"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.
As one more reminder of what we’ve lost, the text of the 1973 Roe v Wade ruling is unlikely to console us. Even so, I recommend downloading the pdf. In the wake of its overturning, this beautifully written document – which reads like a long form essay – is not only interesting in itself but now seems like another sign of how much has changed over the last half century, in this case for the worse.
Drafted by Justice Harry Blackmun, the ruling includes a clear and persuasive summary of the history of abortion law. “At the time of the adoption of our Constitution, and throughout the major portion of the 19th century, a woman enjoyed a substantially broader right to terminate a pregnancy that she does in most States today.” It tracks the centuries-old debate over when life begins, and dismisses the argument that a fetus is a person guaranteed the protections afforded US citizens. Throughout, it strikes us as the careful explication and clarification of a law, of legal precedent, unlike Justice Alito’s ruling in Dobbs v Jackson Women’s Health, which seems more like an expression of religious conviction masquerading as an unbiased interpretation of the constitution.
The Roe ruling is not about states’ rights. It’s about power and control | Derecka Purnell
What’s most striking about Roe v Wade – and its difference from the ruling that overturned it – is its eloquence. Blackmun’s lucid, frequently graceful language reflects a commitment to decency and compassion. The judges are clear about the dangers of carrying an unwanted child or a high-risk pregnancy to term. They strive to see the issue from the perspective of those confronting a serious life crisis, and to imagine the devastating outcomes that pregnant women and their families may face.
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“Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by childcare. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it.”
The passage I admire most is the one in which Blackmun, at once profound and lyrical, describes the atmosphere surrounding the issue of abortion, the way our opinions are formed, and the pressures that the law must acknowledge and keep in balance.
“We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion. In addition, population growth, poverty, and racial overtones tend to complicate and not to simplify the problem.”
And there it is: a superbly rendered catalogue of the factors that come to mind when we consider the factors that will now determine whom Dobbs will hurt most: poverty, race, and life on the raw edges of human existence – an edge, one might say, on which every decision about abortion is made.
. . . .
****************
Read the rest of Francine’s article at the link.
Let’s face it. The concern for human life of out of touch righty ideologues like Alito ends at birth. After that, the “others” are expendable — particularly if they are women or folks of color!
All their claimed concern about “personhood” ends at delivery — when it can no longer be used to threaten vulnerable pregnant women or medical professionals. After that, the GOP program for kids (whether wanted or not) consists of things like:
Valuing their lives below the “right” of every Tom, Dick, and Harriett in America to own and use military-style assault weapons (something that certainly wasn’t the “original intent” of the drafters of the 2d Amendment);
Cutting education budgets, “dumbing down” public school curriculums, and harassing teachers, school administrators, and school board members;
Imposing work requirements on public assistance without regard to the needs and availability of suitable child care;
Deporting their parents to far away countries without concern for the welfare of children (US citizen and others);
Declaring “war” on vulnerable kids who aren’t heterosexuals;
Opposing provisions that would expand the availability of health insurance to kids;
Spreading misinformation about life-saving vaccines for children;
Falsely denying climate change that threatens the world we will leave to our kids and future generations;
Spreading fear and terror in ethnic communities containing “mixed families” to discourage them from taking advantage of available community services;
Threatening the educational rights of non-citizen children currently guaranteed by Plyler v. Doe (but perhaps not for long, if the Clarence Thomases of the world have their way);
Treating kids in Immigration Court as less than “persons” entitled to full due process (for example, forcing toddlers to “represent themselves” in life or death asylum cases);
Separating families;
Detaining families and children in grossly substandard conditions;
Making it more difficult for people of color to vote and thus exercise their legal and political rights;
Being more concerned about BLM protests than in the loss of young black lives that generated them.
I could go on an on.
One essential starting place and training ground for a “new generation” of Federal Judges who will be committed to humane values, empathy, accurate historical understanding, due process, and equal justice for all is the “retail level” of our justice system — the U.S. Immigration Courts, currently controlled solely by AG Merrick Garland. That’s why Garland’s disturbing failure to instill progressive values and install scholarly progressive judges — the best, brightest, and most courageous — in his now-dysfunctional EOIR system should be of grave concern to advocates of individual choices and anyone who cares about equal justice for all and the future of our nation!
The GOP-dominated Federal Judiciary has become a tool of authoritarians and religious zealots who seek to wipe out established individual rights, reduce humanity, and insert themselves and their out of touch views into every aspect of human existence — ultimately threatening the very future of humanity!
The Dems, by contrast, are the party of individual rights and human freedom. Too bad they haven’t done a better job of selling, and sometimes of following and boldly acting upon, their own stated values!
Jarndyce v. Jarndyce: “The suit does not sleep; we wake it up, we air it, we walk it about. Thats something.” From “Bleak House” by Charles Dickens (1895). Garland has created a “Dickensonian” nightmare @ EOIR — including rushing some arbitrarily selected poor souls through his broken system to deportation orders with little or no process at all, let alone due process of law!
TRAC Immigration reports:
Transactional Records Access Clearinghouse
Pace of Immigration Court Processing Increases While Backlog Continues to Climb
The latest case-by-case records show that the Immigration Court backlog reached 1,821,440 at the end of June 2022. This is up 25 percent from the backlog just at the beginning of this fiscal year. These figures are based on the analysis of the latest court records obtained through Freedom of Information Act (FOIA) requests by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.
New Immigration Court cases continue to outstrip the number of cases being closed. So far during the first nine months the court received 634,594 new cases, but has only managed to dispose of 287,711. These closures took 1,130 days on average or more than three years from the date of the Notice to Appear (NTA) to the court’s disposition. Part of the delay represents the time it took from the Department of Homeland Security to actually file the NTA after it was issued. This delay reached record levels during the Trump administration three years ago, but NTAs are being filed much more promptly under the current administration.
The pace of court closures also has been accelerating. After the partial government shutdown in March 2020, court closures averaged just 6,172 per month for the remainder of that fiscal year. During FY 2021, court closures roughly doubled to 12,055 on average per month. By the end of the first six months of FY 2022, monthly closures had again doubled to an average of 23,957 per month. And this last quarter covering just the three-month period from April – June 2022, monthly closures doubled again to 47,991 on average each month.
According to court statistics, immigration judges on board at the beginning of this past quarter had increased just 6 percent over levels at the beginning of FY 2022. Thus, the increase in judge hiring only accounts for some of this speedier pace. A more important factor appears to be the many changes implemented by the Biden administration to increase the speed that court cases get scheduled and decided. However, as TRAC has reported, the increase in speed has come with heightened due process concerns, increasing the number of asylum seekers unable to secure legal representation which then greatly diminishes their opportunity to adequately prepare and present their asylum claims.
For more highlights on the Immigration Court, updated through June 2022, go to:
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Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
“Sir Jeffrey” Chase reports:
9th Circuit Decision in U.S. v. Bastide-Hernandez
Hi all:Attached please find the published, en banc decision of the 9th Circuit issued yesterday in U.S. v. Bastide-Hernandez.As expected, the court held that the absence of a date and time of hearing does not deprive the Immigration Court of jurisdiction.
However, please note the concurring opinion of Judge Friedland, stating that although the court held that the issue is not jurisdictional, “there are strong argument for the contrary position,” adding that the Supreme Court may reach a different conclusion.
Judge Friedland also quoted our Round Table’s amicus brief at length, as follows:
“An amicus brief filed by former immigration judges elaborates on why it better serves clarity, efficiency, and due process to include the time and location of the hearing in an NTA in the first instance. As amici explain, incomplete initial notice documents create uncertainty both for noncitizens, who are left in the dark as to when and where a potentially life-changing proceeding will be held, and for immigration judges, who cannot be sure if a case can proceed. Amici also note that the Government’s notice-by- installment practice creates additional fact-finding obligations for immigration judges, who may need to look to multiple documents to determine whether informational gaps in the initial notice have been filled. And amici caution that, because immigration judges are already overburdened and face pressure to complete cases, ambiguities about notice may lead immigration judges to order noncitizens removed when they fail to show up at their hearings, even if the noncitizens never received notice of those hearings at all.”
I think that this lengthy reference demonstrates the importance of our work.
In the words of Ninth Circuit Judge Michelle Friedland (Obama appointee): “[I]t better serves clarity, efficiency, and due process to include the time and location of the hearing in an NTA in the first instance.”
What if we had an EOIR where all judges at the trial and appellate levels and all senior administrators were unswervingly committed to due process, fundamental fairness, and best practices?
Instead, we have a dysfunctional organization where DHS’s wishes, perceived expediency, and keeping the “political bosses” happy (thus providing “job security”) triumphs over the public interest and the cause of justice. Currently, we’re “saddled” with a broken system that sees Immigration Court as a “soft deterrent” rather than a dispenser of justice could actually make our immigration, human rights, and justice system run more smoothly by applying fair procedures and “best interpretations.” That would facilitate the legal admission of many more migrants, while starting to “disempower smugglers,” cut backlog, discourage poor practices at DHS Enforcement, promote consistency, and keep many disputes that should be resolved in favor of respondents out of the Article IIIs!
Better, more reasonable administrative precedents that adhered to the proper interpretations of asylum and protection laws and provided positive guidance on how to apply them to recurring situations would also “leverage” the Asylum Office by allowing many more cases to be granted at the first level. As long as the current lousy BIA precedents prevail, far too many cases will just be denied at the AO level and referred to Immigration Court — making it a colossal waste of time. “So-called streamlining” will only work if it results in significantly more AO grants of protection!
We “win some, lose some.” But, our Round Table’s cause is justice; we’re not going to give up until this system makes the long overdue, radical personnel, procedural, attitude, and “cultural” changes necessary to become the “best that it can be!”
That means fulfilling the Immigration Courts’ once and future vision of “through teamwork and innovation become the world’s best tribunals guaranteeing fairness and due process for all.”
Bonus Coverage:
“Sir Jeffrey’s” skills aren’t confined to the legal arena. Here are some pictures he took from his balcony of last night’s “Super Moon:”
“Super Moon” July 13, 2022 By Hon. Jeffrey S. Chase
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
See More from Elizabeth Gibson
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.
USCIS: Where community levels are high, all federal employees and contractors—as well as visitors two years old or older—must wear a mask inside USCIS offices and physically distance regardless of vaccination status. Chicago is no longer listed as High. NYC is now listed as High. Check CDC Level for Your Region.
DHS Announces Extension of Temporary Protected Status for Venezuela
DHS: The 18-month extension of TPS for Venezuela will be effective from September 10, 2022, through March 10, 2024. Only beneficiaries under Venezuela’s existing designation, and who were already residing in the United States as of March 8, 2021, are eligible to re-register for TPS under this extension.
WaPo: Texas Gov. Greg Abbott ordered state National Guard soldiers and law enforcement officers Thursday to apprehend and return migrants suspected of crossing illegally back to the U.S.-Mexico border, testing how far his state can go in trying to enforce immigration law — a federal responsibility.
