"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Sloppy decision-making and institutional bias in favor of DHS Enforcement remain endemic problems at EOIR that Garland has failed to address. “Eyore” isn’t the only one suffering from this failure to bring progressive reforms to “America’s worst and deadliest courts!” “Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
“. [T]he government is right that we have no jurisdiction to re-weigh the evidence of hardship. But, a reweighing could only occur if there had been a weighing of that evidence in the first place. And, here, we conclude that there was no weighing of that evidence at all. We thus reject the government’s argument that the BIA, in overturning the immigration judge’s ruling granting Perez-Trujillo adjustment of status, did consider hardship as he contends that it was required to do under Matter of Arai.”
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Notice a theme here: No need to actually consider the evidence, just deny, particularly when that’s the result demanded by the “partners” over at DHS enforcement? What kind of “court” operates in this manner? Where is the “fair and impartial adjudication” required by Due Process and Matthews v. Eldridge?
Clearly, these are signs of “denial-oriented assembly line decision-making by the BIA.” And, how does Garland explain OIL’s “defense” of weighing and considering factors that NEVER OCCURRED — essentially fabricated? Sounds like intentionally misleading courts to me! THIS is our Department of “Justice” under Garland?
Bias, poor judging, a culture of denial, and political interference with docket management are endemic problems at Garland’s BIA! That’s a prime reason why under DOJ’s “maliciously incompetent” administration and weaponization EOIR has built a still out of control 1.3 million case plus backlog!
Easy cases become endless exercises, as EOIR and OIL waste the time of the Circuits trying to “paper over” shoddy and biased decision-making on the “deportation assembly line.”Cases that should have been favorably resolved years ago instead keep bouncing around the system on “Circuit remands.”
Some then become the victims of “Aimless Docket Reshuffling” by DOJ politicos and their EOIR toadies and never get resolved at all! All these problems are magnified by two-decades of grossly incompetent DOJ/EOIR “management” that has elevated political agendas and bureaucratic nonsense over implementing a functioning e-filing system like every other comparable “court” in America! Due Process and customer service continue to come last at Garland’s EOIR!
DON’T let Garland and Mayorkas claim that the “solution” is more improperly “expedited” special dockets and less due process. NO, NO, NO! The solution is better judges (now, not later), granting more deserving cases rather than “looking for reasons to deny,” better judicial training, positive precedents from a new expert BIA, and an end to bogus “quotas,” stupid and unethical “performance work plans,” and political interference with docket management by DOJ and EOIR HQ!
Without aggressive progressive interventions and a massive infusion of new progressive expert personnel into EOIR, the Immigration Courts will continue to flounder and fail under Garland. Then, in the finest DOJ tradition, looking for a way to cover himself, he and his team will attempt to shift the blame to their victims— hapless, abused respondents and their long-suffering lawyers! Don’t let them get away with it!
Garland’s failure to institute “no brainer” progressive reforms @ EOIR and to replace bad judges is life-threatening and an incredible drag on our entire legal system! Tell him you have had enough! Demand better! Let your voices be heard in protest every day until we get the long overdue, readily achievable, EOIR reforms progressives have worked for and were promised!
If you congratulate anyone, you might include Hena Mansori, now at Cook County PD office, who represented Chester for years before leaving NIJC (and Diana Rashid handled it after Hena left). It’s not fair that us appellate folks get all the glory.
Regards,
Chuck
Charles Roth
Director of Appellate Litigation
National Immigrant Justice Center
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Thanks, Chuck. And, congrats to Hena Mansori, Diana Rashid, and you on another great victory!
Unrepresented individuals appearing before non-expert judges “supervised” by a BIA tilted in favor of DHS enforcement is not due process! Yet, that’s what happens every day in Immigration Courts.
Too many of these “courts” are “embedded” in the DHS “New American Gulag,” an inherently coercive environment that makes mincemeat out of fundamental fairness and mocks due process.
Tell AG Garland you’ve had enough of this scofflaw farce! Demand progressive changes starting with a new BIA with progressive expert judges, merit-based judicial selections, universal representation, and an end to Gulag courts and overused televideo “adjudication centers” that dehumanize and mechanize “justice” in a totally improper manner!
Maria Ramos Pacheco reports for the Dallas Morning News:
CIUDAD JUÁREZ, Mexico — While Vice President Kamala Harris said Friday the goal of her trip to El Paso was to understand the “root causes” of the rising influx of migrants from recent months, just across the border Honduran migrant Manuel Medina had a simple explanation for why thousands of people from other countries will continue to try to reach the United States: To stay alive while fleeing countries where their families are threatened by crime and violence.
“I did not leave my country and my wife because I wanted to. [Rising] crime forced me to leave everything; the only thing I want is for my family and me to be safe,” said Medina, 37, who left Honduras in May 2019 after receiving threats from gang members.
