to understand the ideologies of the justices interpreting the law. In the past, we certainly discussed the ideology of the justices with our students, but we must focus on it far more now as the ideological differences between the Republican-appointed justices and judges and those appointed by Democratic presidents are greater than they have ever been.
Second, we must remind students that there have been other bleak times in constitutional law when rights were contracted. From the 1890s until 1936, a conservative Supreme Court struck down over 200 progressive federal, state and local laws protecting workers and consumers. In the late 1940s and early 1950s, the court refused to stand up to the hysteria of McCarthyism. The current court will not last forever, though it may feel like that to them.
Third, we should direct focus on other avenues for change. Students need to look more to state courts and legislatures, at least in some parts of the country, as a way to advance liberty and equality. For instance, the Massachusetts Legislature passed a law known as the “Roe Act,” protecting a woman’s right to abortion under state law, no matter what the Supreme Court decides. We need to teach our students how to use the power of local governments to protect fair housing, public education and public health.
Fourth, we must encourage them to look at the sweep of history. In the early 1960s, almost half the states had Jim Crow segregation laws, there were few women going to law school, and every state had a law criminally prohibiting same-sex sexual activity. The Rev. Martin Luther King Jr. was right when he said that the arc of the moral universe is long and it bends toward justice — if we work for it.
There really are just two choices: Give up or fight harder, even if there will be a lot of losses along the way. If we can instill in students a desire to defend justice, even if victory is distant, it will be a good semester, no matter what the Supreme Court decides.
Erwin Chemerinsky is dean of the UC Berkeley School of Law and a contributing writer to Opinion. Jeffrey Abramson is professor of law and government at the University of Texas at Austin.
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Read the full article at the above link.
Sometimes, the best you can do is save as many lives as you can, one at a time. Eventually, it adds up. Also, as the article suggests, it’s critical to get involved and speak out on local political issues. That’s where the fascist far-right has made huge inroads.
Appoint these inspirational, dynamic, proven “scholar leaders” as Co-Chairs:
Dean Kevin Johnson, UC Davis Law & “most cited” immigration scholar;
Marielena Hincapie, National Immigration Law Center.
Add in three experienced Vice Chairs who really “know the business” (including where all the bodies are buried @ EOIR and how to make bureaucracy respond):
Judge Noel Brennan, NY Immigration Court, former BIA Appellate Judge;
Judge Dana Leigh Marks, San Francisco Immigration Court, former NAIJ President, “winning” attorney before the Supremes in the landmark asylum case INS v. Cardoza-Fonseca;
Jason Dzubow, Esquire, “everyone’s favorite Asylumist;”
Lauren Wyatt, CLINIC, NYC, inspirational scholar-role model working “in the trenches;”
Ayodele Gansallo, HIAS Pennsylvania, Penn Law, co-author of Understanding Immigration Law and Practice, the “Bible of aspiring practical scholar-practitioners;”
Jaya Ramji-Nogales, Associate Dean, Temple Law, co-author of Refugee Roulette and The End of Asylum.
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Now, THAT’S an amazing, inspiring, dynamic “all-star judicial lineup” that could actually achieve the former “EOIR Vision” of: “Through teamwork and innovation, become the world’s best administrative tribunal, guaranteeing fairness and due process for all!”
What does this diverse group have in common?
Demonstrated, unswerving, overriding commitment to due process and fundamental fairness for migrants and all persons in America;
Impeccable, accessible scholarship in human rights, migrants’ rights, and constitutional interpretation;
Courage to speak truth to power;
Expertise in and concern for ethical issues;
Ability to engage in robust dialogue without sacrificing fundamental principles;
Ability to lead by example and inspire others;
Practicality;
Creativity;
Humanity;
Independence;
Widespread recognition, respect, and admiration among peers.
This court also would have the potential to deliver a long-overdue “wake up call” to the now-floundering Article III Judiciary.
Why would members of this high-powered group of intellectual giants be willing to leave comfortable current positions to accept the challenge of leading and reforming what currently is “America’s Worst Court System?”
A chance to be on a team of some of the most powerful “practical legal intellects” in America;
A chance to show how a diverse court of exceptionally-well-qualified judges can solve problems, implement best practices, and achieve timeliness and efficiency while enhancing due process;
The chance to save lives and improve futures — to make a positive difference in the world that will inspire future generations;
The chance to redefine “justice in America” in a positive way.
The BIA also has a large, talented staff of lawyers (I was one myself, back in the day) who would thrive and prosper under the intellectual leadership of these “practical scholars” and proven teachers! The BIA is potentially the “premier legal university/think tank” in America. But, unlike most think tanks, one with a mission, the ability to render best interpretations, implement best practices, and to issue hundreds of life-defining decisions every day! What other court in America could say the same? Why is this amazing untapped potential basically going to waste?
A pipe dream? Probably. But it shouldn’t be!
The BIA is “Not Quite Ready For Prime Time” (“NQRFPT”). But, “Neon Deion” Sanders IS “Prime Time.” Judge G. should take note! Deion Sanders Photo by Michael J. Cargill Creative Commons License
Just look how in a relatively short time as a head coach at a “non-power-conference” HBCU, Jackson State, dynamic former NFL star and “larger than life” personality “Neon Deion” Sanders has shaken up the system and changed the “playing field” in the insular world of “big time college football.”This week, the “projected top recruit” in America chose Sanders & J-State over the “powers that be.” Presence, leadership, boldness, talent, and results (Jackson State was 11-1 this year) can force change for the better in even the most inbred and change-resistant systems (like EOIR, and to a large extent, the entire Federal Judiciary)!
It’s totally within Judge Garland’s power, if he would only wake up and make the bold, yet totally logical, justified, and long overdue moves necessary. He’s already sinking deep into the morass of responsibility for probably the most dysfunctional, yet consequential, failed “court” system in American legal history. What’s he got to lose by taking the steps necessary to dramatically turn things around?
As I recently wrote about EOIR:
With so many extraordinarily talented, creative, courageous, independent legal minds out there in the private/NGO/academic sector of human rights/immigration/racial justice/due process this “intentional mediocrity (or worse)” is inexcusable. Yet, this massive failure of the U.S. justice system at the most basic level gets scant attention outside of Courtside, LexisNexis, ImmigrationProf Blog, Jeffrey S. Chase Blog, The Asylumist, and a few other specialized websites.
Recent GOP Administrations have been perfectly willing to unethically “weaponize” EOIR to carry out their far-right, nativist political agenda. They have “shrugged off” near-universal criticism of their most outrageous moves, including key quasi-judicial selections, and, inexcusably, “dumbed down” EOIR.
Democrats, by contrast, have been timid, indolent, and feckless, failing to undo the damage and make due process, fundamental fairness, and equal justice for all persons a reality rather than a cruel false promise. Garland appears bullheadedly determined to move in the same wrong direction.
And, “time’s a wasting!” We’re nearly a year into an Administration that promised real improvements but has basically carried out a disgraceful “Miller Lite,” anti-humanitarian, anti-constitutional agenda of abusing, mistreating, and dehumanizing legal asylum seekers and other migrants. As pointed out recently by a number of us, this also extends to the dedicated attorneys and representatives trying to preserve at least some semblance of justice in our stunningly dysfunctional Immigration Courts.