LATimes: The new effort, called the Trusted Adult Relative Program, is being tested at a Border Patrol station in Texas, according to three sources who were not authorized to speak publicly. A Department of Homeland Security official, who spoke on the condition of anonymity, said a few dozen children have been reunified with family members since the program began in May. Agency officials said the program utilizes existing procedures to unify families in an efficient way.
Documented: ICE is moving New Jersey immigrants like Hercules Aleman – who face charges in criminal or family court – to out-of-state immigration detention facilities. But the agency is usually not notifying the group of immigration legal providers funded by the state to represent these detained immigrants.
CNN: The Biden administration asked the Supreme Court on Friday to stay a court order blocking the Department of Homeland Security from implementing immigration enforcement priorities — potentially setting up Justice Ketanji Brown Jackson’s first vote since joining the court.
Politico: The nine-month investigation, which culminated in a 511-page report by the department, found no evidence that agents used horse reins to strike people during an “unprecedented surge in migration” of about 15,000 Haitians near the international bridge. However, agents acted in unprofessional and dangerous ways, including an instance in which an agent “maneuvered his horse unsafely near a child,” investigators wrote.
TRAC: According to the latest data released by Immigration and Customs Enforcement (ICE), the agency held 23,156 immigrants in detention on July 5, 2022. Of these, 17,116 were arrested by Customs and Border Protection (CBP) while 6,040 were arrested by ICE agents. Detention numbers have increased slightly from about 20,000 in early 2022 to now hovering around 24,000, but have not otherwise seen significant growth that would lead to the large numbers of immigrants that were detained prior to the pandemic when the detained population topped out at more than 60,000.
TRAC: The number of criminal referrals sent by the Border Patrol and other Customs and Border Protection (CBP) officers have recently begun to rise. Detailed case-by-case government records obtained by TRAC after successful litigation show that during April 2022, CBP referred 2,015 individuals for criminal prosecution to federal prosecutors. This is the first time referrals topped the 2,000 mark since the pandemic began slightly more than two years ago. Levels in April 2022 were up 31 percent from one year earlier when in April 2021 there were a total of 1,537 criminal referrals from CBP.
NYT: Extensive details of their years together were also left behind in grainy snapshots, police reports, immigration forms, nonprofit records, court transcripts and old emails. See also The Story of 2 Homeless Men and the Meaning of Friendship.
Law360: The Fifth Circuit refused to reinstate the Biden administration’s attempt to narrow the number of immigrants prioritized for removal, splitting sharply from the Sixth Circuit to find that the effort likely violated federal immigration law.
LexisNexis: [T]he agency failed to consider and explain the impact of evidence that the Salvadoran government’s efforts in the “war on the gangs” had not been successful, such that gang members operate with impunity and security forces commit extrajudicial killings of suspected gang members, both of which pose threats to Giron.
LexisNexis: Consistent with our own precedent and that of every other circuit to consider this issue, we hold that the failure of an NTA to include time and date information does not deprive the immigration court of subject matter jurisdiction, and thus Bastide-Hernandez’s removal was not “void ab initio,” as the district court determined.
Law360: The Ninth Circuit on Friday declined to review a Mexican man’s bid to vacate a deportation order, saying he should have applied for a green card before a law preventing inadmissible individuals from becoming lawful permanent residents took effect.
LexisNexis: The BIA affirmed based upon the IJ’s adverse credibility determination. We grant Barseghyan’s petition for review because three out of four inconsistencies relied upon by the BIA are not supported by the record.
LexisNexis: [W]e find that the respondent’s conviction for injury to a child in violation of Texas Penal Code § 22.04(a)(3), does not require “physical force” as defined in 18 U.S.C. § l6(a), and interpreted in Johnson and Stokeling. Thus, the respondent has not been convicted of a crime of violence aggravated felony and is not barred from establishing her eligibility for cancellation of removal.
Law360: Private contractors will no longer be used by U.S. Immigration and Customs Enforcement to make immigration arrests at California jails and prisons, as part of a settlement ICE reached with a detainee represented by the American Civil Liberties Union.
Law360: A 15-year U.S. Department of Homeland Security veteran and an agent who retired from the agency gave secret information to Chinese spies engaged in a harassment and repression campaign against U.S.-based critics of the Chinese government, the U.S. Department of Justice said Thursday.
AILA: The CIS Ombudsman’s Office provides a reminder that USCIS updated the special instructions on its Form I-130, Petition for Alien Relative page to help filers ensure that USCIS sends their form to the correct location after it is approved.
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.
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
Federal Courts at all levels continue to lose credibility because of their adherence to a biased far-right agenda that is bad for American democracy.
Let’s see, the BIA manufactures inconsistencies to reach a bogus “adverse credibility” ruling in an asylum case(9th Cir.). They also ignore clear evidence of the complicity/total ineptitude of the Salvadoran Government in a CAT case (2d Cir.).
Folks, these aren’t contract cases, property disputes, commercial squabbles, or minor misdemeanors. They are life or death matters — persecution and/or torture can result in extreme pain, suffering, permanent damage, and death.Serious matters require serious judging by qualified exert judges!
Meanwhile, a righty panel of poorly qualified 5th Circuitjudges drives over established law on Executive prosecutorial discretion to uphold Trump toady Judge Drew Tipton’s clearly wrong-headed attempt to wrest control of ICE enforcement away from the Biden Administration. This gross judicial malpractice is nothing short of a national disgrace that impugns the integrity of the entire Article III Judiciary.
There are still far too many examples of how Garland is contributing to the problem by failing to root out the deadwood (and worse) at EOIR. He should be bringing in new judicial talent committed to due process, scholarship, and best practices.
A “Better EOIR” would not only begin fixing many of the legal and practical problems plaguing our immigration, human rights, and racial justice systems in America, but also could “model” a better American judiciary for the future. It would be a training ground for future, better qualified, Article III judicial appointments: Folks who actually understand and respect delivering justice at the “retail level” and are committed to serving humanity, not kowtowing to party bosses or wooden, perverse, retrograde ideologies.
It is possible for good judges to solve problems rather than creating them or making them infinitely worse. But, you sure wouldn’t say that is happening with today’s out of touch, ivory tower, and poorly performing Federal Judiciary. A better EOIR could keep cases out of the Circuits, thereby eliminating the opportunity for right-wing ideologues to screw up immigration and human rights laws in their White nationalist restrictionist crusade!
This is a judiciary now dominated by far too many right wing judges who got their jobs by demonstrating a commitment to far righty ideology and furthering the GOP’s political agenda rather than by distinguished legal careers that exemplified courage and improving humanity by insuring fair and reasonable applications and interpretations of the law.
Michelle N. Mendez, ESQ Director of Legal Resources and Training National Immigration Project, National Lawyers Guild PHOTO: NIPNLG
Michelle writes:
Sent: Wednesday, July 6, 2022 7:38 PM
While the facts were definitely bad in this case, I do think the decision provides a helpful framework for a fairly common issue–impeachment leading to adverse credibility– whereas before we did not have a framework and relied on the Federal Rules of Evidence. Through this decision, we now know and can argue that impeachment evidence may contribute to a credibility determination only where the evidence is probative and its admission is not fundamentally unfair, and the witness is given an opportunity to respond to that evidence during the proceedings. It is up to us to enforce these limitations. Furthermore, note a few helpful footnotes. Footnote 3 notes that proceedings were continued after DHS submitted impeachment evidence and both parties were given the opportunity to provide evidence and argument. This is what should happen. Footnote 4 refers to DHS correctly using the evidence as impeachment evidence as opposed to submitting late-filed evidence under the guise of impeachment, which is what usually happens and we must object to. Footnote 5 reminds us tochallenge the IJ’s determination that the border official’s notes are accurate and reliable pursuant to Matter of J-C-H-F-, 27 I&N Dec. 211, 216 (BIA 2018), which is a case we cover during our trial skills trainings. All in all, a bad outcome for this respondent, but a helpful case to the rest of us who want to avoid a similar outcome.
Michelle
N. Méndez | she/her/ella/elle
Director of Legal Resources and Training
National Immigration Project of the National Lawyers Guild
Thanks Michelle, my friend!Please note that Michelle is now Director of Legal Resources & Training at NIPNLG and has provided her new contact information above.
NDPA advocates should also check out these other recent practice advisories from Michelle and her terrific team that transitioned from CLINIC to NIPNLG, two of which were in partnership with ILRC:
Practice Advisory: Understanding and Overcoming Bars to Relief Triggered by a Prior Removal Order (June 29, 2022):
I always offered the respondent a continuance to examine the impeachment evidence. However, few took my offer. I think that was because:
For those in detention, it meant further extending the period of detention;
For those on the always backlogged non-detained docket, continuances often meant months before the hearing could resume.
Instead, most counsel just took my offer of a short recess to examine the evidence and discuss it with the respondent.
As Michelle points out, it will be up to counsel to insure that these rules are enforced. In the “rush to deny for any reason” — still a major “cultural” problem at EOIR that Garland has failed to systemically address — precedents and aspects of precedents favorable to the respondent are too often ignored, glossed over, or distinguished on bogus grounds. It’s up to the NDPA to “hold EOIR Judges’ and ICE ACCs’ feet to the fire” on these points!
Garland had a chance to bring in folks like Michelle and other NDPA superstars to “clean up” EOIR and restore first class scholarship, due process, and fundamental fairness as the mission, but failed to do so. The results of his failure are pretty ugly, especially for those individuals seeking justice in a dysfunctional system where fair, legally correct results are a “crap shoot” 🎲 — at best! It doesn’t have to be that way!
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.
Politico: “We need to wait until the Supreme Court’s decision is actually communicated to the lower court, to the federal District Court and the Northern District of Texas, and, once that occurs, the District Court should lift its injunction that is preventing us from ending the program,” Mayorkas told ABC’s Martha Raddatz.
CNN: Four people have been arrested and charged after 53 migrants died in what one Homeland Security Investigations agent called the deadliest human smuggling incident in US history. The migrants were found in sweltering conditions inside a semitruck in San Antonio on Monday after an employee at a nearby building heard cries for help. See also Deadly Migrant Smuggling Case in Texas Raises Border Policy Concerns.
NYT: After declining for more than a decade, the number of Mexicans seeking to migrate to the United States is surging. Since 2020, a combination of growing violence across Mexico and a worsening economy has led to the first jump in Mexican migration in a decade.
TRAC: New data obtained by TRAC from U.S. Border Patrol (BP) reveals a detailed portrait of the enormous growth in children encountered by BP officers at the US-Mexico border over the past fifteen years. Since FY 2008 there has been a seventeen-fold rise in the numbers of BP apprehensions who are unaccompanied children. See also “No Place for A Child”: In cells built for adults, one-third are child migrants.
Law360: The White House is reviewing upcoming changes to the fees U.S. Citizenship and Immigration Services charges immigrants seeking citizenship and other immigration benefits, with an eye to releasing the proposal in September for public feedback.
Fox: Matthew O’Brien, who was appointed in 2020 as an immigration judge, is a former research director at the Federation for American Immigration Reform (FAIR), a group that calls for lower levels of immigration overall and stricter border policies.
