"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 asylum applicants, other migrants, and their lawyers, receive grievous mistreatment by the “judges of his EOIR Star Chambers,” “Teflon Merrick” Garland has avoided accountability for the ongoing, systemic degrading of humanity and American justice carried out in his name!” Why? PHOTO: Wikipedia Commons
“Bob Lupini Nsimba petitions for review of a December 8, 2020 decision of the Board of Immigration Appeals affirming the Immigration Judge’s denial of his application for asylum. In affirming that decision, the BIA misapplied and misinterpreted controlling precedent and imposed requirements on those seeking relief that would require petitioners to first endure torture or arrest. Accordingly, for the reasons that follow, we will grant the petition for review, vacate the ruling of the BIA and remand for further proceedings consistent with this opinion.”
[You MUST read the entire opinion; the panel really goes to town on the IJ and the BIA. Hats off to Valentine Brown!]
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Not news for anyone who (unlike Garland) has even passing familiarity with the daily mockery of justice being carried out by Garland’s “wholly-owned bogus ‘court’ system.” These AREN’T aberrations or isolated incidents! They are “business as usual” in Garland’s totally dysfunctional and out of control Immigration “Courts.”
These aren’t “courts;” they are “adjuncts of DHS enforcement, masquerading as courts,” redesigned as such by Sessions and Barr with Stephen Miller’s influence and enabled to continue their disgraceful degradation of American justice by Garland!
DRC cases, if credible and documented, should be “slam dunk grants of asylum.” They could be put on the “30 minute docket.” Instead, EOIR has been allowed and encouraged to engage in this type of obscene, dilatory nonsense, with obvious racial overtones.
This case is a microcosm of how EOIR and the DOJ have built astounding due process denying backlog! The solution is NOT more Immigration Judges! It’s better Immigration Judges.
Congrats to NDPA Star Valentine Brown!
Obviously Garland has neither standards nor any shame!
Dishonest, biased, and incompetent decisions like this should long ago have resulted in the removal from the BIA and reassignment of the BIA “judge(s)” involved.
When are the Circuits going to catch on that this entire charade is a grotesque denial of due process, pull the plug, and hold Garland accountable for this unconstitutional (not to mention unethical) degradation of American justice?
BIA judges and EOIR judges AREN’T Article IIIs, and they DON’T have life tenure in their particular jobs.
When are Dems in both Houses going to start demanding accountability and competence from Garland? How long are the Article IIIs going to allow this mind-boggling misfeasance that materially affects millions of lives in America, and squanders an unconscionable amount of legal resources, to continue before finally “pulling the plug” on Garland’s “quasi-judicial farce?”
Will Garland ever be held accountable for threatening the lives of migrants and undermining our entire justice system by running the most dysfunctional “court system” in America on his watch? PHOTO: Wikipedia Commons
Dan Kowalski reports @ LexisNexis Immigration Community:
“Despite its obligation under Saidane, the DHS made no effort—good faith or otherwise—to procure for Alcaraz’s cross-examination the witnesses whose testimony was embodied in the probation report and upon whose testimony the BIA ultimately relied in denying his appeal. See id. This failure impugned the probation report’s reliability and rendered the BIA’s procedure fundamentally unfair. … Based on the BIA’s failure to require the DHS to make a good faith effort to present the author of the probation report or the declarant for Alcaraz’s cross-examination and the prejudice generated therefrom, we grant in part Alcaraz’s petition and remand for a hearing that comports with the requirements of § 1229a(b)(4)(B). … On remand, cross-examination of the author of the probation report (or the declarant) could affect both the IJ’s credibility determination as to Alcaraz and the BIA’s decision to credit the probation report’s version of events over Alcaraz’s.”
Rodriguez controls the outcome of this case. Here, as in Rodriguez, “[t]he initial NTA” sent to Lemus-Ayala “did not contain the time and date of [his] hearing.” Id. And just as in Rodriguez, see id., the BIA’s holding in this case that Lemus-Ayala was not entitled to recission of the in absentia removal order rested on the Board’s legal conclusion that an NTA “that does not specify the time and place of an individual’s removal hearing . . . meets the requirements of … §1229(a), so long as a hearing notice specifying this information is later sent to the individual.” The BIA’s conclusion to that effect was an abuse of discretion, as it was based on an erroneous interpretation of a statute. See Barrios-Cantarero, 772 F.3d at 1021.
An in absentia removal “order may be rescinded . . . upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with . . . section 1229(a).” 8 U.S.C. § 1229a(b)(5)(C). Lemus-Ayala was not notified “in accordance with . . . section 1229(a),” and so, as in Rodriguez, the proper disposition is to vacate the BIA’s decision to deny Lemus-Ayala’s motion to reopen and rescind the in absentia removal order, and to remand the case for further proceedings. See 15 F.4th at 356.1
For the foregoing reasons, the petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED for further proceedings consistent with this opinion.
“Carlos Escobar Gomez seeks review of the Board of Immigration Appeals’ (BIA) dismissal of his application for asylum. The BIA determined that Escobar Gomez was ineligible for asylum because he failed to establish membership in a particular social group defined with sufficient particularity. Because this ruling is not supported by a reasoned explanation, we grant the petition for review and remand to the BIA for further proceedings.” [Note the long and detailed concurrence by Judge Wynn.]
Even 4th Cir. “Ultra-conservative” Judge J. Harvie Wilkinson III has finally had enough, joining his panel colleagues in remanding after the BIA ignored both their own precedent and Circuit precedent on administrative closing in their “rush to no” to please their “partners” @ DHS Enforcement:
Finally, Merida-Saenz asserts that the Board erred by failing to remand to the IJ for the administrative closure of his case pursuant to our decision in Romero v. Barr, 937 F.3d 282, 297 (4th Cir. 2019) (holding that IJs and the Board possess “the general authority to administratively close cases”). While the Board acknowledged that Merida-Saenz had argued for administrative closure on appeal, it neither explicitly resolved that argument nor applied any of the relevant administrative closure factors thereto. See In re Avetisyan, 25 I. & N. Dec. 688, 696 (B.I.A. 2012) (specifying administrative closure factors). Moreover, the Board’s resolution of Merida-Saenz’s continuance request did not resolve his administrative closure argument. Although a continuance and an administrative closure are similar forms of relief, they are distinct in purpose and in result. See Romero, 937 F.3d at 289, 294 n.12 (contrasting circumstances in which continuance is appropriate with circumstances in which administrative closure is appropriate); Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 892 (9th Cir. 2018) (explaining that administrative closure is “like” a continuance but not identical thereto). Because the Board’s decision does not demonstrate that it has actually considered Merida-Saenz’s administrative closure argument, we grant the petition for review as to this argument and remand to the Board for further proceedings. See Gonzalez, 2021 WL 4888394, at *10 (remanding for Board to address administrative closure argument in first instance); Li Fang Lin v. Mukasey, 517 F.3d 685, 693-94 (4th Cir. 2008) (explaining that we cannot review the Board’s decision when the Board has given us “nothing to review”).
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Obviously, the Article IIIs have their own due process problems with burying significant rulings, particularly in immigration, in highly inappropriate, approaching unethical, “unpublished” decisions. These aren’t “routine” cases except that material errors at Garland’s BIA are so frequent that Circuit Courts have wrongly come to view them as “routine” and thereby to “normalize” substandard judging.