As if to prove his tone-deafness, imperviousness to meaningful change at EOIR, and utter disdain for those advocates and “practical scholars” who helped him get his job, after one “better-balanced selection list,” Garland’s latest 22 Immigration Judge appointments reverted to the usual array of government and prosecutorial background appointments to the near-total exclusion of private/NGO/academic sector superstars who have the potential to materially change the trajectory of today’s dysfunctional Immigration Courts. Check this out! How many names do YOU recognize as among the “leading lights” of human rights and immigration scholarship and advocacy? How is this going to help advance due process, promote fundamental fairness, reduce the backlog, develop best practices, and reverse the endemic dysfunction at EOIR?
Compare and contrast this list with the ”Dream BIA” described above. The private sector talent pool to improve judging and justice at EOIR is really deep. But, Garland stubbornly refuses to “take the plunge” even as what’s left of our immigrant justice system disintegrates around him!
As Neon Deion could tell Judge G., “getting the best when you’re not yet the best” often involves working extra hard hard to actively change perceptions and aggressively recruit the “star talent.” Just sitting back to see who might apply or sign up doesn’t work any better at EOIR than it does in “non-power-five” college football.
This should be a perhaps never to be repeated chance to “model” a better Federal Judiciary. Almost overnight, Immigration Courts could go from being a “sad but true YouTube comedy routine” to an inspiring model for a better-functioning and more just Federal Judiciary.
But, not with the current personnel in place! Not with the opaque inbred selection process Garland currently uses (getting some outside Government expert input into judicial selections would be a “no-brainer” starting place). Garland is letting it slip through his fingers, but migrants and the rest of us are going to pay the price!
The “new generation” of our legal profession should be both outraged and existentially motivated to stand up to Garland’s intransigence!It’s not just migrants’ lives that are at stake here (as if that weren’t enough, in and of itself)! It’s the future of the U.S. Justice system, our legal profession, and liberal democracy that are swirling down the drain as Garland watches from his ivory tower refuge!
My time on the stage is winding down. But, for a new generation of legal professionals, it’s just starting. YOU and yours are going to have to live with the broken justice system and inferior judging that Garland is countenancing. Demand better, or prepare to live with the ugly consequences of a failed judiciary!
Free NYSBA asylum training CLE webinar Dec. 13 1-2 pm ET
Are you considering handling your first pro bono asylum case, but unsure of how to proceed? This free one-hour CLE training sponsored by the New York State Bar Association will orient you to the fundamentals of asylum eligibility and procedure, common issues to consider, and mentorship possibilities. Handouts will be provided.
When: Monday December 13, 2021, 1-2 pm ET
Where: online
Speakers: Victoria Neilson (Managing Attorney, Catholic Legal Immigration Network), Rebecca Press (Legal Director, UnLocal, Inc.), and Steve Yale-Loehr (Cornell Law School)
Thanks, Steve, my friend, for passing this on! I’m grateful for all you do to educate, guide, support, and most of all inspire the NDPA in the never-ending fight to force our Government to make due process and fundamental fairness for all persons in America, regardless of race, creed, or status, a reality rather than the cruel farce it is today!
Never has the need for talented pro bono representation in Immigration Court been greater.
And, the Garland DOJ’s indifference to long overdue due process, quality control, personnel, and best practices reforms in the broken and backlogged EOIR system means that the battle to save lives and force change through aggressive litigation is just beginning and ultimately will succeed!
The good news: Given the endemic lack of expertise, discombobulated administration, and disregard for quality at EOIR, the “talent balance” favors the NDPA! Many deserving lives can be saved and at least some degree of accountability forced on Garland’s dysfunctional EOIR through aggressive, well prepared litigation that makes compelling records, advances correct interpretations and applications of the law, and resists and triumphs over the “race to the bottom” that has destroyed and perverted justice in our Immigration Courts.
Sign up today! It will be the “best hour” you spend next week!
Respondent Access Portal: EOIR’s Respondent Access allows Respondents to file forms with the immigration court and the Board of Immigration Appeals.
AO Covid Update: USCIS has updated the public website to reflect that field offices are expanding occupational capacities. Beginning November 29, 2021, the New York Asylum Office (ZNY) will be resuming in-person interviews, with the officer and the applicant’s party (including the attorney) in the same room.
Law360: The Biden administration’s proposed rule to reinforce the Deferred Action for Childhood Arrivals, or DACA, program has attracted more than 9,300 responses ahead of Monday’s deadline for public comments, with many calling for broader changes than the regulations set out.
NYT: The City Council is planning to approve a bill that would allow more than 800,000 noncitizen New Yorkers to register as members of political parties and vote in municipal elections, provided they are green card holders or have the right to work in the United States. The measure is expected to be approved on Dec. 9 by a veto-proof margin. It would allow noncitizens to vote in local elections, and would not apply to federal or state contests.
Reuters: The Biden administration and Mexico have not yet agreed to restart a Trump-era program obliging asylum seekers to await U.S. court hearings in Mexico, because certain conditions must first be met, two Mexican officials said on Wednesday. News outlet Axios reported earlier that returns under the program officially known as the Migrant Protection Protocols (MPP) could restart as soon as [this] week.
WaPo: Despite mounting concerns about discriminatory policing, the Trump administration aggressively recruited local law enforcement partners and courted sheriffs who championed similar views on immigration policy, according to dozens of internal ICE emails obtained by The Post.
Reuters: Some 2,000 migrants and asylum seekers departed the southern Mexican city of Tapachula near the Guatemalan border overnight on Sunday in the latest in a series of caravans setting out for the United States.
WaPo: Record numbers of Venezuelan migrants have been crossing into the United States in recent months, posing a new border challenge for the Biden administration and raising concerns that more of the nearly 6 million people displaced from the South American nation could be heading north.
AP: He said he repeatedly told authorities he was American but was rebuffed by immigration agents, according to the suit. Bukle, who derived citizenship when he was 9 and his parents naturalized, was sent to the Mesa Verde Detention Facility in Central California for more than a month until an attorney got immigration authorities to verify his citizenship status and release him.
LexisNexis: SCOTUSblog case page for Egbert v. Boule, Docket No. 21-147 ” Issues : (1) Whether a cause of action exists under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for First Amendment retaliation claims; and (2) whether a cause of action exists under Bivens for claims against federal officers engaged in immigration-related functions for allegedly violating a plaintiff’s Fourth Amendment right
Law360: A Mexican woman facing removal for using a fake Social Security number lost her case Monday when the U.S. Supreme Court declined to hear her arguments for why the offense shouldn’t disqualify her from receiving deportation relief.
AILA: The court held that the IJ erred in informing the pro se petitioner he was eligible for potential relief only under the Convention Against Torture (CAT), and in treating his conviction for drug trafficking as if it were a per se bar to withholding of removal. (DeCarvalho v. Garland, 11/17/21)
Law360: The Fifth Circuit on Monday upheld a ruling that a Mexican citizen who sought refuge in the United States because he is gay cannot remain in the country because the Mexican government “was able and willing to protect” him.