WaPo: Armed with the genealogists’ data, Boustan and Abramitzky have methodically dismantled the myths that have grown up around past generations and revealed some surprising truths. On the whole, immigrants struggle, fail, succeed and assimilate at similar rates. And the ones who assimilate fastest and whose children improve their lot the most are often the ones who faced the most contempt upon arrival.
AP: California on Thursday became the first state to guarantee free health care for all low-income immigrants living in the country illegally, a move that will provide coverage for an additional 764,000 people at an eventual cost of about $2.7 billion a year.
SCOTUSblog: The government’s rescission of Migrant Protection Protocols did not violate Section 1225 of the Immigration and Nationality Act, and the then-Secretary of Homeland Security’s Oct. 29 memoranda constituted valid final agency action.
USCIS: TPS beneficiaries whom DHS has inspected and admitted into TPS under MTINA, subsequent to that inspection and admission, will have been “inspected and admitted” and are “present in the United States pursuant to a lawful admission,” including for purposes of adjustment of status under INA 245. This is true even if the TPS beneficiary was present without admission or parole when initially granted TPS.
BIA: An Immigration Judge may rely on impeachment evidence as part of a credibility determination where the evidence is probative and its admission is not fundamentally unfair, and the witness is given an opportunity to respond to that evidence during the proceedings.
Law360: The Second Circuit held on Tuesday that a dual national asylum-seeker can qualify as a refugee by showing persecution in just one of their countries of nationality, reversing a lower tribunal’s decision.
CA3: For the reasons that follow, we hold that we have jurisdiction to review Barradas-Jacome’s legal argument in the first instance because DHS’s expedited removal procedures do not allow aliens to challenge the legal basis for their removal. We also hold that Barradas-Jacome’s state conviction [for receiving stolen property] is an aggravated felony under the Immigration and Nationality Act(INA), 8 U.S.C. § 1101(a)(43)(G). So we will deny his petition for review.
LexisNexis: During the video conference hearing, Herrera-Alcala was in the Fifth Circuit (Louisiana) and the Immigration Judge was in the Fourth Circuit (Virginia). … Venue under § 1252(b)(2) depends on the location of the Immigration Judge. And the Immigration Judge was in Falls Church, Virginia, making venue proper in the Fourth Circuit.”
LexisNexis: We have recently concluded, however, that the BIA’s reading of Section 1229(a) in Matter of Pena-Mejia is “directly contrary to the Supreme Court’s interpretation of § 1229(a) in Niz-Chavez [v. Garland, 141 S. Ct. 1474 (2021),] which made clear that subsequent notices may not cure defects in an initial notice to appeal.” Rodriguez, 15 F.4th at 355. Thus, we conclude the NTA served on Tamayo-Lara failed to meet the notice requirements of Section 1229(a), and the BIA abused its discretion by failing to reopen Tamayo-Lara’s proceedings. We GRANT Tamayo-Lara’s petition, VACATE the BIA’s decision, and REMAND for further proceedings.”
LexisNexis: Whether these issues satisfy the standard to grant Rondon Antonio’s petition is a question that goes to the ultimate merits which we do not address at this juncture. But his claim is far from frivolous and, in light of his strong showing of irreparable harm, his arguments present a sufficient likelihood of success to weigh in favor of granting a stay pending an appeal on the merits.
Law360: The Ninth Circuit ruled that an ex-temporary protected status holder does not qualify for deportation relief available to long-term residents, saying his receipt of the protected status wasn’t an “admission” to the U.S. that allowed him to begin accruing residency.
Law360: The Ninth Circuit affirmed a Board of Immigration Appeals decision rejecting a Salvadoran man’s second request for deportation relief, saying he was granted a cancellation of a removal order that rendered him ineligible for a second grant under another law.
AILA: The parties reached a settlement to resolve plaintiffs’ motion to enforce, agreeing on standards for medical and physical care as well as legal and educational services the government must provide children held in emergency intake sites (EISs). (Flores, et al. v. Garland, et al., 6/22/22)
AP: Immigrant rights advocates decried the ruling and were looking ahead to a potential appeal…More than a dozen communities across the United States allow noncitizens to cast ballots in local elections, including 11 towns in Maryland and two in Vermont. In San Francisco, noncitizens can vote in school board races; New York City allowed the same for three decades, until its school board was disbanded in 2002. Meanwhile, Alabama, Colorado and Florida have in recent years adopted rules that would preempt any attempts to pass laws like the one in New York City. Arizona and North Dakota already had prohibitions on the books.
AILA: The White House announced the grant of DED and employment authorization through 6/30/24 for Liberian DED beneficiaries as of 6/30/22, and Liberian nationals who have been continuously present in the U.S. since 5/20/17. (87 FR 38871, 6/29/22)
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.
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
“In September 2021, the Secretary of Homeland Security issued a memorandum to his deputies outlining the Department’s immigration enforcement priorities and policies. Arizona, Montana, and Ohio filed this lawsuit in the Southern District of Ohio to enjoin its implementation. The district court issued a “nationwide preliminary injunction,” applicable to all 50 States, blocking the Department from relying on the priorities and policies in the memorandum in making certain arrest, detention, and removal decisions. Our court granted the National Government’s request for a stay pending appeal and ordered expedited briefing and argument. We now reverse the district court’s grant of preliminary injunctive relief.”
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Great news! Finally, Federal Judges who understand PD and reject the White Nationalist BS and mythical (basically fabricated) “injuries” to states. Trump UDSDJs have been an almost unmitigated disaster (surprise). In this case, it was Trump appointee Judge John Michael Newman of the S.D. Ohio who let his righty ideology get in the way of settled law on the Executive’s authority to exercise prosecutorial discretion in immigration cases.
I highlighted the possibility of a long overdue positive intervention by the 6th Circuit, following oral argument, several weeks ago. https://wp.me/p8eeJm-7IH
Welcome as this decision is, it’s not going to have any immediate effect because: 1) the 6th Circuit had already stayed the PI pending appeal; 2) another out of control Trumpy USDJ in the SD Tex, Judge Drew B. Tipton, recently issued a totally unjustified decision purporting to “vacate”the “Mayorkas Memo” nationwide.
Nevertheless, there is some reason to hope that the compelling reasoning of this 6th Circuit decision along with the rationale of the Supremes’ recent decision in Texas v. Biden, rejecting a similar dilatory attempt by nativist state AGs to interfere with the Biden Administration’s termination of the abominable “Remain in Mexico” disgrace, will eventually end this frivolous litigation by GOP state AGs, aided and abetted by some Trump Federal Judges. See, e.g., https://wp.me/p8eeJm-7Lm
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BIDEN ET AL. v. TEXAS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 21–954. Argued April 26, 2022—Decided June 30, 2022
In January 2019, the Department of Homeland Security began to implement the Migrant Protection Protocols (MPP). Under MPP, certain non-Mexican nationals arriving by land from Mexico were returned to Mexico to await the results of their removal proceedings under section 1229a of the Immigration and Nationality Act (INA). MPP was implemented pursuant to a provision of the INA that applies to aliens “arriving on land . . . from a foreign territory contiguous to the United States” and provides that the Secretary of Homeland Security “may return the alien to that territory pending a proceeding under section 1229a.” 8 U. S. C. §1225(b)(2)(C). Following a change in Presidential administrations, the Biden administration announced that it would suspend the program, and on June 1, 2021, the Secretary of Homeland Security issued a memorandum officially terminating it.
The States of Texas and Missouri (respondents) brought suit in the Northern District of Texas against the Secretary and others, asserting that the June 1 Memorandum violated the INA and the Administrative Procedure Act (APA). The District Court entered judgment for respondents. The court first concluded that terminating MPP would violate the INA, reasoning that section 1225 of the INA “provides the government two options” with respect to illegal entrants: mandatory detention pursuant to section 1225(b)(2)(A) or contiguous-territory re- turn pursuant to section 1225(b)(2)(C). 554 F. Supp. 3d 818, 852. Be- cause the Government was unable to meet its mandatory detention obligations under section 1225(b)(2)(A) due to resource constraints, the court reasoned, terminating MPP would necessarily lead to the systemic violation of section 1225 as illegal entrants were released into the United States. Second, the District Court concluded that the June 1 Memorandum was arbitrary and capricious in violation of the APA.
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The District Court vacated the June 1 Memorandum and remanded to DHS. It also imposed a nationwide injunction ordering the Government to “enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA and until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention under [section 1225] without releasing any aliens because of a lack of detention re- sources.” Id., at 857 (emphasis in original).
While the Government’s appeal was pending, the Secretary released the October 29 Memoranda, which again announced the termination of MPP and explained anew his reasons for doing so. The Government then moved to vacate the injunction on the ground that the October 29 Memoranda had superseded the June 1 Memorandum. But the Court of Appeals denied the motion and instead affirmed the District Court’s judgment in full. With respect to the INA question, the Court of Ap- peals agreed with the District Court’s analysis that terminating the program would violate the INA, concluding that the return policy was mandatory so long as illegal entrants were being released into the United States. The Court of Appeals also held that “[t]he October 29 Memoranda did not constitute a new and separately reviewable ‘final agency action.’ ” 20 F. 4th 928, 951.
Held: The Government’s rescission of MPP did not violate section 1225 of the INA, and the October 29 Memoranda constituted final agency action. Pp. 8–25.
(a) Beginning with jurisdiction, the injunction that the District Court entered in this case violated 8 U. S. C. §1252(f )(1). See Garland v. Aleman Gonzalez, 596 U. S. ___, ___. But section 1252(f )(1) does not deprive this Court of jurisdiction to reach the merits of an appeal even where a lower court enters a form of relief barred by that provision. Section 1252(f )(1) withdraws a district court’s “jurisdiction or authority” to grant a particular form of relief. It does not deprive lower courts of all subject matter jurisdiction over claims brought under sections 1221 through 1232 of the INA.
The text of the provision makes that clear. Section 1252(f )(1) deprives courts of the power to issue a specific category of remedies: those that “enjoin or restrain the operation of ” the relevant sections of the statute. And Congress included that language in a provision whose title—“Limit on injunctive relief ”—makes clear the narrowness of its scope. Moreover, the provision contains a parenthetical that explicitly preserves this Court’s power to enter injunctive relief. If section 1252(f )(1) deprived lower courts of subject matter jurisdiction to adjudicate any non-individual claims under sections 1221 through 1232, no such claims could ever arrive at this Court, rendering the specific carveout for Supreme Court injunctive relief nugatory.
Cite as: 597 U. S. ____ (2022) 3 Syllabus
Statutory structure likewise confirms this conclusion. Elsewhere in section 1252, where Congress intended to deny subject matter jurisdiction over a particular class of claims, it did so unambiguously. See, e.g., §1252(a)(2) (entitled “Matters not subject to judicial review”). Finally, this Court previously encountered a virtually identical situation in Nielsen v. Preap, 586 U. S. ___, and proceeded to reach the merits of the suit notwithstanding the District Court’s apparent violation of section 1252(f )(1). Pp. 8–13.