That’s basically sweeping the festering and ever-growing problem of a dysfunctional and unjust EOIR “under the carpet” — something that both Garland and EOIR apparently have come to rely upon. The unpublished cases highlighted above each have important messages and analytical points for practitioners as well as the EOIR judges who screwed them up! Even Garland could learn by paying attention to the poor quality work being churned out by EOIR in his name!
You know you’ve hit rock bottom as an immigration jurist when even Judge Wilkinson can’t think of a way to paper over your errors and explain away your abuse of immigrants! The same might be said when you start getting reversed on a regular basis by the 5th Circuit — a court that almost never saw a migrant they didn’t want to dehumanize and deport!
In a real court system with real judges, DHS would be treated as a “party” not a “partner.” But, not in Garland’s courts, where judicial quality and fundamental fairness have gone to die and be buried. ⚰️🪦
Wonder why Dems struggle to govern? Look no further than the astounding lost opportunity for transforming EOIR into a real court system where great judges could be modeling due process, fundamental fairness, backlog-reducing better precedents, and best practices.
One of the best ‘fixes” for any broken system is appointing talented experts who will get the decisions right in the first place and promote excellence and efficiency by establishing, promoting, and, most of all enforcing, “best practices” systemwide, with particular emphasis on getting it right at the initial level, be that Immigration Court or the USCIS Asylum Office.
Of course, at EOIR that would mean appointing a BIA with judges who have the backgrounds and expertise to actually recognize what best interpretations and best practices are in the first place! Hint: It’s got nothing to do with bending over backwards to help “partners” at DHS enforcement, maximizing removal orders, positioning OIL to argue Chevron or Brand X, or thinking of new and creative ways that the system can be mis-used as a “deterrent” to individuals making claims for legal relief. Those were Sessions’s and Barr’s “priorities,” and Garland has done little to change the rancid culture in his Immgration Courts. See, e.g., https://immigrationcourtside.com/2021/12/15/%f0%9f%8f%b4%e2%80%8d%e2%98%a0%ef%b8%8f%f0%9f%91%8e%f0%9f%8f%bd%f0%9f%a4%ae-aimless-docket-reshuffling-adr-on-steroids-eoir-dysfunction-shows-what-happens-when/
Instead, Garland has given us a potentially fatal dose of “good enough for Government work” — on steroids, with lives and the foundations of our democracy hanging in the balance every day!🤮👎🏽👎🏽👎🏽👎🏽👎🏽🤡
It’s an entirely unnecessary, ongoing national disgrace!🤮
🎅🏻🎁🧸🎄😇“Happy Holidays from the U.S. Government! Don’t these folks know they could avoid this fate if they only would take our advice and ‘due in place’ — out of sight, out of mind.” EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
Arelis R. Hernandez Southern Border Reporter Washington Post
EL PASO — Chaos, confusion and disillusionment marked the experience of many of the first asylum seekers to be enrolled in the Biden administration’s revised “Remain in Mexico” program, saying they understood little about what was happening or why they were selected.
The Trump-era program — formally known as Migrant Protection Protocols (MPP) — returns border-crossers to Mexico to await the outcomes of their asylum claims and resumed earlier this month under court order. Although the Biden administration said it has made changes to the program that make it more humane, several of the first enrollees interviewed by The Washington Post said they did not understand documents they were asked to sign, did not have access to lawyers and were puzzled about why they were not released along with some of their compatriots.
Three men — two from Nicaragua and one from Venezuela — who were among the more than 160 migrants enrolled so far, said they had been robbed or extorted before crossing the U.S.-Mexico border. The men, who were fleeing political persecution, said they hoped for relief in the United States, but instead felt as if they had won a raffle they never entered.
“I told the asylum officer I’d rather be in a U.S. detention center than be sent back to Mexico,” said Pedro, a 27-year-old asylum seeker from Nicaragua. “It’s dangerous for us.”
(The Washington Post is identifying the men only by their first names because they fear they might jeopardize their cases by speaking publicly.)
Biden’s Department of Homeland Security is still trying to terminate MPP, even though it was ordered to reimplement it by a federal judge. The administration lost an appeal of the ruling this week after the U.S. Court of Appeals for the 5th Circuit in Louisiana upheld the lower court decision. The circuit court order said the Biden administration erred when it issued a memo earlier this year terminating the program, “affecting billions of dollars and countless people.” The program, which is in effect in one border community and accepting only men, will soon expand to six more communities and could soon include families.
[‘Remain in Mexico’ program begins in El Paso amid skepticism from advocates]
Advocates say that MPP subjects migrants to a policy as hazardous to their lives as the reasons that prompted them to flee to the United States for protection. They say the revised version of the program is as flawed as it was under the Trump administration, when the New York-based nonprofit Human Rights First tracked more than 1,500 “violent attacks” against migrants.
“The Biden administration’s revamped ‘Remain in Mexico’ is already presenting security and due process concerns we saw under the Trump administration,” said Julia Neusner, who interviewed 16 MPP enrollees for Human Rights First. “I anticipate this process will deny people their due process rights and accessing counsel. This policy is inherently dangerous and I expect it to cause tremendous suffering as the rollout expands.”
. . . .
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Read the full article at the link.
”Let ‘Em Die In Mexico!” What a thoughtful way for the world’s richest and most powerful nation to recognize and honor the birth of Christ. Doubt that Jesus would approve, though! He’d more likely be found among the “floaters” than with the arrogant, privileged, inhumane politicos and judges who came up with this idea and then enabled it!
Completely unnecessary! The incoming Biden Administration had the blueprints to reestablish due process and the rule of law at the border and to start robust, realistic, expanded refugee programs in potential sending countries. The practical human rights/immigration experts who could have pulled it off were out there.
The Administration could have “hit the ground running” with bold innovative actions, practical expert leadership, and a show of competence and humanity. But, they didn’t!
Instead, Biden, Harris, Mayorkas, and Garland dissed the progressive experts, ignored their recommendations, and froze them out of key judicial and leadership positions, preferring instead to use modified versions of “proven to fail deterrence-only programs” administered largely by Trump-era holdovers and other bureaucrats insensitive to the rights, needs, and multiple motivations of asylum seekers. (There is an important legal doctrine of “mixed motive” that politicos, bureaucrats, and bad judges often choose to ignore when it suits them.)
Not surprisingly, this ridiculous, muddled “Miller Lite” approach has been spectacularly unsuccessful! Predictably, flows of desperate refugees, generated largely by circumstances outside our immediate control (contrary to restrictionist myths reinforced by some enforcement aficionados and mindlessly repeated by some mainstream media) have continued. Humans have continued to needlessly suffer and die. Backlogs have grown without credible plans to address them. The rule of law and the U.S. justice system (led by failed Immigration Courts, but also including poorly functioning and too often “brain dead” jurists at all levels of the Federal Judiciary) has continued to flounder and lose credibly. The “die in place and never darken our doors” message delivered by Gauleiter Miller and his acolytes, cluelessly repeated by VP Harris, hasn’t convinced anyone. Would YOU basically accept an invitation to “commit slow suicide by persecution rather than taking a chance on survival.”
And, also predictably, nobody is pleased or supportive of the Biden Administration’s inept and disingenuous approach. From hard core racist nativists to liberal asylum advocates, nobody, but nobody, outside the Administration’s party line flackies, supports this approach! Indeed, nobody in the Administration can even explain what they are doing on any particular day in a coherent manner.
