"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.
Org. Sign-On Letter to the Admin re: Haitians in Guantánamo Bay or third country agreements
Hi everyone –
This morning, Haitian Bridge Alliance (HBA) along with 288 immigration, civil rights, human rights, and faith-based organizations, sent a letter to President Biden urging him to protect Haitian asylum seekers. In the letter, organizations urged the administration to not send Haitians seeking safety back to Haiti, third countries, or detain them in Guantánamo Bay.
Pretty much says it all! A Dem Administration abandons the values of racial justice and immigrant justice for some “strategy” that sure escapes me.
It’s not like continuing to “beat up” on Haitians and other migrants of color and threatening to inflict even more extreme violations of legal andhuman rights than the Trump Administration has garnered ANY support or acceptance from the far right. They continue to characterize all Administration policies as “open borders,” although nothing could be further from the truth.
Additionally, failure to reinstitute and improve the rule of law at the border for legal asylum seekers has failed to create an orderly process for screening asylum seekers at ports of entry or for refugee status outside the U.S. and timely and generously processing valid claims for protection. The result has been a loss of an important group oflegal immigrants who could have helped reduce inflation and improved the economic outlook. At the same time, shifting asylum screening away from legal ports of entry has overburdened the Border Patrol by forcing everyone seeking protection to cross the border between ports of entry.
As a related point, I defy anyone to explain on what basis some asylum seekers apprehended at the border are allowed to enter and pursue claims and others similarly situated are orbited back into danger with no process whatsoever. It’s certainly NOT the result of the prompt screening by USCIS Asylum Officers that Congress mandated, but the Trump and Biden Administrations have ignored — to everyone’s detriment.
This resulting “disorder at the border” has NOT attracted independent voters to the Administration’s immigration stance.
At the same time it has driven an unwise and entirely unnecessary wedge between the Administration and 1) Democrats who want “order at the border” and a reduction in extralegal entries; 2) Democrats who believe in strictly honoring our legal, Constitutional, treaty, and human rights obligations to asylum seekers regardless of race; and 3) Democrats who believe that both 1) and 2) are achievable!
I have no idea what the Biden Administration’s “vision” of border law and policy is. But, I can tell you for sure that it’s NOT working and that more, harsher, racially discriminatory enforcement without reinstating our refugee and asylum systems and reforming the totally dysfunctional Immigration Courts is NOT the answer!
Every year at the end of October, legal service providers come together to celebrate Pro Bono Week. It is a dedicated opportunity to acknowledge the amazing work that our volunteers do—work that is the foundation of the American Immigration Council’s Immigration Justice Campaign. In an immigration system that is set up to make it almost impossible for certain groups of people to win, pro bono volunteers are one of the bastions helping overwhelmed legal service providers hold the line for due process and justice.
From the solo practitioner doing pro bono work to learn a new skill, to the corporate law firm partner who has incorporated pro bono as part of their practice for two decades, our volunteers run the gamut. Everyone makes a difference—from the law students interpreting between classes and homework to the community members who volunteer simply because they care. Every single volunteer is integral to the Justice Campaign’s work—and we thank them for their time and dedication.
Since its creation in 2017, the Justice Campaign and our volunteers have walked alongside hundreds of immigrants in their fight for justice and due process in the United States.
This year alone, over 200 Justice Campaign volunteers have:
Worked on 221 cases for detained individuals in 14 detention centers across the country.
Worked on 335 cases for non-detained individuals across 32 states of residence.
Served clients from 30 countries of origin who speak 19 different languages.
And with these volunteers’ help:
71% of clients have won their immigration case.
85% of clients asking for release from detention have won that release from an immigration judge.
Nationally, only 40% of people win their immigration cases, and only 32% win their release from an immigration judge. Those numbers are even lower for people without an attorney. Detained immigrants without an attorney only have about an 11% chance of winning release.
This small example of Justice Campaign clients and volunteers shows the immediate impact that pro bono work has on clients’ lives. Without the dedication of our pro bono volunteers, many of these individuals would have had to move forward alone. Statistically speaking, that means most probably would have lost.
The past several years have been difficult for most of the world in so many ways. And yet, pro bono volunteers continue showing up every day, allowing the Justice Campaign to continue serving clients, help people get out of detention, fight their cases—and for many, win. To the hundreds of volunteers who have worked with the Justice Campaign, this year and every year, thank you. We could not do this work without you.
*************************
This reality bears little resemblance to the myths and false narratives about the impact of representation put out by nativists and parroted by EOIR during the Trump years. Nor does it match the gimmicks and poor planning of the Biden Administration, which continues to operate on the false assumption that the vast majority of asylum cases in Immigration Court will be denials.
While this sample is probably too small to be statistically valid, it certainly supports the view that the current mess at EOIR unjustly leaves behind many asylum seekers and other individuals entitled to relief just because they are unrepresented or poorly represented. It also make them much more likely to remain in detention, costly for both them and the Government.
It would make sense for EOIR and the Biden Administration to work cooperatively with the pro bono and low bono bar to prioritize and increase representation and to then prioritize represented cases that are most likely to result in grants of relief. Those cases are likely to proceed faster (without any due-process-denying “gimmicks”), less likely to be appealed, and would seldom reach the Courts of Appeals. An overall efficient way to use resources.
Additionally, EOIR should be working more closely with VIISTA Villanova and others who have developed “scalable” programs for training accredited representatives to increase quality representation in Immigration Court.
Instead, with yet another round of mindless “Aimless Docket Reshuffling” on steroids, EOIR has instigated an unnecessary and counterproductive “pitched battle” with advocates across America. Go figure!
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
CONTENTS (jump to section)
NEWS
LITIGATION & AGENCY UPDATES
RESOURCES
EVENTS
PRACTICAL UPDATES
New I-765 and I-589 are mandatory starting next week: Starting Nov. 7, 2022, USCIS will only accept the 07/26/22 editions.
NBC: The Biden administration is weighing options to respond to what could soon be a mass exodus of migrants from Haiti, including temporarily holding migrants in a third country or expanding capacity at an existing facility at the U.S. prison at Guantánamo Bay, Cuba, according to two U.S. officials and an internal planning document reviewed by NBC News.
CBS: The figure, which far exceeded the previous record of 546 migrant deaths recorded by Border Patrol in fiscal year 2021, is likely an undercount due to data collection limits, migration policy analysts said.
LA Times: After analyzing the records of nearly 17,000 calls between 2016 and 2021 from its national immigrant detention hotline, Freedom for Immigrants released a report Wednesday that it and other advocacy groups say indicates a pattern of racism and abuse toward Black migrants.
ACLU: After 16 months of negotiations, settlement talks between the Biden administration and plaintiffs in Ramos v. Mayorkas officially collapsed yesterday afternoon, leaving more than 260,000 people at risk of deportation. Beneficiaries of Temporary Protected Status (TPS) and their US citizen children first brought the lawsuit in 2018 after Trump revoked protections for individuals from El Salvador, Haiti, Nicaragua, Sudan, and later for Nepal and Honduras.
NPR: After months of public feedback, the federal agency has shortened and simplified its disability waiver, which is used to exempt immigrants with physical, mental or learning disabilities from the English and civics test requirements.
Intercept: On Monday, Gov. Doug Ducey began dropping the first of thousands of shipping containers along a 10-mile stretch of national forest in open defiance of federal authorities. In the days since, the Republican governor has transformed a remote section of rugged desert into what looks like a junkyard.
CBS: Seventy-three percent of surveyed voters in Arizona, Georgia, Nevada, Pennsylvania and Wisconsin said they backed giving immigrants living in the U.S. without legal permission an opportunity to “earn” lawful status and ultimately citizenship if they meet certain requirements, including passing background checks.
Law360: A split Ninth Circuit declined to revive the asylum bid of a Salvadoran man ordered deported after traveling through Guatemala and Mexico before entering the U.S., saying its hands were tied when it came to reviewing expedited removal orders.