(b) Turning to the merits, section 1225(b)(2)(C) provides: “In the case of an alien . . . who is arriving on land . . . from a foreign territory contiguous to the United States, the [Secretary] may return the alien to that territory pending a proceeding under section 1229a.” Section 1225(b)(2)(C) plainly confers a discretionary authority to return aliens to Mexico. This Court has “repeatedly observed” that “the word ‘may’ clearly connotes discretion.” Opati v. Republic of Sudan, 590 U. S. ___, ___.
Respondents and the Court of Appeals concede that point, but urge an inference from the statutory structure: because section 1225(b)(2)(A) makes detention mandatory, they argue, the otherwise- discretionary return authority in section 1225(b)(2)(C) becomes mandatory when the Secretary violates that mandate. The problem is that the statute does not say anything like that. The statute says “may.” If Congress had intended section 1225(b)(2)(C) to operate as a mandatory cure of any noncompliance with the Government’s detention obligations, it would not have conveyed that intention through an unspoken inference in conflict with the unambiguous, express term “may.” The contiguous-territory return authority in section 1225(b)(2)(C) is discretionary—and remains discretionary notwithstanding any violation of section 1225(b)(2)(A).
The historical context in which section 1225(b)(2)(C) was adopted confirms the plain import of its text. Section 1225(b)(2)(C) was added to the statute more than 90 years after the “shall be detained” language that appears in section 1225(b)(2)(A). And the provision was enacted in response to a BIA decision that had questioned the legality of the contiguous-territory return practice. Moreover, since its enactment, every Presidential administration has interpreted section 1225(b)(2)(C) as purely discretionary, notwithstanding the consistent shortfall of funds to comply with section 1225(b)(2)(A).
The foreign affairs consequences of mandating the exercise of contiguous-territory return likewise confirm that the Court of Appeals erred. Interpreting section 1225(b)(2)(C) as a mandate imposes a significant burden upon the Executive’s ability to conduct diplomatic relations with Mexico, one that Congress likely did not intend section 1225(b)(2)(C) to impose. And finally, the availability of parole as an
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alternative means of processing applicants for admission, see 8 U. S. C. §1182(d)(5)(A), additionally makes clear that the Court of Ap- peals erred in holding that the INA required the Government to continue implementing MPP. Pp. 13–18.
(c) The Court of Appeals also erred in holding that “[t]he October 29 Memoranda did not constitute a new and separately reviewable ‘final agency action.’ ” 20 F. 4th, at 951. Once the District Court vacated the June 1 Memorandum and remanded to DHS for further consideration, DHS had two options: elaborate on its original reasons for taking action or “ ‘deal with the problem afresh’ by taking new agency action.” Department of Homeland Security v. Regents of Univ. of Cal., 591 U. S. ___, ___. The Secretary selected the second option from Regents: He accepted the District Court’s vacatur and dealt with the problem afresh. The October 29 Memoranda were therefore final agency action for the same reasons that the June 1 Memorandum was final agency action: Both “mark[ed] the ‘consummation’ of the agency’s decisionmaking process” and resulted in “rights and obligations [being] determined.” Bennett v. Spear, 520 U. S. 154, 178.
The various rationales offered by respondents and the Court of Ap- peals in support of the contrary conclusion lack merit. First, the Court of Appeals erred to the extent it understood itself to be reviewing an abstract decision apart from the specific agency actions contained in the June 1 Memorandum and October 29 Memoranda. Second, and relatedly, the October 29 Memoranda were not a mere post hoc rationalization of the June 1 Memorandum. The prohibition on post hoc rationalization applies only when the agency proceeds by the first option from Regents. Here, the Secretary chose the second option from Re- gents and “issue[d] a new rescission bolstered by new reasons absent from the [June 1] Memorandum.” 591 U. S., at ___. Having returned to the drawing table, the Secretary was not subject to the charge of post hoc rationalization.
Third, respondents invoke Department of Commerce v. New York, 588 U. S. ___. But nothing in this record suggests a “significant mis- match between the decision the Secretary made and the rationale he provided.” Id., at ___. Relatedly, the Court of Appeals charged that the Secretary failed to proceed with a sufficiently open mind. But this Court has previously rejected criticisms of agency closemindedness based on an identity between proposed and final agency action. See Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 U. S. ___, ___. Finally, the Court of Appeals erred to the extent it viewed the Government’s decision to appeal the District Court’s in- junction as relevant to the question of the October 29 Memoranda’s status as final agency action. Nothing prevents an agency from under- taking new agency action while simultaneously appealing an adverse
Cite as: 597 U. S. ____ (2022) 5 Syllabus
judgment against its original action. Pp. 18–25. 20 F. 4th 928, reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined. KAVANAUGH, J., filed a concurring opinion. ALITO, J., filed a dissenting opinion, in which THOMAS and GORSUCH, JJ., joined. BARRETT, J., filed a dissenting opinion, in which THOMAS, ALITO, and GORSUCH, JJ., joined as to all but the first sentence.
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Credit where credit is due. At least in this particular case, Chief Justice Roberts and the much-maligned Justice Kavanaugh probably have saved many lives of already-born humans.
Breyer’s “Last Hurrah.” I think this was Justice Breyer’s last case, fittingly a victory for reasonableness and humanity. As of noon today, he was succeeded by Justice Ketanj Brown Jackson, the first African American female Justice! Good luck to her. I hope she can convince her right-wing colleagues to “do the right thing” on at least a few cases!
Not out of the woods yet? The case now goes back to to the 5th Circuit and a Trumpy USDJ — not the best forum for asylum applicants seeking justice.
Will they do better? Ending the toxic, inhumane, and ineffective “Remain in Mexico Program” is one thing. Replacing it with a viable asylum adjudication system that will actually efficiently grant protection to the many refugees at our border who have been victims of a biased, anti-asylum, non-expert decision-making process is quite another.It starts with tossing the BIA and the many EOIR Judges who aren’t following asylum law and aren’t able to grant asylum and replacing them with real expert judges who can get the job done, positively guide Asylum Officers, and make sure they follow proper legal interpretations. To date, that’s been something that Garland and the Administration have been unwilling and/or unable to do — at least to the extent required to make due process, fundamental fairness, and the rule of law functional at our borders.
Glimmer of hope (maybe)? In her dissent, Justice Amy Coney Barrett went to great lengths to come up with reasons not to take jurisdiction over this “life or death” matter in its current posture. But, unlike the other three dissenters, she stated that she agreed with the majority “on the merits” of the case. That makes it at least possible that there could be as many as six potential votes for fair and humane treatment of asylum applicantsby the Administration if the jurisdictional hurdle can be overcome. No guarantees. But something to think about — particularly in light of Alito’s snarky, White Nationalist nonsense and anti-immigrant myths reflected in his separate dissenting opinion.
Alioto defines “rock bottom” judicial performance. For example, in the first paragraph of his dissent, Alito says this:
In fiscal year 2021, the Border Patrol reported more than 1.7 million encounters with aliens along the Mexican border.1 When it appears that one of these aliens is not admissible, may the Government simply release the alien in this country and hope that the alien will show up for the hearing at which his or her entitlement to remain will be decided?
First he mis-states the law. By no means are all individuals who come to the border or are apprehended in the vicinity thereof entitled to “hearings” on admissibility. All of those without entry documents are subject to summary removal by a DHS Enforcement Agent. Only those who claim a fear of return to their home countries are entitled to an expeditious review of their claims by a (supposedly) well-trained Asylum Officer. Further, only those who establish the necessary “credible fear” of harm (or in some cases a “reasonable fear”) are entitled to have their cases for asylum determined on the merits by either an Asylum Officer or an EOIR Immigration Judge (or both). So, many of those appearing at the border are summarily removed without any hearings at all.
Thousands of those who pass credible fear and are awaiting “merits hearings” are imprisoned in DHS facilities in conditions that probably would fail constitutional scrutiny if applied to convicted felons. Those poor conditions are intended, at least in part, to demoralize and coerce individuals into abandoning claims for protection. They also exponentially decrease the chances of receiving competent pro bono representation and documenting and presenting their cases for life-preserving protection. This is significant, because they too often face EOIR judges with questionable expert judicial qualifications who are essentially “programmed to deny asylum.” Indeed, a “Garland gimmick” for recent arrivals — so-called “expedited dockets” — produced nearly 100% asylum denials as compared with the nationwide rate of 67%. For years, ICE detention centers, many of them operated by private contractors, have been notorious as places “where asylum cases go to die.”
Contrary to the bogus implication of Alito’s statement that one has to “hope” that individuals show up for hearings, many have immigration bonds — some punatively high. When given a chance to obtain qualified representation, and thereby to understand the system and their obligations thereunder, the vast majority of asylum applicants voluntarily appear at their hearings (some many times due to the EOIR practice of “Aimless Docket Reshuffling”), win or lose. And, perhaps not surprisingly, they succeed in winning their cases at rates that are many times higher than those forced to proceed without representation.
Indeed, a government actually interested in making the legal system work, rather than ginning up nativist myths about asylum seekers, would cut the “cruel and inhumane gimmicks” like “Remain in Mexico” and detention in the “New American Gulag” (NAG”) and instead invest in training competent pro bono or “low bono” representatives, temporarily resettling applicants to those jurisdictions with good NGOs and where the Immigration Judges are known to be scholarly and fair in evaluating asylum cases, and replacing poorly qualified Immigration Judges with experts able to competently perform these life or death functions at the “retail level” of our justice system in a fair and efficient matter consistent with due process.
Alito also repeats, apparently for prejudicial dramatic effect, the oft-used but potentially misleading figure of 1.7 million “encounters” by CBP. But, since the legal asylum system at our border was improperly dismantled by the Trump Administration, many of these represent the same individual or individuals, repeatedly encountered and illegally returned without any process whatsoever, who seek only the legal forum to present their claim to authorities to which they are entitled under both domestic and international law. This right has been systematically denied to them by both the Trump and Biden Administrations and by mal-functioning Federal Judges, at all levels, who have failed to uphold the rule of law as it applies to the most vulnerable among us. Additionally, a knowledgeable jurist would take any statistics furnished by the notoriously unreliable DHS with a “grain of salt.”
The lack of understanding of how immigration law operates, the nativist-driven misinterpretations by the Trump Administration embodied in this dissent, and the lack of intellectual integrity in furthering nativist myths and intentional exaggerations to describe a group of individuals who merely seek legal justice under both our laws and international standards is a graphic illustration of who does not belong on our highest Court. If we are really committed to equal justice and fundamental fairness in the American justice system, we should insist that all of those nominated for our Supreme Court demonstrate significant experience representing individual foreign nationals in the Immigration Courts — the “life or death retail level” of our justice system.
Right now, those so-called “courts” are an embarrassing and dysfunctional “parody of justice” to which neither Justice Alito nor any of his colleagues would want to submit their own lives and futures or those of anyone they truly cared about. That’s the very definition of dehumanization and “Dred Scottification of the other” that Justice Alito seems so curiously eager to advance. Perhaps, that’s because he lacks the necessary empathy and perspective to see life from “the other side of the bench” as the rest of humanity does.
I’d like to think that Alito is capable of change and growth. Most, if not all, humans are. After all, he’s appointed for life, so he isn’t going anywhere soon. But, I won’t hold my breath.