Humanity, moral courage, common sense, and the rule of law might be taking a holiday. But death and despair don’t.
Somewhat reminiscent of how the Chinese workers who were key to building the transcontinental railroad were “rewarded” with the Chinese Exclusion Act and more than a century of anti-Asian bias and hate that continues today.
☹️Unfortunately, America has a long unhappy history of mistreating, exploiting, and demonizing immigrants whose hard work, courage, and perserverance against the odds built our nation into what it is today! Old habits of bias, ingratitude, false racial supremacy, and vilification of “the other” — or at least the “perceived other,” since in truth we’re all important parts of the real America— are hard to break. But, it would be a real boost for our nation and humanity if we could overcome the darker part of our past and move forward as one.
Thanks for sending this important piece my way, Julia!
As my friend and Round Table colleague “Sir Jeffrey” Chase quipped: “Sadly, funny because it’s so true!”
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Compare and contrast what happens to a respondent who fails to appear for a hearing after receiving defective “notice” with what happens when EOIR and DHS “FTA” for a properly scheduled hearing, often with NO (or only brief) notice.
Ivory Towerists like Garland and his crew wouldn’t last 60 days “in the trenches” of our disgraceful Immigration (Non) “Courts!” How many times do you think the “Garlands of the world” would put up with being yelled at and demeaned by bad judges and burned out clerks? Having their cases that they have meticulously prepared and sweated over rescheduled without notice for no good reason! Dealing with traumatized clients and scared witnesses for whom a day off for court isn’t covered by “personal leave” but could actually cost them their job?
Allowing “elite ivory towerists,” who have never been subjected to Immigration Court, and who know and care little or nothing about what happens there and how it affects humanity, to run it is killing our justice system! ☠️💀⚰️ Literally!
“Sorry, Liz, all of your cases have been reshuffled to October Term 2025. Notice, what notice?”PHOTO: Twitter
What if the Solicitor General, Elizabeth Prelogar arrived at the Supremes, family, spear carriers, fan club, and press flackies in tow, only to find out that her “high profile” case had been “reset” to October Term 2025 without notice because the Chief Clerk (NOT the Chief Justice) had “re-prioritized” the docket?
Folks, I’m retired. I have no intention of ever appearing in Immigration Court again. I don’t have to rely on practicing law any more to feed my family and pay my bills.
But, whether you practice immigration law or not, the younger generation of our legal profession has a vested interest in stopping the ludicrous public degrading of justice in our totally dysfunctional and fundamentally unfair Immigration “Courts.” Injustice to one affects justice for all, to quote or paraphrase MLK, Jr.
YOU, the lawyers of the future, must demand and pressure Garland until he stops treating the most important “retail level” of our justice system — one he completely controls and where lives are on the line every hour of every working day — as a “comedy routine” rather than a serious court of law!
Otherwise, by the time you are my age, there will be no legal system left in America and quite possibly no democracy either!
Yes, folks, it can happen here! Each of YOU could be treated as a “non-person” without humanity or enforceable rights, just like migrants and minorities are being treated today by the arrogant elitists who have been allowed to control our legal system.
Garland might think it’s smart, or even funny, to run the Immigration Courts like a joke. But, those tens of thousands, perhaps millions, whose lives are destroyed by his incompetent leadership and tolerance for the intolerable are not laughing! Nor are the lawyers who are fighting in the trenches to save lives and or preserve our democracy!
*Cover photo by photojournalist Guillermo Martinez shows a boy in El Salvador wearing a protective mask from his home during a COVID-19 lockdown. Photo credit: Guillermo Martinez/APHOTOGRAFIA/ Getty Images
New Report: Dual Crises
Gender-Based Violence and Inequality Facing Children and Women During the COVID-19 Pandemic in El Salvador, Guatemala, and Honduras
Gender-based violence has long been one of the main drivers of migration from Central America to the United States. Widespread violence, including sexual abuse, human trafficking, and violence in the home and family, combined with a lack of access to protection and justice forces children and women to flee in search of safety. Drawing on existing research and interviews with children’s and women’s rights experts, this report lays out how the COVID-19 pandemic has exacerbated already pervasive forms of violence against children and women in Central America, as well as the deeply entrenched gender inequality that leaves children and women even more vulnerable to violence.
Successful implementation of the U.S. Strategy for Addressing the Root Causes of Migration in Central America must start by acknowledging that gender-based violence is a primary driver of migration and includes most violence against children.
Obviously, mindless, failed enforcement and deterrence-only policies that tell women and children to “suffer and die in place” rather than flee and seek asylum are absurdly out of touch with the realities of both human migration and the real situation in the Northern Triangle. This report shows that increased flight from the Northern Triangle probably has more to do with the aggravating effects of the pandemic on the already untenable situation of many women and children in the Northern Triangle than it does on any policy pronouncements, real or imagined, on the part of the Biden Administration.
An honest policy that recognizes the reality that gender-based persecution is a major driver of forced migration in the Northern Triangle would go a long way toward addressing the largely self-created situation at our Southern Border.
As many of us keep saying, to no visible avail, asylum isn’t a “policy option” for politicos and wonks to “discuss and debate.” It’s a legal and moral requirement, domestically and internationally, that we are currently defaulting upon!
Wonder why “democracy is on the ropes” throughout the world right now? Perhaps, we need look no further than our own horrible example!
A robust overseas refugee program in the region and a uniform, consistent, timely policy of granting asylum to qualified applicants applying at ports of entry at our borders would be a vast improvement.
Sure, it would undoubtedly result in the legal immigration of more refugees and asylum seekers. That’s actually what refugee and asylum laws are all about — an important and robust component of our legal immigration system.
Although our needs are not actually part of the “legal test for asylum,” the fact is, we need more legal immigrants of all types in America right now.
It should be a win-win for the refugees and for America. So why not make it happen, rather than continuing failed policy approaches that serve nobody’s interest except nativist zealots trying to inflame xenophobia for political gain?
An additional point: On February 2, 2021, to great ballyhoo, President Biden issued Executive Order 14010. A key provision of that order required that:
(ii) within 270 days of the date of this order, promulgate joint regulations, consistent with applicable law, addressing the circumstances in which a person should be considered a member of a “particular social group,” as that term is used in 8 U.S.C. 1101(a)(42)(A), as derived from the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
270 days have long passed. In fact, its been more than 300 days since that order. Yet, these regulations are nowhere in sight. Perhaps, that’s a good thing.
This doesn’t come as much of a surprise to “us old timers” who have “hands on” experience with the unsuitability of the DOJ regulation drafting process for this assignment. Indeed, this assignment is actually several decades “overdue,” having originally been handed out by the late former Attorney General Janet Reno prior to her departure from office in January 2020!
The problem remains lack of expertise. With the possible exception of Lucas Guttentag, I know of nobody at today’s DOJ who actually has the necessary experience, expertise, perspective, and historical knowledge to draft a proper regulation on the topic. Past drafts and proposals have been disastrous, actually seeking to diminish, rather than increase and regularize, protections for vulnerable women and others facing persecution on account of gender-based particular social groups.