Law360: A split Ninth Circuit has ordered the U.S. Board of Immigration Appeals to reconsider a Guatemalan man’s deportation relief bid, saying the agency wrongly ruled out government acquiescence in the man’s account of being tortured by Guatemalan police officers.
Law360: The Tenth Circuit declined to review a former conditional green card holder’s challenge of a 1999 deportation order, saying his chances of tossing the decades-long order stopped at the immigration courts due to his unlawful reentries into the U.S.
Law360: U.S. Citizenship and Immigration Services approved a Mexican woman’s application for a T visa, designated for sex trafficking victims, after an Illinois federal judge faulted the agency’s earlier refusal to accept an immigration judge’s waiver of inadmissibility, the woman said.
Law360: A California federal judge tossed an equal protection claim brought by young immigrants who were abused or neglected by their parents, dismissing on Wednesday their argument that the government was unfairly treating them differently from trafficking victims in doling out work authorization.
Politico: The governor’s office did not immediately respond to a request for comment, but lawyers representing the Florida Center for Government Accountability said they anticipated there would be an appeal.
ICE: The organization was responsible for organizing well over 500 sham marriages in exchange for substantial amounts of money solely for the alien beneficiary to obtain immigration benefits.
Law360: Senate Democrats called on the Biden administration to broaden Haitian immigration protections to cover Haitians who have fled political and economic turmoil over the past year, saying Wednesday that conditions in Haiti have only worsened since the administration last offered relief
EOIR: The Executive Office for Immigration Review (EOIR) announced the appointment of 32 immigration judges to courts in California, Florida, Georgia, Illinois, Maryland, New York, Tennessee, Texas, and Virginia.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added. If you receive an error, make sure you click request access.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
When all else fails, picking on vulnerable Black Haitian refugees is always a popular way to buff up your “restrictionist creds” for Administrations of both parties. But, the GOP already has the White Nationalist/nativist vote locked up. So, what the Biden folks hope to get by throwing Haitians “under the bus” and driving back and forth over their bodies is a mystery to me.
Hey, I’m only a retired Immigration Judge, not a political wonk. But, I can’t see what Biden and Harris stand to gain with their cruel, anti-Haitian policies.
Why not set up viable refugee programs in Haiti, as we did for Cubans, if we don’t want more refugees taking to the sea in leaky boats? Why not prioritize immigrant visa processing for qualified immigrants from Haiti, Cuba, Venezuela, the Northern Triangle, and other Western Hemisphere countries? Migration from these nations to the U.S. is a reality that benefits both the migrants and our nation. Why not use the tools at hand to channel legal immigration rather than flailing around with questionable built to fail “deterrents.”
“Can’t anyone here play this game?” The GOP lacks honesty and decency. The Dems lack vision and guts. The public is misinformed about the realities of immigration. Migrants and their supporters are caught in the crossfire of political failure! PHOTO: Rudi Reit Creative Commons
Lack of immigration reform hurts businesses and farmers, puts nation’s food supply at risk
Note the comments from immigration lawyer George Pappas in North Carolina.
The hostility is reflected in the immigration courts in Atlanta and in Charlotte, where the highest denial rates for asylum prevail,” he told USA TODAY. “They will not be talking about outsourcing workers or about education. The right wing base of the Republican party has used immigration as a political wedge issue to deflect attention and to deflect media, airwaves, and media space from real issues.
While undoubtedly the Immigration Courts in Atlanta and Charlotte do reflect the type of biased, anti-immigrant approach pushed by GOP politicos, today they are run by Dem AG Merrick Garland. He has failed to make needed reforms and changes at the top, starting with inept leadership from EOIR Headquarters and a precedent setting appellate board (BIA) that does not reflect the best-qualified expert judicial talent available who would implement due process, fundamental fairness, consistency, and best judicial practices nationwide.
Ironically, these values WERE once part of the “EOIR Vision,” abandoned and trashed by Administrations of both parties over the past two decades. For Dems who believe in the power of immigrants and immigrants’ tights, it’s now basically “Pogoland:” “We have met the enemy, and he is us.”
A number of the public comments in the articles also show gross misconceptions about the nature of migration, the goals of the GOP, the reasons why migrants can’t apply for asylum in a safe, orderly manner at ports of entry, the immense benefits to both the workforce and society brought by family-based immigrants and those seeking to enter as refugees and asylees, and the relationship between an improved economy and a sensible, robust, realistic approach to immigration (eschewed by the GOP; bobbled by the Dems).
Both parties have squandered opportunities to acknowledge truth, make the current system work better, and create order at the border. Neither has a serious plan for reform on its agenda.
Unlike the Trump “shut the border/build the wall” racist fiasco, Biden’s initial USCitizenship Act of 2021 had some good ideas. But, after quickly “throwing it out there,” apparently as a sop to those who helped elect them, the Administration shoved it in a drawer and forgot about it. Instead, they pursued a mishmash of “built to fail gimmicks,” bureaucratic bungling, broken courts, poor legal positions, lack of vision, inept PR, and weak leadership.
The failure of the world’s leading “nation of immigrants” to discard and disavow the racist nonsense on immigration and come together on realistic, forward looking, generous, welcoming immigration policies makes our nation look bad and robs us of opportunities to improve the economy and build for the future.
Too many Biden Administration Immigration officials appear to share Stephen Miller’s “upside down” view of the Statue of Liberty, in whole or in part! Why can’t they just follow the Refugee Act of 1980 and establish the robust, timely, generous legal approach to refugees and asylum seekers that best serves America?Bill Frelick Director Refugee and Migrant Rights Division Human Rights Watch
Refugees are people who flee for their lives. Escape from danger and abuse is usually chaotic, sudden, desperate. The Biden administration’s rollout of its new policy for Venezuelan refugees seems oblivious to this refugee reality and risks doing more harm than good.
. . . .
Announcing the program on Oct. 12, Homeland Security Secretary Alejandro N. Mayorkas said Venezuelans who enter irregularly “will be returned to Mexico.”
He didn’t mention — and appeared to disregard — U.S. law, which recognizes that anyone who arrives in the United States has the right to seek asylum “whether or not at a designated port of arrival” and “irrespective of such alien’s status.”
The impact of this announcement, “effective immediately,” was the summary return to Mexico without examination of their asylum claims of any Venezuelans entering the United States without authorization. Mexico has given no assurances that it will examine their refugee claims or provide asylum to those who fear return to Venezuela. In fact, the 4,050 Venezuelans expelled to Mexico since the implementation of the policy have been given visas valid for only one week and instructed to leave the country.
. . . .
With the Biden administration’s plan in effect, we might as well apply a blowtorch to Emma Lazarus’s welcoming poem at the foot of the Statue of Liberty and chisel in a new message: “Give me your well-rested, your well-to-do, your properly ticketed jet-setters yearning to breathe free.”
Read Bill’s complete op-ed act the link. Bill is one of many “practical experts” who would do a much better job than current Administration politicos in establishing and running a refugee and asylum program that would comply with the law, due process, human dignity, and America’s best interests.Why is Biden following the lead of his “clueless (and spineless) crew?”
The Refugee Act of 1980was enacted and amended to deal with these situations! Robust, realistic refugee programs outside the U.S. should encourage many refugees to apply, be screened abroad, and admitted legally.
Other refugees arriving at our border can be promptly screened for credible fear. Those who fail that test can be summarily removed in accordance with existing law.
Those who pass that test should have access to counsel and receive timely, expert adjudications, with full appeal rights, under the generous “well founded fear” (1 in 10 chance) international standard established by the Refugee Act. See, e.g., INS v. Cardoza-Fonseca (Supremes); Matter of Mogharrabi (BIA).
It’s not “rocket science!” With dynamic, experienced refugee experts running the system and “practical scholars” with expertise in refugee processing and human rights laws serving as USCIS Asylum Officers and EOIR judges at the trial and appellate levels the legal system should be flexible enough to deal with all refugee situations in an orderly manner.