Wendy Young President, Kids In Need of Defense (“KIND”)
Dear Paul –
The entire team at Kids In Need of Defense is devastated by the news that at least 46 people were found dead in an abandoned tractor-trailer in Texas and more than a dozen others in the truck, including children, were taken to local hospitals for treatment. While we wait for more details to emerge, we wanted to share the following statement from our President, Wendy Young.
“As rising violence, natural disasters, and other threats force migrants to make impossible choices in their quest to find safety, our nation’s response cannot be to place families and children in further harm by indefinitely closing our borders to people seeking protection and ignoring the dangers they face in their home countries. This most recent tragedy and the disturbing rise in migrant deaths globally underscore the need to create safer pathways to protection for refugees. The Biden Administration should see this heartbreaking tragedy for what it is, a clarion call to abandon deeply flawed and dangerous immigration policies. It must reinstate humane and orderly processing, including reopening official ports of entry, hiring child welfare experts to care for and screen children, and provide fair adjudication of protection claims. It is time for the United States to regain its footing as a leader in the protection of migrant families and children.”
– The KIND Team
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The key part of Wendy’s statement: “including reopening official ports of entry, hiring child welfare experts to care for and screen children, and provide fair adjudication of protection claims.”
Denial rates for recent arrivals who manage to get hearings (see, e.g., Garland’s bogus “dedicated dockets,” — actually “dedicated to denial” and nothing else), many of them children and unrepresented, hover around 100%. They are “guided” by a “largely holdover,” anti-asylum BIA that lacks true asylum expertise and issues no positive precedents instructing judges on how to consistently and legally grant asylum. Consequently, there is no “fair adjudication” of asylum claims. That feeds the toxic nativist myth that nobody at the Southern Border is a “legitimate” asylum seeker.
Unless and until Garland tosses the unqualified jurists at EOIR and replaces them with experts committed to due process, fundamental fairness, and correct, generous, practical precedents and proper applications of asylum law, the system will remain in failure. It’s a monumental mistake by the Biden Administration not to fix that which they absolutely control — starting with the Immigration Courts at EOIR.
Refugees will continue to die at the hands of smugglers who were given control of our immigration system by the Trump Administration and remain empowered by Garland’s & Mayorkas’spoor performance combined with biased, White Nationalist, Federal Judges appointed by Trump at all levels of our failing justice system!
Today’s WashPost editorial described how far-right nativists have basically turned our immigration system over to smugglers:
The absence of any workable legal system that would admit migrants systematically, in numbers that would meet the U.S. labor market’s demand, is the original sin of the chaos at the border. That is Congress’s bipartisan failure, a symptom of systemic paralysis for many years. More recently, a public health rule has had the effect of incentivizing unauthorized migrants to make multiple attempts to cross the border. The rule, imposed by the Trump administration, retained for more than a year by the Biden administration, and now frozen in place by Republican judges, allows border authorities to swiftly expel migrants, but with no asylum hearings or criminal consequences for repeated attempts to cross the border. That has been a boon to migrant smuggling networks.
I take issue with the term “bipartisan failure” in the legislative context. It’s true that the Dems inexplicably squandered a golden chance to fix many immigration problems when they had 60 votes in the Senate in Obama’s first two years. But, before and after that time, the failure to achieve realistic, humane, robust legal immigration reform legislation has been on the nativist right of the GOP that now dominates the party. Pretending otherwise is useless and dishonest.
All of these proposals would have made long-overdue, common sense reforms to eliminate hopeless backlogs, benefit our economy, strengthen our legal system, and facilitate better allocation of Government resources. Yet, there has been scant GOP interest in improving the system. The GOP appears to believe that promoting a dysfunctional immigration system, denying human rights, and guaranteeing a large “extralegal population” available as scapegoats and exploitable labor best serves their parochial political interests.
And, speaking of useless and dishonest, here’s Leon Krausze, WashPost Global Opinions Contributor, on how the disingenuous performance of Texas Governor Greg Abbott and Mexican President Andres Manuel Lopez Obrador has helped fuel both resurgent Mexican migration and unnecessary deaths at or near the border. https://www.washingtonpost.com/opinions/2022/06/29/san-antonio-migrant-deaths-trailer-mexico-amlo/.
The “good guys” — those committed to due process, fundamental fairness, individual rights, equal justice, scholarship, and human dignity — need to fight back at every level of our political and judicial systems — while they still exist! Because if the GOP has its way, that won’t be for long!🏴☠️
Family Pictures Nolan Rappaport Opinion Writer The HillYael Schacher Historian Deputy Director Refugees InternationalHon. Paul Wickham Schmidt U.S. Immigration Judge (Ret.) Adjunct Professor, Georgetown Law Blogger, immigrationcourtside.com.
Biden’s ‘Summit of the Americas’ commitments on immigration more show than substance
Nolan Rappaport, opinion contributor
Former President Bill Clinton established the Summit of the Americas in 1994, to bring all of the countries in the Western Hemisphere — except Cuba — together for discussions on trade, immigration, and democracy. President Joe Biden hosted the event this year.
The participants recorded their immigration agreements in the Los Angeles Declaration on Migration and Protection. It represents a regional partnership to address historic migration flows affecting most of the countries in the region.
The declaration was signed by 20 countries in the region that are committed to protecting the safety and dignity of all migrants, refugees, and asylum seekers, and respecting their human rights and fundamental freedoms. They intend to cooperate to facilitate safe, orderly, humane, and regular migration, consistent with national legislation, the principle of non-refoulement, and their respective obligations under international law.
But will they keep their commitments?
The last line in the declaration acknowledges that its commitments are not legally binding.
Yael Schacher, deputy director of Refugees International, says, “summits have traditionally been a parade of promises that are never fulfilled.”
According to Georgetown Law immigration professor, Paul Schmidt, the declaration is just “more empty rhetoric.”
Highlights
International financial assistance may be needed by the countries the migrants come from and the countries that host large numbers of them after they have left their own countries.
A fact sheet summarizes financial contribution commitments. For instance, the United States commits to making a contribution of an additional $25 million to the Global Concessional Financing Facility, which assists Latin American countries with programs for providing refuge to displaced migrant and refugee populations.
The United States also commits to contributing $314 million in additional funding for humanitarian and development assistance for refugees and other vulnerable migrants.
The United States will establish a $65 million pilot program to support U.S. farmers hiring temporary agricultural workers under the H-2A program.
And the United States commits to expanding its efforts to address the root causes of irregular migration throughout the hemisphere. The Biden administration previously had proposed allocating $4 billion to Central America over four years, including $860.6 million in fiscal 2022.
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at https://www.blogger.com/blog/posts/2306123393080132994
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Head on over to The Hill to read Nolan’s full article. Internet “hits” help keep him in business!
Always a pleasure to be quoted along with my friend and super-scholar Yael Schacher — a trained historian/archivist in possession of what’s left of the “Schmidt archives!” (Yael stopped me several boxes into my project of using them to fuel our back-yard fire pit. But, Yael’s timely intervention still helped me fulfill my “promise upon retirement” to Cathy to get my boxes of papers out of the attic, basement, and garage. Also, after recently serving as an executor for my cousin, I’m sure our children will be grateful.)
Asylum seekers, with their lives on the line, deserve fair, competent, experienced, nationally-recognized experts in asylum and immigration law as judges at all levels of EOIR, starting with the BIA. Instead, Garland appears to be running a refuge for the guy pictured above. Creative Commons License
Dan Kowalski reports for LexisNexis Immigration Community:
CA2 Rejects Matter of B-R-: Zepeda-Lopez v. Garland
“Petition for review of a decision of the Board of Immigration Appeals entered December 14, 2018, dismissing an appeal from the decision of an Immigration Judge denying asylum and the withholding of removal to petitioners, who are dual citizens of Honduras and Nicaragua, and their relatives. The agency denied relief based on Matter of B-R-, where the BIA held that to qualify as a “refugee” under the Immigration and Nationality Act, dual nationals must show persecution in both their countries of nationality. 26 I. & N. Dec. 119, 121 (B.I.A. 2013). The agency determined that while petitioners demonstrated persecution in Honduras, they did not show persecution in Nicaragua, and it concluded that they were not refugees and therefore not eligible for asylum. We grant the petition for review and hold that, to qualify as a “refugee” under the INA, a dual national asylum applicant need only show persecution in any singular country of nationality. PETITION GRANTED, BIA DECISION VACATED, AND CASE REMANDED. … We hold that to be considered a “refugee” under § 1101(a)(42)(A), a dual national need only show persecution in any singular country of nationality. Accordingly, we GRANT the petition for review, VACATE the BIA’s December 14, 2018, decision, and REMAND to the BIA for further proceedings in accordance with the proper legal standard. … [T]he INA unambiguously requires an applicant for asylum to show well-founded fear of persecution in any one country of the applicant’s nationality rather than in all such countries. … As the statutory text unambiguously provides that dual nationals need show persecution only in any singular country of nationality to qualify as a refugee under the INA, we need not defer to the BIA’s interpretation of § 1101(a)(42)(A). In any event, the BIA’s interpretation is unreasonable; Matter of B-R- required dual nationals to show well-founded fear of persecution in both countries of nationality. 26 I. & N. Dec. at 121. Such a reading is manifestly contrary to the text of the INA.”
I once used a similar fact situation as a final exam question in my “Refugee Law & Policy” class at Georgetown Law. It tested whether students could spot and develop a possible “Chevron challenge” to Matter of B-R-! I’m going to give the 2d Circuit an “A” on this one! The BIA gets an “F.”
Prior to B-R-, I had one of these cases in Arlington. I granted based on the plain meaning of the statute. I think the DHS waived appeal.
Bad law/bad policy/bad judging. In Matter of B-R-, the BIA stretched and ignored the statute to find a way to deny asylum to a journalist threatened by the Chavez Government of Venezuela — no “friend” of the U.S! He had little apparent contact with Spain, of which the IJ found he was a dual national, other than that his father was born there.
The respondents in Zepeda-Lopez were found to have suffered persecution in Honduras. They were ordered removed to Nicaragua, a country with a horrible human rights record and whose government has been condemned by the U.S.
Why would a competent BIA ignore the statutory language and misinterpret the law to achieve such highly problematic (one might argue downright dumb) results when a better, legally correct interpretation — merely following the statute (not “rocket science” 🚀) — would have produced more sensible results?
One possible conclusion: The BIA is “preprogrammed” to consider “denial of protection” under a statute designed for protection as the “preferred result.” Consequently, they will manipulate and misconstrue the law (and sometimes facts) to achieve removals that make neither legal nor policy sense.
With lots of better qualified, fair asylum experts out there who could be BIA judges, why is Garland employing the “B-Team” (at best) mostly selected by his predecessors, in these important, non-life-tenured quasi-judicial positions?
America needs a fair, functional, generous, realistic, practicalasylum system. It’s not achievable without a massive and much needed shakeup at the BIA and the trial courts at EOIR!
