"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.
“At Some Point the Country Is Going to Have to Wake Up”: James Clyburn on the Floyd Killing and The Role of Race In The Coming Election
Chris SmithMay 29, 2020
Clyburn, who helped hand Biden his presumptive nomination, talks about Biden’s “you ain’t black” and V.P. possibilities, and why this moment is defined by “raw politics and meanness.”
by Stephen Maturen/Getty Images.
James Clyburn grew up in a segregated South Carolina. He is now the longest-serving member of the state’s congressional delegation and the highest-ranking black Democrat in the House. In February, Clyburn basically saved Joe Biden’s presidential bid, endorsing Biden three days before South Carolina’s pivotal primary and helping deliver the decisive black vote. On Thursday evening, just after landing in his home state for a weekend visit, the 79-year-old Clyburn talked about holding on to his optimism in the wake of yet another brutal killing of a black man by police.
Vanity Fair: What was your reaction when you saw the video of a Minneapolis cop kneeling on the neck of George Floyd?
James Clyburn: I don’t know that I would describe my emotion as anger. I guess I should be angry. Maybe at my age, and as many of these kinds of things as I’ve experienced, you get to the point where you say, but for the video, I would not have seen it; other people would not have seen it; and the official word would be all anyone knew. I do feel, though, that at some point the country is going to have to wake up to this reality.
What do you tell black Americans, particularly young black male Americans, who say the country is long past the point when it should have awakened, and that the reality is just racism and hatred?
Going back to the student movement and the civil rights movement, I’ve really questioned many times whether or not what we were doing made any real sense. Whether there was any possibility of success. But along with people like John Lewis, who I met in October 1960, he’s held on to his faith in the country, and I’ve held on to mine. I went to jail several times. I ran for office three times before I got elected. You don’t give up. You aren’t going to win by giving up.
by Salwan Georges/The Washington Post via Getty Images.
The four Minneapolis police officers have been fired. Should they be tried for murder?
They certainly should stand trial. The hand of one is the hand of all, so four people need to be on trial.
In a conference call with House leaders two days after Floyd’s death, you talked about it being a symptom of larger problems that plague minority communities, and that it showed the need for systemic change. What did you mean?
I have been saying for a long time now that so much in this country needs to be restructured. Health care, education, the judicial system. Every time these issues are raised, folks on the Republican side find a way to parse the words and turn it to their agenda, and they get accommodated by too many people in the media. When we first started discussing the CARES Act, I said to my caucus, in a Zoom call, that this was a tremendous opportunity for us to restructure things in our vision. My vision comes from the pledge of allegiance: liberty and justice for all. That remains a vision—but we’re not doing much to make that vision a reality. Mitch McConnell goes on the floor of the Senate and calls me out, as if there’s something nasty about my vision. He never asked me what my vision was. I’ve got it on billboards all over Charleston: “Making America’s Greatness Accessible and Affordable for All.” What’s wrong with that? And that’s been weaponized by the other side as something untoward. It’s ideology, it’s raw politics, and meanness. That’s why we can’t fix these things.
Do you think the Floyd killing will end Minnesota senator Amy Klobuchar’s chances of being picked as Joe Biden’s running mate?
It certainly won’t help. But it’s not just this. Her history with similar situations when she was a prosecutor came up time and again during the campaign. I suspect this incident plays into that.
You said you cringed when Biden told a radio host, “If you have a problem figuring out whether you’re for me or for Trump, then you ain’t black.”
I compare Joe Biden to the alternative, not the Almighty. One of the things I learned early in this business is that one of the worst things you can do in politics is to make a joke out of any serious matter. He would have been better off not doing that.
Senator Tim Scott, a Republican from South Carolina who happens to be black, said that Biden’s remark showed him to be “condescending and arrogant.”
I’ve known Joe Biden for a long, long time. I don’t perceive anything about him to be arrogant. Tim Scott supports [Donald] Trump, and I don’t. If he can reconcile his blackness with Trump, that’s fine. I can’t reconcile mine with Trump. I’ll never ever accept the president of the United States looking into a camera and calling a black woman a dog. I will never get over that. Nothing else he says will matter to me. And he said that not about one of his opponents—that was about one of his staffers! Who supported him! I have three daughters, and I know how I’d feel about any man calling one of them a dog.
With his attacks on former president Barack Obama, among other things, it’s clear that Trump is going to play the race card in his reelection campaign. Do you worry about the tensions becoming dangerous, or is it better to have the issue out in the open?
I think we’re in much better shape for it to be out in the open than for it to be hidden under a bushel. That’s what happened in 2016. The whole thing about African American males responding to Trump saying, “What do you have to lose?” I know from my visits to barber shops that it resonated. But if you fool me once, that’s on you. If you fool me twice, that’s on me. If black men allow themselves to be fooled twice, it’s on them. Four years later, if it ain’t clear what they have to lose, if they can’t count up their losses with Trump, ask them to ask me.
You have said that it isn’t “a must” for Biden to pick a black woman as the vice presidential nominee. Why not?
I remember Sarah Palin. She was fine until it turned out the vetting hadn’t been thoroughly done. I remember Geraldine Ferraro. She was fine. It was her husband that got exposed during the campaign. So if I say it’s a must and something turns up in the vetting, what does that make me? I’m never going to say it’s a must for him to choose a black woman. It would be a plus.
Are you confident that black turnout will be high enough to win no matter whom Biden chooses?
I don’t know about that. Black voters are incentivized already. You can always stimulate the vote. There are picks that could energize the vote.
If Biden said, “Jim, I’ll choose whomever you want,” what would say?
I’m not gonna tell you! But I would tell him.
There’s a tremendous amount of outrage right now about the George Floyd and the Ahmaud Arbery killings. But unfortunately, we’ve seen this cycle many times before, where attention fades after a few weeks.
I think something’s going to be different about this. After the Minneapolis killing, I saw the Minnesota attorney general on TV. For the first time in the state’s history, that attorney general is African American. Also Muslim. That, to me, helps set this whole issue on a different plane. Minneapolis had issues with the former mayor and the police. This mayor says he’s calling for these men to be indicted. To me, that’s progress in something all of us need to work on. You can’t take these things in silos. I’m a history guy. I’ve been studying this country’s history pretty much all my life. It’s pretty sordid in some areas. But that history ought to inform us. Everybody’s not going to learn the lessons. The ones who learn, you hope they change the world.
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Our country can’t get to the better future we need with horrible, unqualified, bigoted leaders like Trump, Pence, Mitch, et al.
One of the most unhelpful of our failed institutions: A Supreme Court that has abandoned the courageous heritage of Brown v. Board of Education and instead encouraged, embraced, aided, and abetted the “Dred Scottification of the other” by a corrupt, bigoted, racist, overtly White Nationalist Executive and his equally corrupt cronies and toadies.
This November, vote like your life depends on it. Because it does!
That’s because the pretense was nonsense from the start. Trump’s regulatory agenda was never about helping the economy; it was always about rewarding friends and punishing enemies. White House officials have weaponized the “administrative state” they claim to hate and have repeatedly tried to strangle disfavored groups with regulations and red tape.
Not just Twitter, either.
Arbitrary delays in processing visa applications, for example, have been used to punish immigrants and the companies that employ them. U.S. Citizenship and Immigration Services has rejected visa applications because applicants lack a middle name. It has also waited to mail approved visas until (oops!) after the visas had already expired.
The additional costs and uncertainty these processing changes create for workers and their employers are a feature, not a bug.
Elsewhere, both federal and state officials have ratcheted up bureaucratic hurdles for the poor, as Georgetown University professors Pamela Herd and Donald P. Moynihan have documented.
Right now, for example, states can decide a poor family is automatically eligible for food assistance if the family is enrolled in other means-tested safety-net programs. The Trump administration is trying to block states from doing this, and require more paperwork to prove eligibility. By the administration’s own calculations, this would cause 1 million children to lose their automatic eligibility for free school lunches.
The administration, of course, argues that its regulatory decisions are determined not by Trump’s political whims but by meticulous analysis of what’s best for the economy.Helpfully, a method exists to check their work: the cost-benefits analysis that agencies must produce ahead of major rule changes.
These records show, however, that the administration has repeatedly struggled to prove that its regulatory actions actually increase economic and social welfare.
To get the numbers to work out in its favor, the administration has had to cook the books.
. . . .