Indeed, one proposal was even used by OIL as an avenue in attempting to “water down” the all-important, life saving “regulatory presumption of future persecution arising out of past persecution!” Talk about perversions of justice at Justice! Why? Because OIL had suffered a series of embarrassing, ego-deflating setbacks from Article III Courts calling out the frequent failure of the BIA and IJs to properly apply the basics of the presumption. Sound familiar?
At DOJ, the “normal solution to lack of expertise and competence” is to simply eliminate expertise and competence as requirements! In many ways, “good enough for government work” has replaced “who prosecutes on behalf of Lady Justice” as the DOJ’s motto!
It’s also yet another reason why the DOJ is a horribly inappropriate “home” for the U.S. Immigration Courts!
For “respondents” (non-citizens in removal proceedings) and their lawyers, Individual Hearings in Immigration Court are a big deal. Evidence must be gathered. Affidavits have to be prepared, checked, and re-checked. Witnesses must be identified, convinced to attend the hearing, and prepared for trial. Respondents practice their testimony. In most cases, the noncitizen has been waiting for many months or years for the trial date. The result of the trial determines whether the applicant can remain in the United States or must leave. When a respondent receives asylum, he is permitted to stay in the U.S. If he loses, he may be deported to a country where he faces danger. In many cases, respondents have family members here or overseas who are counting on them, and the outcome of the case affects the family members as well as the respondent. All of this provokes anxiety and anticipation. In short, Individual Hearings are life-changing events that profoundly effect respondents and their families.
So what happens when the Individual Hearing is canceled?
“Sorry boys and girls, the ‘nice’ list is too long. We’ll reschedule Christmas for next year… or maybe the year after that.”
The first thing to know is that cancellations are common. Cases are canceled weeks, days or even minutes before the scheduled time. Indeed, we often cannot be sure that a case will actually go forward until the hearing begins.
Why does this happen?
There are many reasons, some more legitimate than others. The most common reason these days is the pandemic. Sometimes, courts close due to potential exposures. That is understandable, but as far as I can tell, these represent a small minority of Covid cancellations. I have had 50% or more of my Individual Hearings canceled over the last year and a half, and none of those was caused by a Covid exposure. I suspect that the large majority of these cancellations are due to reduced capacity to hear cases–since judges and staff are often working from home. Indeed, most pandemic cancellations seem to occur a week or two before the Individual Hearing. By that time, we’ve already completed and submitted the evidence, witness list, and legal brief, and have usually started prepping the client for trial. The client is also psychologically gearing up for the big event.
And then we check the online system and find that the case is off the docket.
What’s so frustrating about these cancellations is that we’ve been living with the pandemic since early 2020. The Immigration Courts should have adjusted by now. If cases need to be canceled, why not do that several months in advance? At least that way, applicants would not build up hope, only to have that dashed when the case is cancelled at the last minute. Also, it wastes attorney time–since we will have to submit updated country condition evidence (and perhaps other evidence) later, re-prep witnesses, and potentially prepare new legal briefs, if the law changes (which is more common than you’d like to think). For attorneys who charge hourly, this additional work will involve additional costs to the applicants. So all around, last minute cancellations are harmful, and it’s hard to understand why they are still so frequent.
“I’m double booked today, so let’s put off your heart surgery until 2023.”
Besides the pandemic, court cases are cancelled for a host of other reasons: Immigration Judges (“IJs”) are out sick, hearings get bumped to accommodate “priority” cases or sometimes cases are “double booked,” meaning that they are scheduled for the same time slot with the same IJ, and so only one can go forward. To me, all these are weak excuses for canceling individual hearings. Most courts have several judges, and so if one judge is out sick, or if a priority case must be scheduled at the last minute, another judge should be able to help out (in all but the most complicated cases, judges need little time to prepare for a hearing, and so should be able to adjudicate a case on short notice). Also, there is no excuse for double-booking cases. IJs should have a sense of their schedules and simply not overbook. In addition, all courts are overseen by Assistant Chief Immigration Judges (“ACIJs”), who should be available to hear cases if need be. Finally, given the ubiquity of video conferencing equipment and electronic records, judges can adjudicate cases remotely, and so there should almost always be a judge available to fill in where needed.
Of course, there are times when case cancellations are unavoidable, due to inclement weather, for example. But in an ideal world, these should be rare.
“Oy vey! I have to give priority to a better-looking couple. Let’s reschedule this wedding for later. Are you free in 2024?”
If the delay caused by case cancellations was measured in weeks or even months, the problem would not be so severe. But in many cases, hearings are postponed for one or two years–or even longer! This is obviously distressing for the applicant, as the long-anticipated end date is pushed back to who-knows-when. It is particularly devastating for applicants who are separated from family members. The long postponements are also a problem for the case itself, as evidence becomes stale and must be replaced with more up-to-date information, and laws change, which can require a new legal brief. In short, these delays often force the applicant (and the applicant’s lawyer) to do significant extra work on the case, and this can add additional costs in terms of legal fees.
It seems obvious to me that courts do not fully appreciate the damage caused by last minute cancellations. If judges and staff (and management) knew more about the harm these cancellations cause, perhaps they would make a greater effort to ensure that hearings go forward, and that any delayed hearings are rescheduled as quickly as possible.
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Readers of “Courtside” are familiar with the “toxic culture” of EOIR — actively encouraged by some Attorneys General, enabled and abetted by others.
The real problem here is that Immigration Courts are “led” by “managers” beholden to political agendas rather than the public they should serve. Also, since far too many EOIR “managers” and Immigration Judges have never represented individuals in Immigration Court, they are basically clueless as to the human and practical effects of their actions on individuals as well as on the dedicated, often pro bono or “low bono” lawyers who must guide their desperate and often re-traumatized clients through this morass.
At a time when the need for pro bono assistance has never been greater, the disgraceful dysfunction, mismanagement, and “studied user unfriendliness” of EOIR under Garland is actually discouraging attorneys from donating their time and endangering their emotional well-being! Could there be any worse public policy?
With so many extraordinarily talented, creative, courageous, independent legal minds out there in the private/NGO/academic sector of human rights/immigration/racial justice/due process this “intentional mediocrity (or worse)” is inexcusable. Yet, this massive failure of the U.S. justice system at the most basic level gets scant attention outside of Courtside, LexisNexis, ImmigrationProf Blog, Jeffrey S. Chase Blog, The Asylumist, and a few other specialized websites.
This “leading disintegrator of American justice and cosmic threat to our entire democracy” is largely “shoved under the carpet” by “mainstream media,” leaders of the legal profession (outside of immigration/human rights), politicians, policy makers, and the general public. Will they only “wake up” when it is too late and their own rights and futures have been diminished, dehumanized, and de-personified as if they were “mere migrants, not humans?”
In other words, who in America will always be immune from the “Dred Scottification of the other” now practiced, tolerated, and often even encouraged at the highest levels of our government? Don’t think it couldn’t happen to you! If immigrants, asylum seekers, and migrants in the U.S. are not “persons” under the Fifth Amendment, what makes YOU think that YOUR “personhood” will be honored by the powers that be!
In defense of today’s IJs, they actually have remarkably little control over their own dockets which are incompetently “micromanaged” from on high or by non-judicial “administrators.” Sound like a formula for an incredible, largely self-created, 1.5 million case backlog?
Cutting to the chase, the Immigration Courts are controlled by the Attorney General, a political official and a chief prosecutor to boot. Beyond that, no Attorney General has actually had to experience practice before the totally dysfunctional and intentionally user unfriendly “courts” he or she runs.