Bad judging, from the bottom to the very top of our justice system, by those disconnected from both the law and the human consequences of their lousy decisions, is helping to rip our nation apart. Garland has a golden opportunity to fix the “retail level” of our judiciary at EOIR. Why isn’t he getting the job done? Can our nation live with the consequences of his failure?
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.
The 6/10/22 order in Texas v. United States vacating the memo went into effect 6/24/22 and has not been stayed at this time. Regardless of the memo, it is important to continue arguing that prosecutorial discretion is a longstanding executive power and DHS retains the ability to join motions, stipulate to relief, etc. See Practice Alert: Judge Tipton Issues Decision Vacating Mayorkas Enforcement Priorities Memo.
USCIS: Where community levels are high, all federal employees and contractors—as well as visitors two years old or older—must wear a mask inside USCIS offices and physically distance regardless of vaccination status. Check CDC Level for Your Field Office.
Bustle: At a base level, the abortion restrictions detained women face are similar to the ones that low-income women face across the country because of the Hyde Amendment. For more than 40 years, the Hyde Amendment has prevented women on Medicaid from using federally funded insurance to pay for abortions, except in cases of rape, incest, or danger to the mother’s life. The same type of language exists in appropriations bills and healthcare regulations for all facets of the federal government, including the Immigration and Customs Enforcement agency.
AP: The Border Patrol paroled more than 207,000 migrants who crossed from Mexico from August through May, including 51,132 in May, a 28% increase from April, according to court records. In the previous seven months, it paroled only 11 migrants.
Guardian: At least 71,000 Ukrainians have entered the US since March, with Joe Biden’s pledge to welcome 100,000 people fleeing the Russian invasion on track to be met over the summer.
Bloomberg: The amendment, which faces a long path to the finish line in the appropriations process, would allow DHS to recapture family and employment-based visas that went unused due to bureaucratic snags, processing delays, and other disruptions since 1992.
AIC: Data analyzed by the Cato Institute shows that since Fiscal Year 2008, USCIS denied about 8% of employer-sponsored immigrants while the average denial rate by consular officers was 63%.
Law360: The Biden administration announced plans to issue a final Deferred Action for Childhood Arrivals rule by August and continue its efforts to undo multiple Trump-era regulations. Here are the main immigration highlights from the administration’s regulatory agenda for spring 2022.
WaPo: Critics of the measure say it perpetuates a false scarcity problem at a time when Virginia has a budget surplus, and it demands that lawmakers sacrifice one needy group of students for another.
Forbes: In a new book describing her years during the Trump administration, former Education Secretary Betsy DeVos revealed a plan by Stephen Miller to identify children at school for deportation under the pretext of checking for gang members.
Law360: The Biden administration has agreed to impose new living and sanitary standards on temporary emergency facilities housing hundreds of migrant children to resolve advocates’ claims that it was holding minors in unsafe and unsanitary conditions.
The Advocate: Immigration judges in Louisiana have denied asylum claims at a higher rate than almost any other courts in the nation over the past five years, according to federal data. However, a new federal rule might downsize their role in asylum proceedings.
CNN: The justices are considering whether the Biden administration can terminate a Trump-era border policy known as “Remain in Mexico.” Lower courts have so far blocked Biden from ending the policy.
SCOTUS: The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Tenth Circuit for further consideration in light of Matter of B-Z-R-, 28 I&N Dec. 563 (A.G. 2022).
BIA: A respondent who raises an objection to missing time or place information in a notice to appear for the first time in a motion to reopen has forfeited that objection.
Law360: A Dominican man got a new chance to fight his deportation on Tuesday when the Third Circuit ruled that his felony conviction under Pennsylvania’s fleeing and eluding law didn’t necessarily amount to a crime of moral turpitude.
LexisNexis: For years, Petitioner Javier Garza-Flores did not believe he had a valid claim to U.S. citizenship. But now he thinks that he does. And he has presented documentary evidence sufficient to demonstrate, at a minimum, a genuine issue of material fact concerning his claim of U.S. citizenship. That is enough to warrant a factual proceeding before a federal district court to determine his citizenship.
CA7: The Board’s main quibble was with the relevance of that evidence to an Ethiopian citizen, which it assumed Menghistab to be. But that assumption was not warranted on the record that was before the Board. Denying the motion to reopen without a full hearing addressing Menghistab’s citizenship and its materiality to his risk of torture was therefore an abuse of discretion.
Law360: The Ninth Circuit on Friday granted a Salvadoran’s request to have the Board of Immigration Appeals review claims that he would be tortured if sent back to the Central American country, saying the board originally failed to consider all possible risk sources.
Law360: U.S. Customs and Border Protection and Davis Wright Tremaine LLP have settled a Freedom of Information Act suit the firm filed over reports the agency decided Canadian cannabis workers weren’t eligible to enter the U.S., which led to an overturned internal document contradicting officials.
Law360: A Boston federal jury has found a construction company and its owner liable for retaliating against an employee by reporting him to immigration authorities after his on-the-job injury triggered a workplace investigation, awarding $650,000 in damages.
USCIS: A noncitizen who again seeks admission more than 3 or 10 years after the relevant departure or removal, is not inadmissible under INA 212(a)(9)(B) even if the noncitizen returned to the United States, with or without authorization, during the statutory 3-year or 10-year period
CBS: While the suspension of ICE’s arrest prioritization scheme is unlikely to place the country’s estimated 11 million unauthorized immigrants in immediate danger of being arrested, the absence of national standards could lead to inconsistent enforcement actions across the U.S., including arrests of immigrants whom agents were previously instructed not to detain, legal experts said.
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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
Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
According to a new book from former Trump Education Secretary Betsy DeVos:
“Over the din of patrons slurping lattes and crunching salads, Miller’s men described a plan to put U.S. Immigration and Customs Enforcement (ICE) agents into schools under the pretext of identifying MS-13 gang members. The plan was, when agents checked students’ citizenship status for the alleged purpose of identifying gang ties, they could identify undocumented students and deport them. Not only was the prospect of this chilling, but it was also patently illegal. Nate and Ebony turned them down cold. But that didn’t stop Stephen Miller from subsequently calling me to get my thoughts on the idea.
For years, the BIA has had standard practice of giving short shrift to potentially valid claims for protection under the Convention Against Torture (“CAT”). Without meaningful analysis they simply cite John Ashcroft’s infamous “no CAT precedent” in Matter of J-F-F-,23 I&N Dec. 912 (A.G. 2006), requiring that “each link in the chain of torture be proved to be probable.”
Since there is almost always some allegedly “weak link in the chain” that’s an “easy handle” for denial.Also, The IJ and the BIA can “lengthen the chain” or ignore the evidence as necessary to “get to no.” In the process, compelling evidence of likelihood of torture from qualified expert witnesses is either ignored or minimized — again, without much analysis. That’s how the “denial factory” in Falls Church can keep churning out CAT rejections even to countries where torture is rampant and either furthered or willfully ignored by the repressive governments.
At least in the 9th Circuit, the BIA will now have to go “back to the drawing board” for denying CAT and returningindividuals to countries where torture with government participation or acquiescence is likely. The 9th Circuit case rejecting the BIA’s “formula for denial” is Velasquez-Samayoa v. Garland. Here’s a link in addition to the one provided by Elizabeth.https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca9-on-cat-velasquez-samayoa-v-garland
Louisiana has long been one of a number of EOIR “courts” — these are actually “prison courts” — where “asylum cases go to die.” The deadly combination of bad Immigration Judges, lack of skilled immigration attorneys able to take these cases pro bono, coercive use of detention in out of the way places in substandard conditions, a “denial oriented” BIA stacked by the Trump DOJ and not “unstacked by Garland,” and an indolent, often virulently anti-asylum 5th Circuit add up to potential death sentences for individuals who could gain protection under a system where due process and fundamental fairness were respected and followed.
As the report in The Advocate referenced by Elizabeth shows, Garland has failed to reform and improve this blot on American justice. And, there is little chance that assigning the cases to USCIS Asylum Office in the first instance under new regulations in this intentionally toxic environment is going to promote justice or efficiency.
One might view the wide discrepancy between “positive credible fear findings” and asylum grants in Immigration Court as a sign of a sick and dying EOIR, not lack of merit for the claims. With less detention, more representation, better Immigration Judges, and a new BIA of true asylum experts willing to grant protection rather than “engineer rejection,” I’ll bet that many, perhaps a majority, of the outcomes would be more favorable to applicants.
As noted by Mitch Gonzalez of the SPLC in the article, “dehumanization,” “de-personification,” and “Dred Scottification,” along with cruelty are the objects of what’s going on at EOIR in Louisiana. The “fit” with the Trump/Miller White Nationalist anti-immigrant program is obvious. What’s less obvious is why Garland and the Biden Administration haven’t intervened to make the necessary changes to restore EOIR in Louisiana and elsewhere to at least some semblance of a fair and impartial “court system.”
SAN ANTONIO — At least 40 migrants were found dead in the back of a tractor-trailer in San Antonio Monday, according to two federal law enforcement officials briefed on the horrific finding.
Rescuers pulled at least 15 others from the vehicle and they were taken for medical treatment, said one of the officials, who spoke on the condition of anonymity to provide preliminary information.
The truck was found by agents from Homeland Security Investigations, a branch of U.S. Immigration and Customs Enforcement that specializes in human trafficking cases, one of the officials said. HSI agents are leading the investigation.
. . . .
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Developing story. Read the complete version at the above link.
Anti-Asylum Judges In Action! Factual distortions, ignoring evidence, and misapplications of the law are some of the “weapons” wielded by some EOIR judges to stop asylum seekers from getting the life-saving legal protections they deserve! Article III Courts can compound the problem by mis-using “deference” to avoid critical examination of the frequent abuses of humanity and the rule of law inflicted by this parody of a court system. Albrecht Dürer, Public domain, via Wikimedia Commons
ONE TINY STEP FOR MANKIND: But It’s Going To Take Much More Than Finally Replacing A Few Stunningly Unqualified Judges To Save EOIR!
By Paul Wickham Schmidt
Courtside Exclusive
June 25, 2022
Over the last few weeks the long overdue and essential process of weeding out poorly qualified Immigration Judges — still on “probation” at EOIR — finally got off to a very modest start.
Imagine yourself as a refugee fighting for your life in an asylum system that’s already stacked against you and where the “judges” work for the Attorney General, part of the Executive Branch’s political and law enforcement apparatus.
How would you like your life to be in the hands of (now) former Immigration Judge Matthew O’Brien. He was appointed in 2020 by former AG Bill Barr — a staunch defender of the Trump/Miller White Nationalist, xenophobic, anti-immigrant agenda.
Nativism A “Qualification?”
What made O’Brien supposedly “qualified” to be a “fair and impartial” administrative judge?
Thankfully, O’Brien will pass into history. But, the damage inflicted by the “official policy of child abuse” will adversely affect generations.
Or, perhaps it was O’Brien’s intimate connection with a leading nativist group. Immediately prior to his appointment, he was the “Research” Director for the Federation for American Immigration Reform (“FAIR”) — a group renowned for sloppy to non-existent “research” and presenting racially-motivated myths and fear mongering as “facts.”
