"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.
“Justice” — While totally unjustifiable, it’s perhaps understandable why A.G. Merrick Garland wants to suppress criticism from IJs of his courts’ failure to provide due process and uphold the rights of asylum seekers at the border and elsewhere! It’s a major driver of disorder at the border!
Two items from the indomitable Dan Kowalski @ LexisNexis:
“LEXISNEXIS EXCLUSIVE: How Low Will They Go? – An Outraged Retired IJ Speaks (Because She Can)”
This broad edict applies even when a judge seeks to speak at an event in their personal capacity and agrees to provide a clear disclaimer that the views expressed do not
reflect an official position of EOIR or DOJ. It means a judge cannot explain the basics of immigration law to a church group interested in sponsoring refugees or even a middle
school civics class. The application of this process to NAIJ officers ignores the well known fact that many reporters operate on deadlines of mere hours and do not provide their questions in advance. It is also hard to understand how EOIR dismisses the clear disclaimer, scrupulously provided, that NAIJ comments do not represent the Department’s views.
Perhaps most puzzling about this turn of events is how this step can be taken during the Biden administration, one which says it seeks to empower federal workers and their
unions. It is simply breathtaking in the worst of ways that the DOJ through EOIR is taking this step in clear violation of the First Amendment. The United States Supreme Court has made it abundantly clear that federal employees don’t check their First Amendment rights at the door when they accept employment. To the contrary, the Court has
recognized the unique “special value” to the public of speech by public employees on matters related to their employment. In stark contrast to EOIR’s position, the Code of
Conduct for U.S. Judges affirmatively encourages federal judges to speak, write, lecture, teach and participate in other activities concerning the law, the legal system and
the administration of justice. And whatever happened to whistleblower protections? Are they suspended when they reveal information which can be viewed as critical of an agency?
In defense of its action, EOIR cites the tepid, generic excuse that it is merely promoting the efficiency of the service it is charged with performing. It asserts that using personal
capacity speech (as opposed to official speech by its designated spokespersons), even with a disclaimer, can have real adverse effects on the agency’s mission. It claims that
the SET process was established to promote public confidence in IJ impartiality, despite clear Supreme Court guidance that judicial partiality is narrowly defined as a lack of bias
for or against a party in the proceeding. If that is not clear enough, that standard was set forth in a decision which protected the rights of judicial candidates to announce their
views on disputed legal or political issues, a bridge NAIJ officers never cross because NAIJ is a nonpolitical professional organization whose members’ personal viewpoints
span the spectrum.
EOIR’s gag order against NAIJ officers is an outrageous and dangerous policy that should not go unnoticed and unremedied. Those of us who can speak must speak out
and take action to prevent this policy change from being continued.”
The Honorable Dana Leigh Marks (retired) served as an Immigration Judge in San Francisco from January 1987 until December 2021. During her tenure she was an active member of NAIJ from the start, serving seven two-year terms as President and two two-year terms as Vice President. Since ending her term as president in 2017 she has served as President Emerita of NAIJ. The opinions expressed here are her personal ones and are not intended to set forth the formal position of NAIJ on the matters discussed. To hear their views, you will have to contact its officers. Uh oh. I guess you can’t…….
Hon. Dana Leigh Marks Retired U.S. Immigration Judge Past President, National Association of Immigration Judges, Member of The Round Table of Former IJs.
2. ACROSS THE BOARD OUTRAGE: Sen. Chuck Grassley (R-IA) Sends Garland Scathing Letter: “Completely Unacceptable!”
I write to you regarding concerning allegations that the Biden Justice Department is unlawfully attempting to prohibit its employees from making legally protected disclosures to Congress. It’s been reported that the Justice Department Executive Office for Immigration Review (EOIR) Chief Immigration Judge Sheila McNulty issued an order on February 15, 2024, prohibiting immigration judges from speaking publicly without prior agency approval.1 The news report claims that the issuance of this order comes as some immigration judges have spoken out publicly on significant case backlogs at the immigration court, testified before Congress, participated in panel discussions, and made themselves available to the media.2 It’s been reported that the order prohibits immigration judges from speaking with Congress without prior agency approval, and it’s speculated that Chief Immigration Judge McNulty issued this directive in response to the testimony Immigration Judge Mimi Tsankov gave before Congress last fall.3 In that October 18, 2023, testimony before the Senate Judiciary Committee, Judge Tsankov said that the Justice Department lacked leadership and was ineffective in its management of the immigration courts.4 It’s critically important that immigration judges communicate with Congress particularly when the Biden administration’s leadership and policy failures have created an unprecedented immigration crisis at our Southern Border. If the allegations that the Justice Department has sought to silence immigration judges from communicating with and testifying before Congress are true and accurate, the Biden Justice Department’s conduct is absolutely unacceptable.
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Sen. Chuck Grassley (R-IA) Official Photo
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Read the full statements of Judge Marks and Sen.Grassley at the links above.
Thanks for speaking out, Dana, my friend and Round Table colleague! As Dana points out, the Speaking Engagement Team (“SET”) process acts to deter IJs from public speaking at educational and other events. It’s an example of how within DOJ, EOIR “management” gets sidetracked with creating unnecessary bureaucratic “gatekeepers” and “handlers” rather than focusing on due process, fundamental fairness, best practices, and quality control! Those are the things that are broken at EOIR.
Also, well-known immigration commentator Nolan Rappaport provided the following helpful resource on Federal employee rights to communicate with Congress:
Instead, Garland, once again, has unnecessarily and incompetently, stepped into a “hornet’s nest!” And, the Biden Administration, inexplicably and indolently, has allowed him to do so. Sen.Grassley is “spot on” in this letter. And, that’s something I don’t often say.
Now, if the Senator will just call up his colleague Sen. Alex Padilla (D-CA) and get behind the Article I legislation effort, the problem can be solved in a bipartisan manner that will give a huge boost to the quality of justice in America! The evidence that EOIR is not “viable” within DOJ or any other Executive Agency is overwhelming. This is just a graphic illustration of why we need the Article I change that Judge Mimi Tsankov, (Ret) Judge Dana Marks, and many other experts and legislators have been supporting before Congress and in other public forums! See, e.g., https://youtu.be/MEJ093pDGI4%C2%A0.
In the interim, the Administration should immediately appoint an “Immigration Czar” and expert task force along the lines recommended by Heidi Altman of NIJC to supersede Garland’s and Mayorkas’s incompetent and damaging “management” of existing migration programs and policies and lay the groundwork for a smooth transition to Art 1. https://wp.me/p8eeJm-9PM.
DISCLOSURE: I am a proud retired member of the NAIJ.
“This court grants a petition for review of an agency denial of asylum, withholding of removal, and CAT relief only under the most extraordinary circumstances. See Gutierrez-Alm, 62 F.4th at 1194; Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir. 2021). This is one of those rare instances. For the reasons discussed above, the agency’su adverse credibility determination is amply supported by substantial evidence. But the IJ failed to properly consider and evaluate the evidentiary weight of multiple documents Kalulu offered into the record independent of her testimony, and the BIA made clear factual errors when it reviewed those documents. Because the agency’s decision therefore “cannot be sustained upon its reasoning,” this case must be remanded for the IJ or BIA to reconsider its decision. De Leon, 51 F.4th at 1008 (internal quotation marks omitted). On remand, the agency must reexamine the three declarations and medical document discussed in section III(b) to consider whether they, when properly read alongside other nontestimonial evidence in the record, independently prove Kalulu’s claims for asylum or withholding of removal. This court takes no position on whether those documents provide such proof or whether Kalulu merits any of the relief for which she applied.”
Dissent: “The majority ignores our precedent and instead concludes that the agency would have reached the same adverse credibility determination in the absence of these unsupported findings. That approach contravenes the REAL ID Act, binding circuit precedent, and fundamental principles of administrative law. I respectfully dissent.”
Many congrats to Amalia, Judah, and their NDPA team!
As my friend Dan often says about EOIR, “you can’t make this stuff up!”🤯
Well, the panel judges all agree that the BIA is wrong! It’s just a question of HOW wrong.
Note Van Dyke is a Trump appointee, and one of the most far-right judges on the bench. Murphy is a Bush II appointee. Sanchez (concur/dissent) is a Biden appointee.
The BIA has to have worked overtime to do such a miserable job that even Van Dyke couldn’t paper it over, although he took a stab at it!
The majority decision is basically a restatement of the 4th Circuit’s pre-REAL ID precedent Camara v. Ashcroft, 378 F.3d 361 (4th Cir. 2004). That case materially affected practices, changed results, and saved lives during my tenure at the “Legacy”Arlington Immigration Court!