AILA: The court held that the BIA did not err in finding that the petitioner’s second motion to reopen for lack of notice was time and number barred under 8 CFR §1003.2(c)(2), because the petitioner had failed to inform the immigration court of his change in address. (Maradia v. Garland, 11/17/21)
AILA: The court upheld the BIA’s denial of asylum, finding that the Board did not err in holding that governmental changes in the Congo—namely, that the petitioner’s own political party had assumed power—made any future political persecution unlikely. (Mbonga v. Garland, 11/22/21)
LexisNexis: Elhady v. Bradley Maj. – “In short, when it comes to the border, the Bivens issue is not difficult—it does not apply. And district courts would be wise to start and end there.
Law360: A fractured Ninth Circuit panel on Tuesday undid a removal order against an Indonesian couple who say they fear persecution for their evangelical Christian beliefs, handing the parents of three a win on their third turn before the appeals court.
AILA: The court issued an order denying the rehearing en banc of Soto-Soto v. Garland, in which the court held that the BIA erred by reviewing the IJ’s decision de novo rather than for clear error. (Soto-Soto v. Garland, 11/18/21)
AILA: Where petitioner had filed a motion for reconsideration arguing that a recent Supreme Court ruling rendered his conviction no longer a “crime of violence” aggravated felony, the court held that the BIA did not abuse its discretion in denying equitable tolling. (Goulart v. Garland, 11/18/21)
AILA: The court held that the BIA failed to give reasoned consideration to the Sri Lankan petitioner’s claim that, as a Tamil failed asylum seeker, he had a well-founded fear of future persecution, and thus remanded his asylum and withholding of removal claims. (Jathursan v. Att’y Gen., 11/17/21)
AILA: The BIA found that the respondent’s conviction for carjacking under section 215(a) of the California Penal Code is categorically a conviction for an aggravated felony crime of violence. Matter of A. Valenzuela, 28 I&N Dec. 418 (BIA 2021)
AILA: The White House issued a proclamation suspending and limiting the entry for certain immigrants and nonimmigrants who were physically present in countries where the Omicron variant of COVID-19 has been detected. Effective 11/29/21.
AILA: DHS issued updated guidance on the enforcement of civil immigration law. Guidance is effective on 11/29/21 and will rescind prior civil immigration guidance.
AILA: USCIS issued a policy alert that it is incorporating and superseding existing guidance into the USCIS Policy Manual addressing topics in the context of general adjudications, including evidence, sworn statements, and adjudicative decisions.
AILA: EOIR issued guidance to address administrative closure in light of Matter of Cruz-Valdez. Where a respondent requests administrative closure, and DHS does not object, the request should generally be granted and the case administratively closed. Guidance effective as of 11/22/21.
AILA: EOIR announced it will open a new immigration court in Santa Ana, California, on November 29, 2021. The court will include 22 immigration judges. At the time of opening, three judges will hear cases transferred from the Los Angeles – Olive Street court. EOIR has notified the affected parties.
AILA: DOS stated that the guidance to posts for the prioritization of consular services issued in November 2020 has been rescinded. Embassies and consulates have discretion on prioritizing visa appointments among the range of visa classes.
RESEARCH | FALL 2021 ISSUE
SPECIAL REPORT: IMMIGRATION AND THE DUTY TO HELP
“Bringing the university into the streets”
BY BILL BOYARSKY
ACADEMICS, UNIVERSITY STUDENTS and activists are creating an informal network reaching throughout California and beyond to seek justice for the more than 25,000 immigrants held in federal detention centers across the nation. It is eye-opening work and often distressing.
Members of the network struggle to penetrate the secrecy in which Immigration and Customs Enforcement (ICE) shrouds its immigration centers, many located far from attorneys who might be able to help. When the network pierces the concealment, it often finds babies imprisoned with their mothers, random mistreatment by guards and an ever-growing backlog of cases awaiting hearings in immigration court.
“As a state university, we have an obligation to train students who will give back to the state, and immigrants are terribly important. Immigrants contribute greatly to the state,” Ingrid Eagly, a UCLA law professor who is part of the network, told me in a recent telephone interview.
Victor Narro, project director at the UCLA Labor Center and one of Eagly’s network colleagues, put it this way: “We are activist scholars, bringing the university into the streets.”
Championing justice is crucial now, when immigrants are arriving in California and throughout the United States in ever-growing numbers, and it will become ever more urgent as desperate newcomers — refugees hoping for asylum after President Biden’s end to the war in Afghanistan — attempt to enter the country. This is the immediate future of the battle over immigration, one that will shape the future of Los Angeles and the larger nation. It is far from settled.
A Washington Post-ABC News poll in early September showed, for example, general support for the resettlement of Afghans in the United States, after security screening. But granting them entry is likely to anger Americans bitterly opposed to immigration of any kind.
UCLA and beyond
UCLA is at the center of this informal network of professors, students and activists pursuing justice for immigrants. But it is hardly alone.
Immigration clinics at the USC Gould School of Law and Southwestern Law School send students into the community to represent immigrants in deportation hearings. Centers for undocumented students at California State University, San Bernardino, and other Cal State campuses provide gathering places for students and faculty, as well as on-campus locations from which activists can enter the community and fight for those fearing deportation. There are many such examples around the state.
As faculty director of the UCLA Law School’s criminal justice program, Prof. Eagly is deeply involved. She took her students to rural Texas to work with immigrants arrested by federal officers who accused them of illegal entry into the country. The immigrants were jailed by ICE officers after seeking amnesty at the border, or they were caught during raids on their workplaces.
The students went from familiar surroundings at UCLA to ICE’s South Texas Family Residential Center in Dilley, Texas, 70 miles southwest of San Antonio, where the company that runs the center for the federal government had been accused of treating the immigrants as if they were dangerous criminals. The students met with migrants from Guatemala, Mexico, El Salvador, Ecuador and Honduras.
The center is tantamount to a prison for families as they await hearings in which they try to convince an immigration court that they fled their countries because they had feared death or injury at the hands of criminal gangs or corrupt police. These hearings are called “credible fear” interviews. If the immigrants are not persuasive enough, deportation proceedings begin. Like most detention centers, the South Texas facility is far from the immigration lawyers and translators the immigrants need to guide them through the complex process. Among Guatemalans, for example, 22 languages are spoken.
Visiting the South Texas Center gave Eagly’s students a unique experience, she said. “They had deep concerns. We saw babies in arms being detained. We would hear about inadequate health care and mistreatment by guards.” Even though the observers were only law students, Eagly added, the fact that the inmates had any representation at all made a difference in the process and getting people released.
It was an intense introduction to a system bogged down in bureaucracy and shaped by years of hostility toward immigrants, extending through Democratic and Republican administrations. Democrats, fearing an electoral backlash, promoted laws increasing penalties for immigration violations. President Trump, elected as an anti-immigrant crusader, carried them to new extremes. The students learned that the backlog of cases awaiting hearings in immigration court numbered almost 1.4 million, according to Syracuse University’s Transactional Records Access Clearinghouse (TRAC). Someone seeking a hearing at the Texas center could wait as long as 2.4 years, TRAC said.