Many, probably a majority, of today’s asylum seekers should be granted asylum and admitted to the U.S. in full legal status, authorized to work, and on their way to green cards and eventual citizenship. Like those admitted from abroad, they could also be made eligible for certain resettlement assistance to facilitate integration into American communities who undoubtedly will benefit from their presence.
The more robust, realistic, and timely our overseas refugee programs become, the fewer refugees who will be forced to apply for asylum at our borders. Also, real, bold, dynamic humanitarian leadership, including accepting our fair share of refugees and asylees, could persuade other countries signatory to the Geneva Refugee Convention to do likewise.
No insurmountable backlogs; no bewildered individuals wandering around the U.S. in limbo waiting for hearings that will never happen; few “no shows;” no long-term detention; no botched, biased “any reason to deny” decisions from unqualified officers and judges leading to years of litigation cluttering our legal system, no diverting Border Patrol resources from real law enforcement, no refugees huddled under bridges or sitting on street corners in Mexico!
It’s not “pie in the sky!” It’s the way our legal system could and should work with competent leadership and the very best available adjudicators and judges! It would support the proper, important role of refugees as an essential component of LEGAL IMMIGRATION, not an “exception” or “loophole” as racists and nativists like to falsely argue.
Instead of demonstrating the competence and integrity to use existing law to deal with refugee and asylum situations, the Biden Administration resorts to ad hoc political gimmicks. Essentially, the “RA80” has been repealed “administratively.” Effectively, we’re back to the “ad hoc” arbitrary approaches we used prior to ‘80 (which I worked on during the Ford Administration, and where I recollect I first heard of Bill Frelick).
I doubt that the late Senator Ted Kennedy, former Rep. Elizabeth Holtzman, and the rest of the group who helped shepherd the Refugee Act of 1980 through Congress would have thought that using Border Patrol Agents as Asylum Officers or packing the Immigration Courts and the BIA with judges prone to deny almost every asylum claim, regardless of facts or proper legal standards, was the “key to success!”
Congress specifically intended to eliminate the use of parole to deal with refugees except in extremely unusual circumstances, not present here. Biden’s latest ill-advised gimmick violates that premise. It’s totally inexcusable, as the refugee flow from Venezuela is neither new nor unpredictable. I was granting Venezuelan asylum cases before I retired in June 2016. Even then, there were legions of documentation, much of it generated by the USG, condemning the repressive regime in Venezuela and documenting the persecution of those who resisted!
A better AG would say “No” to these improper evasions of existing law. But, we have Merrick “What Me Worry” Garland! His botching of the Immigration Courts has been combined with a gross failure to stand up for equal justice for migrants (particularly those of color) across the board! America and refugees deserve better from our chief lawyer.
The Refugee Act of 1980 actually provides all the tools and flexibility the Biden Administration needs to establish order on the border and properly and fairly process refugees and asylees. Why won’t they use them?
AG Merrick Garland has “looked the other way” while the Biden Administration flaunts applicable protection laws in and outside the U.S. He also runs a dysfunctional “court system” where anti-asylum bias, worst practices, poorly qualified decision makers, and grotesque inconsistencies undermine the legal rights of asylum seekers and other refugees. Doesn’t America deserve more competence from its top lawyer? PHOTO: Wikipedia Commons
“Due process cannot exist if an attorney does not have sufficient time and advance notice to prepare for a case.”
The above is an elementary statement of the minimum requirement for due process in any court setting! Yet, in the “wacky world of Garland’s EOIR” 🤯 it is being knowingly and intentionally violated hundreds of times each day!
Not only does this inhibit effective professional representation of those fortunate enough to have lawyers, but it actively discourages attorneys from taking on cases in Immigration Court, particularly those acting in a pro bono or low bono capacity. How will we interest and inspire new lawyers to get into the practice when this is the way they can expect to be treated? It’s a truly disgusting and disgraceful development!
The following letter from a consortium of practitioners, academics, and NGO leaders protests the insane, due-process-denying lack of notice and the “Aimless Docket Reshuffling on steroids” ongoing @ EOIR and makes suggestions for constructive changes to restore at least some order to Garland’s dysfunctional courts. In my view, this situation raises huge Constitutional, ethical, and policy issues affecting all justice in America! It also illustrates the incredibly poor judgement and dismissive attitude of the Biden Administration and Garland’s DOJ in approaching the most serious “life or death” issues involving human rights and racial justice!
Among the signers:
NJ AILA chapter signed on, former judges, Rocky Mountain Advocacy Network, professors, CGRS, ASAP (150,000 members), NC Justice Center, etc. Attorneys practicing in every state + DC + Puerto Rico ended up signing-on to this letter.
I am a signatory. As you know, many of us believe that the ongoing intentional deterioration of due process, fundamental fairness, and best practices at EOIR is a preventable national disgrace that is undermining equal justice and democratic institutions in America. Consequently, I think it is critical to keep this issue “in the public eye” and to demand constructive, common sense reforms at EOIR.
The “constructive suggestions” contained in the letter are great! But, it’s a colossal waste of time and resources to have unqualified bureaucrats, far removed from the actual practice before these dysfunctional “courts,” unilaterally institute these ill-advised, unethical, due-process denying changes. Then, it’s left to the “outside experts” to drop everything and “plead and beg” for common sense and sanity from an arrogant, dysfunctional system!
The American justice system can’t continue to afford to let this wasteful and highly counterproductive “clown show” 🤡 go on unabated! It’s up to everyone who cares about equal justice in America (NOT just immigration practitioners) to demand that Merrick Garland get rid of the incompetents at EOIR and replace them with expert administrators and real, well-qualified judges who are “practical scholars” in the law, understand the needs of justice, and will reform this broken system to work for the best interests of everyone in America!
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
This gathering will bring together existing universal representation projects as well as groups considering starting/supporting new programs to reflect on best practices, adapting models while seeking to end detention, and ways to expand universal representation. The deadline to register for virtual attendance is tomorrow, October 25, 2022.
CNN: There were 227,547 migrant encounters along the US-Mexico border in September, up 12 percent from the previous month. The sharp increase in migrants from Venezuela, Cuba, and Nicaragua contributed to the uptick.
NYT: The number of Venezuelans entering the United States illegally dropped from about 1,200 a day to 150 in the first days after the Biden administration rolled out the new policies.
Reuters: The Ethiopian military and allies including troops from neighboring Eritrea have been battling forces from the northern region of Tigray on and off for two years. The conflict has killed thousands, displaced millions and left hundreds of thousands on the brink of famine.
The Hill: The Coast Guard stopped 185 Cubans on Friday, 94 on Saturday and 40 on Sunday. In total, the service says it has intercepted 921 Cubans since Oct. 1.
AP: Molina was among 13 migrants who recently arrived in the U.S. who agreed to share documents with The Associated Press that they received when they were released from U.S. custody while they seek asylum after crossing the border with Mexico. The AP found that most had no idea where they were going — nor did the people at the addresses listed on their paperwork.
CNN: It has been an endless cycle since President Joe Biden took office, according to multiple administration officials and sources close to the White House. Agency officials dream up a plan but then struggle to get White House approval, even as the problem compounds and Republicans step up their criticism. See also Immigrant advocates feel abandoned as they stare at Biden’s first-term checklist.
TRAC: According to new data obtained by TRAC through Freedom of Information Act (FOIA) requests, 480,301 people have been enrolled in ICE’s electronic monitoring program known as Alternatives to Detention (ATD) between August 2020 and June 2022. Many of these individuals, about 196,000, were previously active in ATD but have since ceased to be monitored under ATD, while 284,000 immigrants were still in ATD as of the end of June.
TRAC: As of the end of September 2022, Immigration Court judges dismissed a total of 63,586 cases because Department of Homeland Security officials, chiefly Border Patrol agents, are not filing the actual “Notice to Appear” (NTA) with the Immigration Court. Without a filed NTA, the Court has no jurisdiction to hear the case.