So, it’s not that requiring that testimony be evaluated along with independent, non-testimonial evidence is something “new” or “rocket science!”🚀 Heck, it’s even incorporated in the REAL ID Act. This is “Immigration 101!” Yet, theBIA came up woefully short while Garland ignores fundamental flaws in his judicial system.
It’s well worth looking at a bit more of Judge Gabriel Sanchez’s vigorous separate opinion:
Petitioner Milly Kalulu, a native of Zambia, alleges she
was persecuted because she is a lesbian in a country that
criminalizes same-sex relationships. When her relationship
with a woman was discovered by her girlfriend’s brothers,
she was beaten, whipped, injected with an unknown
substance, stabbed in the chest, doused with gasoline, and
threatened with death over several violent encounters.
Kalulu submitted documentary evidence corroborating her
claims, including a copy of her medical report, a declaration
from her aunt in California, and declarations from several
Zambians who witnessed the attacks on her. The agency,
however, dismissed this evidence based on unsupportable or
trivial grounds.
I agree with the majority that the agency failed to
consider whether Kalulu’s supporting evidence
independently proves her claims for asylum, withholding of
removal, and relief under the Convention Against Torture
(CAT). “Where potentially dispositive testimony and
documentary evidence is submitted, the BIA must give
reasoned consideration to that evidence.” Cole v. Holder,
659 F.3d 762, 772 (9th Cir. 2011); see also Antonio v.
On the basis of his robust SOTU performance, I have every confidence that President Biden can more than adequately defend himself from the “Hur report.” Sadly, the same can’t necessarily be said for all the asylum seekers and other immigrants harmed by Garland’s indifference to systemic injustice in his “courts!”
This is the real “immigration crisis” that threatens our legal system and our democracy!
The border between Tijuana and California. Studies indicate an increase in the number of drowned migrants at this point on the border. David Ludwig’s photo is licensed as Attribution-ShareAlike. Certainly, Biden & the Dems can promote a better version of “border security” than this deadly and ultimately failed “hangover of Trumpism!”
Some States Step Up With Innovation & Humanity, While GOP-Led States Fall Down On Migrant Reception, Assistance, Resettlement — From Emerson Collective
STATE LEVEL DIVERGENCE IN RESPONSE TO THE MIGRATION SURGE
While legislative reform continues to be blocked at the federal level, states across the country have adopted diametrically opposed responses to the surge of migrants that have reached the U.S.-Mexico border in search of safety and economic opportunity.
On one side of the split screen, we see real innovation happening with 20 states now having dedicated, high-level staff focused on immigrant integration and building a more welcoming, inclusive America. That includes programs designed to better incorporate immigrants and refugees into state workforce systems, expand the capacity of legal and direct service providers, and ensure access to other support systems that welcome new arrivals with dignity and care.
We are undoubtedly facing a unique set of pressures at our southern border and in states and cities throughout the country as a result of historic levels of migration throughout the hemisphere. Our current inability to effectively respond to these pressures is the result of decades of Congressional failure to forge compromise on the contours of a flexible system that can effectively manage migration. As states take steps to fill the breach, we are seeing very different visions of what the future may hold.
2) U.S. Judge In Texas Tosses GOP States’ Frivolous Challenge To Successful Parole Program — From The Border News
🌍 Humanitarian Asylum Program Survives States’ Challenge, Federal Judge Upholds Entry for Migrants from Four Countries
The Associated Press’s Eric Gay.- A federal judge in Texas dismissed a lawsuit from Republican-led states challenging a Biden administration program that allows a certain number of migrants from Cuba, Haiti, Nicaragua, and Venezuela to enter the U.S. on humanitarian grounds. U.S. District Judge Drew B. Tipton ruled that the states failed to demonstrate financial harm caused by the humanitarian parole program, which admits up to 30,000 asylum seekers each month from the specified countries. The program aims to offer lawful pathways while reducing unauthorized border crossings. The White House hailed the ruling, emphasizing the program’s role in addressing labor shortages and enhancing border management. Despite the legal challenge, over 357,000 individuals have benefited from the program, with Haitians being the largest group. The decision underscores the administration’s use of parole authority for urgent humanitarian reasons or significant public benefit, marking an important victory for immigration advocates and the migrants they serve.
But, without new expert, dynamic “kick ass” leadership, empowered to supersede those currently bobbling this program at the national level, it will remain a sore point, a horrendous missed opportunity for the Administration, and a “de-energizer” for his core progressive supporters.
Come on, Joe, lead and build on the good work already done by your friends, rather than undermining it by spreading the fears and parroting “lite” versions of the xenophobic approaches of your opponents! Instead of challenging Trump to join you in “closing the border to asylum seekers,” invite everyone to join you in developing and implementing humane, achievable, solutions for fairer and more efficient asylum processing at the border and elsewhere!
Biden must “lose the Miller Lite BS on the border” and tout his successes, like the parole program. Joe, Joe, Joe! Think it through! Trump is going to “win” the “race to the bottom on the border” because he’s a natural “bottom dweller.” So, you need to pivot and emphasize and expand upon the positive things you have done to solve migration problems, like these parole programs!
Logically, re-opening ports of entry for asylum claims (despite the huge widespread problems with “CBP One”) and incentivizing those who can’t wait at the ports to turn themselves in to CBP in an orderly manner for asylum screening after crossing elsewhere (despite both physical impediments and artificial legal obstacles to doing so) works to reduce the number of those seeking to avoid screening! This is directly contrary to the nativist blather surrounding Title 42!
As Bier says, “This should force the many members of Congress and the administration who opposed ending Title 42 to rethink their position.” While there is zero chance that the GOP will do this, because their position is based on spreading fear and xenophobia for perceived political gain, you and your advisors should reverse your disastrous public stance on how to best promote real, durable, achievable border security.
As Heidi and others have cogently suggested, future success will come from investing in better asylum screening, processing, adjudication, and resettlement, NOT from bombastic threats to “close the border” and effectively eliminate the fundamental right to seek asylum!
Rev. Craig Mousin PHOTO: DePaul WebsiteHeidi Altman Director of Policy National Immigrant Justice Center PHOTO: fcnl.org
Craig on Linkedin:
Instead of listening to our two primary presidential contenders vie over which one is tougher on immigration, let’s consider reframing the debate for a meaningful immigration reform that benefits our nation instead of depriving it of resources wasted on ineffective enforcement policies:
Let’s Reshape Immigration Policy
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Today we talk about 10 points to reshape and improve immigration policy in the USA. We used the National Immigrant Justice Center’s 10 points as a backdrop for our discussion:
Today we talk about 10 points to reshape and improve immigration policy in the USA. We used the National Immigrant Justice Center’s 10 points as a backdrop for our discussion:
Listen to the podcast and get a copy of NIJC’s “ 10 points” at the above links.
Thanks, Craig, for highlighting the work of my friend and former Georgetown Law colleague Heidi Altman, Director of Policy at NIJC. Heidi is the embodiment of what real leadership, innovation, humane, creative thought on immigration and the border looks like. She stands in dramatic contrast to the pathetic fear mongering (Trump) and fear of standing up for values (Biden) “leadership” coming from our candidates and reflected in the failure of politicos of both parties to embrace humane, cooperative, beneficial solutions for those seeking asylum at the border.
Heidi is a particularly great representative and leadership role model for Women’s History Month.
I had additional thoughts on this podcast:
Better judges, not just more judges. To be effective and efficient, EOIR judges at both levels must be recognized experts in asylum, human rights, and due process who are not afraid to set positive precedents, grant protection to those who qualify under a properly generous interpretation of the law, simplify evidentiary requirements and state them in clear, practical terms, establish and enforce best practices, and steadfastly oppose the political abuse of the Immigration Courts as “deterrents” or as extensions of DHS enforcement. The failure of Garland to clean house at EOIR, particularly the BIA, and of Mayorkas to do likewise at the Asylum Office has been a national disaster driving much of the “disorder at the border.”
Invest in VIISTA Villanova and other innovative programs to expand pro bono and low bono representation.Seehttps://www1.villanova.edu/university/professional-studies/academics/professional-education/viista.html. Reach beyond lawyers and NGOs to train students, retirees, social justice advocates, and “ordinary citizens” who want to help by becoming “Accredited Representatives” for “Recognized Organizations” and represent asylum seekers before the AO and EOIR. The programs is top-notch, online, and “scalable.” The Biden Administration’s failure to tap into it and “leverage” it is another dramatic failure of leadership.