Foreign Service Officers must initially serve as consuls — the basic operating level of an embassy. Hotel managers usually start by working the front desk, where the “rubber meets the road” in the industry.
But, we enthrone those who are supposed to be the best, wisest, and fairest in the legal profession as Attorneys General and Article III Judges without requiring that they have had experience representing individuals at the “retail level” of our legal system — the U.S. Immigration Courts.
It doesn’t make sense! But, what does figure is that a system run by those without expertise and relevant experience, haphazardly “supervised” by Article III Judges who almost invariably exhibit the same blind spots, indifference to injustice, and lack of practical knowledge and expertise as those they are “judicially reviewing” has devolved into the worst court system in America. It’s an oppressive catastrophe where “liberty and justice are not for all” and survival is often more about the mood, mindset, or personal philosophy of the judge, or the “whim of the day” of DOJ politicos, than it is about the facts of the case or the most fair and reasonable applications of the law by experts! Is this really the way we should be determining who lives and who dies, who thrives and who will struggle just to survive?
These “courts” are not fair and impartial courts at all. They are places where service to the public comes last, poor leadership and mismanagement are tolerated and even rewarded, backlogs are out of control, due process, fundamental fairness, scholarship, and best practices scorned, and precious lives and human dignity routinely are ground to dust and scattered to the wind.
We deserve better from our legal system!
Once, there was a court system with a dream of a better future for all in America — a noble, if ambitious, vision, if you will: “through teamwork and innovation, become the world’s best administrative tribunals, guaranteeing fairness and due process for all.”😎
Now, sadly, that enlightened vision has disintegrated into a nightmare of dedicated dockets, biased precedents, endless backlogs, sloppy work, due process denying gimmicks, bogus statistics, mediocre judicial selections, secrecy, customer unfriendliness, dishonest blame shifting, and ridiculous Aimless Docket Reshuffling.☠️
Attorney General Merrick Garland’s “limited vision” for EOIR is a continuing nightmare for those sentenced to appear and practice before his stunningly dysfunctional and “highly user unfriendly” Immigration “Courts.” Isn’t it high time to insist that those given responsibility for stewardship over America’s largest — and probably most consequential — Federal “Court” system actually have represented humans before those “courts?” PHOTO: Thomas Hawk Creative Commons Amateur Night
Where there once was the promise of “light at the end of the tunnel,” now there is only “Darkness on The Edge of Town:”
Well lives on the line where dreams are found and lost
I’ll be there on time and I’ll pay the cost
For wanting things that can only be found
In the darkness on the edge of town
In the darkness on the edge of town
Welcome back to Opening Argument, a column where I dig into complicated legal fights, unpack issues dividing appeals courts, and discuss disputes ripe for Supreme Court review. On tap today: a look at when border patrol agents can be sued for violating someone’s constitutional rights.
Border patrol agents allegedly took Anas Elhady’s coat and shoes, and held him in a near-freezing cell without a blanket after he legally crossed the border back into the U.S. from Canada. Robert Boule was allegedly shoved to the ground by a border patrol agent who came onto his property without a warrant to check the immigration status of a guest at the inn Boule owns in Washington.
Can they each sue the agents for damages? The answer right now depends on which court is hearing their case.
The Supreme Court is expected to provide more clarity in a case it’s hearing later this term. Depending on how the justices rule, it could further insulate border patrol agents from liability.
If there’s no way to hold individual agents accountable for their conduct at the border, “then custom agents are kings and queens unto themselves,” said Elhady’s attorney Gadeir Abbas, a senior litigation attorney at the Council on American-Islamic Relations.
A 1971 Supreme Court decision gave people the right to hold federal officials liable when their constitutional rights are violated, but courts have been trying to figure out if or when that applies to immigration officials. So far, they’re coming to different conclusions.
The U.S. Court of Appeals for the Sixth Circuit said Elhady, who claimed his detainment violated his Fifth Amendment right to due process, didn’t have a right to sue the agents involved. The Ninth Circuit said Boule did.
. . . .
But the Supreme Court specifically refused to consider whether Bivens should be overruled when it agreed to hear the agent’s appeal in the Boule case. The justices will instead decide if you can bring a suit under Bivens for a First Amendment retaliation claim and whether you can sue federal officers engaged in immigration-related functions for allegedly violating your Fourth Amendment rights. Oral arguments in the case haven’t yet been scheduled.
“I could imagine a Supreme Court, in an opinion by Justice Alito saying something like ‘Yes Bivens still is the law, but we find that in this case involving enforcement of the immigration laws, Bivens claims really don’t fit and don’t belong, and limit Bivens one step further and say immigration cases are different,” said Kevin Johnson, the dean of University of California Davis School of Law.
If the court does that, Johnson, who’s written extensively on immigration law and civil rights, said it would embolden border patrol agents to feel like they can act with a great deal of discretion that will never be questioned.
Here’s a telling excerpt from the foregoing report issued by the SPLC in 2020:
The number of deaths resulting from an interaction with CBP officers are indicators of the horrific culture of abuse, corruption, and disregard for human life that plagues the nation’s largest federal law enforcement agency. Unfortunately, these killings are not the only examples of abuse of power and corruption within CBP.
Numerous studies — both internal and external — have shown that CBP is plagued with a culture of impunity, corruption, and abuse. Its systemic problems also run deep. The discovery of a secret Facebook group full of racist, misogynist and xenophobic posts by Border Patrol agents brought to light more evidence of the agency’s culture of abuse. In it, agents routinely made sexist jokes, made fun of migrant deaths, and shared other hateful content. A year later, little action was taken by CBP, again pointing to the lack of transparency and accountability for the agency. Countless other reports have linked CBP to cases of officer misconduct, corruption and a general lack of accountability for criminal conduct and abusive actions.
Doesn’t sound to me like an ideal candidate for freedom from individual constitutional tort liability! Indeed, the reasons for applying Bivens to immigration agents appear quite compelling. Hard to think of a law enforcement agency more in need of “strict scrutiny.”
But, with the current Court majority, who knows? Kevin’s “highly educated guess” is as good or better than anyone else’s. After all, the Supreme’s majority had little difficulty enabling constitutional and human rights abuses carried out by the Trump regime on asylum seekers and other vulnerable migrants — in other words, “Dred Scottification” of the “other!”
Many thanks to Val Bauman over at Bloomberg for bringing this article to my attention. I’ve missed Val’s lively and incisive reporting on the “immigration beat” for her previous employer. Come on back to immigration, Val! We miss you!
“Make the record” to fight the ignorant nonsense and grotesque misconstruction of the asylum law and country conditions by the Third Circuit & far, far too many Federal Judges & Bureaucrats with this authoritative report authored by Natalie Gonnella-Platts, Jenny Villatoro, and Laura Collins of the George W. Bush Institute:
No Justice: Gender-based Violence and Migration in Central America
Gender-based violence affects one in three women worldwide, making it an urgent and important policy challenge. Violence against women and girls is often excluded from conversations on the nexus of Central American migration, regional development, and domestic immigration reform.
Key Excerpts:
. . . .
Though there has been increasing focus from US and international influencers on the levels of violence in El Salvador, Guatemala, and Honduras (known as the Northern Triangle) and its impact on migration, an adequate response to the gendered differences in the ways violence is perpetrated remains limited and at times nonexistent.