GBH: Police in New York arrested about 57,000 unlicensed drivers a year before state lawmakers narrowly approved the Green Light Law in 2019, making most immigrants eligible for licenses regardless of their legal status. In 2021, those arrests declined to about 30,000 and are on a similar pace for this year, according to records obtained by GBH News from the New York State Unified Court System.
Block Club: As a major city that attracts immigrants, Chicago specifically has been struggling to support the recent influx of asylum seekers. After dealing with cuts under the Trump administration and then the COVID-19 pandemic, immigrant serving organizations’ resources were already strained before the war in Ukraine and the U.S. withdrawal from Afghanistan and subsequent Taliban takeover sent thousands of refugees and asylum seekers to Chicago. The recent arrival of migrants from Texas has only added to the strain on organizations’ resources, including legal services and representation.
LexisNexis: He argues that the immigration judge (“IJ”) applied the incorrect legal standard in assessing whether he would more likely than not be tortured with the “consent or acquiescence” of the Honduran government, and that the BIA erred in its review of the IJ’s decision. He also argues that the BIA failed to consider whether the Honduran government would likely torture him and whether the MS-13 gang is a de facto government actor. We agree that the agency erred in these respects, and we therefore grant his petition for review, vacate the order of the BIA to the extent it denied him CAT relief as to Honduras, and remand for further proceedings consistent with this opinion.
CA1: We thus remand for the BIA to consider in the first instance whether Chavez’s proposed social group satisfies the requirements for constituting a particular social group under the INA to which he belongs. We express no opinion as to the merits of that issue other than to emphasize that the BIA cannot reject such a group based solely on its determination that current or former gang members cannot form a particular social group.
LexisNexis: The plain language of the statute, coupled with the reasoning of Mahn and Ramirez-Contreras, persuades us that the Pennsylvania felony fleeing statute does not qualify as turpitudinous. While the failing to stop for a police officer while crossing a state line is conduct that may put another in danger, it does not necessarily do so. The agency therefore erred in its conclusion that King was convicted of a CIMT.
LexisNexis: We conclude: (1) the record in this case compels the conclusion that two of De Leon’s attackers were police officers during a July 2011 incident; (2) De Leon showed acquiescence on the part of the Guatemalan government with respect to that incident because government officials— namely, the two police officers—directly participated in the incident; and (3) the record indicates that the IJ and BIA’s conclusion that De Leon is not likely to be subjected to torture with government acquiescence if returned to Guatemala disregards several important circumstances pertinent to evaluating the likelihood of future torture. In light of these errors, we grant the petition and remand for the agency to reconsider De Leon’s application for relief.
Law360: The state of Texas on Wednesday agreed to drop its challenge to a provision of the pandemic-era Title 42 policy which exempted unaccompanied minor migrants from being expelled from the U.S. during the COVID-19 pandemic.
Law360: An Illinois university professor and students can’t stop the Biden administration from enforcing a Trump-era policy barring student visas to Chinese nationals who are connected to any entity in China that supports its “military-civil fusion strategy,” a federal judge has ruled, denying the plaintiffs’ bid for a temporary restraining order.
Law360: A class of foreign-born military recruits who sought $10 million in attorney fees after winning back their expedited path to naturalization two years ago have settled for $2.75 million in the interest of conserving resources and avoiding further litigation risks.
AIC: Several legal services organizations filed a lawsuit today against Immigration and Customs Enforcement (ICE) for unlawfully preventing attorneys from communicating with immigrants detained in four detention facilities in Florida, Louisiana, Texas, and Arizona.
USCIS: U.S. Citizenship and Immigration Services is extending certain COVID-19-related flexibilities through Jan. 24, 2023, to assist applicants, petitioners, and requestors.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added. If you receive an error, make sure you click request access.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
But immigrant advocates note that some of their demands aren’t contingent on Congress or the courts, which makes it all the more exasperating as to why the administration has failed to deliver.
Some told POLITICO they simply wanted to see the administration remedy the harm caused by the Trump administration’s family separation policies. Others want to see follow-up on early proposals to protect immigrant workers in labor disputes.
The administration further angered the community last week when it announced plans to use the Trump-era pandemic policy, Title 42, to expel Venezuelan migrants crossing the border illegally as part of its new humanitarian parole program for them. Advocates decried the expansion of Title 42, which the Justice Department is fighting in court, as a continuation of the Trump “playbook.”
. . . .
The biggest, most significant “unforced error” by the Biden Administration has been the failure to “clean house” at EOIR and to reform the Immigration Courts to be a model of great, scholarly, humane judging, and a bastion of due process, fundamental fairness, and best judicial practices.
The Federalist Society and the Heritage Foundation set forth a successful “blueprint” for a far-right takeover of not only the Immigration Courts, but the entire Article III Judiciary. The Trump Administration adopted and successfully followed it!
By stark contrast, the Dems have failed to act timely and decisively on the one all-important Federal court system that they completely control! EOIR is a system that probably has more impact on the future of America — or whether there will even be a future America — than any court short of the Supremes!
Garland’s dismissive treatment of the informed views of immigration, human rights, and racial justice experts — who have had “hands on” experience with “America’s most dysfunctional courts” (the Immigration Courts) — has undermined our legal system and hamstrung almost every other progressive social justice initiative — from voting rights to abortion!
Garland’s failure to bring in experienced, dynamic, inspirational, respected, “Tier One” progressive practical scholar/leaders — folks like, for example, Dean Kevin Johnson, Professor Karen Musalo, Marielena Hincapie, Professor Phil Schrag, Margaret Stock, Professor Michele Pistone, and Judge Dana Leigh Marks — to clean up EOIR, kick some tail, and create “the best, fairest, most efficient courts in America” — is beyond inexcusable!
Dems are a self-inflicted mess when it comes to immigration — apparently because those “calling the shots” are more “Stephen Miller Lite” than they are Julian Castro and other Democrats who understand the essential importance of immigrants and of standing up for their rights — starting with the “retail level” of American justice.
As one frustrated experienced practitioner recently told me: “Biden’s entire immigration policies are a train wreck. He didn’t take the action he said he would. The practice of immigration law is soul crushing.”
“Soul crushing!” Those words should be a “wake up call” to the “tone deaf” policy honchos in the Administration. It shouldn’t be this way in a Dem Administration that was elected because they promised to do better and to stand up to the lies, myths, and false narratives of the nativist right! Once in power, Dems don’t seem to be able to distinguish between their friends and their adversaries. That’s proven NOT to be a “formula for success!”
For every immigrant/racial justice advocate that the Biden Administration wears down and demoralizes, two “new recruits” for the NDPA will arise, fully energized to keep litigating, winning, and raising hell until due process, human rights, fundamental fairness, and racial justice get some long overdue ACTION. Based on results to date, that means continuing to “beat Garland’s brains out” in court! The talent and creativity is obviously “out here,” not in Garland’s “Halls of (In)Justice!” Given that the “Stephen Miller Group” is also challenging the Administration in court, Garland will eventually find himself doing nothing but litigating immigration issues and getting walloped by both sides!
Meanwhile, as the Administration daily fails on immigration, human rights, and racial justice within the Executive Branch, my mailbox and message box are overflowing with desperate requests from Dem politicos, from Joe, Kamala, Nancy, and Chuck on down, for more donations of money and time. But, once the election cycle is over, our views are ignored, and we are treated as “PNGs.” Meanwhile, those who actively undermined immigrants’ rights and diminished due process are rewarded or retained in key positions where they continue to heap damage on the most vulnerable among us and frustrate their supporters.
Doesn’t seem like a sustainable future for the Democratic Party or for American democracy! But, hey, I’m just a retired Immigration Judge. Maybe my friends in the social justice movement enjoy being treated as “chopped liver” — frozen out and ignored — once they have helped elect Dems.
Republicans boldly “run on the big lie.” Meanwhile, Dems “run from the truth” about immigrants and their all-important role in America’s future! Go figure!