Better leadership needed in the Biden Administration. As we have seen over the last three years, all the great ideas (and there is a plethora of them) in the world are meaningless without the dynamic, courageous, effective leadership to make it happen! Garland, Mayorkas, the White House Domestic Policy Office, and the Biden Campaign are dramatic negative examples of folks who lack the hands-on expertise, courage, creativity, and skills to lead on effective administrative immigration reform. I endorse Heidi’s proposal to create a White House Task Force. But, without expert, dynamic, empowered leadership, that Task Force will be ineffective. (Take it from me, over 35-years in the USG, I was on lots of “task forces” and other “action/study groups” whose voluminous reports and well-meaning proposals went directly into a dusty file cabinet or paper shredder.) Think Julian Castro, Dean Kevin Johnson, Judge Dana Marks, Professor Karen Musalo, Beatriz Lopez, Professor Michele Pistone, Anna Gallagher, Camille Mackler, Professor Stephen Yale-Loehr, Heidi Altman, Alex Aleinikoff, Mary Meg McCarthy, Paula Fitzgerald, et al — any of these folks, or a combination, or other “battle tested experts” like them would be head and shoulders over the inept gang advising on and “implementing” (and I use this term loosely) immigration policy for the Administration and the campaign. Leadership counts! And, time’s a wasting to start fixing this asylum system before the election!
Acquiescence gets Dems the same place as activist racism. I “get” that the nativist border agenda now being shoved down our throats by both campaigns is driven by GOP fear-mongering and Dem acquiescence. That’s classic Jim Crow! I doubt that every White person south of the Mason-Dixon Line during my youth was overtly racist. Yet, a whole bunch of them were happy to acquiesce in segregation (and worse) because it served their political, social, or business purposes. For example, ”I’ve personally got nothing against Blacks, but if I hired one at my store all my business would go elsewhere.” In calling for “bipartisan” joining with the Trump-generated racist proposal to “close theborder,” Biden and many of his supporters are basically endorsing a lawless, cruel, anti-humanitarian program that couldn’t succeed if enacted. Does that he might be doing it as an act of “political strategy,” “shifting the blame,” or “one-upmanship,” rather than “genuine” racism, xenophobia, and hate, like Trump and MAGA nation, somehow make it more palatable? Not to me!
Stop the candidate’s negative campaigning. If Joe can’t think of anything better to say about human rights and the border than to point fingers at the GOP and try and match Trump’s cruelty, lawlessness, and stupidity on the issue, better he say nothing at all.
Don’t get suckered by “whataboutism.” Undoubtedly, there are those in our community genuinely concerned that helping asylum seekers resettle and succeed will deflect resources and attention from existing problems like homelessness and poverty. Nevertheless, few, if any, of my friends and acquaintances who have actually spent their lives, or substantial portions thereof, helping the less fortunate in our communities express this fear. They believe that that if we treat all of our fellow humans as humans, we can expand opportunities and economic activities across the board so that there will be enough for everyone. It’s aderivation of something we say every Sunday at the community church we attend: “All are welcome at Christ’s table.” Also, asylum seekers and other migrants disproportionately give back to communities, particularly low income communities, rural communities, or others in need. By contrast, many of those raising these fears are the same GOP folks who steadfastly want to cut meals for kids, slash after-school programs, defund proven-to-work programs that reduce poverty, and restrict or limit other existing aid programs. It’s not like these folks would “repurpose” any of the very limited funds spent on assisting migrants to helping the homeless or the less fortunate. No, they would almost certainly spend it on more deadly, yet ineffective walls, “civil” prisons, unnecessary tax cuts for the wealthy, and/or more counterproductive, wasteful, costly border militarization. Don’t get suckered by their “crocodile tears” for the poor and needy!
Contrary to the BS 💩 that is peddled every day by the presidential candidates, spineless politicos of both parties, and the mainstream media, the border is solvable with common sense, humane, innovative legal reforms. More cruel, wasteful, and essentially mindless enforcement and restriction is NOT the answer, nor will it ever be!
Welcome back, friends. To celebrate the end of the week and the start of the weekend, I am sending you my personal list of Five Things You Might Have Missed. For this issue, I draw from my bucket of many (many) things that I read or saw during the week and share them with you.
Justice Department Silences Immigration Judges
Biden Refers to Immigrants as “Illegals”
How Does Asylum Work Right Now?
The Migrant’s Journey by Adam Isacson
Talking About Immigration in an Election Year
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Thanks, my friend! 🙏 Read Austin’s complete rundown at the above link!
My favorite quote is from John Washington’s article, #3 on Austin’s list:
In fiscal year 2023, 99.5 percent of all people whose asylum cases were decided by immigration judges showed up to court for their hearings, according to data compiled by Human Rights First. Unlike citizens, people seeking asylum are not entitled to attorneys at government expense. That means that people either pay out of pocket, find willing attorneys to help them pro-bono, or represent themselves in court. According to a January report, only 30% of people in removal proceedings — which means the government is trying to deport them — are represented by attorneys. A 2023 study from Migration Policy Institute shows that having representation improves efficiency, lowers the costs of public resources expended and, for the migrants in court, decreases their chances of being deported.
“The immigration system has been pretty broken— backlogged and needing reform — for 20 years,” [Yael] Schacher [Director of Americas and Europe for Refugees International] said.
Though there are major delays, the overwhelming majority of asylum-seekers follow the system as it is currently functioning, Schacher said.
Yael Schacher Historian Director of Americas & Europe for Refugees International
Not only does this cogently refute the restrictionist myth of asylum seekers “gaming” the system, peddled by politicos of both parties yet primarily a GOP talking point, but it points to what should be the real target of reform! Obviously, what’s actually needed here is professionalization, quality control, innovation, increased staffing, and, perhaps most of all, dynamic, expert, due-process focused leadership in the USG’s asylum adjudication and resettlement programs, with a focus on dramatically increasing representation and orientation resources!
Instead, politicos and pundits focus on eliminating the system, rather than fixing it! It’s basically a cowardly attempt to “destroy evidence” of USG misfeasance and incompetence! At the same time, it would unfairly punish the victims of our Government’s systemic failures.
The political response by both parties is totally irresponsible (not to mention immoral) as well as demonstrably unworkable. Yet, so-called “mainstream media” figures are so ill-informed and disinterested in the human trauma and realities of asylum, migration, and the border, that they present the one-sided, nativist nonsense spouted by both parties as a “debate.” It isn’t! Neither party is interested in actually fixing the problems at the border — just in finger-pointing, posturing, and shifting blame for perceived political gain!
When we entered the garden, Tomás’s face relaxed. We were at the Casa de la Misericordia de Todas las Naciones in Nogales, Sonora, Mexico, where he had resided for six months with his wife, Cristina, and three children. Before we entered the garden, Cristina and Tomás told me that a criminal group had abducted their 20-year-old son, Carlos, in the small rural community where they lived in the mountains of the Mexican state of Guerrero. Carlos returned to the family, but they knew he was under threat, that the whole family was in danger. As we spoke under the shade of a large tree, children raced around and played on a swing set in front of a yellow building that housed primarily mothers with young children. About 120 people, including entire families, were staying at this shelter, which was designed for people seeking asylum. Cristina did most of the talking, but at the end Tomás asked me if I wanted to see the garden. Cristina had to return to the kitchen, which was her responsibility this week. For his part, Tomás had been the encargado of the garden, in charge of it, he told me, since they arrived.
He showed me the radishes, the calabazas, the zanahoria. He showed me what remained of the tomatoes and chiles that got blasted by the cold. He showed me the lombrices, earthworms burrowing in the composting soil topped with banana peels. As he showed me all the plants, Tomás talked about how much he loved farming, how much he loved planting seeds, how much he liked caring for these plants and watching them grow. In Guerrero he had tended his milpa (small parcel of land) of squash, beans, and corn every day. As he spoke, I tried to envision his rural mountain community; over the years I have met many campesinos, small farmers, across southern Mexico, in his state of Guerrero, in Oaxaca, in Chiapas. Having knelt in the soil of the milpas before, I understood how this small garden in Nogales was like a sanctuary, especially in the face of a scary situation, as Cristina and Tomás had told me, away from home, away from your roots, your child’s life in danger, wondering if you would get asylum. When they arrived six months earlier, they applied for asylum on the glitchy, confusing, and difficult-to-use CBP One app with the help of staff at the Casa, a service they offer to all people staying in the shelter. Tomás told me that when things got stressful, “I come here to the garden. And the stress goes away.” He made a motion with his hand. His hand then touched the soil, searching for the plants. He looked up, and his face was serene.
From where we talked in the garden, we had a sweeping view of Nogales. The Casa is perched on a hill above a working-class neighborhood called Bella Vista, where the bustle often starts in the early morning as maquila workers head to the factories. For line workers making Samsonite suitcases, General Electric lightbulbs, or Masterlocks, the wages are a pittance—giving Nogales a feel of a city in constant strain and struggle.