This needs to change, especially since gender-based violence within the Northern Triangle constitutes a daily threat to women and girls—one that has been significantly worsened by corruption, weak institutions, and a culture of impunity toward perpetrators. At individual and community levels, gender-based violence drives women and girls to be displaced internally, migrate to the United States, or a somber third path—death either by femicide or suicide. At national levels, it seriously inhibits security, opportunity, and development.
As circumstances at the southern border of the United States demonstrate, gender-based violence has a direct influence on migration flows across the region and is deeply tangled with cyclical challenges of inequity and poverty. For those who choose to seek assistance or flee their communities, high rates of revictimization and bias further obstruct access to justice and safety.
Until policies and programs respond to the serious violations of agency and human rights perpetuated against women and girls (and within systems and society at large), instability in and migration from the Northern Triangle only stand to grow.
As the United States and the international community consider a comprehensive plan on Central America and immigration reform, proposed strategies must anchor the status and safety of women and girls at the center of solutions.
. . . .
In Guatemala, teenage girls face a substantial risk of being “disappeared,” with 8 out of every 10,000 girls between the ages of 15 and 17 reported missing each year.7
. . . .
Guatemala: In Guatemala, about 8 of every 1,000 women and girls were the victim of violence in 2020. Thirty women were murdered on average each month last year, or almost one per day, the lowest rate in the last 10 years. Reported rape cases averaged 14 per day.17 One of the most extreme and recognizable forms of gender-based violence is sex slavery. According to a report by the International Commission against Impunity in Guatemala (CICIG) and UNICEF: “A combination of gangs, crime families, and drug trafficking organizations run sex trafficking rings in Guatemala that may involve some 48,500 victims.”18
Women in Indigenous and rural communities may have it even worse. For example, Indigenous women in Guatemala face multiple layers of discrimination, including a history of repression and genocide.
During the genocidal Guatemalan civil war that lasted from 1960 to 1996, state sanctioned mass rape during massacres was used to repress the Indigenous populations—with offenses committed publicly and bodies often left on display with the intent to instill terror in the Mayan communities.19 Truth commissions state that more than 100,000 Indigenous women were raped and forced into sex slavery.20
State-sanctioned and state-accepted gendered violence may have contributed to a culture that tolerates violence against women. Guatemalans were the most accepting of gender-based violence in a 2014 survey of Latin American countries by Vanderbilt University, while El Salvador came in second.21
Unfortunately, the COVID-19 pandemic has further exacerbated the risk of violence to women and girls in the Northern Triangle, as it has in every region
of the world. Exploited by gangs and others, lock-downs have forced those most at risk for violence to shelter in proximity to their abusers. All three countries within the region have reported sizable increases in intrafamily violence since the start of the pandemic. El Salvador has also seen a notable increase in intrafamily femicide.
. . . .
Coupled with the trauma already experienced by survivors, each of these factors contributes to a lack of trust in institutions, high levels of impunity for perpetrators, and a vicious cycle of repeat violence against women and girls.
Faced with this dire reality, women and girls often have three choices: (1) report and face disbelief, (2) stay and risk additional violence, or (3) flee.
. . . .
Women and girls undertake this risky journey with no guarantee of legal protection in the United States. But they come because the horrors they face at home are so much worse.
It’s important to remember that seeking asylum
is often the only legal means that migrants who qualify have of entering the United States. Although requesting asylum is legal, the path to asylum is not
safe. An understanding of legal rights and access to services—including health, trauma, and legal support—also remain out of reach for many female migrants, furthering cycles of exploitation.
Current US refugee and asylum law does not recognize gender-based violence as its own category warranting protection. According to the American Bar Association, US protections for victims of gender-based violence are built upon 20 years of advocacy and sometimes favorable legal opinions.54 These protections are tenuous, with any presidential administration able to roll back the decisions made under its predecessor. Attorney General Merrick Garland recently reinstated prior precedent for gen- der-based violence asylum requests and announced that the Department of Justice would pursue a formal rule.55 But even this could be reversed in the future.
Until legislation enshrines gender-based violence as a condition warranting humanitarian protection, the United States will continue to turn away women and girls who merit refuge.
. . . .
The Northern Triangle, Mexico, and the United States are at a crossroads. El Salvador, Guatemala, and Honduras can either take advantage of a young population of prime working age by promoting pol- icies that create a safe, stable environment where women and girls can fully participate, or they can continue on a path that is leading to substantial lev- els of gender-based violence, instability, migration, and economic stagnation.
As research continuously demonstrates, when empowered, active, and engaged, women and girls are a critical catalyst for security and prosperity. Countries with higher levels of gender equity are more peaceful and stable overall.66 Gender equality can provide better outcomes for children, increased labor productivity, lower poverty rates, and reduced levels of violence.67
In seeking to secure a brighter future across the Western Hemisphere, immigration and develop- ment policies must include solutions to address gender inequity and gender-based violence. As current circumstances at the southern border of the United States demonstrate, stability and prosperity are not possible without them.
*****************
Debi Sanders ESQ “Warrior Queen” of the NDPA PHOTO: law.uva.edu
Many thanks to my good friend and “founding mother of the NDPA,” Deb Sanders for bringing this to my attention.
The Bush Institute has done some great “practical scholarship” on gender-based asylum, exposing many of the lies and misinformation upon which Government policies have been based, particularly GOP nativist policies and the overtly misogynistic attack on migrant women of color by the Trump regime.
And let’s not forget that Ms. Chavez-Chilil is actually one of the lucky ones! She got a chance to make her claim and was awarded life-saving protection by an Immigration Judge under the CAT, albeit protection that leaves her unnecessarily and perpetually “in limbo” — ineligible to fully join our society and maximize her own human potential for everyone’s benefit.
By contrast, thousands of women and girls (also men and boys) are insanely, illegally, and immorally “orbited” back to danger zones without any opportunity to even make a claim and without any legitimate process whatsoever, let alone due process!
Why this is important:
Compelling documentation and cogent arguments will win individual cases and save lives;
We can build case law precedent for gender-based asylum grants;
We must make a clear historical record of which jurists and bureaucrats stood up for the rule of law and the humanity of refugee women and which of them purposely have aligned themselves with the “dark side of history.” See, e.g., Chief Justice Roger Taney.
Why is the Biden Administration mindlessly and immorally attempting to “deter” legal asylum seekers from seeking to save their own lives? What’s the excuse for treating a moral and legal requirement under domestic and international law as a “bogus political strategy option” rather than the legal obligation it is? Why was the DOJ “pushing” a legally wrong, corrupt, factually wrong position before the Third Circuit? Where’s the expertise? The backbone? The moral courage? The accountability?
Furthermore, in oral arguments before the Supreme Court yesterday in Patel v. Garland, our amicus brief received a brief mention:
JUSTICE KAVANAUGH: — questions, how
10could an appellate court — and this question
11cuts both ways, so — but how can an appellate
12court look at a cold record and determine a
13factual error when it relates to credibility,
14for example, or something like that? Just give
15me some examples where this will matter, I
16guess.
17MR. FLEMING: Well, there — as the
18amici, the American Immigration Lawyers
19Association and the EOIR judges, point out, it
20— it’s not uncommon.Best, Jeff
********************
And, here’s more coverage from Human Rights First:
Courtesy Paul Ratje — AFP via Getty Images
A man sits in a migrant camp near Reynosa, Tamaulipas, Mexico.