A quote from a recent NY Times article struck me as aptly summarizing the failure of leaders of both political parties to take an honest, creative, and practical approach to the opportunity presented by continuing human migration:
Immigration in the United States is broken, but one side of the fence wants to study the root causes of the problem, and don’t want to see what’s happening right here,” Mr. [John] Martin [deputy director of the Opportunity Center for the Homeless in El Paso] said, squinting beneath the brim of his cowboy hat. “And the other side wants to build a wall which would become a dam and eventually burst.”
Former AG Jeff “Gonzo Apocalypto” Sessions went to the border to preach his “gospel” of anti-immigrant hate, lies, nativist myths, and to “fire up” officials for one of the biggest unconstitutional abuses of prosecutorial authority in modern American history. Indeed, that is when one reporter coined the term “Gonzo Apocalypto” to describe the absolute nonsense spewing from Sessions’s mouth.
Sessions orchestrated a vile “strategy” of family separation from which the victims haven’t yet, and may never, fully recover. Interestingly, he has also escaped accountability.
By contrast, Garland, to my knowledge, has never bothered to visit the border and engage first-hand with the human carnage his failed “courts” and abuse of both the Constitution and asylum law inflict on others. He interacts neither with those outside government trying to uphold the rule of law nor the enforcement officials given “mission impossible.” He absolves himself from observing the effect that his failure to carry out orderly, humane, legally compliant refugee and asylum processing — using existing law rather than extralegal “gimmicks” — has on communities on the border and in the interior.
Sessions was a vile, intellectually dishonest, and immoral leader; Garland is simply a failed and disengaged one. But, the difference might not be readily apparent to most practitioners laboring in the foul trenches of Garland’s dysfunctional “court” system.
From my observation, there are folks out here interested in, and capable of, addressing the opportunities, potential benefits, and challenges presented by the inevitability of human migration in the 21st Century. Most of them, unlike “pontificating politicos,” have, at some point, “walked the walk” with those humans caught up in the migration dilemma, on both sides of the border.
But, leaders of neither party are interested in the constructive ideas and solutions developed within the rule of law that these unusually talented and dedicated individuals can offer. As long as that is the case, the realities of human migration, false promises, racially driven bias, and wildly inconsistent application of justice in America will continue to vex both politicians and the voters who put such “non-problem-solvers” in office!
If he survives Garland’s EOIR, this guy faces more torture if wrongfully removed to torture elsewhere. “Justice” Star Chamber Style
“Sir Jeffrey” Chase reports on H.H. v. Garland, a case in which the RoundTable filed an amicus brief in behalf of the respondent. Many thanks to our friends Adam Gershenson, Zachary Sisko, Marc Suskin, Valeria M. Pelet del Toro, Samantha Kirby, and Cooley LLP on the brief for amici curiae Former Immigration Judges and Former Members of the Board of Immigration Appeals.
For the reasons detailed above, we conclude that the BIA erred by: (1) applying the incorrect standard of review to uphold the IJ’s denial of CAT relief as to Honduras, in a misguided effort to accommodate the IJ’s error of law in requiring a showing of willful acceptance rather than willful blindness; (2) improperly failing to address H.H.’s argument that he would likely be tortured by or at the instigation of Honduran officials; and (3) failing to meaningfully address H.H.’s argument that MS-13 members may act under color of law.21 Accordingly, we grant the petition for review, vacate the BIA’s decision insofar as it denied H.H. deferral of removal to Honduras, and remand the case for further proceedings consistent with this opinion.
************************************
Meanwhile, Dan Kowalski at LexisNexis Immigraton Community reports on another CAT rebuke from the 9th Circuit.
“Risvin Valdemar De Leon Lopez (“De Leon”), a native and citizen of Guatemala, petitions for review of a Board of Immigration Appeals (“BIA”) decision dismissing his appeal of an Immigration Judge’s (“IJ”) order denying his application for relief under the Convention Against Torture. We conclude: (1) the record in this case compels the conclusion that two of De Leon’s attackers were police officers during a July 2011 incident; (2) De Leon showed acquiescence on the part of the Guatemalan government with respect to that incident because government officials— namely, the two police officers—directly participated in the incident; and (3) the record indicates that the IJ and BIA’s conclusion that De Leon is not likely to be subjected to torture with government acquiescence if returned to Guatemala disregards several important circumstances pertinent to evaluating the likelihood of future torture. In light of these errors, we grant the petition and remand for the agency to reconsider De Leon’s application for relief.”
These aren’t “minor bureaucratic matters,” no matter how much Garland and his “clueless crew” over @ DOJ might want to treat them that way and hope they will go away! They won’t! Not if the thousands of us involved in the due process, fundamental fairness, and racial justice for all movement have anything to say about it (e.g., the “NDPA”)!
And we will continue to speak out against the parody of justice @ Garland’s EOIR! It’s a disingenuous and disgraceful performance by a Democratic Administration that will have “down the line” consequences!
While the Trump Administration admittedly left EOIR in complete shambles, that doesn’t excuse the Biden Administration’s failure to fix it. It’s not “rocket science!”But, there is no way that the “Clown Show” 🤡 that Garland has chosen to run and staff EOIR (many inexplicably “held over” from the Sessions/Barr debacle) can fix it!
These are literally life and death cases in which Garland’s “faux expert” BIA “pretzels” the law, misconstrues facts, and “selectively reads” records to reach wrong results that deny protection and decree deportation! How is this acceptable performance from any tribunal, let alone one that is supposed to insure justice for those whose lives are on the line? How is this acceptable performance from a Democratic Administration that claimed fealty to human rights and racial justice, but takes neither seriously when it comes to EOIR?
There are plenty of “practical scholar experts” out here in the non-governmental sectors who would make much better appellate and trial judges, and administrators, than many of those Garland is inflicting on migrants and their attorneys.
What’s wrong with the Biden Administration? What’s “right”about failed justice @ Justice?”
The poor performance of Garland as the “steward” of the Immigration Courts at EOIR is a threat to humanity, democracy, and a colossal waste of judicial and litigation resources at all levels of our justice system!
Maybe Merrick Garland SHOULD worry about running “America’s worst courts” and inflicting life-threatening injustice on his fellow humans! PHOTO: Wikipedia Commons
Garland’s approach to immigrant justice in his courts harkens back to “the bad old days.” Yet he remains impervious — and unaccountable! The Wasp 1882-01-06 cover Slow but sure.jpg Slow, but Sure. Cartoon depicts Lady Justice riding a tortoise, about to hang a man. George Frederick Keller Public domain
Dean Kevin Johnson @ ImmigrationProf Blog previews upcoming book by Professor Maya Pagni Barack:
The publisher’s description of the book reads as follows:
“Each year, hundreds of thousands of migrants are moved through immigration court. With a national backlog surpassing one million cases, court hearings take years and most migrants will eventually be ordered deported. The Slow Violence of Immigration Court sheds light on the experiences of migrants from the “Northern Triangle” (Guatemala, Honduras, and El Salvador) as they navigate legal processes, deportation proceedings, immigration court, and the immigration system writ large.
Grounded in the illuminating stories of people facing deportation, the family members who support them, and the attorneys who defend them, The Slow Violence of Immigration Court invites readers to question matters of fairness and justice and the fear of living with the threat of deportation. Although the spectacle of violence created by family separation and deportation is perceived as extreme and unprecedented, these long legal proceedings are masked in the mundane and are often overlooked, ignored, and excused. In an urgent call to action, Maya Pagni Barak deftly demonstrates that deportation and family separation are not abhorrent anomalies, but are a routine, slow form of violence at the heart of the U.S. immigration system.”
KJ
**************************
The ongoing national disgrace called “EOIR” continues to mete out injustice and inane bureaucratic nonsense under a DEMOCRATIC Administration that pledged to return the rule of law and humanity to our broken Immigration Court system!
That system is “headed and controlled” by a DEMOCRATIC AG, Merrick Garland. He is a former Federal Appellate Judge who certainly knows that what passes for “justice” in his broken “court” system is nothing of the sort! Also this ongoing debacle doesn’t say much good about Garland’s “lieutenants:” Deputy AG Lisa Monaco, Associate AG Vanita Gupta, Assistant AG for Civil Rights Kristen Clarke, and Solicitor General Elizabeth Prelogar.