Also, from the Casa you can look north toward the border with Arizona. Last Thursday, President Joe Biden and Donald Trump came to the border in “dueling visits,” but in faraway Brownsville and Eagle Pass, Texas. People like Tomás and Cristina and family were in the news again, not as their full human selves but as flat numbers and statistics. The “narrative of overwhelm,” as Erika Pinheiro put to The Border Chronicle in an audio interview, was full steam ahead. Alarmist rhetoric filled the airwaves, including the omnipresent “record numbers” of people crossing in every report. In Brownsville, in a proposal that might have seemed like fiction if we went back in time to the 2020 campaign, Biden challenged Trump to “show a little spine” and help him tighten the border by supporting the enforcement-heavy border bill shot down by the Senate in early February. For Trump’s part, he referred to people crossing the border as the “Joe Biden invasion”and as a “vicious violation to our country.” At this point in a heating-up U.S. presidential campaign, the age-old depiction of migrants as either dangerous or a mass of faceless numbers arriving to the benevolent U.S. doorstep was in full effect. More enforcement, both sides were clearly stating, was the solution.
Tomás knelt down to the soil. He showed me the garlic and onions he had planted as an experiment. “Do you want to try a radish?” he asked me in Spanish. “Yes,” I said, “please.” He plucked a radish out of the soil. I wiped off the soil and took a bite. I don’t know if it was because I was hungry (I was), or if it was the force of the stories Tomás and Cristina had shared (probably that too), or just watching Tomás work the soil, tenderly touch the plants, his face soft and concentrated, the perils of asylum-seeker limbo temporarily forgotten, that I knew that this type of care would render something delicious. The radish was so succulent that I finished it too quickly, but I was too bashful to ask for another, even though I wanted one. We could still hear the voices of playing kids coming up from below; there were people from all over Mexico, from Central America, from Peru, Colombia, and from across the world like China, Iran, and Senegal. Before talking with Tomás and Cristina, I visited the tortillería, where three young men worked making tortillas. I visited a workshop where people made weavings and other art projects.
I visited a gigantic bread oven—where people from different countries baked bread in their own traditions, and I visited the kitchen and dining room where banners celebrating the Chinese New Year hung from the walls. One new year celebratory sign read in English, “Be patient, Be light, Be love, Be you!” Another read in Spanish, “La amabilidad es la llave de todas las fortunas” (Friendliness is the key to all fortune).
The shelter is run by its director, Alma Angélica Macías, but the effort was a community one, and a binational one. I was there with a small group of people from the Good Shepherd UCC church in Arizona who bring food to the Casa every Thursday. And given that the shelter allows people to stay as long as the asylum process takes, the Casa had a feel of a multinational hub where people of different nationalities had formed deep bonds, and as I stood there with Tomás, I was moved by this beautiful, alternative view of the border that rarely sees the light of day in the media.
Right as I was about to leave the garden, Tomás’s 20-year-old son came to ask him a question. Tomás introduced me to Carlos, and as I looked into his young face, I remembered the threats to his life that had led them there. As I stood waiting, they talked among themselves, and I thought again about the presidential race, the constant push for more border enforcement, the rightward drift of that debate, the talk that the U.S. government was going to clamp down even harder on asylum seekers—all while watching the father and son talk in calm, sweet tones in that lovely garden. When they were finished, there was a pause. One last moment to take in the garden and the sweeping view around us. I used the pause to thank Tomás for showing me the garden, for showing me his gift with the land. I didn’t know what to say except that I thought it was beautiful and that I felt inspired. And then—after a quick, tender, and vulnerable look to young Carlos, who was still by his side—Tomás told me, as if he didn’t want to have to say it, “I hope they give us asylum.”
*For the story, I altered the names of the family from Guerrero at the request of the shelter.
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Click the above link for the original article with Todd’s wonderful border photography!
As I often say, we can diminish ourselves as a nation, (as both Trump and Biden are doing with their “misleading dehumanizing rhetoric” and spineless “scapegoating”), but it won’t stop human migration. Dehumanization and victimization in the end highlight the humanity of the victims while diminishing the dehumanizers.
Notably, this family has spent months trying “to do things the right way” by scheduling an appointment through the woefully inadequate “CBP One App” and appointment system. Yet, it appears that they have not even been given the interview to which they are entitled by law, nor have they been given a date for the fair merits adjudication they deserve!
The immense backlogs that everyone complains about (and which actually hurt legitimate asylum seekers like Tomás and his family) are largely self-created by years of USG over-investment in ridiculously expensive and ultimately ineffective enforcement accompanied by grotesque “under-investment” in timely, professional, and humane screening and adjudication of claims.
Both Biden and Trump know or should know that “the app” and the system it engenders are hopelessly defective. Yet, rather than moving to fix it (Biden) or urging supporters to invest in fixing it (Trump), both candidates shamelessly dump on the victims of their joint misfeasance and urge “further punishment” of those victims, apparently to “CTAs” for their own legal and moral failures.
Such is the “bogus border debate” — actually not a “debate” but rather a “one-sided nationalistic lie-fest” highlighted by obscene finger-pointing and journalistic malpractice on a catastrophic scale. All this happens with human lives and the very future of our democratic republic hanging in the balance!
Eventually, the judgement history on this disingenuous “bipartisan exercise in neofascism” will fall on the shameless politicos, the complicit media, and those who fail to call them out for their lies and misdeeds. Whether that judgement will come in time to save Tomás, Cristina, Carlos, and others like them seeking only justice and humanity from our nation is a different question. Like Tomás, one can only hope!
Catherine Rampell Opinion Columnist Washington Post PHOTO: Linkedin
Catherine writes:
. . . .
Perhaps most distressing for Democrats, when survey respondents are asked to rate Biden against the likely GOP presidential nominee, Biden fares poorly.
They remember the economy under Trump as being much better than the economy is today, CBS polling found. The last year of Trump’s presidency, when unemployment reached its highest level since the Great Depression, apparently doesn’t count, or has been forgotten.
Voters are also more than twice as likely to say that Trump’s policies helped them personally as they are about Biden’s work, the New York Times-Siena poll found.
And when asked whether a second term from either candidate would lead prices to go up or down, voters are more than twice as likely to believe Trump would push prices down as they are for Biden, per the CBS poll.
This is astounding. Leaving aside the faulty premise of that question — the overall price level almost never goes down; it merely rises more slowly — Trump’s policy agenda would likely worsen inflation. Why? Consider his main economic proposals:
• An additional 10 percent tax on all global imports, plus 60 percent on Chinese goods. As I’ve cited before, four separate studies found that the costs of Trump’s prior tariffs were borne mostly or entirely by Americans via higher prices.
• A reduction in the labor supply by slashing levels of both illegal and legal immigration. For instance, Trump would not only deport much of the agricultural workforce that’s undocumented; he also plans to dismantle the visa program that allows seasonal agricultural workers to come here legally. Wait until you see what that does to produce prices.
• Expansions of the federal deficit through more unfunded cuts to corporate and capital gains taxes (both of which disproportionately affect higher earners). Federal spending would likely rise, too, based on Trump’s (pre-pandemic) record.
• Kneecapping the Federal Reserve, the politically independent agency tasked with maintaining price stability.
Whatever you think of Biden’s record on inflation — and I have some grumbles, mostly related to Biden’s refusal to reverse his predecessor’s policies — each of Trump’s proposed measures would make inflation worse on the margin.
Don’t take my word for it. Analysts at Evercore ISI, an investment banking firm, recently analyzed the first three items above and forecast that another Trump term (relative to another Biden term) would likely require higher interest rates to counteract inflationary pressures. Likewise, Goldman Sachs Economic Research recently wrote a note to clients warning that the potential politicization of the Fed under another Trump administration would raise inflation risks.
Trump has claimed that economic and financial improvements thus far (including record-high stock markets under Biden) are because of his influence, or at least anticipation of his return. This is ludicrous, yet a large portion of the public seems receptive to this message — amnesiac about how he ended his presidency and blissfully unaware of what he’d do if granted another term.
This should be a wake-up call for journalists, who must do a better job of explaining the policy choices Americans face. It’s also a warning for voters, who must think through those choices more critically.
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Read Catherine’s full column at the link.
It appears that many of those polled don’t WANT to understand the realities of the economy. They prefer to regurgitate fictional “sound bites” fed to them by MAGA and the media!☹️
That Biden is head and shoulders above Trump on the economy should be little surprise despite “popular myths” and “false narratives” of GOP economic success. Historically, “By virtually every objective measure, Democrats do better. It’s not even close. So why doesn’t America know it?”https://newrepublic.com/article/166274/economy-record-republicans-vs-democrats.