The only upside to this slapdash math is that it makes the administration’s most damaging and punitive regulatory changes less likely to hold up in court. Already, the Trump administration has lost more than 90 percent of the legal challenges to its regulatory policies, according to New York University’s Institute for Policy Integrity. By comparison, previous administrations lost only about 30 percent of the time.
“A lot of these losses have been because of the poor quality of the analysis — who’s harmed, who’s helped, by how much,” said Richard Revesz, a law professor who directs the institute.
The only thing that may save us from the administration’s regulatory vindictiveness is its incompetence.
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Read the rest of Catherine’s article at the link.
As usual, Catherine’s analysis is “spot on.” My problem is this.
If the same private litigant and his or her lawyers kept presenting Federal Courts with false, misleading, or just plain faked evidence and statistics, the private lawyers likely would be facing discipline or disbarment for failure to provide “candor to a tribunal.” The client would be facing large penalties and likely contempt for continuing to institute or cause frivolous litigation.
Yet, except for occasional “harsh but toothless” language in judicial opinions or a couple of minor fines, Trump, his sycophantic toadies, and his battery of unethical Government lawyers get off scot-free for abusing the Article III Judiciary and our legal and judicial processes. Meanwhile, the private litigants are forced to file the same challenges over and over again in different jurisdictions across the country. In the area of immigration, asylum, and human rights, most of the lawyers are donating their time pro bono, while the unethical Government attorneys and their corrupt clients are on the taxpayer’s dime.
The occasional Equal Access to Justice Act award against the Government seldom comes close to compensating private lawyers for their actual lost time and lost opportunities. Nor does it deter the Trump regime, because it comes out of “you of the taxpayers’” pocket.
A Federal Judge demands accurate statistics from DHS after private litigants show the last batch was bogus; the DHS merely submits another set of bogus or misleading data, forcing the private litigants to once again have to demonstrate their unreliability. Government officials and their attorneys claim, contrary to fact, that there is no “child separation” policy, but suffer no consequences other than to be told to stop violating the Constitution. Instead of doing that, they “repackage” unconstitutional child separation as a bogus “parental choice.” So, now the private litigants, who have already won once, have to show that the latest iteration of a clearly illegal and contemptuous policy is what it is: unlawful.
A Federal Judge orders they DHS to make individualized release determinations for detainees held in overcrowded substandard conditions that violate the Government’s own health guidance. Instead of doing that, the DHS merely moves them to another, slightly less crowded facility with equally bad conditions and falsely claims they have “fixed” the problem. Again, the private litigants have to gather new evidence that the move has not materially reduced the health risks to the clients. And so on.
Essentially, the Trump regime and their lawyers are playing a big game of “hide the ball;” every time the private advocates show the Federal Judge where the ball actually is hidden, the Government simply moves it again. And, unfortunately, most Federal Judges give the regime and its ethics-challenged lawyers unlimited “plays” at the expense of the other side. Even when relief is ordered, it just solves the “problem of the moment” rather than halting the pattern of ethical abuses, contemptuous attitudes, and unlawful conduct by the regime and its complicit lawyers.
In effect, the regime has “weaponized” the Federal Courts and the Article III Judiciary in a way not dissimilar from how Sessions and Barr have “weaponized” the Immigration Courts. Turning the Article III Courts into a feckless “runaround” where the individuals and their lawyers “lose even when they win” makes the process punitive and serves as a deterrent to those seeking to challenge the regime’s overtly lawless agenda.
The November election is the chance to throw a scofflaw regime out of office. But, the deep-seated institutional and integrity problems of an Article III Judiciary, beginning with the dangerously complicit and spineless in the face of tyranny “Roberts Court,” that has allowed itself to be “weaponized” and used by the army of authoritarian scofflaws to punish those seeking to uphold the Constitution and the rule of law won’t be solved so quickly. The Article III Judiciary requires an institutional re-examination and a philosophical and ethical overhaul so that it serves the Constitution, due process of law, and equal justice for all, rather than protecting the interests of an insular right-wing minority that seeks nothing less than the disintegration of our nation and our cherished democratic institutions.
As we all cope with the COVID crisis, we can learn a lesson in resiliency.
BY EKHLAS AHMED SPECIAL TO THE PRESS HERALD
In 2005, on my first day of school in America, I got off at the wrong bus stop. Days before, my family and I moved to Portland, having fled genocide in our native Darfur, Sudan. I was 11 years old, had never ridden a public bus before and couldn’t speak English. I walked around lost for eight hours until the Portland police finally found me. I’m now 26, and I think the most courageous thing I’ve ever done is to get back on that bus the next day.
I’ve thought about this story a lot during the pandemic. Like everyone, I feel the uncertainty and pain of this moment. But when I remember the struggles I’ve overcome as a refugee and newcomer to America, I am reminded of how resilient human beings are. You certainly don’t have to be a refugee in order to know perseverance, but take it from someone who has been displaced, lost and in fear of her life: we can get through this. Here’s how.
First, find your purpose by serving others. Given the trauma that refugees have experienced, you wouldn’t expect us to be so resilient. But we forge ahead by reaching out. It’s no surprise that healthcare is the second most common field for refugees in the U.S., according to New American Economy. A fifth of refugee healthcare workers are personal care aides, 14 percent are registered nurses and 8 percent are doctors. Refugees fill these rolls, because we want to give back to the country that welcomed us. But we also do it because selflessness eases our suffering. I became an ESOL teacher five years ago because I knew I would be in a unique position to help young newcomers. I’ve walked in their shoes and understand how to build a safe learning environment for them to thrive.
Second, find hope in community. In refugee circles, even those of us who aren’t strictly “essential” are lifting our neighbors up through mutual-aid organizing. This is a type of local support that refugee communities use to fill in the gaps after our resettlement assistance ends. In normal times, networks of neighbors might organize ride shares and translation assistance for newcomers. Now we’ve added services to meet changing demands. Before coronavirus hit Portland, there was no existing infrastructure to get groceries to the elderly and people with pre-existing conditions. To meet that need, myself and other volunteers are doing the shopping for them. I’m also hosting virtual information meetings to keep the refugee community up-to-date on the latest coronavirus guidelines and teaching people how to use services like Zoom so they can participate and keep up with friends and family.
Lastly, don’t keep your fear bottled up. Refugees know how important it is to have an outlet to express our feelings. This is true for so many of us who have experienced trauma, but especially the women who suffered sexual violence during war. That’s why my mom is a care provider at Spurwink, a Portland organization that helps individuals affected by mental health challenges and developmental disabilities. And it’s why I started hosting bi-monthly conference calls for anyone who wants to share their pandemic experiences. Given widespread job loss, food insecurity and the inability to pay the rent, it’s no wonder that experts are warning about the profound impact coronavirus will also have on our mental health. Talking to your friends and neighbors or simply lending an ear is crucial to breaking through the isolation. It reminds us that we are not alone.
If coronavirus has taught me anything, it’s that we all have far more in common than we think. As states begin to slowly reopen in the coming weeks and months, we will need each other more than ever. Refugees are used to approaching challenges day by day, because tomorrow has never been promised to us. We are proof that all Mainers—and all Americans—can persist through this crisis and adapt to our new normal. We may feel lost, but tomorrow is another day. Have courage.
Ekhlas Ahmed is a refugee, activist and educator from Darfur, Sudan.
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A message from the real America, and those who actually make it great!
The current regime has basically (without legislation) ended our compliance with domestic laws and international treaties that save refugee lives while humanizing and enriching our nation. It’s a national disgrace! Vote ‘em out, vote ‘em out!
This November, vote like your life and your humanity depend on it! Because they do!
There’s no question that everyone is struggling to navigate a world marred by a serious pandemic that’s brought about serious repercussions, especially economic and financial. However, it can be argued that immigrants are having it so much worse at this time as the government, in an effort to protect its own, has chosen to overlook their plight. As a result, countless migrant workers are now on unsure footing. So, let’s dig deeper to understand the problem and see what solutions may be at hand.
Anticipating the Challenges
It’s undeniable that migrant workers are among the hardest hit by COVID-19 — not in terms of infections, per se, but by the fallout. While the government is quick to come to the aid of its citizens affected by the pandemic, the same can’t be said for immigrants, leaving countless migrant workers to fend for themselves.
Many are even working on the frontlines of this pandemic, making them truly vital to the country’s COVID-19 response.
Unfortunately, they are all but neglected right now in the pandemic, lacking assistance in almost all avenues from healthcare to economic.