They have all “looked the other way,” defended, or failed to condemn this travesty undermining our entire justice system, unfolding under their collective noses at EOIR every day! At some point in the future, all these guys will be “making the rounds” of major law firms, NGOs, universities, mainstream media, and corporations — seeking to “cash in” on their DOJ “experience.” Then, folks should remember how they ACTUALLY PERFORMED (or didn’t) when they had a chance to fix “America’s worst courts” — hotbeds of racial and ethnic injustice, purveyors of bad law, and a haven for ridiculously dysfunctional procedures!
Perhaps a suitable future for these willfully blind “public servants” would be to require them to spend the balance of their careers practicing on a pro bono basis before the “star chambers” they inflicted on others! See how they like being “scheduled,” with no or inadequate notice, to do 15 or 20 asylum cases per month; appearing before too many ill-qualified “judges” who have already decided to deny regardless of the law and facts; appealing to a captive “appellate court” dominated by individuals, working for the Executive, whose main “judicial qualification” was that they denied close to 100% of the asylum claims that came before them in Immigration Court and were known for their rude and dismissive treatment of asylum applicants and their lawyers! See, e.g., “Confronting The American Star Chamber . . .,” https://wp.me/p8eeJm-4Vm.,
Here’s Professor Barak’s bio from the U of Michigan-Dearborn website:
Maya Barak, Ph.D.
Associate Professor of Criminal Justice Studies
Maya P. Barak, PhD Assistant Professor of Criminal Justice Studies U. of Michigan -Dearborn PHOTO: UM-D Websitew
Teaching Areas: Arab American Studies, Criminology & Criminal Justice Studies, Master of Science in Criminology and Criminal Justice, Women’s & Gender Studies
Research Areas: Capital Punishment, Criminal Justice, Criminology, Gangs, Immigrants / Crimmigration, Legal Sociology, Procedural Justice, State-Corporate Crime
Biography and Education
I am an Assistant Professor of Criminology and Criminal Justice at the University of Michigan-Dearborn. I hold a PhD in Justice, Law and Criminology from American University (2016), an MA in Criminology and Criminal Justice from Eastern Michigan University (2011), and a BA in Social Anthropology and Peace and Social Justice from the University of Michigan (2009). My research brings together the areas of law, deviance, immigration, and power, utilizing interdisciplinary approaches that span the fields of criminology, law and society, and anthropology.
Gould, Jon B. and Maya Barak. 2019. Capital Defense: Inside the Lives of America’s Death Penalty Lawyers. New York: NYU Press.
Selected Articles
Barak, Maya. 2021. “Can You Hear Me Now? Attorney Perceptions of Interpretation, Technology, and Power in Immigration Court.” Journal on Migration and Human Security (https://doi.org/10.1177/23315024211034740).
Barak, Maya. 2021. “A Hollow Hope? The Empty Promise of Rights in the U.S. Immigration System”/ “¿Una promesa vacía? La ilusión de “los derechos” en el sistema migratorio de los Estados Unidos.” Las Cadenas Que Amamos: Una panorámica sobre el retroceso de Occidente a todos los niveles.
Barak, Maya. 2021. “Family Separation as State-Corporate Crime.” Journal of White Collar and Corporate Crime Vol. 2(2), 2021, pp. 109-121 (https://journals.sagepub.com/doi/10.1177/2631309X20982299). (2021 Outstanding Article or Book Chapter Award, Division of White-Collar and Corporate Crime, American Society of Criminology)
Barak, Maya. 2017. “Motherhood and Immigration Policy: How Immigration Law Shapes Central Americans’ Experience of Family.” In Forced Out and Fenced In: Immigration Tales from the Field, edited by Tanya Golash-Boza. New York: Oxford University Press.
Advocates and all Americans committed to racial justice and equal justice under law need to keep raising hell — and supporting progressive candidates — until this horrible system is replaced by a real court system, with subject matter expert judges, totally focused on delivering due process, fundamental fairness, and best judicial practices to all!
What’s happening to individuals (fellow humans, “persons” under our Constitution) and their lawyers at EOIR is NOT OK, nor is it acceptable from a DEMOCRATIC ADMINISTRATION!
Yeah, “there’s trouble, right here in River City!” And, it begins with “E,” ends with “R,” and rhymes with “EYORE!”
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
La Cocina, a San Francisco-based nonprofit group, is helping low-income women and immigrants start their own food businesses. The 130 chef-owners receive support, including access to an industrial kitchen, to craft a recipe for a better life.
Oct. 20, 2022
Jay Gray reports for NBC Nightly News in this video:
I loved the shot of 1950’s-style “boring American food!” As a “child of the 50’s,” so true! Also, reaffirms the “food-based approach” to promoting social justice!
Heck, I remember from my days at the BIA that the best way to get folks to show up for a meeting or event and be in a good mood to participate was to “put out the food.” I used to bring bagels to BIA en banc conferences. It often helped “lighten the mood,” even if it didn’t garner me enough votes to win very many of my “en banc legal battles!”
Some things that stand out:
Teamwork, skill, and cooperation;
The power of immigrant women;
Diversity and variety improving American food;
Investment in “human capital;”
Self-sufficiency;
Jobs and education for others;
Teaching and training for success.
I think there are “messages” here about the benefits of immigrants and how many of those arriving at our borders could be successfully integrated into, energize, and expand opportunities in communities in need throughout America.
For example, almost everyone agrees that there is a shortage of affordable, livable, attractive housing that is adversely affecting communities around the U.S. Why not invest in the hard work, creativity, skills, and initiative of arriving migrants to help address these problems and make life better for everyone? Expand the economy, expand the tax base, raise wages, solve problems, revitalize “hurting” communities! Decent jobs with a future and homes in the community might also help address the opioid and other substance abuse problems in many areas.
Rather than squandering money and resources on “sure to ultimately fail” “deterrence” strategies and counterproductive restrictions, detentions, and deportations, why not think about ways to 1) recognize the realities of human migration; and 2) harness and direct the undeniable power of that migration for everyone’s benefit?
Leaders of both parties seem “willfully blind” to the realities and benefits of migration in the 21st century. Could public-private partnerships be part of the answer? There must be some more “humane pragmatists” out here who are interested in actually solving problems, building on diversity, and doing things for the common good.
Lori L. Scialabba Specialist Executive Deloitte Consulting LLP PHOTO: Deloitte
(Historical Footnote: I helped recruit Lori for the Honors Program when I was the Deputy General Counsel of the “Legacy INS.” Later, we were both BIA Members. Lori was one of my Vice Chairs — along with Mary Maguire Dunne — and eventually succeeded me as Chair before going on to a distinguished career as a Senior Executive at USCIS and then Deloitte.)
“King, a native and citizen of Jamaica, arrived in the United States in August 2016 pursuant to a visa, which later expired. He pleaded guilty in January 2020 to third-degree felony fleeing or eluding a police officer in violation of 75 Pa. Cons. Stat. § 3733(a). The Government initiated removal proceedings and charged King as removable for having overstayed his visa and for having been convicted of a crime involving moral turpitude (“CIMT”) within five years of entering the United States. See 8 U.S.C. §§ 1227(a)(1)(B), (a)(2)(A)(i). King later married a United States citizen and has applied to adjust to the status of lawful permanent resident. … The BIA … conclud[ed] that a Pennsylvania felony fleeing conviction is categorically a CIMT because it involves a culpable mental state of willfulness and applies to reprehensible conduct. … The plain language of the statute, coupled with the reasoning of Mahn and Ramirez-Contreras, persuades us that the Pennsylvania felony fleeing statute does not qualify as turpitudinous. While the failing to stop for a police officer while crossing a state line is conduct that may put another in danger, it does not necessarily do so. The agency therefore erred in its conclusion that King was convicted of a CIMT. For the foregoing reasons, we will grant the petition for review.”