SAN DIEGO (AP) — A 53-year-old union of immigration judges has been ordered to get supervisor approval to speak publicly to anyone outside the Justice Department, potentially quieting a frequent critic of heavily backlogged immigration courts in an election year.
The National Association of Immigration Judges has spoken regularly at public forums, in interviews with reporters and with congressional staff, often to criticize how courts are run. It has advocated for more independence and free legal representation. The National Press Club invited its leaders to a news conference about “the pressures of the migrant crisis on the federal immigration court system.”
The Feb. 15 order requires Justice Department approval “to participate in writing engagements (e.g., articles; blogs) and speaking engagements (e.g., speeches; panel discussions; interviews).” Sheila McNulty, the chief immigration judge, referred to a 2020 decision by the Federal Labor Relations Authority to strip the union of collective bargaining power and said its earlier rights were “not valid at present.”
The order prohibits speaking to Congress, news media and professional forums without approval, said Matt Biggs, president of the International Federation of Professional & Technical Engineers, an umbrella organization that includes the judges’ union. He said the order contradicted President Joe Biden’s “union-friendly” position and vowed to fight it.
“It’s outrageous, it’s un-American,” said Biggs. “Why are they trying to silence these judges?”
. . . .
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Read the complete article at the above link.
Ukase Public Domain
Courtesy of my friend Dan Kowalski over at LexisNexis, here’s the text of what is being called the “McNulty Ukase:”
From: Chief Immigration Judge, OCIJ (EOIR) Sent: Thursday, February 15, 2024 11:53 AM To: Tsankov, Mimi (EOIR) ; Cole, Samuel B. (EOIR) Cc: Weiss, Daniel H (EOIR) ; Luis, Lisa (EOIR) ; Young, Elizabeth L. (EOIR) ; Anderson, Jill (EOIR) <
Subject: Public Engagements and Speaking Requests
Dear Judges Cole and Tsankov:
From recent awareness of your public engagements, I understand you are of the impression that your positions in the group known as the National Association of Immigration Judges (NAIJ) permit you to participate in writing engagements (e.g., articles; blogs) and speaking engagements (e.g., speeches; panel discussions; interviews) without supervisory approval and any Speaking Engagement Team review your supervisor believes necessary. The agency understands this is a point of contention for you, but any bargaining agreement related to that point that may have existed previously is not valid at present. Please consider this email formal notice that you are subject to the same policies as every EOIR employee. To ensure consistency of application of agency policies—and prevent confusion among our staff—please review the SET policy and work with your supervisor to ensure your compliance with it, effective immediately.
Thank you,
Sheila McNulty
Chief Immigration Judge
Executive Office for Immigration Review • Department of Justice
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It’s perhaps no surprise. EOIR is a badly failing agency with an incredible ever-growing backlog of over 3 million cases, no plan for reducing it, antiquated procedures, a disturbing number of questionably-qualified judges (many holdovers from the Trump era), grotesque decisional inconsistencies, poor leadership, a tragic record of ignoring experts’ recommendations for improvements, and that produces a steady stream of sloppy, poorly-reasoned, or clearly erroneous decisions on the “nuts and bolts” of asylum and immigration law that are regularly “roasted” by Circuit Judges across the political spectrum.
In this context, their desire to strangle criticism from those actually trying to provide justice and due process, against the odds — the sitting Immigration Judges who see the management and systemic problems on a daily basis — is perhaps understandable, if not defensible.
At least where immigration is involved, the Biden Administration’s rhetoric and promises on being “labor friendly” and supportive of Federal workers is unfortunately reminiscent of its pledge to treat asylum seekers and immigrants fairly and humanely and to distance themselves from the racially-driven xenophobic policies of the Trump Administration.
While the NAIJ may be “gagged,” the fight about working conditions and the unrelenting dysfunction at EOIR is far from over!
Sources close to the NAIJ’s parent union, the IFPTE, tell me that the “campaign to call out this atrocity” is “just getting started.”
In statement issued yesterday, IFPTE President Matt Biggs expressed outrage and raised the possibility that the Administration could face tough Congressional questioning on the gag order, which also applies to communications with legislators and legislative staff:
“Just because a highly partisan decision by the FLRA’s board, that is likely to be reversed, limited NAIJ’s ability to collectively bargain, doesn’t mean that NAIJ and its national union IFPTE can’t meet and confer with the DOJ, provide legal services to our members, have officers serve on professional committees, speak to the media, offer training and other services a union provides,” says Biggs. “In fact, for the past four years, NAIJ, with assistance from IFPTE, has provided all of that. We give judges a voice. Judge Tsankov regularly speaks to reporters and recently testified before Congress. This is an attempt to limit what the press and public know by placing a gag over the mouths of the judges on the front lines. The only thing that has changed in the past four years is an overreach by a federal bureaucrat.”
NAIJ has repeatedly sounded the alarm on the size of the backlog, the need for translators, raised courtroom security concerns and other issues related to immigration adjudication. It has been a strong advocate for judicial independence and questioned why the immigration courts are attached to the Department of Justice, rather than being placed in an independent agency. The National Press Club recently invited both Tsankov and Cole to speak at a news conference on “the pressures of the migrant crisis on the federal immigration court system.”
“We believe that this order and un-American, anti-union act of censorship by McNulty will lead to Congressional hearings,” said Biggs. “Until this matter is resolved, the judges’ national union, IFPTE, will act as the voice for the immigration judges. McNulty may try, but the nation’s immigration judges won’t be silenced.”
As noted by Biggs, over the years, NAIJ leadership has frequently been asked to testify before Congress and meet with staff as an independent counterpoint to the “party line, everything is under control” nonsense that has become a staple of DOJ politicos and EOIR bureaucrats in administrations of both parties in dealing with the Hill as the backlog continued to explode in plain view!
Although the Biden Administration has curiously shown little hesitation in throwing asylum seekers, human rights, and advocates who were a key support group in 2020 “under the bus” in an ill-advised attempt to “out-Trump-Trump” on stupidity and inhumanity at the border, the IFPTE could be a different animal. Representing more than 80,000 government professionals, the union endorsedBiden/Harris in 2020.
With a hotly-contested, close election underway, Biden can ill-afford to alienate more key support groups, particularly among organized labor. Why the “geniuses” in the White House and the Biden/HarrisCampaign think that going to war with your base is a great, “winning” strategy, is beyond me! Even Donald Trump recognizes the benefit of energizing behind him a loyal and committed (although horribly misguided) “base!”
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Tellingly, and illustrating this issue’s cosmic importance, the Ohio Immigrant Alliance just released its blockbuster report documenting systemic racism at EOIR entitled “The System Works As Designed: Immigration Law, Courts, & Consequences” —
This report is based on the experiences of immigrants, lawyers, and immigration court observers, as well as external research. “The System Works as Designed” reveals how U.S. immigration laws, and the courts themselves, were planted on a foundation of white supremacy, power imbalance, and coercive control. For those reasons, they fail to protect human dignity and lives on a daily basis.
While the operations of the immigration courts have frequently been ignored, their outcomes could not be more consequential to immigrants and their loved ones. This report lifts the curtain.
Racism in Immigration Law and Policies
It is clear from the congressional record, and laws themselves, that the Chinese Exclusion Act, Undesirable Aliens Act, Immigration and Nationality Acts of 1924 and 1952, and other laws played on racial and ethnic stereotypes to limit mobility and long-term settlement of non-white immigrants.
The Immigration and Nationality Act of 1965 attempted to address some imbalances, but the Illegal Immigration Reform and Immigrant Responsibility Act basically broke the already contradictory set of laws, making them a landmine for immigrants attempting to seek safety or build new lives here. The REAL ID Act and other post-9/11 laws and policies tightened the vise.
Policy choices made by presidents from every modern administration have attempted to coerce, repress, and reject migration, a basic human survival act, instead of building safe paths people can use.
Death Penalty Consequences, Traffic Court Rules
The U.S. immigration courts were designed to offer the illusion of justice, while failing the people they purport to protect. Dysfunctional elements include:
A quasi-judicial structure that answers to the U.S. Attorney General in the Executive Branch and is not an independent judiciary; is blatantly influenced by ideology; and promotes quantity over quality decision making.
Power imbalances, such as the fact that the government is represented by attorneys 100% of the time, while immigrants often argue their cases without a legal guide. Detained immigrants are forced to “attend” their hearings via grainy video feed, while judges and counsel are together in courtrooms miles away. Yet immigration judges frequently deny requests for expert witnesses to appear remotely, citing challenges with communication and credibility. The deck is stacked.