As noted by Nowrasteh, that’s not the only example of FAIR providing “bogus research papers” designed to “rev up hate” and demean the contributions of immigrants both documented and undocumented.
The Anti-Defamation League (“ADL”), one of America’s most venerable anti-hate, anti-misinformation groups, founded more than a century ago “To stop the defamation of the Jewish people and to secure justice and fair treatment to all,” had this to say about O’Brien’s former employer:
While the majority of the extreme anti-immigrant sentiment in the U.S. emanates from fringe groups like white supremacists and other nativists, there are a number of well-established anti-immigrant groups such as Federation for American Immigration Reform (FAIR), Center for Immigration Studies (CIS), NumbersUSA and The Remembrance Project which have secured a foothold in mainstream politics, and their members play a major role in promoting divisive, dangerous rhetoric and views that demonize immigrants. A number of these groups have attempted to position themselves as legitimate advocates against “illegal immigration” while using stereotypes, conspiracy theories and outright bigotry to disparage immigrants and hold them responsible for a number of societal ills. A decade ago, most of this bigotry was directed primarily at Latino immigrants, but today, Muslim and Haitian immigrants, among others, are also targeted.
. . . .
There is a distinct anti-immigrant movement in this country, whose roots can be traced back to the 1970s. Groups such as the Federation for American Immigration Reform (FAIR) and Center for Immigration Studies (CIS) hope to influence general audiences with somewhat sanitized versions of their anti-immigrant views. In their worldview, non-citizens do not enjoy any status or privilege, and any path to citizenship for undocumented immigrants or refugees is portrayed as a threat to current citizens. Like some other problematic movements, the anti-immigrant movement also has a more extreme wing, which includes border vigilante groups, as well as groups and individuals that seek to demonize immigrants by using racist, sometimes threatening language.
So, perhaps, you say, once actually “on the bench,” Judge O’Brien was able to overcome his biases and knowledge gaps and function as a fair and impartial judicial officer. Nope! Not in the cards!
According to TRAC, O’Brien denied almost every asylum case he heard (96.4% denials). That was, astoundingly, nearly 40% above the average of his colleagues in Arlington and nearly 30% higher than the nationwide asylum denial rate of approximately 67%.
But, to put this in perspective, we have to recognize that this denial rate had already been intentionally and artificially increased by a expanded,”packed,” politicized, “weaponized,” and intentionally “dumbed down” EOIR during the Sessions/Barr era at DOJ. For example, approximately 10 years ago, more than 50% of asylum, cases were being granted annually nationwide, and approximately 75% of the asylum cases in Arlington were granted. See, e.g., https://trac.syr.edu/immigration/reports/judge2014/00001WAS/index.html. And, even then, most asylum experts would have said that the nationwide grant rate was too low.
Gaming The System For Denial
It’s not that conditions in “refugee/asylum sending” countries have gotten better over the past decade! Far from it! The refugee situation today is as bad as it has ever been since WWII and getting worse every day.
So, why would legal refugee admissions be plunging to record lows (despite a rather disingenuous “increase in the refugee ceiling” by the Biden Administration) and asylum denials up dramatically over the past decade?
It has little or nothing to do with asylum law or the realities of the worldwide refugee flow, particularly from Latin American and Caribbean countries. No, it has to do with an intentional move, started under Bush II, tolerated or somewhat encouraged in the Obama Administration, but greatly accelerated during the Trump-era, to “kneecap” the legal refugee and asylum processing programs. Indeed, the “near zeroing-out” of refugee and asylum admissions and the illegal replacement of Asylum Officers by totally unqualified CBP Agents by the Trump Administration are two of the most egregious examples.
Ironically, the EOIR backlog tripled. Under the “maliciously incompetent management” of the Trump group at DOJ, more judges actually meant more backlog! How is that giving taxpayers “value” for their money?
Some of the new judges, like O’Brien and some of the Immigration Judges “elevated” to the BIA, were appointed specifically because of their established records of anti-asylum bias, rude treatment of attorneys, and dehumanizing treatment of asylum seekers and other migrants.
“Ignorance And Contempt”
It’s not like O’Brien was just your “garden variety” “conservative jurist.”(I’ve actually worked with many of the latter over the years). No, he was notorious for his lack of scholarship, rudeness, and bias!
Here are a few of the comments he received on “RateYourJudge.com:”
“Rarely grants cases. No knowledge of the law, only there to deny cases. He needs to be removed.”
“Biased judge, hates immigrants and even kids of immigrants.”
“Incompetent.”
“One of the most condescending and self-righteous judges I have had the displeasure to hear. His word choice and tone left absolutely no doubt that he considered the Respondent to be beneath his notice, even to the point of referring to her as “the female Respondent” and to her domestic partner as a “paramour”. I have heard other judges’ oral opinions on very similar sets of facts, and they were accomplished in a fifth of the time with no loss of dignity to anyone.”
“This guy’s ignorance about immigration law and contempt for the people who appear before him is staggering. The way he threatens lawyers is reprehensible. EOIR is a disgrace.”
“Horrible human being with no business being on the bench. Shame on EOIR for allowing him to continue adjudicating cases.”
“Late, abusive, made up his mind before the case even started, frequently interrupted testimony, yelled at immigrants and their lawyer, and refused to listen to anything we said. Ignorant of the law and facts of the case. He should go back to directing hate groups.”
Among the stream of negative comments there were three “positive” comments about O’Brien;
Most of the comments both positive and negative were “anonymous” or apparent user “pseudonyms;”
“RateMyImmigrationJudge” is neither comprehensive nor transparent.
Flunking the “Gold Standard”
So, was O’Brien really as horrible as most experts say? Let’s do another type of “reality check.”
Among the other IJs at the Arlington Immigration Court, two stand out as widely respected expert jurists who have served for decades across Administrations of both parties. Judge John Milo Bryant was first appointed as an Immigration Judge in 1987 under the Reagan Administration. Judge Lawrence Owen Burman was appointed in 1998 under the Clinton Administration. With 66 years of judicial service between them, they would be considered more or less the “gold standard” for well-qualified, subject matter expert, fair and impartial Immigration Judges.
Significantly, according to the last TRAC report, O’Brien’s asylum grant rate of 3,6% wasapproximately 1/15th of Judge Bryant’s and approximately 1/22 of Judge Burman’s. https://trac.syr.edu/immigration/reports/judgereports/. Case closed! O’Brien should never have been on a bench where asylum seekers lives were at stake and expertise and fairness are supposed to be job requirements!
“Worse Than O’Brien”
What about now former Arlington Immigration Judge David White who was removed at the same time as O’Brien? Apparently, during his relatively short tenure (appointed by Barr in 2020), White was unable to deny enough asylum to qualify for TRAC’s system (100 decisions minimum).
Yet, he made an indelible impression on those “sentenced” to appear before him. Here are comments from RateMyImmigrtionJudge.com:
“This judge is absolutely terrible. Unfair and biased. He is only here to deny asylum cases regardless of what the person has been through. Completely misstates the facts, doesn’t know the law so goes after credibility (using those misstated facts) as an excuse to say there’s no past persecution. Absolute disgrace.”
“Worst judge ever. The clerks at the Immigration Court told the private bar attorneys that they have NEVER seen this judge approve an asylum case. Not one. They have running bets and jokes about him, but he never grants. He writes the denial during the trial instead of listening to the person testify. He is insulting and rude and not at all compassionate about trauma.”
“This is the worst immigration judge in Arlington, hands down. He’s even worse than O’Brien, and O’Brien is an former hate-group director.”
“Terrible immigration judge. Had his mind made up well before our hearing. Came in with a prewritten denial that misstated the law. Was rude and dismissive about my client’s trauma.”
Wow! Worse than O’Brien. That’s quite an achievement.
GOP Court Packing
Fact is, the overt politicization, “weaponization,” and “dumbing down” of the Immigration Courts goes back nearly two decades to AG John Ashcroft and the Bush II Administration. Ashcroft reduced the size of the BIA as a gimmick to “purge” the supposedly “liberal” judges — those, including me, who voted to uphold the legal rights of migrants against government overreach. In other words, our “transgression” was to stand up for due process and the individual rights of immigrants — actually “our job” as properly defined.
And, the downward spiral has continued. The DOJ Office of Inspector General (“OIG”) actually confirmed some of the Bush II improper Immigration Judge hires. But, they avoided dealing with the “BIA purge” that got the ball rolling downhill at EOIR! The GOP has been much more skillful than Dems in reshaping the Immigration Courts to their liking.
During the Trump Administration, putting clearly unqualified IJs who were some of rudest highest denying in America on the BIA was certainly “packing” and “stacking” EOIR against legitimate asylum seekers. Again, however, the OIG failed to “seal the deal” regarding this outrageous conduct that has undermined our entire justice system, fed uncontrollable backlog, and cost human lives that should and could have been saved.
Trump’s “court packing scheme” was no “small potatoes” matter, even if some in the Biden Administration are willfully blind to the continuing human rights and due process disaster at EOIR.
Removing two of the most glaringly unqualified Barr appointees in Arlington is a very modest step by AG Garland in the right direction. But, it’s going to take more, much more, decisive action to clean out the unqualified and the deadwood, bring in true expertise and judicial quality, and restore even a modicum of legitimacy and integrity at EOIR.
Reactionaries’ Predictably Absurdist Reaction
Meanwhile, even this long overdue, well justified, and all too minimal change at EOIR produced totally absurdist reactions from O’Brien and fellow nativists (including some still “hiding out in plain sight” at DOJ) which were picked up by the Washington Times (of course). Don’t believe a word of it!
The removal of guys like O’Brien and White — who never had any business being placed in “quasi-judicial” positions where they exercised life or death authority over refugees of color whose humanity and legal rights they refused to recognize, is just a beginning. The ethical, competence, and judicial attitude rot at EOIR goes much deeper.
Garland has been dilatory in “cleaning house” at EOIR. Vulnerable individuals who were wrongly rejected rather than properly protected have needlessly suffered, and probably even died, as a result. Poor Immigration Judging and lack of effective, correct, courageous, positive asylum guidance by the BIA has helped fuel a human rights disaster and rule of law collapse at the border!
Perhaps, at long last, Garland has slowly started fixing the unconscionable and unnecessary dysfunction andintentionally ingrained institutional bias at EOIR. But, I’ll believe it when I see it!
Keep Up The Pressure
In the meantime, it’s critical that NDPA members: 1) keep applying for EOIR judgeships; and 2) ratchet up the pressure and demand the removal of all unqualified Immigration Judges and Appellate Immigration Judges who are undermining sound scholarship, due process, fundamental fairness, and human dignity at EOIR!
Human rights matter! Individual rights matter! Immigrants’ rights matter! Good judges matter!
Today, we are surrounded by too many bad judges, at all levels of our justice system, who reject the first three in favor of warped far-right ideologies, dangerous myths, and disregard for human dignity. The existential battle to get good judges into our system has begun. And, Immigration Courts are the primary theater of action!
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.
AILA: EOIR issued a memo on pre-hearing conferences, stating that, “immigration judges should therefore actively and routinely encourage parties to engage in pre-hearing communications, both for the efficiency of the court and for the efficacy of the pro bono representation.”