[Hats off to William C. Menard! And personally, I think this case should be published, because it highlights errors made by the IJ, the BIA and OIL.]
William C. Menard, Esquire Member Norris McLaughlin PHOTO: Firm
It’s always helpful to have superstars 🌟 like William C. Menard of Norris McLaughlin on the side of the NDPA. Too bad they and other top flight lawyers “out here” who know and understand the plight of migrants and its inextricable ties to racial justice in America aren’t “running the show” at the DOJ like they should be! The American legal system would function much better if due process and best practices for migrants were a part of it (that is, “institutionalized”), rather than something that has to be achieved case-by-case at a great cost in resources and inconsistent justice!
I concur with my friend Dan that this case should be published as yet another public reminder and “citable” permanent record of the seemingly unending stream of errors, misguided arguments, and “worst practices” streaming out of Garland’s dysfunctional EOIR and OIL!
A Dem Administration inexplicably continues to subject migrants and their representatives to “4th class justice” from Garland’s broken EOIR. Ironically, at the same time, the Administration is begging advocates and NGOs to “empty their pockets and pound the streets” in behalf of their candidates. Talk about “being taken for granted!”
Every fall, the U.S. president sets a refugee ceiling — the maximum number of refugees that may be resettled annually to the United States. For the new fiscal year that started Oct. 1, President Biden plans to resettle up to 125,000 refugees. Because of dramatic cuts to the refugee program during the prior administration, that goal will be hard to meet. A year ago, Biden set the same target, but more than 100,000 refugee slots went unused.
Historically, only the U.S. government, working with international refugee agencies and nonprofits, has determined which refugees will be admitted to the United States. That’s a mistake. To meet its goal of admitting 125,000 refugees this fiscal year, the United States should also promptly allow private sponsorships of refugees.
In February 2021, Biden issued an executive order to rebuild our refugee program, including through private refugee sponsorships. Subsequently, the State Department announced plans to start a pilot program, but the launch has been delayed. Over a year after the first announcement, and close to the end of 2022, the State Department has not decided on the funding of prospective partners or issued guidelines on the pilot. The clock is ticking.
Several countries, including Canada, Australia, Argentina, Germany, Ireland, New Zealand, the United Kingdom and Spain, already allow private sponsorships of refugees. Under private sponsorships, individuals and community groups collaborate to provide financial, emotional, and practical support for refugees. Some countries also empower sponsors to nominate specific refugees to enter and stay in their country.
Canada’s experience shows that private sponsorships can work. A 2020 study confirmed that privately-sponsored refugees are more likely than government-sponsored refugees to be working within the first year after entering Canada, with an employment rate at 90% for men and 71% for women. Findings from Canada also suggest that privately-sponsored refugees are more likely to stay at their initial destinations and private sponsorships could contribute to geographic dispersal of resettled refugees.
Americans are already engaged in private sponsorships for Afghans and Ukrainians through the Sponsor Circles initiative. This initiative supports Americans who decide to become sponsors by assisting them in the application process, offering temporary housing credits through Airbnb.org, as well as ongoing expert guidance and other sponsor tools and resources. More than 123,000 Americans have applied to financially sponsor Ukrainians, and over 87,000 Ukrainians have been granted permission to travel to the United States. The number of arrivals will likely exceed 100,000 by the end of 2022.
While technically most Ukrainians and Afghans have not entered the United States as refugees, lessons learned from the Sponsor Circles initiative could help establish a formal private refugee sponsorship model. Because most Ukrainians enter the United States under parole power, they can be authorized for travel in as little as two weeks. However, prospective sponsors have recently reported longer processing times.
To transform private sponsorships from an emergency one-time program to a formalized program where beneficiaries enter as refugees, with access to long-term residence and citizenship, the backlog issue becomes even more concerning. Current tests of 30-day streamlined visa processing for Afghans in Doha could be expanded and serve as a role model for both parolees and refugees. Moreover, to mobilize private refugee sponsors and enable them to prepare, the U.S. government needs to move forward quickly and specify a program design for private refugee sponsors, including financial requirements, sponsorship time commitments, and concrete sponsor responsibilities.
Once a private refugee sponsorship program gets launched, sponsors will have to accomplish challenging tasks. They will have to deal with language barriers, find affordable housing and help new refugees apply for public benefits. For such a process to work, it is important to set up communication streams between private refugee sponsors and existing refugee resettlement agencies.
Public-private partnerships work in other areas. For example, they have become an increasingly popular way to upgrade infrastructure and address the challenges of climate change. By incorporating a private refugee sponsorship model, the U.S. government can supplement its own efforts to admit 125,000 refugees this fiscal year.
More importantly, private refugee sponsorships would allow Americans to participate directly in welcoming refugees and facilitating their successful integration. Experience in the United Kingdom shows that private sponsorship can be a powerful tool in expanding communities’ understanding and capacity for welcoming newcomers. It can reduce fears about others more generally, change working practices to make them more inclusive for diverse populations, and bring new perspectives into relatively homogeneous communities. Involving U.S. citizens in the immigration process could thus be a way to dampen the current heated debate about immigration and allow Americans to see the mutual benefits of immigration.
Janine Prantl is an immigration postdoctoral associate in the Cornell Law School Immigration Law and Policy Research Program. Stephen Yale-Loehr is professor of immigration law practice at Cornell Law School.
*********************
Lots of creative ideas out here on how to improve our broken refugee and asylum systems! But, from those in charge of migration policy in the Biden Administration, not so much!😢
No, they are stuck in reverse. A small-time “overseas” refugee program forVenezuelans (24k “slots” for a refugee crisis that has generated more than 6 million refugees)🤯; a heavy dose of cruel and discredited “Stephen Miller Lite” Title 42 for those who exercise their legal right to apply for asylum at or near the border 🤮; more “due process free” illegal returns to abusive conditions in Mexico☠️.
Perhaps inadvertently, a recent NBC Nightly News report on the border mentioned a widely ignored fact. It pictured and described desperate Venezuelans patiently waiting in line toturn themselves in to CPB to exercise their legal rights to apply for asylum and other protections in the U.S. That’s right — “turn themselves in!”
This is NOT real law enforcement, nor does it present a security crisis! Nor are the oft repeated “record numbers” of border “apprehensions” legitimate!
Since individuals are often returned to Mexico with neither proper processing nor due process, many of these “apprehensions” are inflated — representing repeated “apprehensions” of the same individual merely seeking to apply for asylum — a legal right denied to them by both the Trump and Biden Administrations!
One might also ask whether an individual turning him or herself in and requesting legal asylum is “apprehended” at all? That’s why CBP has started using the more ambiguous term “encounter” to disguise what’s really happening at the border.
Under the Biden Administration’s latest discriminatory and brain dead application of Title 42, those Venezuelans who voluntarily turn themselves in at ports of entry or near the border will be illegally returned to Mexico to rot — as a “reward” for attempting to follow the law. Does this make sense? Of course not. And the consequences of this horrible “policy” are dire for both the refugees and our nation. In many ways, the Biden Administration inexplicably has gone even beyond the cruel stunts of DeSantis and Abbott in making “political footballs” 🏈out of vulnerable Venezuelan refugees! It’s an ongoing national disgrace, masquerading as “policy!”
The only avenue for legal refugee for these Venezuelans fleeing a repressive left-wing dictatorship is to hire a smuggler to get them past the border where they can lose themselves in the interior of the U.S. That is, under the Biden policy, “do it yourself, black market refuge” substitutes for a variable legal system and adds to the unscreened and often unknown underground population of undocumented migrants. in the U.S.
A robust, realistic refugee program for Venezuela, operating both in Mexico and in or near Venezuela, might well reduce the incentives for extralegal migration. It could also take some pressure off of other “receiving” countries in the Hemisphere. But, the “token” — unduly limited — program proposed by the Biden Administration will do nothing of the sort!