4
Also, by detaining someone in jail for the duration of their civil immigration case, the government makes it harder for them to get a lawyer to help. The government is also using the psychological, financial, and physical toll of detention to try to break someone’s spirits and get them to give up.
Subjective “credibility determinations,” rife for bias and abuse. A case can be denied based on a judge’s feeling about the immigrant’s testimony, not facts. This is the barn door through which all manner of ignorance, bias, and ideology storm in.
Legal landmines make it harder for people who qualify for asylum to receive it, such as the one-year filing deadline; illogical definition of material support to terrorism; and the Biden asylum ban.
Differing standards of accuracy. Immigrants may be furnished interpreters who speak the wrong dialect. Judges and DHS attorneys may make inaccurate statements about an individual’s evidence or the political conditions of their country. The hearing transcripts can be riddled with gaps instead of key facts. Yet life-altering decisions are made based on this record, and an immigrant has little to no opportunity to object, correct, or explain.
Consider the experience of M.D. a Black Mauritanian man seeking asylum in the U.S. after the late 1980s/early 1990s genocide. An immigration judge questioned his credibility because M.D. did not provide “evidence” that he is Black and Fulani, a persecuted group in Mauritania. M.D. addressed the court, speaking in Fulani, and said, “I am the evidence. I speak Fulani and I am Black.”
The English transcript of M.D.’s hearing is riddled with “(unintelligible)” in place of the names of relatives and locations where important events, such as the murder of his father, took place. There was an interpreter in the room who could have spelled the words out to make the record more accurate and credible. Instead, the record shows big holes in place of material facts, while M.D. was accused of not providing “proof” that he is Black, deemed not credible, denied asylum.
In another case, a Black man seeking asylum was found “not credible” because his interpreter first used the word “canoe” when describing his method of escape, and later said “little boat.” But in his language and, one can argue, in common English, they are the same thing.
Situations like these, memorialized in the case record, are carried into the appeals process where rehearings typically do not take place, compounding the injustices of these mistakes.
Many of the report’s observations echo some aspects my own writings and public speeches over the years since I retired from the bench in June 2016. For example, here’s my speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW“ from from an FBA Conference in Austin, Texas in May 2019:
While I was speaking during the Trump Administration, sadly, many of my observations remain equally true today, as the Biden Administration and AG Garland have quite inexcusably failed to rise to the occasion by instituting long-overdue due process and quality control reforms at EOIR. Yet, I am struck by how even then, as today, I found reasons to continue to be proud of the accomplishments of the “New Due Process Army” (“NDPA”) and to urge others to continue tobelieve that the “light of due process will eventually be relit” at EOIR and that history will deal harshly with the xenophobic urges and anti-asylum attitudes that too often drive policy in administrations of both parties:
Today, the Immigration Courts have become an openly hostile environment for asylum seekers and their representatives. Sadly, the Article III Courts aren’t much better, having largely “swallowed the whistle” on a system that every day blatantly mocks due process, the rule of law, and fair and unbiased treatment of asylum seekers. Many Article IIIs continue to “defer” to decisions produced not by “expert tribunals,” but by a fraudulent court system that has replaced due process with expediency and enforcement.
But, all is not lost. Even in this toxic environment, there are pockets of judges at both the administrative and Article III level who still care about their oaths of office and are continuing to grant asylum to battered women and other refugees from the Northern Triangle. Indeed, I have been told that more than 60 gender-based cases from Northern Triangle countries have been granted by Immigration Judges across the country even after Sessions’s blatant attempt to snuff out protection for battered women in Matter of A-B-. Along with dependent family members, that means hundreds of human lives of refugees saved, even in the current age.
Also significantly, by continuing to insist that asylum seekers from the Northern Triangle be treated fairly in accordance with due process and the applicable laws, we are making a record of the current legal and constitutional travesty for future generations. We are building a case for an independent Article I Immigration Court, for resisting nativist calls for further legislative restrictions on the rights of asylum seekers, and for eventually holding the modern day “Jim Crows” who have abused the rule of law and human values, at all levels of our system, accountable, before the “court of history” if nothing else!
Eventually, we will return to the evolving protection of asylum seekers in the pre-2014 era and eradicate the damage to our fundamental values and the rule of law being done by this Administration’s nativist, White Nationalist policies. That’s what the “New Due Process Army” is all about.
That brings me back to two of my “key takeaways” from the Ohio Immigrant Alliance Report.
First: “Withholding is a true limbo status, though better than being sent back to certain death.” Skillfully and aggressively using the system to save lives, in any way possible, is job one. A life saved is always a victory!
Second, as the report concludes:
Solutions exist, but they require policymakers and legislators to listen to the people with direct, personal experience. Ramata, cited earlier in this report, suggests quicker approval of cases found credible at the outset. Aliou wants judges to put more stock in migrants’ testimony, understanding that persecuting governments are not credible sources about their own abuse. Jennifer, one of the immigration lawyers we interviewed, suggested that Black immigrant organizations and the American Immigration Lawyers Association be involved in crafting a new direction, citing their extensive expertise with how the system works—and fails people.
Bill, another immigration lawyer interviewed for this report, suggests taking a page from the refugee resettlement program when it comes to verifying facts about a case. “Social workers and private investigators [could] interview people and research documents and try to … verify whether [they’re] telling the truth or not,” he said. Bill suggests employment counselors, ESL teachers, and others with specialized expertise could also assist in the processing of cases.
Most importantly, the asylum and immigration system must be reoriented toward prioritizing safety and resettlement, rather than deportation as the default outcome. The forthcoming report, “Behind Closed Doors: Black Migrants and the Hidden Injustices of US Immigration Courts,” will explore these and other solutions.
As I have observed many times, despite the “national BS” on asylum and immigration being traded by Trump and Biden, and the legislative gridlock, there are still plenty of readily available, non-legislative solutions out there that would dramatically improve due process, justice, and the life-saving capacity of the EOIR system. While no single one of them is a “silver bullet” that would solve all problems overnight, each is an important step in the right direction. Taken together, they would substantially improve the quality and quality of justice overall in our U.S. legal system and, perhaps, in the process, save our republic from demise.
🇺🇸 Due Process Forever!
PWS
03-06-24
This article has been revised to include an excerpt from the IFPTE press release.
FULL DISCLOSURE: I am a proud retired member of the NAIJ.
Piper French reports for Intelligencer via Apple News:
Nilu Chadwick recognizes some of the children’s names right away. Chadwick, a lawyer for Kids in Need of Defense, has spent the past five years poring over lists of families separated under the Trump administration’s “zero tolerance” policy whose cases have yet to be resolved. Some of the children’s names stand out because she crossed paths with them back in 2018, when she represented them at their immigration hearings after they were torn from their parents’ side at the southern border. Those names always remind her of what she witnessed that year. The eerie silence of the children’s shelters. The kids so young that they couldn’t even explain who they were or where they came from. The hearing she had to pause in order to soothe a client with a nursery rhyme. Then there are the names that have simply grown familiar through repetition: the children whose cases appeared on the lists years ago and remain open.
The process of reunifying families separated under “zero tolerance” began in June 2018, two months after the policy was officially implemented. The ACLU had filed a class-action lawsuit on behalf of separated families, Ms. L. v. U.S. Immigration and Customs Enforcement, and during the litigation, a federal judge halted Trump’s policy and ordered its victims reunified within 30 days. Some of these reunifications were relatively straightforward. The government had records of around 2,800 separated families, and most of those parents and children were still in the U.S. — maybe they’d been sent to separate ICE facilities or the parents were in detention while their children had been placed in the custody of the Office of Refugee Resettlement. But for about 470 families, the parents had already been deported. When the Trump administration declined to track them down, Lee Gelernt, the head lawyer for the plaintiffs, stood up in court and said the ACLU would do it. A steering committee was put together comprising a team from the New York law firm Paul, Weiss and representatives from three NGOs, including Kids in Need of Defense and the organization Justice in Motion. “Little did I know what we were taking responsibility for,” Gelernt told me.
The first hurdle the committee faced was the total disorganization with which “zero tolerance” had been implemented. “There was no intention of reuniting families, and so they didn’t design the system to be able to keep track,” Nan Schivone, Justice in Motion’s legal director, told me. The agencies involved — Customs and Border Protection, which took families into custody; ICE, which oversaw their detainment; the ORR, which was responsible for the separated children — didn’t have a comprehensive system to share data with one another, nor did they always keep records linking parents with their children. If children were released from ORR custody into the care of family or friends, the government did limited follow-up. “We give you a luggage tag for your luggage,” said Gisela Voss, a former board member of Together & Free, which supports families seeking asylum. “We separated parents from their kids and didn’t give them, like, a number.”