Getting the Help You Need
Despite the direness of the situation, there’s still hope on the horizon. Migrant workers will likely have their work cut out for them as they seek much-needed help in their adoptive countries. But the fact is, help and support are available out there.
Despite the general lack of healthcare for migrants, there are some healthcare resources that can prove to be useful.
Some states and local governments have also stepped up to provide resources for immigrants, running the gamut from legal to financial to healthcare.
Of course, it definitely pays to take matters into one’s own hands. In fact, it will serve migrant workers well to look into the many services that can be leveraged.
In fact, it can be wise to hire freelancers to help navigate through the red tape, so consider engaging an immigration lawyer or even just a translator.
Of course, find a nanny who can be trusted to care for your kids as you work on improving your situation.
Indeed, it’s a difficult time that’s been made even more so with the multitude of uncertainties that migrant workers face on a daily basis. But really, there’s no reason to make this situation more overwhelming than it already is. Again, help can be had, and regardless if it comes from you, the government or other kind-hearted souls no longer matter. It just needs to be accepted.
I’m Diane Harrison, a former librarian of 15 years turned non-profit marketing guru. Although I’m no longer a librarian and have switched career gears completely, I’ve combined my passion for helping others as well as my writing and researching skills to gather helpful health information.
When reviewing asylum applications of late, I find myself thinking of the popular 1970s TV show “Columbo.” After interviewing a suspect, it’s title character, a disheveled homicide detective, would famously stop on his way out to ask “just one more thing.” What he asked next was always critical to proving the case.
Asylum claims are increasingly reliant on nuance. For example, in Hernandez-Chacon v. Barr, the Petitioner’s statement that she had resisted an attempted rape by one of the gang members “because [she had] every right to” was a significant reason for the Second Circuit’s conclusion that her subsequent persecution was on account of an imputed political opinion.
Similarly, in Lopez-Ordonez v. Barr, the Fourth Circuit’s finding of imputed political opinion relied largely on the Petitioner, while a soldier in the Guatemalan army, uttering a warning that he would “call the human rights right now” if a fellow soldier carried out his intent of harming a baby.
And in Orellana v. Barr, the Fourth Circuit found support for the Petitioner’s assertion that the Salvadoran government was unable or unwilling to provide protection from her domestic partner in her testimony that she would call the police when her partner would become abusive and lock herself in a room with her children while the partner paced outside with a machete, but that the police would not show up for hours, and sometimes not show up at all.
In the above examples, the critical statements came out during testimony in court. But under pressure to meet unrealistic case completion goals, immigration judges are increasingly suggesting that respondents forego testimony and rely on their written applications, or waive direct examination and reserve the right to redirect. In some instances, judges have imposed time limits on testimony. There has been even greater pressure to forego the testimony of other witnesses and instead rely on their written submissions alone.
This pressure to make asylum adjudication more administratively efficient conflicts with the process through which such claims develop. While the written evidence explains the claim, an unanticipated response to a probing question may provide a eureka moment that alters the legal analysis. In my first year on the bench in 1995, a response from a female asylum seeker uttered with a certain degree of conviction caused me to make a connection to a 1993 decision of the Third Circuit in Fatin v. INS. That decision, authored by then-circuit judge Samuel Alito, recognized a particular social group consisting of both gender and a refusal to conform to the government’s gender-specific laws. After weeks of subsequent research and analysis, the case before me ended in a grant of asylum, a result that never would have occurred without the extensive testimony that elicited that one critical utterance.
While EOIR management’s present focus is on efficiency, it bears noting that claims for asylum and related reliefs have life-or-death consequences. For example, a February report of Human Rights Watch documented 138 Salvadorans who were murdered after being deported from the U.S., and 70 other deportees who were subjected to beatings, sexual assault, or extortion. And those are just the statistics for one country.
It is therefore extremely important to find a way to anticipate the details that might turn a case from a denial to a grant, and to include those details in the written asylum application. And this can be best achieved through the Columbo method of asking “just one more thing.”
Examples:
Domestic violence claims
Typically, applications describe the brutal mistreatment suffered by the asylum-seeker. But in Matter of A-B-, the Attorney General claimed a lack of evidence that the persecutor “was aware of, and hostile to” a particular social group. The A.G. rather attributed the motive for the attack to the persecutor’s “preexisting personal relationship with the victim.”
In such cases, ask “just one more thing” to establish that the abusive partner was at least partially motivated to harm the asylum seeker because of her gender (which should in turn be argued to constitute her particular social group). For example, the respondent in A-B- described how her ex-husband believed “a woman’s place was in the home, like a servant.” This statement established (1) that the persecutor was aware of a particular social group, consisting of women, and (2) his own hostility towards such group, through his relegating its members to a subservient role in society.
Additional “Columbo” questions would inquire whether the persecutor’s verbal abuse included gender-specific derogatory terms; how he generally spoke of or treated other women in his life; and whether he would have inflicted the same forms of abuse on e.g. his brother, a close male friend, or a male roommate. The answers may well establish that the asylum seeker’s inclusion in a social group defined by her gender was at least “one central reason” for her being targeted for abuse.
“Just one more thing” should also be asked to flesh out imputed political opinion as a possible motive, as in the above-cited Hernandez-Chacon case.
Family-based claims
These claims often arise in the gang context, when gang members unable to target a particular individual target family members of that individual instead. Although courts for decades have held family to be the quintessential example of a particular social group for asylum purposes, two recent administrative decisions have complicated these claims. First, the BIA in Matter of L-E-A- dismissed the threat to the family member as being motivated by financial considerations and not by an actual animus towards the family. The Attorney General then weighed in, questioning whether a family enjoys the required distinction in the eyes of society to constitute a particular social group.
Regarding nexus, the “Columbo” questions should focus on circumstantial evidence of intent. Keep in mind the BIA’s decision in Matter of S-P–. One of the factors set out in that decision for determining when purported criminal prosecution might actually be political persecution is where the abuse is “out of proportion to nonpolitical ends.” For example, if someone accused of jaywalking is sentenced to ten years in prison and subjected to torture and interrogation sessions, it’s safe to assume that it isn’t really about the jaywalking.
With this in mind, the “just one more thing” issue in such cases is to elicit details about the purported motive vs. the seriousness of the threatened harm. Where the issue is extortion, and the Board might therefore view the motive as economic, ask exactly how much money was involved. Under the S-P- test, a threat to rape and kill someone because their family member neglected to pay $20 in renta probably isn’t about the money. The same might be found even where a larger sum is involved where the threats are directed at, e.g., a teenage child who lacks any realistic ability to pay. Or where the family has managed to avoid paying for years, is there a point where a dispute that began purely over money starts to take on some animus towards the family as well?
Regarding social distinction, “just one more thing” should be asked to establish how the asylum-seeker’s family was viewed in the society in which they lived, as well as the general distinctions that all families enjoy in such society. Was it known throughout the community that MS-13 is targeting the client’s family? If so, might that knowledge have caused the family to achieve social distinction? It is also worth asking whether the institution of family is addressed in the country’s constitution, or how kinship is treated regarding the country’s inheritance and guardianship laws.
Unwilling/unable issues:
As in Orellana v. Barr above, ask “just one more thing” about how many times your client turned to the police, and how many times they actually responded. Also, how long did it take them to respond, and what did the response consist of? How did the authorities treat the abuser? Did they take the position that the issue was a “personal matter” not proper for police intervention?
If the client did not bother to call the police because they viewed it as futile, ask “just one more thing” about what caused them to form such a view. Do they know of relatives, friends, or neighbors whose experiences with the authorities support such a view? Can they cite examples in which there were repercussions for those who called on the authorities for protection? Have the authorities asked for bribes, or made statements exhibiting bias or corruption? Or have they gone as far as to admit that they are unable to provide effective protection?
Copyright 2020 Jeffrey S. Chase. All rights reserved.
Reprinted by permission.
(Disclaimer: The foregoing is meant as “food for thought,” and is not to be interpreted or relied upon as legal advice, or to create an attorney-client relationship. And as the law changes, by the time you read this, the information contained therein might not be up to date.)
MAY 27, 2020
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Thanks, Jeffrey, my friend!
I’ve always said about asylum litigation in Immigration Court: The Devil 👹 is in the details. And, if you don’t find that Devil, the Assistant Chief Counsel will. And, YOU will burn🔥!
Small Acts of ThanksI would like to share a nice story (for once). It illustrates how a postscript can sometimes prove far more meaningful than the main story.