The new version of MPP expands its focus to asylum seekers from across the hemisphere, stranding even more people seeking safety in dangerous conditions at the border.
Kennji Kizuka, Associate Director for Research and Analysis, Refugee Protection, appeared on Democracy Now! and detailed the many human rights violations faced by asylum seekers processed under the “Remain in Mexico” policy.
“It’s extraordinarily concerning that the Biden administration is not only restarting this policy but expanding it,” said Kizuka.
Human Rights First also announced the resumption of our research documenting the human rights abuses suffered by people turned away to wait in danger under MPP.
Human Rights First’s Associate Attorney, Refugee Protection Julia Neusner and Advocacy Strategist for Refugee Protection Ana Ortega Villegas are on the ground in Ciudad Juárez to monitor the first days of MPP’s reinstatement. Please follow their live updates and other reports through Human Rights First’s twitter account.
Our team’s view of the Mexican government’s
staging area in Cuidad Juárez for Remain in Mexico 2.0
Our position is gaining widespread support from those who understand the issue. The Roundtable of Former Immigration Judges condemned
MPP as the “antithesis of fairness,” concluding that there has been “no greater affront to due process, fairness and transparency,” and called for administration to “permanently end the program.”
The union for U.S. Citizenship and Immigration Services (USCIS) asylum officers tasked with MPP screenings call it “irredeemably flawed.” They said that restarting MPP “makes our members complicit in violations of U.S. federal law and binding international treaty obligations of non-refoulement that they have sworn to uphold.”
******************
So proud to be a part of this group and so grateful for the leadership of colleagues like Judges Jeffrey Chase, Ilyce Shugall, Lory Rosenberg, Carol King, Joan Churchill, Denise Slavin, Sue Roy, John Gossart, Charles Honeyman, Charlie Pazar, Sarah Burr, Cecelia Espenoza, Bruce Einhorn, Tue Phan-Quang, Bob Weisel, Paul Grussendorf, Jennie Giambastini, and many, many, many others!
As an “appreciative fellow NDPA member” told me yesterday, “it’s a true team effort!“ This type of teamwork for the public good was once encouraged at EOIR and even incorporated into the “leadership vision,” but now, sadly, it has “fallen by the wayside” in what has basically become a “haste makes waste race to the bottom.”
Fortunately, the Round Table and other members of the NDPA still share a “vision of what American justice should look like” and are willing to speak up for what’s legal and right rather than just “expedient!”
Free NYSBA asylum training CLE webinar Dec. 13 1-2 pm ET
Are you considering handling your first pro bono asylum case, but unsure of how to proceed? This free one-hour CLE training sponsored by the New York State Bar Association will orient you to the fundamentals of asylum eligibility and procedure, common issues to consider, and mentorship possibilities. Handouts will be provided.
When: Monday December 13, 2021, 1-2 pm ET
Where: online
Speakers: Victoria Neilson (Managing Attorney, Catholic Legal Immigration Network), Rebecca Press (Legal Director, UnLocal, Inc.), and Steve Yale-Loehr (Cornell Law School)
Thanks, Steve, my friend, for passing this on! I’m grateful for all you do to educate, guide, support, and most of all inspire the NDPA in the never-ending fight to force our Government to make due process and fundamental fairness for all persons in America, regardless of race, creed, or status, a reality rather than the cruel farce it is today!
Never has the need for talented pro bono representation in Immigration Court been greater.
And, the Garland DOJ’s indifference to long overdue due process, quality control, personnel, and best practices reforms in the broken and backlogged EOIR system means that the battle to save lives and force change through aggressive litigation is just beginning and ultimately will succeed!
The good news: Given the endemic lack of expertise, discombobulated administration, and disregard for quality at EOIR, the “talent balance” favors the NDPA! Many deserving lives can be saved and at least some degree of accountability forced on Garland’s dysfunctional EOIR through aggressive, well prepared litigation that makes compelling records, advances correct interpretations and applications of the law, and resists and triumphs over the “race to the bottom” that has destroyed and perverted justice in our Immigration Courts.
Sign up today! It will be the “best hour” you spend next week!
December 6 , 2021
The Round Table of Former Immigration Judges is a group of 51 former Immigration Judges and Members of the Board of Immigration Appeals who are committed to the principles of due process, fairness, and transparency in our Immigration Court system.
There has been no greater affront to due process, fairness, and transparency than the MPP, or “Remain in Mexico” policy. Instituted under the Trump Administration, it appears to have been motivated by nothing other than cruelty.
Tragically, to comply with a most misguided court order, the Biden Administration, which promised us better, is today not only resuming the program with most of its cruelty intact, but expanding its scope to now apply to nationals of all Western Hemisphere countries.
In 1997, the BIA issued a precedent decision, Matter of S-M-J-, that remains binding on Immigration Judges and ICE prosecutors. In that decision, the BIA recognized our government’s “obligation to uphold international refugee law, including the United States’ obligation to extend refuge where such refuge is warranted. That is, immigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done.”1
One of the cases cited by the BIA was Freeport-McMoRan Oil & Gas Co. v. FERC,2 a decision which concluded: “We find it astonishing that an attorney for a federal administrative agency could so unblushingly deny that a government lawyer has obligations that might sometimes trump the desire to pound an opponent into submission.”
The MPP policy constitutes the pounding into submission of those who, if found to qualify for asylum, we are obliged by international law to admit, protect, and afford numerous fundamental rights. The “pounding” in this instance is literal, with reports of those lawfully pursuing their right to seek asylum in the U.S. being subject to kidnappings, extortion, sexual abuse, and other
1 Matter of S-M-J-, 21 I&N Dec. 722, 728 (BIA 1997). 2 962 F.2d 45, 48 (D.C. Cir. 1992).
threats and physical attacks.3 This is the antithesis of fairness, in which the parties are not afforded equal access to justice.
Concerning due process, a statement issued by the union representing USCIS Asylum Officers, whose members interview asylum applicants subjected to the program, noted that MPP denies those impacted of meaningful access to counsel, and further impedes their ability to gather evidence and access necessary resources to prepare their cases.4 As former judges who regularly decided asylum claims, we can vouch for the importance of representation and access to evidence, including the opinions of country condition experts, in successfully obtaining asylum. Yet according to a report issued during the Trump Administration, only four percent of those forced to remain in Mexico under MPP were able to obtain representation.5 As of course, DHS attorneys are not similarly impeded, the policy thus fails to afford the parties a level playing field.
As to transparency, one former Immigration Judge from our group who attempted to observe MPP hearings under the prior administration was prevented from doing so despite having the consent of the asylum seeker to be present. A letter from our group to the EOIR Director and the Chief Immigration Judge expressing our concern went unanswered.
Like many others who understand the importance that a fair and independent court system plays in a free and democratic society, we had hoped to have seen the last of this cruel policy. And like so many others, we are beyond disappointed to learn that we were wrong. On this day in which MPP is being restarted, we join so many others both within and outside of government in demanding better.
We urge the Biden Administration to end its unwarranted expansion of MPP; to instead do everything in its power to permanently end the program; and to insure that in the interim, any court-ordered restart of MPP first accord with our international treaty obligations towards refugees, and with the requirements of due process and fairness on which our legal system is premised.