When Eagly’s students returned from Texas, they recruited lawyers who would take immigration cases without charge and try to help immigrants through the legal maze.
UCLA SOCIOLOGY PROFESSOR Cecilia Menjivar and her students focused on the inequalities that immigrants found in the United States. For many, it was simply a continuation of the hard life they had left in Central America. “Because it is so difficult to access people in detention, we approached it through lawyers,” Menjivar said. “What we wanted to do was capture the everyday life in detention centers. We wanted to focus on what life is like in detention centers. We also interviewed immigrants who had left detention.”
Menjivar recalled visiting a detention center in Eloy, Arizona, about 65 miles southeast of Phoenix, to attend immigration court. “I had to go through three gates before entering the facility, first a barbed-wire gate, then two [more],” she said. “A guard accompanied me until I got to the courtroom. Six gates or doors [total] to get to the courtroom.
“Immigrants are often moved from one place to another. Lawyers may lose contact with them. Immigrants can’t be found, [are] moved to a different facility, sometimes to a different state. So families have to locate relatives.”
Studying the crisis
Narro, the UCLA Labor Center project director, told me about students venturing into Pico-Union in Los Angeles, where impoverished immigrants from Central America and Mexico crowd into apartments, making it one of America’s densest neighborhoods. Some of the immigrants try to find work in the food industry.
The students enroll in classes such as “Immigrants, Students and Higher Education,” taught by Labor Center Director Kent Wong. From these classes come academic studies like the center’s examination of the impact of robots on food workers. The studies, in turn, help shape legislation on the federal, state and local levels.
“Two summers ago, they did a project on gig workers,” Narro said. “We train students on how to survey workers. They interviewed gig drivers. They collected data and analyzed it, and the information was used by community activists.
“[In that way], the activists become scholars.”
Shannon Speed combines many of the attributes of scholars and activists. Speed is a professor of gender studies and anthropology at UCLA and director of the American Indian Studies Center. She also is a citizen of the Chickasaw Nation of Oklahoma.
The center brings together indigenous American Indian students with faculty, staff, alumni and members of the indigenous community. Its goal is to address American Indian issues and support native communities. It also acts as a bridge between the academy and indigenous peoples locally, nationally and internationally.
One of Speed’s accomplishments has been to lead a successful effort to have Los Angeles adopt Indigenous People’s Day, the largest city to do so. As director of the Community Engagement Center at the University of Texas in Austin, she was one of a corps of volunteers who inspected detention centers.
“We would talk [to immigrants] about how things were, what their needs were, how they came to be there,” she said. “Almost all had been kidnapped for ransom.” Now, Speed said, they had no idea when — or whether — they might be released from detention.
She collected some of their stories in a book, Incarcerated Stories: Indigenous Women Migrants and Violence in the Settler-Capitalist State. The subtitle reflects Speed’s thesis: that European settlers imposed a violent culture on Indians living throughout the length and breadth of South and North America, a violence that continues in the treatment of the indigenous people Speed grew up with and whom she and her students met every day.
“What the stories of indigenous women migrants make evident, above all else,” Speed wrote, “is their strength and resilience as they seek to free themselves of the oppression and violence that mark their lives.”
These are the lessons, learned in migrant communities, that students and their academic and activist mentors will take with them as the United States meets its ongoing challenge of immigration, with its newest confrontation: this one between those who approve of Afghan resettlement and those who do not.
There is work left to do: Even as Americans have voiced their sympathy for Afghans who helped U.S. soldiers fight the 20-year war in Afghanistan, the Post-ABC News poll shows that 27% of Americans oppose resettling Afghans here.
IN TOPICS: BIDEN CIVIL RIGHTS FAMILIES IMMIGRATION SANCTUARY TRUMP
TAGGED:IMMIGRATION, PUBLIC POLICY, UCLA
Bill Boyarsky
Veteran American Journalist & Author
PHOTO: UCLA
BILL BOYARSKY
Boyarsky is a veteran journalist and author. He was with the L.A. Times for 31 years, serving as city editor, city county bureau chief, political reporter and columnist. He is the author of several books, including: “Inventing LA, The Chandlers and Their Times.”
Republished with author’s permission.
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Thanks, Bill, for forwarding this great and timely article!😎👍
Courtside recently has highlighted the extraordinary efforts of other All-Star 🌟 Immigration Clinics at Wisconsin, Cornell, and George Washington.
These are just a few of the many law schools across our nation that have answered the call for due process and human dignity for all migrants in America!
I’ve made the point many times that Professor Eagly and other leaders of the NDPA like her are the folks who rightfully should be on the BIA, the Immigration Judiciary, and in the key “sub-cabinet” policy positions at DOJ & DHS. These are critical jobs that generally do not require the delays and inefficiencies associated with Presidential appointments.
I’m thankful for Professor Eagly, her students, and all of the other extraordinary members of the NDPA and the Round Table for courageously and steadfastly standing tall every day for due process for all persons in the U.S., regardless of race, creed, gender, or status! Also, as I always tell my students, I’m personally thankful: 1) that I woke up this morning; and 2) that I’m not a refugee!
Additionally, my condolences ☹️ to UCLA “Bruin Nation” 🐻 for the drubbing their (previously) #2 Men’s hoopsters took at the hands of #1 Gonzaga Tuesday night!🏀
ICE: The ICE Appointment Scheduler is an appointment scheduling and management tool developed by U.S. Immigration and Customs Enforcement (ICE) to help manage the scheduling of individual and family unit (FAMU) noncitizens required to appear before ICE for further immigration case processing. Only noncitizens apprehended and released by U.S Customs and Border Protection (CBP) via Prosecutorial Discretion (PD) can schedule appointments on the website at this time. There is a video tutorial link on the right side of the website.
EOIR has changed the automated case information website. Even though it looks like you have to type the A# one digit at a time, the web form still allows you to copy and paste a complete A# into the form, even with hyphens. Depending on the device you are using to view the website, you may need to scroll down to view the English-Spanish toggle. The web address also has changed, although the old address automatically redirects you for the time being.
USCIS: USCIS mistakenly rejected certain applications for employment authorization (Form I-765, Application for Employment Authorization) from petitioners for U nonimmigrant status that were filed without a fee (or request for fee waiver) from June 14 through Sept. 29, 2021.
WaPo: The reconciliation bill would create the largest mass-legalization program for undocumented immigrants in U.S. history, but it falls well short of a path to U.S. citizenship. Roughly 7 million of the 11 million undocumented immigrants would be eligible to apply for work permits, permission to travel abroad, and benefits like state driver’s licenses, a major step for immigrants from Mexico, Central America and other lands who remain vulnerable to being deported. See also House Sends Biden’s $1.75T Budget Plan To Senate.
CNN: The Department of Homeland Security has stopped the practice of releasing migrants in the United States only with paperwork that tells them to report to an Immigration and Customs Enforcement office, Secretary Alejandro Mayorkas told senators Tuesday.
Law360: Millions of people living in the U.S. illegally face barriers to accessing affordable health care due to their immigration status, but the immigration provisions of a budget bill making its way through Congress could remove some of those obstacles.