A friend and colleague in the DC area, Eileen Blessinger of Blessinger Legal, planned a series of training lectures via Zoom during the pandemic. When I initially agreed to present one of the sessions on asylum law, I was told it would be for an audience of eighteen people.
Somehow, the number of attendees increased significantly. Because meetings of more than 100 people require an upgrade on Zoom, Eileen asked participants for a small donation. I believe the training went well, and that seemed to be the end of the story.
Later that night, Eileen informed me that because the number of attendees was well over 100, there was a surplus of donations beyond what was needed to cover the Zoom upgrade. After a brief exchange, we agreed that the surplus should go to pandemic first responders.
Realizing the virtue of what was initially an unintended consequence, the next speaker, Louisiana-based attorney Glenda Regnart, also agreed to open her session to a wider audience, who were invited to make a small donation to treat first responders. Subsequent speakers Kelly White, Himedes Chicas, Anam Rahman, Julie Soininen, Danielle Beach-Oswald, Heain Lee, and Jennifer Jaimes agreed to follow suit. Over $1300 was raised.
Eileen took over from there, inviting suggestions for recipients from her staff. So far, she has provided meals to nurses at Mass General Hospital in Boston; to employees at supermarkets in Louisiana and Virginia, and to preparers of meals for those in need in Alexandria, VA. Plans are also in the works to provide a meal for DC-area sanitation workers.
Those of us able to quarantine comfortably and work from home owe an unimaginable debt to those putting themselves at risk to keep our cities and towns running, keeping us all fed and safe. And as most of us read of infection and death rates as impersonal statistics, the nurses and other medical workers who are battling the disease on the frontlines on a daily basis, putting their own health at risk in the process, are far beyond our ability to properly thank.
It was a donation to another group that touched me in an unexpected way because of its connection to an earlier unspeakable tragedy. Eileen forwarded me the accompanying photo of FDNY firefighters enjoying the meal provided for them from the training surplus. Looking at the photo, I was suddenly transported back to the fall of 2001. My wife and I, who both worked in lower Manhattan, were physically very close to events on 9/11. What we saw still triggers traumatic memories. Among the horrible and tragic statistics is the heartbreaking fact that 343 firefighters died that day. More than 200 more have died as the result of illnesses they subsequently contracted in the rescue effort.
I walked past the firehouse on Duane Street every day on my way to and from work when I was an immigration judge. I remember the feeling of grief when passing by in the months following 9/11, and of stopping there one day in October to make a donation, and of words completely failing me as I tried to express my sadness and gratitude.
In the present pandemic, 15 firefighters in the unit pictured here (Engine 286/Ladder 135) had contracted COVID-19 as of last week. As early as April 7, 500 of New York’s Bravest had contracted coronavirus. Many more continue to be exposed as first responders to emergency calls from those stricken with the disease. And the firefighter who took the photo, Jerry Ross, was also a 9/11 responder.
So once again, we are reminded of the great debt we owe to so many. Thanks again to Eileen and all of the other speakers, and of course to all who contributed. Hopefully, these small acts of thanks will bring a little joy to these most essential and selfless heroes.
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Go to Jeffrey’s blog at the above link for the accompanying photo of Engine 286/Ladder 135 enjoying their meal!
Thanks Jeffrey & Eileen!
So proud that in addition to Eileen, of course, so many of the wonderful pro bono attorneys highlighted in this article were “regulars” before us during my time at the Arlington Immigration Court: Kelly White, Anam Rahman, Julie Soininen, Danielle Beach-Oswald, and Jennifer Jaimes. Also, Jennifer is a former Legal Intern at the Arlington Immigration Court who was part of our daily “run the stairs challenge” (at the former Ballston location) with then Court Administrator Judges Bryant and Snow, and me. Ah, those were the days!
Jennifer Jaimes Esquire Jaimes Legal, LLC Baltimore, MD
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify the latest information on the relevant government websites and with colleagues on listservs as best you can.
ABA (by IJ Tsankov): These controversial new policies have become so pervasive and so threatening to judicial independence that they have raised alarms. What began in 2018 as a few dramatic instances involving the abrupt removal and reassignment of cases from an immigration judge’s docket previewed the agency’s more recent alarming actions where the shuffling of scores of cases and entire dockets sometimes multiple times within a single day has become the norm.
AP: Migrants have been dropped by the truckload in the Sahara or bused to Mexico’s border with Guatemala and beyond. Others are drifting in the Mediterranean after European and Libyan authorities declared their ports unsafe. And around 100 Rohingya refugees from Myanmar are believed to have died in the Bay of Bengal, as country after country pushed them back out to sea.
Guardian: Prosecutors also allege that Bonilla was entrusted with “special assignments, including murder” by President Hernández – who is identified as a co-conspirator – and his brother, Tony.
NPR: El Salvador’s president authorized the country’s police and military to use lethal force against gang members, who over the weekend were allegedly responsible for the murders of dozens of people. Along with the emergency orders, President Nayib Bukele put all incarcerated gang members on a 24-hour shutdown.
NBC: [A]s the pandemic puts the census count on hold for months while states wait to come out of lockdown, advocates warn that their outreach efforts are coming up short — increasing the odds that the communities that need federal help the most won’t get their fair share in the coming decade.
Trump renews threats to withhold federal funds from sanctuary cities amid pandemic
ProPublica: More than 400 Mexican migrants are known to have died of COVID-19 in the New York area, but for health reasons, Mexico will only accept their bodies if they are cremated. In place of seeing the body one last time, Lopez’s brother was sent photos by the funeral home, which will hold the cremains while the family figures out how to get them to Mexico.
Reuters: Guatemala’s indigenous Maya towns are spurning returned migrants, threatening some with burning their homes or lynching as fear spreads about more than 100 deportees from the United States who tested positive for the new coronavirus.
National Interest: According to a recent USCIS data release in response to a FOIA, E‐Verify was run 17,909 times against TPS migrants by employers in the 4th quarter of fiscal year 2019. Of those 17,909 E‐Verify queries run against TPS migrants, E‐Verify approved 16,299 of them to work and issued 1,610 with a TNC [tentative non‐confirmation]. In other words, about 9 percent of the E‐Verify cases run against those on TPS in the 4th quarter of 2019 were mistakenly labeled at TNCs.
Trump’s Green Card Ban May Free Up More Employment Visas
Law360: [I]n reality, the order primarily limits categories of family-based immigration and as a result may actually end up making more visas available to would-be immigrants coming to the U.S. for job offers in the future if unused family visas roll over.
LSNYC: Lawsuit accuses DOJ’s Executive Office of Immigration Review (EOIR) of endangering the lives of immigrants, advocates, and the public by continuing to make them meet filing deadlines, in violation of city and state public health orders and litigants’ due process rights. Over 17,500 people have died from COVID-19 in New York State, and nearly 300,000 are infected.
The decision denying the emergency TRO in NIPNLG, et al., v. EOIR, et al., is deeply disappointing; the lawsuit against EOIR and ICE was brought to protect the health of attorneys, immigrants, and the public from the impact of dangerous and unconstitutional policies. AILA Doc. No. 20042800
DHS notice containing the text of the Asylum Cooperative Agreement between the United States and Honduras, which was signed on 9/25/19. (85 FR 25462, 5/1/20) AILA Doc. No. 20050138
DHS final rule delaying the date for card-based enforcement of the REAL ID Act regulations from 10/1/20 to 10/1/21. (85 FR 23205, 4/27/20) AILA Doc. No. 20042700
EOIR final rule amending the regulations to conform to changes made by Public Law 115-218, which extended the bar for asylum in the CNMI by 15 years, providing that the current bar will continue to apply for asylum applications submitted prior to 1/1/30. (85 FR 23902, 4/30/20) AILA Doc. No. 20050130
CBP issued a statement on border searches of electronic devices, noting that in FY2019, it conducted 40,913 electronic device searches, representing .01 percent of arriving international travelers. CBP also provided a month-to-month comparison of electronic device searches from FY2017 to FY2019. AILA Doc. No. 20042730
Thanks Elizabeth, providing “easy access” to informationand resources that the regime doesn’t want folks to know or have.
Trump’s “war on coronavirus” clearly is bogus. But, his “war on our Constitution, the rule of law, and due process” is all too real. In this war, information is power. And, certainly, thanks to folks like Elizabeth, the NDPA’s information is better and our lawyers are smarter and better prepared than Trump’s.