Extralegal entries and underground populations are not good. Robust, realistic, timely, refugee and asylum programs — properly focused on using existing laws for protection, not rejection — would reduce the incentive for extralegal migration while reaping the many potential benefits and strengths that refugees and asylees “bring to the table.”
Such a beneficial program is achievable — under current law. But, not without a radical shakeup in both the leadership and substance of the Biden Administration’s so-called human rights bureaucracy!
“Can’t anybody here play this game,” wonders Casey Stengel about the cruel, clueless crew in charge of human rights and immigration (non)policy in the Biden-Harris Administration.
PHOTO: Rudi Reit
Creative Commons
When nearly 50 Venezuelan migrants were left stranded in Martha’s Vineyard last month after Florida GOP Gov. Ron DeSantis flew them to the island from Texas, they had no employment, housing or clear pathway to citizenship.
But this week, the Bexar County Sheriff’s Office, which oversees the San Antonio area and previously opened an investigation into the flights, agreed to certify that the migrants had sufficiently cooperated with its investigation and are now eligible to apply for “U” visas, a kind of immigration status for victims of certain crimes that occur on U.S. soil.
The visas require that a law enforcement officer sign the application before it can be sent to U.S. Citizenship and Immigration Services.
Rachel Self, a Martha’s Vineyard-based attorney who has been coordinating the migrants’ immigration cases, said Wednesday that she flew to San Antonio to obtain the required signatures from the sheriff’s office.
“I now hold in my hand certifications for every one of Perla’s victims,” Self wrote in a statement, referring to Perla Huerta, the woman believed to be responsible for recruiting migrants in San Antonio on behalf of DeSantis.
. . . .
The U visa process, however, won’t be easy or quick, either. According to Department of Homeland Security data, more than 285,000 U visa petitions are pending as of fiscal year 2021, and Congress has capped the visas at 10,000 per year. Once the visas are approved, the migrants must wait three years to apply for a green card and five more years for citizenship.
But once the Venezuelans submit their applications, they will likely be allowed to work and protected from deportation. Last year, the federal appellate court that covers Massachusetts ruled that a Honduran man could not be removed from the country while his U visa application was pending.
“Ironically by choosing to transport the migrants to Martha’s Vineyard […], all of these victims are now protected from removal while their U visa application is pending due to the Granados Benitez case,” Self wrote in her statement. “These certifications will ensure that the migrants can continue to help our law enforcement officials, and that they will be able to process and heal from the incredibly traumatic experiences they have suffered as a result of the cruel, heartless acts committed against them.”
The Biden Administration thinks carrying out his policies is A-OK. Many of those who,helped put them in office disagree. Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
WASHINGTON — The Biden administration will expand its use of a public health rule to start expelling to Mexico thousands of Venezuelans who illegally cross the U.S. border and announced a new humanitarian parole program to provide a narrow legal pathway to the United States for up to 24,000 Venezuelans.
The administration hopes that Venezuelans will apply for the parole plan remotely and fly to the United States rather than making the dangerous trek to the southwest border.
But the reliance on a Trump-era pandemic rule to deny entry to many others crystallized the Biden administration’s balancing act in both helping refugees and tightening border restrictions in the face of Republican attacks on President Biden’s immigration policy and record numbers of illegal border crossings. And there is no guarantee that just 27 days before the midterm elections, it will have the desired effect.
Until now, the majority of Venezuelans who crossed into the United States have not been expelled under the public health authority, known as Title 42. Instead, they were screened and released into the country temporarily to face removal proceedings in immigration court, where they have the option to apply for asylum.
. . . .
****************
In addition to being cruel and illegal, the new policy won’t please anyone on the immigration issue. Biden is selling his erstwhile supporters “down the river,” while neither mollifying critics on the right nor winning over independents.
Expect refugees to suffer and die. I also predict that extralegal entries aiming for “do it yourself” refuge in the interior will increase. And, our immigration and asylum systems will remain a dysfunctional mess.
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
NYT: The decision from the three-judge panel on the U.S. Court of Appeals for the Fifth Circuit — one of the country’s most conservative federal appellate courts — affirmed a 2021 lower court decision. The Biden administration will need to continue its legal fight to enroll new applicants in the program, called the Deferred Action for Childhood Arrivals, or DACA.
SD Union-Trib: Simple marijuana possession is usually charged at the state rather than federal level, so if governors follow Biden’s lead, there could be a wider impact on immigration court cases…Biden’s Thursday proclamation also explicitly says that undocumented noncitizens are not eligible for the pardon.
ProPublica: The public has largely stopped paying attention to what’s happening inside shelters and other facilities that house immigrant children since President Donald Trump left office, and particularly since the end of his administration’s zero tolerance policy, which separated families at the southern border.
VOA: Shortly before attending OAS ministerial talks on the perplexing question of migration in the western hemisphere, Blinken told reporters of “new humanitarian and bilateral and regional assistance” to the tune of $240 million. See also United States fell far short of refugee goal last fiscal year
Roll Call: With Cuellar in line to be the top Democrat in the next Congress on the House Homeland Security Appropriations Subcommittee, which oversees the Immigration and Customs Enforcement and Customs and Border Protection budgets, some Democrats and advocacy groups are growing concerned.
WaPo: A Mexican man who was shot fatally inside a Border Patrol station in Texas this week had grabbed an “edged weapon” off a desk inside the facility and continued to approach U.S. agents after they attempted to stop him with a Taser, the FBI said in a statement late Wednesday.
VOA: Two Russians who said they fled the country to avoid military service have requested asylum in the U.S. after landing in a small boat on a remote Alaska island in the Bering Sea, U.S. Sen. Lisa Murkowski’s office said Thursday.
Law360: The U.S. Supreme Court on Monday turned away a deported Salvadoran man’s bid to look into an allegedly “unfairly” crafted deadline for filing deportation order reconsideration requests, ending his decades-long hope of returning to the U.S.
Law360: The Fifth Circuit on Wednesday affirmed a Texas judge’s ruling that vacated the Obama administration’s Deferred Action for Childhood Arrivals program, which has protected some young immigrants from deportation, and barred new applicants, but asked the lower court to review the Biden administration’s recent final rule on the DACA program.
LexisNexis: Because we conclude that the government failed to provide the constitutionally required notice within a reasonable time period following the denial of Asencio-Cordero’s visa application, the government was not entitled to summary judgment based on the doctrine of consular nonreviewability.
LexisNexis: A fraud waiver under section 237(a)(1)(H) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(1)(H) (2018), does not waive a respondent’s removability under section 237(a)(1)(D)(i) of the INA, 8 U.S.C. § 1227(a)(1)(D)(i), where conditional permanent residence was terminated for failure to file a joint petition
Law360: A Minnesota federal judge ended an American Civil Liberties Union-backed suit alleging that U.S. Customs and Border Protection assaulted and degraded two teenagers in its custody, after the agency agreed to pay the girls $80,000 to resolve the claims.
Law360: Florida pushed for a trial to resolve its contention that the Biden administration has a policy of releasing immigrants subject to detention, but asked a federal judge to first declare that the state has standing to challenge the alleged policy.
Law360: The head of a U.S. Department of Justice office on Friday asked a Virginia federal judge to nix a suit filed by an immigration judges association claiming they are “muzzled” by a policy that they say bars them from discussing their personal views on immigration, contending that a new policy encourages speech and simply requires supervisory approval.
AILA: USCIS 30-day notice and request for comment on USCIS’s Online Account Access system, formerly called Identity and Credential Access Management (ICAM). Comments are due 11/7/22.
AILA: Following an outbreak of Ebola in the Republic of Uganda, the CDC announced enhanced public health screening for flights departing after 11:59 pm (ET) on 10/10/22, for flights carrying travelers with nexus to Uganda. Said flights will be funneled through JFK, EWR, IAD, ATL, and ORD.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added. If you receive an error, make sure you click request access.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
Given the disgraceful mess @ EOIR, it’s understandable that Garland & Co. fear IJ’s speaking out in public. It’s just not a justifiable position, particularly for a Democratic Administration.