Law360: U.S. Secretary of Homeland Security Alejandro Mayorkas blasted the previous administration’s zero tolerance immigration policy and told senators at a contentious hearing Tuesday that possible settlement payments to separated families would not necessarily incentivize future migration.
Documented: In October 2021, all remaining detained immigrants from the Hudson County Jail, and just last week from the Bergen County Jail, were either transferred to other facilities, released or deported. Most were moved from New Jersey jails to two facilities in New York State: the Orange County Correctional Facility in Goshen and the Buffalo Service Processing Center in Batavia, near Buffalo.
Vox: At the current pace, the US won’t come within striking distance of the 125,000 cap by the end of the fiscal year — and, given the State Department’s new refugee guidance, it’s unlikely that refugee agencies will be able to expand capacity to ramp up that pace soon.
Business Insider: The current dearth of workers is mirrored by the number of working-age adults who would have lived in the United States if pre-Trump immigration trends persisted, according to 2020 US Census data.
AIC: The Court’s decisions on these cases will impact access to: Federal court review over certain immigration judge decisions.
Bond hearings for certain noncitizens who have spent months in detention. Personal liability and damages for federal officers’ unconstitutional actions. The Court also will consider whether states can defend immigration policies that the federal government will no longer defend.
BIA: The respondent’s conviction for carjacking under section 215(a) of the California Penal Code is categorically a conviction for an aggravated felony crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2018).
Law360: The First Circuit gave a Cape Verdean man a second shot at proving his conviction for possessing oxycodone doesn’t bar him from accessing deportation relief, ordering an immigration authority to weigh whether the decades-old precedent it applied is outdated.
AILA: The court found that the BIA erred by refusing to consider the Sri Lankan petitioner’s country-conditions evidence in its likelihood-of-torture assessment with regard to his Convention Against Torture (CAT) claim, as required by 8 CFR §1208.16(c)(3). (Arulnanthy v. Garland, 11/8/21)
Law360: A legal advocacy group that seeks to restrict immigration to the U.S. urged the full Fifth Circuit on Monday to reverse a panel decision that kept in place the Biden administration’s policy curbing immigration enforcement operations.
AILA: The court found it lacked jurisdiction to review petitioner’s challenge to his expedited removal proceedings, concluding that a recent Supreme Court decision abrogated any colorable constitutional claim exception to INA §242(a)(2)(A). (Guerrier v. Garland, 8/16/21, amended 11/9/21)
AILA: Dismissing the petition for review of an order reinstating petitioner’s removal order, the court held that the petitioner had failed to establish a gross miscarriage of justice that would permit it to entertain a collateral attack on the underlying order. (Lopez Vazquez v. Garland, 11/12/21)
Law360: The Ninth Circuit dismissed a Mexican man’s deportation appeal, finding that his past state conviction for animal cruelty encompassed both a guilty mental state and reprehensible actions, qualifying him for removal, despite his claim that he injured the animal accidentally.
Law360: A divided Ninth Circuit panel refused to reopen a convicted burglar’s deportation case following a Supreme Court decision disqualifying his removal, with two judges locking horns over whether the migrant showed enough commitment to fighting for his rights in the interim.
Law360: The Eleventh Circuit breathed life into a Sri Lankan man’s bid for deportation protections on Thursday, finding that the Board of Immigration Appeals ignored evidence and misstated facts on the record when it denied him relief.
Law360: A Texas federal judge refused to expedite the federal government’s reimplementation of a Trump-era program requiring asylum-seekers to wait in Mexico, saying the government has clearly documented its efforts to reinstate the program formally known as the Migrant Protection Protocols.
Law360: Arizona, Montana and Ohio sued the Biden administration Thursday over guidance issued to U.S. Immigration and Customs Enforcement that aims to narrow the agency’s enforcement operations, marking the second such suit brought by states challenging the policies.
AILA: DOJ provided a status update on the settlement negotiations, which states that on 11/11/21, DOJ made a counteroffer to publish BIA decisions, subject to certain limitations, on a prospective basis and going back approximately five years. (NYLAG v. BIA, 11/17/21)
Law360: The sheriff of Sacramento County has a “shadow” system for transferring inmates to U.S. Immigration and Customs Enforcement, violating California’s restrictions on local police cooperation with federal immigration authorities, according to a lawsuit announced Tuesday.
AILA: The Biden administration filed compliance reports after a district court ordered the administration to submit information on key pieces of data and steps it was taking toward implementation of MPP.
AILA: USCIS clarified that if a naturalization applicant requests oath modification but does not provide oral testimony or evidence, officers should issue a Request for Evidence. Guidance effective 11/19/21, comments due by 12/20/21.
Law360: The Biden administration on Tuesday barred Nicaraguan government officials from entering the U.S. over President Daniel Ortega’s continued assault on democratic processes, civil society and human rights, nine days after elections the White House called a “pantomime.”
Law360: The Biden administration on Thursday lifted Obama-era restrictions on Burundi government officials who that administration held responsible for the human rights abuses that plagued the African country during a former president’s controversial third term.
AILA: DHS provided an update on the horse patrol activity in Del Rio, Texas on September 19, 2021. DHS OIG declined to investigate and referred to CBP’s Office of Professional Responsibility. Once an investigation is completed, CBP management will determine whether disciplinary action is appropriate.
Please thank them all on my behalf. I’m extremely grateful for what each of them did on my case.” This is what our client, E-K- said upon receiving well wishes from several of his former student-attorneys after he was sworn in as a U.S. citizen yesterday. Please see the attached photo of E-K- with Prof. Vera after his oath ceremony. E-K- authorized our use of his picture.
E-K- became a Clinic client in 2009 after an unsuccessful interview at the Arlington Asylum Office. In February 2010, E-K-, a native of Cameroon, had his first Individual Calendar Hearing based on his political opinion and imputed political opinion following his involvement in a sit-in and his presence during a protest. DHS appealed the initial grant of asylum and on remand the Board of Immigration Appeals instructed the Immigration Judge to pay attention to credibility. However, the Immigration Clinic and E-K- prevailed again in 2013 and the asylum grant was finalized! The Clinic then assisted E-K- with his green card application, naturalization application, and naturalization interview. Next up: his wife’s green card application!
Please join me in congratulating Alexa Glock, Anca Grigore, Rebekah Niblock, Victoria Braga, Alex North, Jonathan Bialosky, and Paulina Vera, who all worked on the case.
Real life success stories from real life humans represented by well-trained law students in a “Surreal Immigration Court System!”
Brings to mind the disgraceful incident when former Trump-Era EOIR Director James McHenry created a bogus “Fact Sheet” with a ludicrous narrative in a dishonest attempt to show that lawyers and knowing individual rights in Immigration Court were irrelevant to success.
McHenry’s lies, myths, and intentional distortions were universally panned by immigration experts as reported by Courtside at the time.