James “Jim” Crow Symbol of American RacismStephen Miller & Count Olaf Evil Twins, Notorious Child AbusersCaitlin Dickerson National Immigration Reporter NY TimesMichael D. Shear White House Reporter NY Times
Caitlin Dickerson and Michael D. Shear report for The NY Times:
From the early days of the Trump administration, Stephen Miller, the president’s chief adviser on immigration, has repeatedly tried to use an obscure law designed to protect the nation from diseases overseas as a way to tighten the borders.
The question was, which disease?
Mr. Miller pushed for invoking the president’s broad public health powers in 2019, when an outbreak of mumps spread through immigration detention facilities in six states. He tried again that year when Border Patrol stations were hit with the flu.
When vast caravans of migrants surged toward the border in 2018, Mr. Miller looked for evidence that they carried illnesses. He asked for updates on American communities that received migrants to see if new disease was spreading there.
In 2018, dozens of migrants became seriously ill in federal custody, and two under the age of 10 died within three weeks of each other. While many viewed the incidents as resulting from negligence on the part of the border authorities, Mr. Miller instead argued that they supported his argument that President Trump should use his public health powers to justify sealing the borders.
On some occasions, Mr. Miller and the president, who also embraced these ideas, were talked down by cabinet secretaries and lawyers who argued that the public health situation at the time did not provide sufficient legal basis for such a proclamation.
That changed with the arrival of the coronavirus pandemic.
Within days of the confirmation of the first case in the United States, the White House shut American land borders to nonessential travel, closing the door to almost all migrants, including children and teenagers who arrived at the border with no parent or other adult guardian. Other international travel restrictions were introduced, as well as a pause on green card processing at American consular offices, which Mr. Miller told conservative allies in a recent private phone call was only the first step in a broader plan to restrict legal immigration.
But what has been billed by the White House as an urgent response to the coronavirus pandemic was in large part repurposed from old draft executive orders and policy discussions that have taken place repeatedly since Mr. Trump took office and have now gained new legitimacy, three former officials who were involved in the earlier deliberations said.
One official said the ideas about invoking public health and other emergency powers had been on a “wish list” of about 50 ideas to curtail immigration that Mr. Miller crafted within the first six months of the administration.
Latest Updates: Coronavirus Outbreak in the U.S.
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He had come up with the proposals, the official said, by poring through not just existing immigration laws, but the entire federal code to look for provisions that would allow the president to halt the flow of migrants into the United States.
Administration officials have repeatedly said the latest measures are needed to prevent new cases of infection from entering the country.
“This is a public health order that we’re operating under right now,” Mark Morgan, the acting commissioner of Customs and Border Protection, told reporters earlier this month. “This is not about immigration. What’s transpiring right now is purely about infectious disease and public health.”
The White House declined to comment on the matter, but a senior administration official confirmed details of the past discussions.
The architect of the president’s assault on immigration and one of Mr. Trump’s closest advisers inside the White House, Mr. Miller has relentlessly pushed for tough restrictions on legal and illegal immigration, including policies that sought to separate families crossing the southwest border, force migrants seeking asylum to wait in squalid camps in Mexico and deny green cards to poor immigrants.
Mr. Miller argues that reducing immigration will protect jobs for American workers and keep communities safe from criminals. But critics accuse him of targeting nonwhite immigrants, pointing in part to leaked emails from his time before entering the White House in which he cited white nationalist websites and magazines and promoted theories popular with white nationalist groups.
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Read the full article at the link.
As America suffers, immigrants, both legal and “undocumented,” are on the front lines of those “essential workers” risking their lives to keep us healthy, safe, fed, and clothed.
Meanwhile, neo-Nazi Miller remains “on the dole” — publicly funded for putting out a steady stream of discredited and xenophobic actions designed to exploit, dehumanize, and demean many of the most courageous and necessary among us.
Can it get any more vile and disgusting?
Nearly 55 years after the end of WWII, Trump & Miller are reviving many aspects of the racist ideology and actions that we supposedly fought to end forever. Raises the question of who really won the war.
Always the opportunists, Trump and Miller now see the crisis that their “malicious incompetence” helped to aggravate as a chance to target both “Optional Practical Training” (“OPT”) for foreign students and Chinese students, one of the largest groups of those studying in the U.S. You can read about it in this article by Stuart Anderson in Forbes.https://apple.news/ADkCNTe_gTje__BlQ8c-8pg
Stuart Anderson Executive Director National Foundation for American Policy
OPT unquestionably benefits our country as well as the students, many of whom remain and become important parts of our society. The targeting of Chinese students certainly fits with the far right’s Anti-Asian movement that has helped spike a notable increase in hate crimes directed against Asian Americans during the pandemic. Could the revival of the Chinese Exclusion Act be far beyond on the Trump/Miller Jim Crow agenda?
This November, vote like your life depends on it. Because it does!
Charles Kaiser writes about Krugman in The Guardian:
The New York Times columnist Paul Krugman has four essential rules for successful punditry:
Stay with the easy stuff
Write in English
Be honest about dishonesty
Don’t be afraid to talk about motives
Active Measures review: how Trump gave Russia its richest target yet
Those maxims have consistently made Krugman the most intelligent and the most useful New York Times pundit, at least since Frank Rich wrote his final must-read column 11 years ago. A new collection of Krugman’s pieces, therefore, is a timely reminder that actual knowledge and ordinary common sense are two of the rarest qualities in mainstream journalism today.
Krugman’s enemies are the “zombie ideas” of his book’s title, especially the belief that budget deficits are always bad and the notion that tax cuts for the rich can ever benefit anyone other than the plutocrats who never stop pleading for them.
The same tired arguments in favor of coddling the rich have been rolled out over and over again, by Republican presidents from Ronald Reagan to Donald Trump, even though there has never been a shred of serious evidence to support them.
These relentless efforts over five decades culminated in the Trump tax cut, memorably described by the political consultant Rick Wilson as a masterwork of “gigantic government giveaways, unfunded spending, massive debt and deficits, and a catalogue of crony capitalist freebies”.
Wilson also identified the billionaires’ effect on the nation’s capital. Washington, he wrote, has become “the drug-resistant syphilis of political climates, largely impervious to treatment and highly contagious”.
Krugman’s columns act like a steady stream of antibiotics, aimed at restoring the importance of the economic sciences that have been so successfully displaced by brain-dead Republican ideology.
Very few political columns are worth reading 12 months after they are written – the New York Times grandee James Reston accurately titled one of his collections Sketches in the Sand. But Krugman’s book proves that he, a Nobel-prize winning economist, shares two rare qualities with George Orwell, the novelist who also wrote much of the best journalism of the 20th century: deep intelligence and genuine prescience.
The modern GOP doesn’t want to hear from serious economists, whatever their politics. It prefers charlatans and cranks
Krugman is at his Orwellian best here: “When you’re confronting bad-faith arguments, the public should be informed not just these arguments are wrong, but they they are in fact being made in bad faith.”
It’s “important to point out that the people who predicted runaway inflation from the Fed’s bond buying were wrong. But it’s also important to point out that none of them have been willing to admit that they were wrong.”
Krugman also writes that “even asking the right questions like ‘what is happening to income inequality’” will spur quite a few conservatives to “denounce you as un-American”. And it’s worse for climate scientists, who face persecution for speaking the truth about our continued dependence on fossil fuels, or social scientists studying the causes of gun violence: “From 1996 to 2017 the Centers for Disease Control were literally forbidden to fund research into firearm injuries and deaths.”
The history of the last half-century is mostly about how the unbridled greed of the top 1% has perverted American democracy so successfully, it has become almost impossible to implement rational policies that benefit a majority of Americans.
To Krugman, an “interlocking network of media organizations and think tanks that serves the interests of rightwing billionaires” has “effectively taken over the GOP” and “movement ‘conservatism’ is what keeps zombie ideas, like belief in the magic of tax cuts, alive.
“It’s not just that Trump has assembled an administration of the worst and the dimmest. The truth is that the modern GOP doesn’t want to hear from serious economists, whatever their politics. It prefers charlatans and cranks, who are its kind of people.”
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Read the rest of the article at the link.
Hopefully, Joe Biden has Krugman and others like him on “speed dial.” He’s going to need lots of help and ideas from “the best and the brightest” to undo the damage inflicted by the Trump kakistocracy and Moscow Mitch.