USCIS: USCIS offices were closed on June 18, 2021 in observance of the Juneteenth federal holiday. All in-person appointments, including interviews and oath ceremonies (administrative and judicial), will automatically be rescheduled.
Updated OPLA Chicago Joint Motion to Reopen Cover Sheet (attached)
AILA: OPLA Chicago will not prioritize review of joint motion to reopen requests, unless there is an urgent reason for review identified on the JMTR Coversheet. The 30-day timeframe for review of PD requests for cases with active immigration proceedings does not apply to requests for joint motions to reopen.
Reuters: The unsigned one-sentence ruling “dismissed as improvidently granted” an appeal by 13 Republican state attorneys general led by Arizona’s Mark Brnovich seeking to defend the rule in court after Democratic President Joe Biden’s administration refused to do so and rescinded it. The rule widened the scope of immigrants deemed likely to become a “public charge” mainly dependent on the government for subsistence.
Philly Inq: The latest admissions figures are paltry, with 1,898 people admitted in May. That means the U.S. is on track to resettle only 18,962 refugees in fiscal 2022 — a fraction of the 125,000 ceiling set by President Joe Biden.
CBS: Since July 2021, USCIS has received over 46,000 applications from Afghans hoping to come to the U.S. through the parole process. But most parole applications from Afghans remain unresolved — and over 90% of fewer than 5,000 fully adjudicated requests have been denied, USCIS statistics shared with CBS News show. See also Biden administration eases terrorism-related restrictions for Afghan evacuees.
TRAC: Cases in MPP are generally being completed within the 180-day time frame set by the administration, but the problem with low rates of access to attorneys and unusually low rates of asylum success that plagued the first implementation of MPP continue this year.
TRAC: After hovering around 20,000 for several months, Immigration and Customs Enforcement’s detained population reached 24,591 at the start of June. Most of the people in detention (76 percent or 18,796) were arrested by Customs and Border Protection (CBP). But immigrants arrested by ICE—a total of 5,795—were at the highest number since March 2021.
Politico: Since early 2017, one of every three people held in a Border Patrol facility was a minor, a far bigger share than has been reported before now, according to an analysis by The Marshall Project of previously unpublished official records. Out of almost 2 million people detained by the Border Patrol from February 2017 through June 2021, more than 650,000 were under 18, the analysis showed. More than 220,000 of those children, about one-third, were held for longer than 72 hours, the period established by federal court rulings and an anti-trafficking statute as a limit for border detention of children.
Vice: U.S. Customs and Border Protection says it is investigating, will take “appropriate action” if it finds CBP officers were involved in the making or distribution of the coins, and will send cease-and-desist letters to any sellers, a spokesperson told the Herald. See also I was a border patrol agent. The experience was horrifying.
Reuters: A naturalization ceremony was held for 12 new citizens at the historic Stonewall Monument in New York on Friday, as the U.S. Citizenship and Immigration Services (USCIS) commemorated Pride Month.
Law360: The federal courts handed down several important immigration rulings this year on issues ranging from border agents’ personal liability for constitutional violations to California’s authority to ban private immigration detention facilities. Here, Law360 takes a look at the most significant immigration decisions from the first half of 2022.
BIA: A respondent who is subject to a deferred adjudication that satisfies the elements of sections 101(a)(48)(A)(i) and (ii) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(48)(A)(i) and (ii) (2018), has been “convicted by a final judgment” within the meaning of the particularly serious crime bar under section 241(b)(3)(B)(ii) of the INA, 8 U.S.C. § 1231(b)(3)(B)(ii) (2018).
LexisNexis: [T]he BIA upheld an adverse credibility determination that the IJ reached in part based on an inconsistency in Reyes’s story that simply was not an inconsistency. Nor can we say that absent the adverse credibility finding, Reyes’s CAT claim would necessarily fail. We therefore must vacate the BIA’s ruling affirming the IJ’s denial of that claim.
Law360: The Fifth Circuit on Thursday rejected a legal service provider’s attempts to open up parts of the U.S.-Mexico border to asylum-seekers by narrowing an injunction order requiring the Biden administration to enforce COVID-19 border restrictions nationwide.
Law360: A split Sixth Circuit panel told the Board of Immigration Appeals to take another look at whether a Honduran woman and her two children can stay in the U.S. as refugees after they claimed they suffered violence and intimidation by the brutal MS-13 gang.
LexisNexis: Because there are optical and positional isomers of methamphetamine, and the Indiana legislature chose not to limit the Indiana Statute to optical isomers at the time of Aguirre-Zuniga’s conviction, “Indiana’s generic use of ‘isomer’ in relation to methamphetamine must be broader than optical isomers.” Section 35-48-4-1.1 was facially overbroad at the time of Aguirre-Zuniga’s conviction; thus, it does not qualify as an aggravated felony under the INA.
Law360: The Eighth Circuit has overturned a Missouri district court’s denial of qualified immunity to an Immigration and Customs Enforcement officer who allegedly pushed and injured an immigration attorney, saying the push did not qualify as a seizure violating the Fourth Amendment.
Law360: The Ninth Circuit shut down a Jamaican asylum seeker’s second quest to reopen his asylum proceedings, saying that his previous unreliable testimony justified rejecting his new claims of political strife and violence in Jamaica.
Law360: A divided Ninth Circuit on Tuesday upheld a Mexican man’s deportation from the United States, ruling that because he encouraged his son to enter the U.S. illegally, federal law prohibits him from overturning his pending removal.
Law360: A split Ninth Circuit panel gave a Nicaraguan man a new chance at asylum on Monday, faulting an immigration judge and the Board of Immigration Appeals for finding the man hadn’t faced persecution despite suffering a beating and death threats for opposing the ruling government.
Law360: Ohio has rebuked the Biden administration’s attempts to use a recent high court ruling to notch a Sixth Circuit victory in litigation challenging its immigration enforcement priorities, saying the justices’ new limits on courts’ injunctive immigration power warrants, at most, a remand.
Law360: The Texas Supreme Court on Friday revived a challenge to a state licensing rule for immigration detention centers that allegedly increased the risk of sexual assault against detained minors, overturning an appeals court’s finding that the challengers lacked standing to sue.
LexisNexis: USCIS intends to modify its interpretation of 8 U.S.C. § 1189(a)(9)(B) to no longer require an applicant for adjustment to spend his or her period of inadmissibility outside of the United States and is in the process of finalizing a revised policy, including final approval by the Department of Homeland Security, and issuing new guidance to USCIS adjudicators. USCIS also affirms that it is not currently denying adjustment applications or requiring applicants to file waiver applications on the basis that an applicant returned to the United States within the period of inadmissibility under this section.
AILA: Advance copy of DHS and DOS notice exempting certain individuals who assisted the United States in Afghanistan from inadmissibility under INA §212(a)(3)(B).
AILA: Advance copy of DHS and DOS notice exempting individuals who provided insignificant or certain limited material support to a designated terrorist organization from inadmissibility under INA §212(a)(3)(B).
AILA: Advance copy of DHS and DOS notice exempting certain individuals employed as civil servants in Afghanistan between 9/27/96 and 12/22/01, or after 8/15/21, from inadmissibility under INA §212(a)(3)(B).
AILA: CBP launched a heat mitigation effort in Tucson, whereby new Heat Stress Kits/Go-Bags will be distributed to 500 CBP agents. These are part of a feasibility study on heat stress awareness. Kits are meant to mitigate potential heat stress injuries and illnesses for agents and migrants alike.
AILA: EOIR updated chapters 7.1 and 7.4 of the policy manual, and added chapter 7.6 to update procedures for credible fear screening and consideration of asylum, withholding of removal, and CAT protection claims by asylum officers.
AILA: The CDC issued an order rescinding a 17-month-old requirement that people arriving in the country by air test negative for COVID-19, effective at 12:01 am (ET) on Sunday, June 12, 2022, saying it is “not currently necessary.” (87 FR 36129, 6/15/22)
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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
Philly Inq: The latest admissions figures are paltry, with 1,898 people admitted in May. That means the U.S. is on track to resettle only 18,962 refugees in fiscal 2022 — a fraction of the 125,000 ceiling set by President Joe Biden.
CBS: Since July 2021, USCIS has received over 46,000 applications from Afghans hoping to come to the U.S. through the parole process. But most parole applications from Afghans remain unresolved — and over 90% of fewer than 5,000 fully adjudicated requests have been denied, USCIS statistics shared with CBS News show. See also Biden administration eases terrorism-related restrictions for Afghan evacuees.
TRAC: Cases in MPP are generally being completed within the 180-day time frame set by the administration, but the problem with low rates of access to attorneys and unusually low rates of asylum success that plagued the first implementation of MPP continue this year.
TRAC: After hovering around 20,000 for several months, Immigration and Customs Enforcement’s detained population reached 24,591 at the start of June. Most of the people in detention (76 percent or 18,796) were arrested by Customs and Border Protection (CBP). But immigrants arrested by ICE—a total of 5,795—were at the highest number since March 2021.
Politico: Since early 2017, one of every three people held in a Border Patrol facility was a minor, a far bigger share than has been reported before now, according to an analysis by The Marshall Project of previously unpublished official records. Out of almost 2 million people detained by the Border Patrol from February 2017 through June 2021, more than 650,000 were under 18, the analysis showed. More than 220,000 of those children, about one-third, were held for longer than 72 hours, the period established by federal court rulings and an anti-trafficking statute as a limit for border detention of children.
Vice: U.S. Customs and Border Protection says it is investigating, will take “appropriate action” if it finds CBP officers were involved in the making or distribution of the coins, and will send cease-and-desist letters to any sellers, a spokesperson told the Herald. See also I was a border patrol agent. The experience was horrifying.
Law360: A split Sixth Circuit panel told the Board of Immigration Appeals to take another look at whether a Honduran woman and her two children can stay in the U.S. as refugees after they claimed they suffered violence and intimidation by the brutal MS-13 gang.
Incorrectly trying to send women and children back to Honduras? That’s an example of our commitment to “protecting the safety, dignity, human rights, and fundamental freedoms of all migrants, refugees, asylum seekers, and displaced and stateless persons regardless of their migratory status?” Duh — not even close!
Not much doubt that a competent Immigration Judge, expert in both asylum and real country conditions in Honduras (which has one of the world’s highest femicide rates), would have been able to grant this at the trial level. Instead, amateurish and biased attempts to incorrectly deny asylum to refugees continue to clutter our courts at all levels! No wonder EOIR can’t stop building “artificial backlog!”
I recently highlighted two other “case-related examples,” of the “yawning gap” between the humane promises of the LA Declaration and the lousy actual performance of EOIR on what should be easily grantable asylum cases! See, e.g.,
Outrageously, EOIR is still predominantly a rogue “any reason to deny” pseudo-court where the “culture” encourages judges to contrive results, misinterpret facts, and misapply the law to wrongfully “hold down the number of grants” to Brown and Black refugees who need and deserve protection under our law and international agreements. Indeed large portions of our domestic and international legal refugee and asylum systems remain illegally suspended or functionally inoperative!