Under Judge Garland, the DOJ claims to recognize and promote representation in Immigration Court. But, leaving aside the mushy rhetoric, their actions say otherwise:
“Dedicated Dockets” and sloppy mail-out notices established without consultation with the private bar;
Proposed asylum regulations almost universally opposed by the private bar;
Failure to slash the overwhelming, due process inhibiting, 1.5 million case backlog;
Continued “Aimless Docket Reshuffling” fueled by changing and misplaced administrative “priorities”that totally ignore the needs of the pro bono bar;
Continuing support for “imbedded Immigration Courts and TV Courts” established in or near DHS Detention Centers located in obscure places where attorneys are not easily obtainable;
Overly restrictive and widely inconsistent bond determinations in Immigration Court that inhibit effective representation;
Ridiculous backlog of Recognition and Accreditation applications that impedes new opportunities for well-qualified pro bono representatives in Immigration Court (See, e.g., VIISTA Program, Villanova Law);
Failure to “swap out” a legally substandardly performing BIA and some Immigration Judges for “real, well-qualified Judges with immigration and due process expertise;”
Long-delayed e-filing, making pro bono representation more difficultand less efficient;
Overall lack of dynamic court management and appropriate professional dialogue with the private bar;
Substandard EOIR “judicial training” that puts undue burden on private attorneys, particularly those operatingpro bono;
Lack of positive precedents, particularly on asylum, that would help parties and judges move many “grantable” asylum cases through Immigration Courts fairly, efficiently, and consistently with due process and “best practices;”
Continuing lawless use of Title 42 @ Southern Border causing diversion of legal resources that could otherwise be channeled into representation!
In other words, the DOJ under Garland has failed to deliver on the promise of restoring the rule of law and promoting representation in Immigration Court. Seems like nothing short of Article I will “get the job done!”
It’s painfully obvious that the politicos running the dysfunctional Immigration Courts @ DOJ have never actually had to practice before them, particularly pro bono! So, they just go on repeating many of the uninformed mistakes of their predecessors!
CBS: The U.S. Immigration and Customs Enforcement (ICE) plan, dubbed “Operation Horizon,” is designed to place tens of thousands of migrants who received ad hoc processing near the southern border into deportation proceedings. The agency will be sending migrants “notices to appear,” as well as other documents.
Hoppock: In a memorandum dated November 8, 2021, the Director of the Executive Office for Immigration Review, David Neal, has rescinded the agency’s formal COVID-19 guidance, leaving a number of questions unanswered on how the courts will handle COVID-19 in the coming days and months.
NYT Editorial Board: The Biden administration says that border patrol agents are simply following orders from the Centers for Disease Control and Prevention that were put in place to keep the country safe from Covid-19. But there is little doubt that the administration has used the policy as a stopgap measure to quickly remove migrants who are gathering at the southern border in large numbers, pushed by the economic fallout from Covid in South and Central America and pulled by the rumors of lenient treatment under a more welcoming American president, among other factors. See also Trump CDC official: No ‘public health reason’ for border closure, Title 42.
WaPo: CBP figures show about 1,000 Haitians were taken into custody along the Mexico border last month, down from 17,638 in September, when huge crowds waded across the Rio Grande to a makeshift camp in Del Rio, Tex., creating a humanitarian and political crisis for the Biden administration.
AP: Roughly 35 of the country’s more than 530 immigration judges are assigned to the new docket, according to the most recent data provided by the Executive Office for Immigration Review, which oversees federal immigration courts. Many juggle the duties on top of their normal caseloads. While it’s still early, the effort has made progress: As of mid-September, it was handling nearly 16,000 cases, and more than 100 had received at least an initial decision, according to the agency.
Reuters: Inside the camp, which is fenced in and controlled by police, Reuters spoke to over 20 migrant children, four of whom had documents showing they were born in the United States.
Reuters: Mexico is considering setting tougher entry requirements for Venezuelans, partly in response to U.S. requests, after a sharp rise in border arrests of Venezuelans fleeing their homeland, according to three people familiar with the matter.
Law360: Workers in a half dozen countries, including Haiti, will be newly eligible to come to the United States on temporary, employment-based visas next year, the U.S. Department of Homeland Security announced Tuesday.
Lexis: He asserts that first-degree robbery under section 569.020(1) (now section 570.023) of the Mo. Rev. Stat. is substantially similar to the qualifying crime of felonious assault… the Petitioner has met his burden of establishing, by a preponderance of the evidence, that the offenses are substantially similar.
AILA: The court held that it lacked jurisdiction to consider the petitioner’s claim that the BIA erred by rejecting his proposed particular social group (PSG) of “Brazilian landowners,” finding that the petitioner had failed to exhaust his administrative remedies. (Gomes v. Garland, 11/3/21)
AILA: The court upheld the denial of asylum to the petitioner, holding that substantial evidence supported the IJ’s and BIA’s adverse credibility determination because inconsistencies in petitioner’s testimony were cumulatively persuasive of a lack of credibility. (Mashilingi v. Garland, 11/2/21)
AILA: The court concluded that the definition of crime involving moral turpitude (CIMT) does not violate the U.S. Constitution, and that Virginia’s felony eluding statute, Va. Code §46.2-817(B), constitutes a CIMT. (Canales Granados v. Garland, 11/4/21)
Law360: The Ninth Circuit has upheld a 1996 deportation order against a Mexican man even though his guilty plea for possessing cocaine was vacated, saying the conviction that the order was based on was legally valid when it was issued.
AILA: The court held that the stop-time rule—which sets out the circumstances under which a period of continuous physical presence is deemed to end for cancellation of removal—is not triggered by a final order of removal. (Quebrado Cantor v. Garland, 11/3/21)
AILA: Applying a fact-based inquiry, the court held that the IJ’s refusal to grant a continuance of the petitioner’s merits hearing deprived him of his right to counsel, and thus granted the petition for review. (Usubakunov v. Garland, 11/1/21)
AILA: Temporary Protected Status (TPS) holders filed a class action lawsuit in federal district court challenging USCIS’s rescission of a 30-year policy that allowed TPS holders to seek lawful permanent resident (LPR) status upon return from travel abroad. (Gomez, et al. v. Jaddou, et al., 11/8/21)
AILA: Five asylum seekers filed a class action lawsuit in the U.S. District Court for the Northern District of California challenging USCIS’s allegedly unlawful delay in adjudicating applications to renew employment authorization documents (EADs) for asylum seekers. (Tony N. v. USCIS, 11/10/21)
AILA: AILA and litigation partners Wasden Banias and Steven Brown celebrate the historic settlement with DHS in Shergill, et al. v. Mayorkas, which provides structural changes for nonimmigrant H-4 and L-2 spouses suffering from long-delayed processing times for EAD applications.
AILA: EOIR announced that eRegistration for ECAS will be fully virtual. Starting November 15, two-phase eRegistration is required to validate a registrant’s identity, but practitioners no longer have to appear in-person to show photo ID. The memo lists registration times and contact information.
AILA: EOIR released guidance stating that its website will be the principal method of communication with the public regarding updates to EOIR’s protocols during the COVID-19 pandemic and will no longer issue these formal documents. Guidance is effective 11/8/21.
AILA: USCIS provided policy guidance stating that current or former members of the U.S. armed forces who serve honorably during specifically designated periods of hostilities may be eligible to naturalize. Guidance is effective 11/12/21, comments are due by 12/31/21.
AILA: ICE ERO updated its COVID-19 Pandemic Response Requirements (PRR) to set forth expectations and to assist detention facility operators in sustaining detention operations during the pandemic. The PRR sets mandatory requirements and best practices for all detention facilities housing ICE detainees.