Amid a chorus of criticism coming mainly from Republican politicians, Harris made her first trip to the U.S. Southern border flanked by the Secretary of Homeland Security, Alejandro Mayorkas; Sen. Dick Durbin, D- Ill; and El Paso Rep. Verónica Escobar.
Amid a chorus of criticism coming mainly from Republican politicians, Harris made her first trip to the U.S. Southern border flanked by the Secretary of Homeland Security, Alejandro MayorkasSen.
For people like Medina, neither restrictive immigration policies nor dangerous journeys through several countries, border walls, or even statements from politicians deter them from seeking to rebuild their lives in the United States.
Medina has lived for two years in this city’s El Buen Samaritano shelter, managed by a religious organization, along with his 15-year-old son Nahúm Medina. Their asylum petition was initially rejected in 2019 and he stayed in Ciudad Juárez under the Migrants Protection Protocols, waiting for a second chance.
The MPP or “Remain in Mexico” program was created in 2019 by the Trump administration, which forced people seeking asylum to remain in Mexico. As of May, there were 71,002 active cases.
Restrictionism, racism, nativism, cruelty, and scofflaw behavior will only continue to make things worse. And, AG Merick Garland, staffing your “courts” with “Miller Lite” holdovers and Trump toadies won’t stop the downward spiral of American justice on your watch!
“Sadly, over the last two decades the US has been unable to get beyond this vision of ‘deterrence’ of legal asylum seekers.“ — Floaters — “How The World’s Richest Country Responds To Asylum Seekers” 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)Vice President Kamala D. Harris Vice President of the United States. — “So far, she hasn’t gotten beyond the mistakes of the past, either. Taking a tour with CBP won’t help.” (Official Senate Photo)
Last week, Ms. Harris traveled to Guatemala to meet with President Alejandro Giammattei and expressed the Biden administration’s goal to “help Guatelmalans find hope at home.” During a press conference on June 7, she told Guatemalans thinking of making the journey north to the United States: “Do not come. Do not come.”
“O.K., that’s like saying, ‘Stay home and die,’” according to the Rev. Pat Murphy, a Scalabrini priest who runs the Casa del Migrante shelter in Tijuana, Baja California. “That message is falling on deaf ears.”
If Ms. Harris does travel to the border, Father Murphy said, she should be sure to make a visit to the Mexican side. “If she just stays on her side, she’s not going to find much,” he said.
In Tijuana, Ms. Harris would see a camp of 2,000 asylum seekers near the port of entry, Father Murphy said. “If she looked a little further, she would see the people who are victims of violence in Tijuana and Mexicali and other places,” he said. Migrants may be eager to escape bad situations in their home countries, Father Murphy said, but they often do not understand how difficult conditions at the border are “until they’re stuck in the middle of [a border city] with no place to go.”
“You can’t understand [border realities] by talking to government officials. You have to talk to the people who are working with migrants and hear about the suffering.”
At diminished capacity because of the pandemic, migrant shelters are full. The United States has started to accept some vulnerable people, like families with children with an illness or those being persecuted because of their sexual orientation, Father Murphy said. But there are also hundreds deported every day.
He believes if the vice president did decide to visit the border, it would be worth her while. “You can’t understand [border realities] by talking to government officials,” Father Murphy said. “You have to talk to the people who are working with migrants and hear about the suffering.”
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Donald M. Kerwin Executive Director Center for Migration Studies
Donald Kerwin, the executive director of the Center for Migration Studies in New York, also noted that people have a right not to migrate—to stay in their home country. He sees immigration policy as an arena for a fruitful convergence of Catholic social teaching, international law and contemporary human rights principles.
The Biden administration’s recognition of the forces that drive migration should be applauded, but it can address root causes while re-establishing humane asylum policies at the border.
“States are responsible for ensuring that people can flourish at home,” he said. “But it’s an empty right at this point in many communities in the Northern Triangle countries. They’re facing impossible conditions, caused by natural disasters, climate change, gang violence and extraordinary poverty. So people have a right to flee those impossible conditions and seek lives that are worthy of human dignity. In some cases, that means leaving their countries.”
When they do leave their home countries, people have the right to seek protection wherever they can find it, Mr. Kerwin said. “The vice president seems to have bought into the… I can’t use another word, but the nativist party line, that somehow these immigrants are the cause of the problem when, in fact, they’re the victims of multiple problems in many cases.”
The United States needs a functioning refugee resettlement system, an asylum system and robust humanitarian programs to address the conditions in Central America that are driving people to migrate, he said. “They’re not in place right now,” Mr. Kerwin said, “and until they are in place, people will reluctantly, at a terrible cost…continue to migrate.”
If Ms. Harris visits the border, Mr. Kerwin suggested she speak with migrants that have entered the United States, starting with the children. “Find out why they’ve come, what drove them to the United States and also see what their situation is currently, in often overcrowded facilities,” he said. “At that point, it would be clear as day that these folks are not a problem. These folks fled terrible problems, but they themselves are not the problem.”