It took two months, until August 2018, for the administration to provide the steering committee with the phone numbers of the deported parents; a quarter of the numbers were missing. The committee began its search, making calls and performing social-media investigations. Then, in January 2019, the HHS Office of Inspector General revealed that more families had been separated than the Trump administration had previously disclosed. Nine months later, the Justice Department finally produced those names. There were 1,500 of them, and the vast majority of the parents had been deported.
. . . .
But the more that people who have dedicated their lives to this task continue to search, the more it becomes apparent that there will never be a clean resolution. There will always be another family. They know, too, that reunification solves only one problem. Families may be together again, but whether they will ever be whole is another question entirely.
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Read the complete article at the link.
No accountability whatsoever for Trump, Miller, Sessions and the other “human rights criminals” responsible for this. As is all too common in immigration and human rights “fails” by our immigration bureaucracy, the private, pro bono and NGO sectors are left to pick up the pieces after having to fight to uphold the rule of law.
The real story here is the blatant failure of our Government to uphold the rule of law for those seeking legal refugee and the irreparable effects of that failure. Somehow we have allowed politicos and the media to reverse that story line!
Major flying rainbow Unicorn starfish today. We actually got a client pulled off a deportation flight while the plane was on the tarmac in Louisiana. We have been emailing ICE since last week when we first heard that he had been moved from Stewart to Louisiana and was going to be deported, despite the fact that he has a hearing pending in the immigration court here. This of course would be entirely illegal, but since when does ICE care about the law?
It wasn’t until today that we finally got ICE to admit that they were wrong!!! The poor kid is only 18 and doesn’t speak any English!!! I doubt they had an interpreter who speaks his language. He must have been scared to death!I am sure he had no idea why he was on the plane, but I trust he was relieved when they pulled him off!Only about a dozen emails later.
To their credit ICE actually apologized! Sort of. They said that the asylum office had his name spelled wrong. Pffffft!!!!
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Way to go, Marty! Thanks for all you do for American justice!
This is what really happens when politicos and bureaucrats push for restrictions on asylum and tout summary removals. More innocent, vulnerable humans who seek only to have the U.S live up to its legal and moral obligations will die or be tortured without due process. THAT’S what “bipartisan consensus” really means.
The system is already dysfunctional. Speeding things up and eliminating legal rights will only make things worse. Why aren’t politicos discussing ways to fix the broken system, rather than penalizing asylum seekers by eliminating it? This also shows the need for life-saving representation to achieve due process!
Multiple news sources report that President Biden is considering implementing executive action to try to close the U.S.-Mexico border, including to asylum seekers. It would be an extreme move, and a violation of the Refugee Act of 1980 and the country’s international obligation to protect those fleeing persecution. Only one other president — Donald Trump — has blatantly breached that obligation before. With the COVID-19 pandemic as a pretext, Trump invoked Title 42 of the U.S. Code, which allowed him to curb migration in the name of public health.
Biden, who came into office harshly criticizing his predecessor’s anti-immigrant policies, now seems poised to resurrect them. Administration sources concede that the president’s border plans are driven by politics, the belief that the immigration situation is “an election liability.”
This view is no surprise. We’ve been fed a narrative that the border is in crisis, overwhelmed by an unprecedented number of immigrants who pose a grave danger to the health and safety of the nation. But that narrative is false: The border is manageable, and rather than being a danger to Americans, immigrants are a net positive economically and socially.
. . . .
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Read the full op-ed at the link. Thanks for speaking out, Karen!
If only Biden & Harris would listen to migration experts rather than those who erroneously claim that violating asylum laws and stomping on human and civil rights is a “winning political strategy!”
This month, in case you missed it, there were several news headlines that once again proved that immigration is not just good for the U.S. economy, but freaking amazing. I’m not exaggerating – just take a look at the glorious reports revealed in February:
A Congressional Budget Office report found that, “The labor force in 2033 is larger by 5.2 million people, mostly because of higher net immigration. As a result of those changes in the labor force, we estimate that, from 2023 to 2034, GDP will be greater by about $7 trillion and revenues will be greater by about $1 trillion than they would have been otherwise.”
The most powerful economic rebound post-pandemic in the world is thanks to immigration in the U.S. The Washington Post reported, “About 50 percent of the labor market’s extraordinary recent growth came from foreign-born workers between January 2023 and January 2024, according to an Economic Policy Institute analysis of federal data.” Impressively, the surge in hires of immigrant workers filled “unprecedented gaps in the economy that threatened the country’s ability to recover from prolonged shutdowns.”
Even The New York Times piled on: “A resumption in visa processing in 2021 and 2022 jump-started employment, allowing foreign-born workers to fill some holes in the labor force that persisted across industries and locations after the pandemic shutdowns. Immigrants also address a longer-term need: replenishing the work force, a key to meeting labor demands as birthrates decline and older people retire.” The report also features a City Council president and member of the Plumbers and Steamfitters union in Indiana who says he would welcome migrants with open arms as his union is in desperate need of members.
Despite so many economists, industry and business leaders, and fellow Americans clamoring for immigrants to come to America and live and work in a small town in the middle of nowhere or somewhere, our politicians are stuck in the quicksand of deterrence, slowly sinking into policy and politics that muddle speeches and don’t make anyone want to save them.
Don’t get me wrong– I do want to save President Biden but, buddy, we need to work on those talking points. While I agree border communities and immigration officials are in dire need of resources and should be provided the proper funding and manpower, President Biden’s continual push for the Senate bipartisan bill was half futile. I get the political jab; use it, in fact, as it works against Republicans. But for the love of God stop trying to push the bill forward. It’s dead. Start planting the messaging seeds for better, more galvanizing solutions that address the border, resource welcoming communities, and deliver legal pathways. And above all center the economic and cultural contributions of Dreamers and immigrant families that Trump is eager to deport.
Humanizing the narrative is always a winning strategy. Recognizing the rewards of immigration and the hard work of immigrants, both in policies and messaging, speaks to those persuadable voters that Biden and Democrats must win over.
Where have you gone, John Fetterman? I roll my lonely eyes at you.
Now here’s someone who’s actually sinking. Yesterday, Senator John Fetterman (PA), on an apparent quest to prove he’s a tough border security hawk, said he would support H.R. 2 except for its aim to terminate DACA. He claims to have analyzed the bill, and if he did, then I am stupid for having ever thought he was a decent guy who understood the importance of immigration in America.
As a reminder, H.R. 2 is basically a Stephen Miller wet dream (I apologize for the imagery): it would (1) end legal representation for unaccompanied children and deport them faster, (2) shut down the asylum system, (3) give any DHS secretary the authority to deny every single migrant the right to seek asylum (in other words, permanent Title 42), (4) jail and detain immigrant families, (5) eliminate humanitarian parole, (6) punish and defund faith-based organizations and NGOs for supporting newly-arrived migrants, and (7) jail and penalize immigrants who overstay their visa. (Imagine if that last one were in place when Fetterman’s wife and mother-in-law had arrived in the U.S.)
Neither H.R. 2 nor the Senate bipartisan bill are “grand bargains” unless it’s a deal scored by a used car salesman hiding the 20% annual interest rate. When immigration is decidedly incredible for the economy, when immigrants are proudly working and thriving alongside their fellow American, when those seeking freedom and opportunity are willing to risk their lives for a leg up to work – work! – when businesses and communities are desperate for immigrants to fuel their future, our leaders should be grand-standing with a 21st century plan that embraces immigration and immigrants for all that they can do for America.
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Thanks for speaking truth to power, Beatriz!
While Trump and Biden trade barbs and disgracefully try to ”one up” each other as to who can be the most cruel, cowardly, and dumb on “bogus border security,” the real humanitarian and asylum processing crises go unaddressed; the most vulnerable continue to suffer at the hands of a country they want to help while saving their own lives. This is a potential “win-win” that our politicians refuse to embrace!
Texas will appeal to the too-often-lawless Fifth Circuit, so this saga is only beginning. But, at least this time the “good guys” struck first and won the opening round.
“The IJ’s conclusion that Gao failed to meet her burden of proof is based on the lack of sufficient corroborating evidence. As mentioned above, where, as here, the petitioner’s testimony is deemed credible, but the IJ finds that additional corroborating evidence is necessary to satisfy the burden of proof, the IJ is required to “(1) point to specific pieces of missing evidence and show that it was reasonably available, (2) give the [petitioner] an opportunity to explain the omission, and (3) assess any explanation given.” Wei Sun, 883 F.3d at 31; see also Pinel-Gomez, 52 F.4th at 529. Because the IJ failed to comply with these requirements here, we remand for the agency to reconsider Gao’s claim that she will be singled out for persecution if she returns to China.”