AILA: DOS stated they can process visa applications for individuals physically present in Brazil, China, India, Iran, Ireland, the Schengen Area, South Africa, and the United Kingdom. Applicants who were refused should request reconsideration, but should not expect readily available visa appointments.
AILA: DHS announced that it will exempt certain filing fees for Afghan nationals who were paroled into the United States for humanitarian reasons on or after July 30, 2021. They will also streamline processing requests for work authorization, Green Cards, and associated services.
AILA: USCIS stated that Afghan nationals with an approved Form I-360 who are employed by the U.S. government or ISAF in Afghanistan and plan to file Form I-485 must be physically present in the United States and provide a U.S. address on Form I-485. Filing fees for Form I-485 may be waived.
The inadequacy of mailed NTAs has been well-established. 80,000 notices mailed to addresses gathered in haste and confusion by an agency renowned for sloppy work! What could possibly go wrong?
Unanswered Questions:
How many older cases that might otherwise have been completed were “reshuffled” to achieve 100 “Expedited Docket” completions?
Honorable Joan Churchill Retired U.S. Immigration Judge Member Round Table of Retired JudgesHon. Paul Grussendorf U.S. Immigration Judge (Ret.) Member, Round Table of Former IJs Author Source: Amazon.comHon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
American Bar Association International Law Section
Program Spotlight: Refugees and Asylum in the U.S.
&
Review of Domestic Interpretations at Odds with International Guidance
This program will review the differences between the Refugee and Asylum processes (which includes Withholding of Removal) in order to provide clarity to new practitioners about the stark contrasts between the two U.S. refugee programs and to inform on international law compliance.
Topic 1: Contrast and compare Refugees and Asylum law and process, and
Topic 2: Compare U.S. domestic interpretations of the legal criteria of Refugees and Asylum seekers with international law and policy.
Moderator and Chair: Joan Churchill (Former Immigration Judge)
Paul Grussendorf has worked with both the refugee and asylum programs in the United States and abroad. He headed a law school legal clinic at the The George Washington University Law School representing asylum seekers, served as an Immigration Judge handling asylum cases, worked as a Supervisory Asylum Officer with the U.S. Department of Homeland Security Office of Citizenship and Immigration Services [CIS], as a refugee officer with Refugee Affairs Division of USCIS, and as a refugee officer and supervisor with the UNHCR, the UN Refugee Agency.
Topic 2: The Hon. Jeffrey Chase
Jeffrey Chase is a retired Immigration judge for New York City. He has written extensively about the inter relationship of international law sources with the U.S. national law when administering cases involving asylum and refugee applications.
He has a blog entitled Opinions/Analysis on Immigration Law. He coordinates The Round Table of Retired Immigration Judges, an informal group of Retired Immigration Judges from both the trial and appellate level, who weigh in on topics relating to the administration of justice by the Immigration Court. The Round Table files amici briefs, and has issued position papers and testimony on issues affecting due process and the administration of justice by the Immigration Courts.
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Many thanks to my round table friends and colleagues for putting this fantastic free program together and to the ABA International Law Section for sponsoring it!
In 1980, Congress enacted the Refugee Act of 1980 to bring the U.S. into compliance with the U.N. Convention & Protocol on The Status of Refugees, to which we are a signatory through the Protocol.
After some steady progress over the first two decades, today, as a result of actions taken by the last four Administrations since 2001, we are further away than ever from the goal of compliance. Bungling bureaucrats at DHS and DOJ wrongfully view large numbers of refugees and asylees as a “threat” to be “deterred,” rather than as the legal obligation and undeniable assets to our nation that they in truth are.
They fail miserably to fix systemic problems, to properly welcome refugees and asylees, and to adjudicate their claims in a fair and timely manner consistent with due process and racial justice. With stunning tone deafness, they eschew the advice of experts like Judges Churchill, Grussendorf, and Chase in favor of cruel, inept, and “bad faith” gimmicks, like gross misuse of Title 42 to suspend the asylum system indefinitely without Congressional approval.
One only has to look at the evening news to see firsthand what a horrible failure these “Stephen Miller Lite” policies have been and how they ruin lives and trash the reputation of our nation. The failure of the Biden Administration to make good on its campaign promises to migrants and refugees is nothing short of a national disgrace!
The first step in holding Mayorkas, Garland, and the others responsible for this ongoing mess accountable and restoring the rule of law is to understand how the system should and could work.
Then, you will have the tools to sue the hell out of the irresponsible public officials and their bumbling bureaucrats, lobby Congress for better protections for asylum seekers, and generate outraged public opinion until the rule of law, common sense, and human decency are restored to our land! And, we can save some lives that are well worth saving in the process!
Knowledge is power! The Biden Administration’s knowledge of how to implement an efficient, practical, legal, successful asylum system would fit in a thimble with room left over! Get the “upper hand” by listening to these Round Experts!
If you or any of the retired IJs wanted to follow-up on the phantom NTA issue, I just wanted to pass along a good source: CLINC webinar @1:07:08: https://cliniclegal.org/training/archive/orders-border. It also affects the ability to file motions to change venue because DHS is serving the NTA on EOIR the day of the master calendar hearing, so there are no proceedings for which to file a motion until the day of court.
Judge Garland isn’t worried! HE doesn’t have to practice before the dysfunctional Immigration Courts! PHOTO: Wikipedia Commons
Absolutely “nutsos!” But just “another day at the office” in the three-ring circus 🎪🤹♀️🤡that “Ringmaster Garland” calls his “courts!” Where’s the accountability for this disgraceful mess? Where is the Congressional oversight? What happened to the essential “Article I legislation” to remove this continuing clown show from a flailing and failing DOJ?
Politico: With bipartisan immigration talks stalled, the White House and congressional Democrats are pushing to add a path to legal residency for 8 million immigrants to their sprawling social spending plan this fall. In order to steer that help for Dreamers, essential workers and those with Temporary Protected Status past a filibuster, though, the party has to win over the Senate parliamentarian, the chamber’s non-partisan rules arbiter.
TRAC: Alongside the growing number of asylum-seekers assigned to the new Dedicated Docket, new questions emerge about whether these cases will be completed fairly and within the promised timeline, whether Immigration Judges will be able to manage large Dedicated Docket caseloads, and whether the Court is reliably tracking these cases as promised.
AP: A federal task force is launching a new program Monday that officials say will expand efforts to find parents, many of whom are in remote Central American communities, and help them return to the United States, where they will get at least three years of legal residency and other assistance.
Reuters: Nearly three dozen former immigration judges have urged the U.S. Supreme Court to rule that federal appeals courts have the power to review immigration court rulings on whether individuals are eligible for relief from deportation.
NPR: The Dulles Expo Center outside Washington, D.C., is usually reserved for home and garden or gun shows. Now the cavernous center hosts thousands of Afghan refugees. See also US gives 1st public look inside base housing Afghans.
NPR: The workers who’d gathered at Tepeyac started compiling a list, which in the next few days grew to 700 missing people. Almost all immigrants, many undocumented.