And, the “best and the brightest” should also be the plan for rebuilding an independent Immigration Judiciary and the Article III Judiciary. The severe damage inflicted by Trump, Mitch, and the White Nationalists can’t be undone overnight, but “gotta start building for a better future somewhere.”
This November, vote like your life depends on it. Because it does!
The use of executive branch power to wage a war on immigrants is one of the defining legacies of President Trump. He went on the offensive under the disguise of the coronavirus pandemic to advance his policy priority to significantly restrict legal immigration to the United States. This politically motivated maneuver violates federal and international law, and this is also morally reprehensible and disastrous for the domestic economy at home.
. . . .
It is not just health care that needs immigrants. A recent study found that the majority of economic growth between 2011 and 2016 is due to greater labor supply due to immigration. Immigrants also assist the country with innovation. They are twice as likely to start a business, to receive a Nobel Prize or Academy Award, or to receive a patent than native born workers.
Denying protection to individuals fleeing persecution based on potential public health grounds sends dangerous signals to oppressors and rogue nations that they are free to act with impunity because powerful nations are unwilling to protect their victims. Refugees searching for protection are built in the collective responsibility of the international community, even in any period of public crisis. Efforts by the president to renounce these duties are morally wrong and politically dangerous for the world.
Waging a war on immigrants will not protect us from the coronavirus. It instead puts individuals fleeing harm in further danger and weakens the economy of the United States. Immigrants are part of the solution to the challenges we face today and should be welcomed rather than banned.
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Read the rest of Erin’s article at the link.
The Clown Prince’s 🤡 “maliciously incompetent” ☠️ response to the coronavirus pandemic 🤮 continues to be one of the most stunning failures of Presidential leadership in U.S. history — one that will continue to put American lives at risk well into the future.
Unhappily, cowardly bashing of immigrants and constantly sending out racist “dog whistles” helped this charlatan get elected and remains one of the few things he’s good at (grifting, lying, and avoiding responsibility are others).
This November, vote like your life depends on it! Because it does!
April 21, 2020. Migrants didn’t bring coronavirus to the U.S. Inevitable as its arrival was, U.S. travelers returning from abroad hastened the infection. The Trump regime ignored advanced warnings, wasted time, failed to prepare, and intentionally misled the public into believing that the problem was minor and under control. As we know, it was neither. No wonderthe “Chief Clown” needs to shift attention to “the usual suspects.”
Rather than being a threat, courageous, talented, hard-working migrants of all types have been at the forefront of our battle against coronavirus. They put their own lives at risk to provide health care, medical research, food, sanitation, delivery, stocking, transportation, cleaning, technology, and other essential services. Their reward from Trump, Miller, and the other regime racists: to be scapegoated and further dehumanized by those whose “malicious incompetence” actually threatens the health and safety of all Americans.
Nobody knows what the U.S. economy will look like post-COVID-19. But, we can be sure that migrants will play a key role in our future. And, of course, permanent legal immigrants are carefully screened and required to undergo health examination before being admitted.
Meanwhile, Democrats complain, but show show no sign of actually using their leverage to halt the regime’s invidious assault on migrants. They weren’t even to get all taxpaying immigrant families included in the initial stimulus payments nor have they been able to require immigration authorities to comply with best health practices for detained migrants. Nor does it look like the needs of migrants will be addressed by the latest proposed legislation, although exact details are still pending. So, their bluster is just that —bluster.
Undoubtedly, the brave lawyers of the New Due Process Army will mount legal challenges to this latest assault on the rule of law. While some challenges might succeed in the lower Federal Courts, to date the “J.R. Five” on the Supremes have shown no inclination to look critically at any of the regime’s many misuses and abuses of so-called “emergency” and “national security” rationales, even when they are transparently bogus “pretexts” for xenophobia, religious bigotry, and racism.
Perhaps it’s largely a moot point right now. Market forces affect immigration. With worldwide travel restrictions, borders closed, and 22 million out of work in the U.S., the allure of migration to the U.S. should be sharply reduced.
The Trump regime’s open hostility to immigrants plus our chaotic response to COVID-19, perhaps the world’s worst overall at this point, might make the U.S. a less attractive place for future immigration, particularly for legal migrants who have other choices. Demand for migration is normally a sign of economic and social health. As America fades into disorder under the kakistocracy, so might our ability to attract migrants, particularly those we claim to prize.
According to James Hohmann at the Washington Post, senior officials at the DHS were surprised by Trump’s late night tweet announcing the impending action. As Hohmann noted, that’s an indication of the deep thought, analysis, and preparation that went into this action. Trump has normalized incompetence and dumb decisions made based on a racist political agenda to the point where they barley cause a ripple in our distorted national discussion anymore. I’d say it was like being “goverened” by a five-year-old, but that would be a supreme insult to most five-year-olds I know.
While the “Chief Clown” can’t move fast enough to reopen the economy, even in the face of solid evidence that the it’s premature in most areas, don’t expect the bogus “immigration emergency” to end as long as this regime is in power. Crisis becomes yet another opportunity for the “worst of the worst among us” — the kakistocracy — to act on their biases and prejudices and get away with it.
WASHINGTON — Congressional Democrats slammed President Donald Trump after he announced that he plans to suspend immigration to the United States, arguing that such a move does nothing to protect Americans from the coronavirus and deflects attention away from his handling of the outbreak.
House Democratic Caucus Chairman Hakeem Jeffries, D-N.Y., tweeted that Trump is the “xenophobe. In. chief.”
“This action is not only an attempt to divert attention away from Trump’s failure to stop the spread of the coronavirus and save lives, but an authoritarian-like move to take advantage of a crisis and advance his anti-immigrant agenda. We must come together to reject his division,” tweeted Rep. Joaquin Castro, D-Texas, chairman of the Congressional Hispanic Caucus.
Shortly after 10 p.m. ET on Monday, Trump announced in a tweet, “In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration into the United States!”
There were no additional details. A senior administration official said Trump could sign the executive order as early as this week.
Sen. Tim Kaine, D-Va., Democrats’ 2016 vice presidential nominee, called it a “pathetic attempt to shift blame from his Visible Incompetence to an Invisible Enemy.”
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Read Rebecca’s full article at the link.
Due Process Forever. The White Nationalist Kakistocracy Never!
A line to apply for unemployment benefits in San Francisco in 1938. (Library of Congress)
They first laid eyes on each other in torts class.
It was 1923, a period of prosperity before the Great Depression.
He was the son of Walter Rauschenbusch, a prominent theologian and key figure in the Social Gospel movement. She was the daughter of Louis Brandeis, the progressive Supreme Court justice and the most famous Jew in America. Each inherited their parents’ zeal for social justice.
At the University of Wisconsin Law School, these two idealists — Elizabeth Brandeis and Paul Raushenbush — noticed each other immediately. She was brainy and shy, her hair long and dark. He was handsome and outgoing. On hikes and canoe outings, they fell in love romantically and intellectually — a partnership instrumental in passing the nation’s first unemployment compensation law.
The story of how they did it is largely forgotten, but the 22 million people who have applied for unemployment during the coronavirus pandemic — and, of course, the millions before them — have this unlikely couple to thank. The law they conceived of and helped pass in Wisconsin laid the foundation for unemployment insurance throughout the country.
“Their story is absolutely staggering to think about right now,” said their grandson Paul Brandeis Raushenbush, a Baptist minister and senior adviser for public affairs and innovation at Interfaith Youth Core, a nonprofit organization. “It was their life’s work to make laws like this available to everyone.”
Raushenbush, who lives in New York, has spent the last few years writing a history of his family, including interviewing his father, Walter, who is 92 and lives in McLean, Va. Raushenbush was working on the unemployment insurance section as the coronavirus pandemic arrived in America.
Elizabeth Brandeis Raushenbush and Paul Raushenbush. (Courtesy of Paul Brandeis Raushenbush)
As part of his research, Raushenbush has been reading a privately published book his grandparents wrote based on interviews they gave to a Columbia University oral history project. The book is the story of the legislation — where the idea came from, the characters involved, how the law was ultimately passed.
“It really reads like a novel,” Raushenbush said.
The main characters, of course, are his grandparents.
And Wisconsin.
His grandmother moved there to attend law school. She had lost her job as a researcher for the D.C. Minimum Wage Board following the Supreme Court’s ruling that the minimum wage for women was unconstitutional. Justice Brandeis, who as a lawyer and jurist was renowned for his progressive stance on social issues, did not cast a vote because of his daughter’s job.