“Berhe asserted that the Eritrean military detained and beat him because he complained about conditions during his mandatory military service and because of his perceived anti-government political opinion. The agency’s adverse credibility determination is not supported by substantial evidence. … Respondent’s motion to transfer venue is DENIED, the petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED for further proceedings consistent with this order.”
“Based on the statutory language, structure, and context of § 1252, we conclude that a reinstated order of removal is not final for purposes of judicial review until the agency has completed withholding proceedings. Only when those proceedings conclude, if the noncitizen is eligible for that review, has the agency finalized all mandatory review and “fully determined” the noncitizen’s fate. Arostegui-Maldonado, 75 F.4th at 1140 (quoting Luna-Garcia, 777 F.3d at 1185). A contrary conclusion would contravene the express intent of Congress. Our own circuit’s precedent is consistent with this interpretation, having long treated reinstated orders of removal as final once withholding proceedings are complete. We see no reason to upset that precedent. Because F.J.A.P. filed his petition within 30 days of the completion of his CAT proceedings, we have jurisdiction to hear his petition and proceed to the merits. … Here, the Board did not just declare an absence of evidence; it actively ignored the evidence relied upon by the immigration judge. … The Board reweighed and discounted evidence in F.J.A.P.’s case instead of properly disputing that evidence with contrary facts from the record. … The Board did not explain how the immigration judge’s conclusion that F.J.A.P. would likely be tortured for having “the audacity to file a police report” is illogical, implausible, or lacks support. The Board did not explain why, in a country where gangs control much of the government—an assertion which was supported in the record by the State Department’s country report—an individual complaint about the gang made to the gang-controlled police would not put a target on someone’s back. … For these reasons, we find that the Board erred by failing to apply the required clear error standard of review. Because the Board failed to apply the correct standard of review, we need not reach whether substantial evidence supported its conclusion. In light of this error, we grant F.J.A.P.’s petition and remand to the Board of Immigration Appeals for reconsideration of the immigration judge’s decision under the correct standard of review consistent with this opinion.”
Harry S. Graver, Esquire Jones Day D.C.Chuck Roth, Esquire NIJC
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Great, if disturbing, examples of the “culture of any reason to deny” that flourishes in too many places in Garland’s EOIR and the poor leadership from the BIA! All these respondents were “garlanded,” and only saved by their outstanding lawyers and the Circuits!
Congrats to the attorneys involved in all these cases. Gerald Karikari appeared before me at the “Legacy” Arlington Immigration Court. Ben Winograd is a superstar appellate litigator. Harry S. Graver is an attorney in the DC Office of Jones Day, where I was a partner in the 1990s. Chuck Roth is a “superlitigator” for the NIJC!
The season’s outlook for justice in Manager Merrick Garland’s EOIR:
Gloomy 😪😢
In the often other-worldly, fact-free, one-sided “debate” about immigration and asylum, we must remember that severe over-denial, abuse of in absentia orders, “courts in prison,” and lack of positive precedents in Garland’s EOIR badly distort the success rate for asylum seekers that the Government often throws around. Because of Garland’s failure to legitimize EOIR asylum adjudications by cleaning house, replacing unqualified leadership, and insisting on judges with demonstrated asylum expertise and reputations for fairness, we actually have little idea how asylum seekers would fare in a fair and functional system where due process and decisional excellence were required.
Suffice it to say that significantly more asylum cases would be granted in a more timely manner. We just don’t know how many more!
This is the “reward” that both parties have in mind for migrants who have helped our economy thrive through difficult times. Doesn’t seem right, smart, or rational! PHOTO: Public Realm
Immigration has propelled the U.S. job market further than just about anyone expected, helping cement the country’s economicrebound from the pandemic as the most robust in the world.
That momentum picked up aggressively over the past year. About 50 percent of the labor market’s extraordinary recent growth came from foreign-born workers between January 2023 and January 2024, according to an Economic Policy Institute analysis of federal data. And even before that, by the middle of 2022, the foreign-born labor force had grown so fast that it closed the labor force gap created by the pandemic, according to research from the Federal Reserve Bank of San Francisco.
Immigrant workers also recovered much faster than native-born workers from the pandemic’s disruptions, and many saw some of the largest wage gains in industries eager to hire. Economists and labor experts say the surge in employment was ultimately key to solving unprecedented gaps in the economy that threatened the country’s ability to recover from prolonged shutdowns.
“Immigration has not slowed. It has just been absolutely astronomical,” said Pia Orrenius, vice president and senior economist at the Federal Reserve Bank of Dallas. “And that’s been instrumental. You can’t grow like this with just the native workforce. It’s not possible.”
Yet immigration remains an intensely polarizing issue in American politics. Fresh survey data from Gallup showed Americans now cite immigration as the country’s top problem, surpassing inflation, the economy and issues with government. A record number of migrants have crossed the southern border since President Biden took office, with apprehensions topping 2 million for the second straight year in fiscal 2023, among the highest in U.S. history. Cities like New York, Chicago and Denver have struggled to keep up with busloads of immigrants sent from Texas who are overwhelming local shelters.
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Read the rest of the article at the link.
There are also lots of practical ideas out here for fixing the asylum processing system and other helpful, humane border initiatives that don’t invest exclusively in expensive, cruel, and proven to ultimately fail “uber-enforcement only!” See, e.g.,https://immigrantjustice.org/staff/blog/solutions-humane-border-policy.
Still, politicos of both parties and most media are on a completely different page, unhappily!
William Samuel is an accomplished citizen writer publishing with a specific focus on current affairs and military history.
De Spretter writes on Linkedin:
When asked in 1922 what his priorities would be if elected chancellor of Germany, then up-and-coming National Socialist leader, Adolf Hitler, answered candidly:
“Once I’m really in power, my first and foremost task will be the annihilation of the Jews.”
Proclaiming with vitriolic zeal, they’d be “hanged indiscriminately… until all of Germany has been completely cleansed of Jewry”, German Jews, understandably, had no desire to remain when he assumed the chancellorship in 1933…
In desperate hopes of securing safe passage to their ancestral homeland – Eretz Israel – tens of thousands flocked to the British embassy; only to be told on arrival there, “strict limits” had been imposed on the quota of Jews who’d be granted entry.
Although, sadly, the fate of most was thus sealed, countless more would have suffered the same had it not been for the defiant courage of Britain’s Vice-Consul, then-Captain Francis “Frank” Foley.
As a man who, in reality, was using his position as a cover for his long-serving role as an MI6 spymaster, Frank’s intelligence gathering had long confirmed that Hitler’s threats against the Jewish people were far from “empty rhetoric”.
For that reason, Frank was “quite unwilling to toe the line with London…”
Instead, he didn’t just “tear up the rulebook” that dictated whom he could issue lifesaving visas to but, when the “Kristallnacht” pogrom of 1938 was unleashed, he even transformed his place of residence into a safe haven for Jewish families.
From the “Night of Broken Glass” onwards, the number of Jews filing for immigration visas increased dramatically; but still, Frank’s superiors refused to ease the stringent requirements that prevented him from granting them.
Once again, therefore, he not only decided to “bend the rules” by easing them himself but, when he then received an official reprimand for his brave “contravention”, Frank doubled down on his rescue efforts by forging passports for Germany’s beleaguered Jewish citizens.
Despite being fully aware that no level of diplomatic immunity would protect him if the Gestapo had uncovered his clandestine activities, Frank persevered regardless, with no fear or concern for his personal safety.
In so doing, he enabled no fewer than 10,000 Jews to flee Hitler’s Reich; and yet, humble man that he was, Frank never spoke of his selfless deeds during his lifetime…
Incredibly, it was only after his passing, in May 1958, that his heroic exploits were revealed by his beloved wife, Katherine; and, it wasn’t until over four decades later, on this day in 1999, that he was deservedly recognized for having saved so many Jewish lives.
Honored as a posthumous Righteous Gentile by Yad Vashem, the latter paid tribute to Frank – “the British Schindler” – by describing him as “a man of great faith and conviction…”
Indeed, “as a deeply devout Christian, Frank did nothing more than act upon his sense of justice and compassion.”
#WeRemember
Captain Francis “Frank” Foley SOURCE: Linkedin
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Inspiring and timely piece of history. Thanks to Samuel for posting this on LinkedIn!
What if 600 bureaucrats had each made it their business to save 10,000 lives? The course of history would have been changed.
This is worth keeping in mind as our leaders of both parties and the immigration bureaucracy make “bullying the most vulnerable” and dehumanizing asylum seekers their daily mission. And, they brag about their cruelty and intention to violate laws in even more deadly ways! What if the same amount of effort were devoted to addressing humanitarian crises and saving lives?
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