Intercept: Djumaev himself has never faced any criminal charge nor even been brought before an immigration court. When he later booked travel to the United States, the authorities blocked his return.
Reuters: The renewals for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan will last until Dec. 31, 2022, according to U.S. Citizenship and Immigration Services, and were required as part of ongoing litigation over former President Donald Trump’s attempts to end most enrollment in the program.
Law360: A majority of the First Circuit’s judges declined on Wednesday to rehear a request for deportation relief from a Venezuelan man who said he was forced to smuggle drugs into the U.S., with one judge writing in her dissent that the full panel’s decision not to rehear the case is a “dangerously slippery slope.”
Law360: A Dominican Republic immigrant who pled guilty to endangering a child in 2006 lost his deportation fight on Tuesday when the Second Circuit ruled in favor of the retroactive application of a 2010 decision, which found such crimes a removable offense.
Law360: As he walked down a Brooklyn block with a loaded gun in his hand on a dry, hot summer evening in 2016, Javier Perez didn’t know he was about to trigger a constitutional dilemma.
AILA: The court held that the petitioner, who spoke “Pidgin” English, was denied due process, because the IJ did not conduct an adequate initial evaluation of whether an interpreter was needed and took no action even after the language barrier became apparent. (B.C. v. Att’y Gen., 9/1/21)
AILA: The court held that, because the petitioner was a naturalized citizen at the time of his conviction for a felony relating to conspiracy to illicitly traffic controlled substances, he was not removable under INA §237(a)(2)(A)(iii)’s aggravated felony provision. (Singh v. Att’y Gen., 8/31/21)
LexisNexis: Gayle v. Warden: Under 8 U.S.C. § 1226(c), the Government must detain noncitizens who are removable because they committed certain specified offenses or have connections with terrorism, and it must hold them without bond pending their removal proceedings.
Law360: A Sierra Leonean national who pled guilty to aggravated identity theft lost his fight to stay in the U.S. on Friday, after the Third Circuit found that he had used fake documents for a bank fraud scheme.
AILA: The court upheld the denial of Convention Against Torture (CAT) relief to the petitioner, finding that the evidence did not compel the conclusion that any torture by the MS-13 gang would occur with the consent or acquiescence of Honduran officials. (Tabora Gutierrez v. Garland, 8/31/21)
Law360: A Fifth Circuit panel on Wednesday peppered attorneys with questions aimed at understanding the effect of an order prohibiting the U.S. Department of Homeland Security from following two Biden administration directives that prioritize the removal of certain immigrants.
AILA: Where the petitioner challenged as unconstitutionally vague INA §241(b)(3)(B)(ii)’s non-per-se “particularly serious crime” (PSC) term, the court found that the statute stands because its text imposes standards that must reference underlying facts. (Mumad v. Garland, 8/27/21)
AILA: The court held that, in making an adverse credibility determination as to petitioner, the IJ was allowed to afford substantial weight to discrepancies associated with a threat by gang members and a report the petitioner procured and submitted to the IJ. (Rodriguez-Ramirez v. Garland, 9/1/21)
Alam v. Garland: The en banc court overruled prior Ninth Circuit precedent establishing and applying the single factor rule, which required the court to sustain an adverse credibility determination from the Board of Immigration Appeals, so long as one of the agency’s identified grounds was supported by substantial evidence.
AILA: The court concluded that the petitioner had failed to present sufficient evidence to permit a rational trier of fact to find that his parents had obtained a “legal separation” as required for him to derive U.S. citizenship under former §321(a) of the INA. (Ghia v. Garland, 9/2/21)
AILA: The court held that the BIA erred in applying Matter of Cortes Medina retroactively to classify the petitioner’s 2011 conviction for indecent exposure under California Penal Code section 314.1 as a crime involving moral turpitude (CIMT). (Reyes Afanador v. Garland, 8/27/21)
LexisNexis: Etemadi v. Garland “Kami Etemadi, a citizen and native of Iran, came to the United States in 1996 and made a life in Los Angeles. After being introduced to an Iranian American church, he converted to Christianity and was baptized in 1999. The government maintains his faith is false, and endeavors to deport him.
AILA: U.S. District Judge Cynthia Bashant of the Southern District of California declared unlawful the government’s practice of systematically denying asylum seekers access to the asylum process at ports of entry (POEs) along the U.S.-Mexico border. (<=”” i=”” style=”box-sizing: content-box; background-clip: border-box;”> (9/2/21)
AILA: U.S. District Judge Amit Mehta of the District of Columbia granted summary judgment to plaintiffs on their claims that the No-Visa Policy violates the Administrative Procedure Act (APA), and that defendants unreasonably delayed their visa applications. (Goh, et al. v. DOS, et al., 9/9/21)
Documented: They said an officer violently tugged at an immigrant’s shackles as she was being transferred into ICE custody, which caused her to bleed and bruise on her hips, ankles and wrists. According to multiple women who had been held there, medical neglect there is an “ongoing systemic problem.”
AILA: EOIR issued a memo establishing a dedicated docket to certain individuals in removal proceedings with a focus on the adjudication of family cases as designated by DHS.
AILA: USCIS announced that its website will now feature a Lockbox Filing Location Updates page, where customers can track when lockbox form filing locations are updated. Updates will also be emailed and announced on social media.
AILA: USCIS notice of the automatic extension of the validity of TPS-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal through 12/31/22 from the current expiration date of 10/4/21. (86 FR 50725, 9/10/21)
AILA: USCIS stated that they will extend the time that receipt notices can be used to show evidence of status from 18 months to 24 months for conditional permanent residents with pending Form I-751 or Form I-829. New receipt notices will also be provided to those who file Form I-751/I-829 before 9/4/21.
AILA: ICE provided interim guidance on motions to reopen in light of SCOTUS’s decision in Niz-Chavez v. Garland, stating that some noncitizens may now be eligible for cancellation of removal. Until 11/16/21, ICE attorneys will presumptively exercise prosecutorial discretion for these individuals.
AILA: ICE provided updated statistics on COVID-19 in ICE detainees, by facility. As of 9/7/21, there are 847 positive cases currently in custody among a total detainee population of 23,445.
AILA: CDC notice announcing a blanket humanitarian exemption to the requirement for a negative pre-departure COVID-19 test for evacuees from Afghanistan. The exemption went into effect on 8/15/21. (86 FR 49536, 9/3/21)
Item #1 on immigration reform is interesting, although I think the odds on any major reform passing are still slim. If enacted, remedial legislation would not only help America and recognize the huge contributions and potential of our many undocumented residents, but also would help eliminate the largely self-created Immigration Court backlog.
Eminem has wisely asked, “If you had one shot or one opportunity to seize everything you ever wanted in one moment would you capture it or just let it slip?” Representatives should take a cue from these “Lose Yourself” lyrics and present the best motion to reopen possible because, generally, a respondent may only file one motion to reopen, so there is one shot, one opportunity to do so. To support representatives in accomplishing this goal, CLINIC offers numerous resources on motions to reopen, as well as training and mentorship.
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Taking advantage when opportunities present themselves; so critical to the effective practice of law, immigration or otherwise!
Thanks, Michelle, for enlightening us and for all you and CLINIC do for humanity!