E.B., as she was known to family and friends, wanted a career at the intersection of economics, labor and the law. She hoped to attend an elite East Coast law school, but those programs, including Harvard, where her father studied, didn’t accept women. With her father’s approval, she chose the University of Wisconsin, where the “Wisconsin Idea” — fusing academic research to solving social problems — was flourishing.
“I have no doubt that the Wisconsin Law School is good enough for your purposes,” E.B.’s father wrote to her, “and should think it probable that you would find economics instruction, and doubtless, other considerations more sympathetic there than at Yale.”
Her future husband chose Wisconsin for the same reason. There, the couple studied under professor John R. Commons, an influential social economist who crafted Wisconsin’s workers’ compensation law. Commons tried and failed several times to pass legislation protecting unemployed workers, whose numbers were soaring, especially after the stock market crash in 1929.
Paul Raushenbush signing the paperwork for the first unemployment compensation check in 1936. (Courtesy of Paul Brandeis Raushenbush)
Commons took a particular interest in his graduate students, inviting them for regular dinners on Friday nights to discuss societal problems.
“I suppose the characteristic thing about Commons was that he was trying to use his brains and enlist the brains of his students in attempting solutions of economic problems,” Raushenbush said during the Columbia University oral history interviews. “This was no ivory tower guy. Sure, he did research and wrote books, but perhaps the main interest that attracted his students was that they were being invited to participate in an attempt to deal with difficult problems on an intelligent basis.”
By 1930, E.B. and her husband both were teaching economics at the University of Wisconsin. They had become friends with Philip La Follette, the local district attorney, whose parents were friends with Justice Brandeis. One day in June, La Follette invited the couple, along with another Wisconsin economist, Harold Groves, to his house in Madison.
La Follette told them he planned to run for governor, that he planned to win, and that he wanted to pass legislation instituting unemployment compensation. He asked the trio to come up with a plan.
And did they ever.
They spent the weekend hiking along the Wisconsin River batting around ideas. Their key idea — one that survives today — was that the benefits should be funded entirely by employers, thus giving them the incentive to maintain steady levels of employment or bear the cost of not doing so. The economists also decided that Groves, who grew up on a Wisconsin farm, should run for the State Assembly and introduce the legislation.
Everything clicked.
In 1932, Wisconsin Gov. Philip La Follette signs the nation’s first unemployment measure into law. Elizabeth Brandeis Raushenbush and Paul Raushenbush are second and third from the left. (Courtesy of Paul Brandeis Raushenbush)The first unemployment check issued in Wisconsin. (Wisconsin Historical Society)
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Read the rest of the article in the WashPost at the link.
Scholarship, teamwork, creativity, hard work, and a healthy dose of romance produces results that are still “making a difference” today. Nice story! Beyond that, it’s an inspiring story for today’s world.
What if we had more folks like the Raushenbusches in government today? Folks looking for ways in which government could work to make the lives or ordinary working people better. Compare that with the “Trump Kakistocracy,” a bunch of self-centered incompetents mostly out to disable government, screw working folks, line their own pockets, glorify and suck up to their “Supreme Leader-Clown,” and shift blame for their mess, all while attempting to advance a destructive far-right political agenda that cares not for the public good! Then we had folks like Phil La Follette; now we have Stephen Miller!
Professor Walter Brandeis Raushenbusch, the son of Elizabeth & Paul, was on the faculty of U.W. Law when I was there from 1970-73. However, I never had him for a class. We did study the “LaFollette Era” and its contributions to President Roosevelt’s “New Deal” in several of my classes.
I believe that U.W. Law gave me a strong grounding in teamwork with my colleagues (now retired Wisconsin State Judge Thomas S. Lister was one), how to apply scholarship to achieve practical results, and solving complex problems.
Speaking with Judge Lister earlier this year during a “pre-lockdown” visit with his wife Sally to D.C., I could see how our time together at U.W. Law had a continuing profound influence on both of our careers, particularly the “judicial phases.” In our different ways, we were always striving to establish “best practices,” promote “good government,” and make the “system work better” for the public it served. Just like some of the “progressive ideas” that were interwoven with our legal education in Madison. “Teaching from the bench” was how I always thought of it. Sometimes we succeeded, other times not so much; but we were always “in there pitching,” even up to today. See, e.g., the “Lister-Schmidt Proposal” for an Auxiliary Judiciary for the U.S. Immigration Courts here: https://immigrationcourtside.com/2019/08/19/an-open-letter-proposal-from-two-uw-law-73-retired-judges-weve-spent-90-collective-years-working-to-improve-the-quality-delivery-of-justice-in-america/. We haven’t given up on this one!
Hon. Thomas Lister Retired Jackson County (WI) Circuit Judge
And, the “Wisconsin Idea” is still alive and thriving at U.W. Law, thanks to dedicated professors like my good friend and fellow warrior for the “New Due ProcessArmy,” Professor Erin Barbato, Director of the U.W. Immigrant Justice Clinic. Erin uses creative scholarship, teaches practical, usable, courtroom and counseling skills, promotes teamwork, and saves “real lives” in her work with asylum seekers and other migrants. She is also a role model who is inspiring a new generation of American lawyers committed to advancing social justice and guaranteeing Due Process and fundamental fairness for all. Indeed, Erin was a guest lecturer at my Georgetown Law class and inspired my students with her courage, energy, and real life examples of “applying law to save lives!” It really made the “textbook come alive” for my students! Thanks for all you do, Erin!
Professor Erin Barbato Director, Immigrant Justice Clinic UW Law
Bill Frelick Director Refugee and Migrant Rights Division Human Rights Watch
Friends of the Refugee and Migrant Rights Division
April 2020 Newsletter
Dear Friends,
First, I hope all of you are in good health and will stay that way. Around the world, all eyes are on the spread of the COVID-19 virus. The pandemic is challenging families, communities, health care systems, and governments. There is no doubting the severity of the public health crisis we are facing, not only for each of you, but in many ways, especially, for the refugees, asylum seekers, and migrants we serve.
You can find Human Rights Watch’s work on the coronavirus here.
Going forward, I will be doing advocacy work relating to COVID-19 and migrants, and am looking at doing a global project focused on alternatives to immigration detention. Nadia Hardman, see below for intro, is collaborating with our Lebanon researcher on a project on Coronavirus-related discriminatory restrictions on Syrian refugees in Lebanon. She will also be working with our Asia Division on COVID19-related discriminatory restrictions on IDPs in Rakhine state, Myanmar, and on Rohingya refugees in Cox’s Bazar, Bangladesh. As the #stayhome hashtag circulates on twitter, we will demonstrate how difficult it is for refugee and migrants living in crowded and confined spaces with limited access to basic hygiene and sanitation, to conform to social distancing and other public health recommendations. In this time of crisis, no one should be left behind.
We have two major updates to share with you outside of our COVID-19 response. As you can see up top, we have a new name: The Refugee and Migrant Rights Division. In fact, although we previously were only called Refugee Rights, we have worked on migrant rights all along. I’m happy to report that Human Rights Watch has taken a decision to make the rights of migrants a cross-divisional priority for the organization and so our colleagues throughout the organization will be devoting additional resources to this work, which is critically important, now more than ever.
I also want to introduce you to our new Refugee and Migrant Rights researcher, Nadia Hardman. Nadia comes to us from the International Rescue Committee, where she was a senior protection officer for Syrian refugees in Lebanon. Before that, she worked with internally displaced persons (IDPs) in Iraq, based in Mosul, with the Norwegian Refugee Council. Nadia has worked with refugee and IDP populations in Myanmar, Thailand, and Palestine and was a Program Lawyer for the International Bar Association’s Human Rights Institute working on rule of law issues in Azerbaijan, Cambodia, Egypt, and Tajikistan. She is a qualified UK lawyer with a Masters in Human Rights from University College London. She speaks fluent French and Italian and will be based in our Beirut office.
Nadia recently returned from Turkey where she and Gerry Simpson were researching pushbacks from the Greek border. She and Gerry wrote Greece: Violence Against Asylum Seekers at Border: Detained, Assaulted, Stripped, Summarily Deported and produced this compelling video while there. In introducing the report, Nadia said, “The European Union is hiding behind a shield of Greek security force abuse instead of helping Greece protect asylum seekers and relocate them safely throughout the EU. The EU should protect people in need rather than support forces who beat, rob, strip, and dump asylum seekers and migrants back across the river.”