Contact Jeffrey S. Chase, jeffchase99@gmail.com
3 See the compilation of of publicly reported cases of violent attacks on those returned to Mexico under MPP by Human Rights First, available at https://www.humanrightsfirst.org/sites/default/files/ PubliclyReportedMPPAttacks2.19.2021.pdf.
4 American Federation of Government Employees, National Citizenship and Immigration Services Council 119, “Union Representing USCIS Asylum Officers Condemns Re-Implementation of the Migrant Protection Protocols” (Dec. 2, 2021).
5 Syracuse University, TRAC Immigration, “Contrasting Experiences: MPP vs. Non-MPP Immigration Court Cases,” available at https://trac.syr.edu/immigration/reports/587/.
***********************
Thanks to “Sir Jeffrey” Chase for leading this effort. It’s an honor and a privilege to serve with you and our other colleagues on the Round Table!
LESBOS, Greece (AP) — Pope Francis returned Sunday to the Greek island of Lesbos to offer comfort to migrants at a refugee camp and blast what he said was the indifference and self-interest shown by Europe “that condemns to death those on the fringes.”
“Please, let us stop this shipwreck of civilization!” Francis said at the Mavrovouni camp, a cluster of white U.N. containers on the edge of the sea lined by barbed wire fencing and draped with laundry hanging from lines.
Arriving at the camp, a maskless Francis took his time walking along the barricades, patting children and babies on the head and posing for selfies. He gave a “thumbs up” after he was serenaded by African women singing a song of welcome.
. . . .
“The arrival of the pope here makes us feel blessed because we hope the pope will take us with him because here we suffer,” Kiaku said as she waited in a tent for the pope to arrive.
But no papal transfers were announced this time around, though during the first leg of Francis’ trip in Cyprus, the Vatican announced that 12 migrants who had crossed over from the breakaway Turkish Cypriot north would be relocated to Italy in the coming weeks. Cypriot officials said a total of 50 would eventually be sent.
Francis’ five-day trip to Cyprus and Greece has been dominated by the migrant issue and Francis’ call for European countries to stop building walls, stoking fears and shutting out “those in greater need who knock at our door.”
“I ask every man and woman, all of us, to overcome the paralysis of fear, the indifference that kills, the cynical disregard that nonchalantly condemns to death those on the fringes!” he said. “Let us stop ignoring reality, stop constantly shifting responsibility, stop passing off the issue of migration to others, as if it mattered to no one and was only a pointless burden to be shouldered by somebody else!”
**************
Read the complete report at the link.
Xenophobia, cruelty, racism, and nativist nationalism won’t stop human migration. But, it will cause more unnecessary pain, suffering, death, and wasted lives.
“We conclude that the Board erred in three ways. First, the Board erred in overturning the grant of asylum. The Board decided that Mr. Villegas-Castro had not filed a new application. But if he hadn’t filed a new asylum application, he wouldn’t need to show a material change in circumstances. And with the remand, the immigration judge enjoyed discretion to reconsider the availability of asylum. Second, the Board erred in rejecting the immigration judge’s credibility findings without applying the clear-error standard. The immigration judge concluded that Mr. Villegas-Castro’s conviction had not involved a particularly serious crime. For this conclusion, the immigration judge considered the underlying facts and found Mr. Villegas-Castro’s account credible. The Board disagreed with the immigration judge’s credibility findings but didn’t apply the clear-error standard. By failing to apply that standard, the Board erred. Third, the Board erred in sua sponte deciding that Mr. Villegas-Castro was ineligible for (1) withholding of removal or (2) deferral of removal under the Convention Against Torture. The Board reasoned that the immigration judge had already denied withholding of removal under federal law and the Convention. But the Board’s general remand didn’t prevent fresh consideration of Mr. Villegas-Castro’s earlier applications. So the Board erred in sua sponte rejecting the applications for withholding of removal and deferral of removal under the Convention Against Torture. We thus grant the petition for judicial review, remanding for the Board to reconsider Mr. Villegas-Castro’s application for asylum, to apply the clear-error standard to the immigration judge’s credibility findings, and to reconsider the applications for withholding of removal and deferral of removal under the Convention Against Torture.”
[Hats off to Harry Larson, formerly of Quinn Emanuel Urquhart & Sullivan, LLP, Chicago, Illinois (Andrew H. Schapiro, Quinn Emanuel Urquhart & Sullivan, LLP, Chicago, Illinois, and Keren Zwick and Tania Linares Garcia, National Immigrant Justice Center, Chicago, Illinois, with him on the briefs), on behalf of the Petitioner, and Simon A. Steel, DENTONS US LLP, Washington, D.C., and Grace M. Dickson, DENTONS US LLP, Dallas, Texas, filed a brief for Amici Curiae, on behalf of Petitioner!]
**********************
A prime example of the “any reason to deny culture,” that Garland has allowed to continue, at “work” — although it doesn’t appear the BIA actually did any “work” here beyond insuring that the bottom line in the staff attorney’s draft was against the asylum seeker!
As I raised yesterday, how is it that this fatally flawed group continues to get “Chevron deference” from the Article IIIs?
Also, why isn’t every group of legal professionals in America “camped” on Judge Garland’s doorstep @ DOJ demanding meaningful change @ EOIR as the degradation of American justice and demeaning of human lives continue largely unabated?
The majority concludes that because the phrase “in relation to obstruction of justice”
in § 1101(a)(43)(S) is ambiguous, the Board of Immigration Appeals’ (“BIA”) renewed interpretation of this provision is due Chevron deference. The majority also concludes that the BIA’s interpretation of “reasonably foreseeable”—in the context of before an investigation or proceeding—is reasonable. Because, in my view, the phrase is not ambiguous, the BIA is not due Chevron deference. However, even if § 1101(a)(43)(S) is ambiguous, the BIA’s conclusion that a formal nexus to an ongoing investigation is not required—based solely on the express exception in § 1512 and the catchall provision that it wrongly interpreted—is unreasonable. Thus, I disagree that Petitioner’s conviction of “Accessory After the Fact to a Felony,” under § 18.2–19 of the Virginia Code, is a categorical match with the generic offense of § 1101(a)(43)(S). For these reasons, I respectfully dissent.
. . . .
************************
Of interest:
The “previous interpretation” discussed here, that the BIA subsequently “ditched” in favor of a more pro-DHS one, is Matter of Espinoza- Gonzalez, 22 I. & N. 889 (B.I.A. 1999), a “Schmidt Era” en banc decision written by Judge Ed Grant in which I joined.
64 pages of arcane discussion and citations from three Circuit Court of Appeals’ Judges who cannot agree on the result shows the continuing disingenuous absurdity of a system that claims that “unrepresented” immigrants receive due process — many of these cases require not only lawyers, but great lawyers with expertise in immigration, criminal law, and statutory interpretation to achieve fair resolution;
Both the majority and the dissent “talk around” a major problem in the misapplication of “Chevron deference” to the BIA: In recent years, the BIA invariably adopts “any interpretation” offered by the DHS over better interpretations offered by respondents and their lawyers — this is a “rigged system” if there ever was one. For Article III Courts to “legitimize” the bogus application of Chevron by a non-expert tribunal that views itself as an extension of DHS Enforcement is a disgraceful dereliction of judicial duty!