Simultaneously with Gerry and Nadia’s work in Turkey, I was on the island of Lesbos in Greece documenting vigilante violence against refugees and migrants and the humanitarian NGOs who serve them. While there, I wrote Gunshots, summary trials, deportations: the reality for refugees in the EU-Turkey stand-offfor Euro News and this accompanying video(with apologies for my thumb in the lens). Just before the full threat of Coronavirus seized everyone’s attention, I spent time in the severely overcrowded and unsanitary Moria camp where I recorded this video on the mob violence that was causing humanitarian organizations to suspend their operations and deepening anxiety and lack of adequate services in the camp. As bad as things were for the 20,000 or so people living in the Moria camp, built to accommodate fewer than 3,000, things appeared even worse for new arrivals who were not allowed to lodge asylum claims and who the Greek government was threatening to send directly back to Turkey or their home countries. I did this video about the first arrivals who were being kept on a naval vessel docked at the Mytilene harbor. The PBS Newshour did a piece on Moria camp/Lesbos, which includes my take on the situation there.I went on TRT and discussed the EU announcement that they were prepared to pay migrants in Greece US$2,225 if they volunteered to go back to their home countries.
Of course, our work on the rest of the world continues. I particularly wanted to draw your attention to the landmark report from our US Program colleagues, Alison Parker and Elizabeth Kennedy, Deported to Danger: United States Deportation Policies Expose Salvadorans to Death and Abuse, a report that identified 138 cases of Salvadorans who had been killed since 2013 after being deported from the United States.
We have been actively engaged in fighting the various Trump administration initiatives to eviscerate the right to seek asylum in the United States and to bring refugee resettlement to a virtual standstill. We are currently working on the asylum cooperative agreements that the United States has concluded with El Salvador, Honduras, and Guatemala after much arm twisting, as well as the Remain in Mexico program that has stranded thousands of asylum seekers just across the US southern border. See the links below for publications relating to this work.
Below my signature is a selection of some more of our work during the past several months to defend the rights of refugees, asylum seekers, and migrants around the world.
We realize that many of the people on this mailing list are themselves engaged in non-profit humanitarian and human rights work relating to refugees and displaced people, and are not in a position to help us financially. However, if you think this work is worthwhile and you are able to contribute to enable us to continue to conduct research and effective advocacy on these and other important issues, we ask our friends to consider contributing to support Human Rights Watch’s Refugee and Migrant Rights Division. You can do so simply by clicking the Donate button at the end of my signature.
Follow @Nadia_Hardman and @BillFrelick on Twitter for updates on human rights issues concerning migrants, asylum seekers, and refugees.
Have an asylum case in Immigration Court and wondering what to do while the courts are closed? My friend David L. Cleveland has a suggestion: Get a copy of your file from the Asylum Office. David is a lawyer in Washington, DC. He has secured asylum or withholding for people from 48 countries. He can be reached at 1949.david@gmail.com.
In most cases, when an asylum applicant has their case denied at the Asylum Office, the case is referred to Immigration Court. There, Immigration Judges sometimes deny asylum because the applicant is deemed incredible. The applicant has told the Asylum Officer one thing, but then tells the Judge something different. There are many examples of Judges being annoyed by inconsistent asylum applicants–
In a New York case, the applicant was inconsistent concerning the location of children and where she was raped. Kalala v. Barr,2020 U.S. App. LEXIS 8320 (2nd Cir. 2020).
in a California case, the applicant was inconsistent concerning the name of a police station. In this case, the Asylum Officer’s notes were shown to applicant for the first time during the Individual Hearing. Sun v. Barr, 2020 U.S. App. LEXIS 5397 (9th Cir. 2020).
In an Ohio case, the applicant testified to being beaten inside a church. When she asked about how many members of the church were present at the time, she first said 15. Later, she testified that six church members were present. Onoori v. Barr,2019 U.S. App. LEXIS 21310 (6th Cir. 2019).
David Cleveland ESQUIRE
Now that he has a copy of his client’s file, David Cleveland is finally able to relax.
More generally, Immigration Judges are very interested in what Asylum Officers do and write. In a case decided in 2019, the phrase “Asylum Officer” is used 32 times. Qiu v. Barr,944 F.3d 837 (9th Cir. 2019). In a 2018 case, the phrase “Asylum Officer” is mentioned 57 times, and “notes” (referring to the Officer’s notes from the asylum interview) was mentioned several times. Dai v. Sessions,884 F.3d 858 (9th Cir. 2018). In another case, from 2014, an Asylum Officer named “Kuriakose” is mentioned 15 times. Li v. Holder,745 F.3d 336 (8th Cir. 2014).
In these cases, asylum applicant’s were deemed not credible because their Court testimony was inconsistent with their testimony at the Asylum Office. Most likely, the applicants did not have a record of what they told the Asylum Officer, and of course, since years pass between an asylum interview and an Individual Hearing, it is difficult to remember what transpired at the Asylum Office.
How can I prevent surprise in Immigration Court?
When an Asylum Officer interviews an applicant, the Officer takes detailed notes. Often, these run to 10 pages or more. Later, in consultation with his supervisor, the Officer writes an “Assessment to Refer” or an “Assessment to Grant.” This document is usually three or four pages long. If the case is referred to Court, these notes do not go to the Immigration Judge. However, they are sent to the DHS attorney (the prosecutor), who can review them and look for inconsistencies. At the Individual Hearing, the DHS attorney can use the notes to impeach an applicant’s credibility (“At the asylum interview, you testified that there were 15 people present in the church when you were beaten, but now you say there were only six. Were you lying then, or are you lying now?”).
Asylum Officers sometimes make mistakes or include unexpected information in their notes. They find some sources of information important and ignore other sources. In short, there is a subjective element to these notes that can sometimes work against the applicant and cause surprises in Immigration Court. And, as any attorney will tell you, surprises in Court are usually bad news.
To avoid a surprise in Court, and to find out what the officer wrote, the advocate should make a Freedom of Information Act (“FOIA”) request for the notes and the Assessment. Asylum Officer notes are easily available via FOIA. To obtain this information, type your request on a single piece of paper: “Give me the notes and assessment of the asylum officer.” State your name, date of birth, place of birth, address, Alien number, and sign under penalty of perjury. You do not need a lawyer; you do not need Form G-639, although you are allowed to use that form. Send your request via email to: uscis.foia@uscis.dhs.gov
In January 2020, I received the entire Asylum Officer assessment for an asylum applicant from Congo. The client and I are now more relaxed and confident about the case. We will not be surprised in Immigration Court. You can read this assessment at the FOIA page of the Louise Trauma Center. A model FOIA request can also be found at the same page.
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Take it from me, as someone who has presided over hundreds of asylum hearings, this is great advice from two of the best to set foot in my courtroom!
As I always said in my my “mini lectures” on “Presenting an Asylum Case in Immigraton Court:” “Beware and Be Prepared!” Preparation, preparation, preparation! It’s what wins cases (and appreciation from “the bench”).
We hope this email finds you well. We are writing on behalf of the Mount Sinai Human Rights Program, an organization in New York that provides medical and psychiatric evaluations to asylum seekers to invite you to participate in an interview-based research study we are conducting. You may qualify to participate in this study because you are a former immigration judge with experience reviewing forensic medical evaluations for asylum seekers.
The purpose of this study is to understand how legal professionals appraise forensic mental health evaluations of asylum seekers. If you participate in this study, we will send you two medical-legal mental health affidavits that are fully redacted of any identifying information and guiding questions. We will ask you to read the affidavits and then participate in a recorded interview by telephone or video-call about the affidavits and your attitudes towards mental health evaluations. We will keep your responses de-identified and your identity anonymous in any publications resulting from this research. This interview is anticipated to last at least 60 minutes.
Further information about this study is included in our Research Information Sheet. If you are interested in participating, we will send you a copy of the sheet. This study has been approved by the Mount Sinai Institutional Review Board as an exempt study #18-00919.
Please let us know if you are interested in participating and we will set up a time to interview you. We are hoping to conduct interviews throughout the month of April. Feel free to be in touch with any questions.
Please respond directly to Aliza or Gus @ Mount Sinai Human Rights Program. As noted, the results are “without attribution” so you will not be publicly identified.
I participated and found it enjoyable, worthwhile, and educational. As outlined above, the time commitment is moderate — less than a “full merits asylum hearing!”