Earlier this month, more than 20 bishops, Vatican representatives and leaders of Catholic organizations met for an emergency immigration meeting at Mundelein Seminary, outside of Chicago. Mr. Kerwin, who attended the meeting, said organizers displayed notes written by immigrant children, often addressed to God.
“It’s clear from reading these notes that these are lovely children, who miss their parents and worry about them and are in difficult situations that are not of their own making. And that the United States should do right by them,” he said. “And the right thing is to protect them and reunify them with family members.”
Chloe Gunther, America intern, contributed to this story.
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Read the full article at the link.
Politicians of both parties are averse to the truth. They don’t have the courage and backbone for it! But the truth is quite simple, if somewhat “inconvenient.”
Unless and until we can solve the problems driving refugees to flee the Northern Triangle, we will have to take more of them. We should welcome them through an orderly legal system, including a robust, properly staffed, and honestly administered legal refugee and asylum system.
Alternatively, we could continue our current policies of immorally and illegally killing some on the journey, “snuffing” some in the desert (where their bodies might never be found and “counted”), and enriching smugglers and cartels who will eventually get many determined survivors into the interior.
There, they will join our highly exploitable, yet politically expedient for both parties (for differing reasons), “extralegal population.” Alimited number will be “in the wrong place at the wrong time” and be arbitrarily removed by ICE, usually at costs that far exceed any demonstrable benefits. Even fewer will commit misconduct leading to their arrest and removal.
But the bulk of them will blend in somehow and do what’s necessary for themselves and their families to survive, as has been happening for decades and generations. They will also enrich and improve our nation in ways both predictable and unpredictable. Some will eventually find it possible and advantageous to return to their nations of origin, most won’t.
It would be far better for both the migrants and our nation, not to mention humanity as a whole, if we included the bulk of those forced to come here in our legal immigration system. But, whether we are enlightened enough “to do it the right way” or not, they will come as long as the alternatives are starvation, death, unspeakable abuse, and unending despair.
Migration is both our oldest and most persistent human phenomenon and an essential survival skill for humanity. It’s going to take more than inane walls, cruel and illegal imprisonment in American Gulags, unworkable laws, mindless, yet expensive, enforcement, nativist rhetoric, bad judges, and cowardly politicians sending “don’t come” messages to make them “die in place.” Our politicians might be not be bright or brave enough to face reality — but, I guarantee that the forced migrants we like to dehumanize and look down upon are much smarter, braver, more aware, and far more creative, adaptable, and capable than we think!
NPR: In a pair of decisions announced Wednesday, Attorney General Merrick Garland is vacating several controversial legal rulings issued by his predecessors — in effect, restoring the possibility of asylum protections for women fleeing from domestic violence in other countries, and families targeted by violent gangs.
AP: A pending federal court case in Texas is challenging whether the program’s creation was legal. If the challenge is successful, it could end protections, adding urgency to those pressing Congress for a more lasting solution.
Axios: The policy known as Title 42 has resulted in tens of thousands of migrant family members, including asylum seekers, being sent away — as well as thousands of kids then separating from their families to cross into the United States alone.
Reuters: As the U.S. military completes its withdrawal from Afghanistan in the coming weeks, the Biden administration says it is adding staff to hurry up the visa process for Afghans who worked for the U.S. government and want to flee to avoid Taliban reprisals.
CityLimits: As they continue on the campaign trail, contenders of both parties who remain in the race speak openly about citizens’ concerns, such as crime, police reform, affordable housing, education, health, jobs and the Big Apple’s recovery from the COVID-19 pandemic. Latino voters, however, still feel that they have not heard concrete proposals regarding immigrants.
Intercept: Internal ICE records and emails, as well as a deposition by an ICE officer in a court case, show the agency referring to an advocacy group as a “known adversary” and closely surveilling the immigration and civil rights activists’ activities, both online and in person.
NYT: Health and consumer protection agencies have repeatedly warned that several of these treatments, as well as vitamin infusions and expensive injections of “peptide therapies” sold at alternative wellness clinics for more than $1,000, are not supported by reliable scientific evidence.
AIC: Although not every proposed rule put on the agenda will end up being finalized, the agenda signals an administration’s priorities and its goals for pursuing changes to our immigration system through executive action.
DOJ vacated Matter of A-B- and Matter of A-B-II and stated that immigration judges and the BIA should no longer follow these decisions when adjudicating pending or future cases. Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) AILA Doc. No. 21061639
DOJ vacated Matter of L-E-A- II in its entirely and immigration judges and the BIA should no longer follow Matter of L-E-A- II when adjudicating pending and future cases. Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021)AILA Doc. No. 21061640
AAG: Please review any pending cases that may be affected by the Attorney General’s vacatur of L-E-A-II, A-B-I, and A-B-II and take appropriate steps in light of that development, including seeking remands in appropriate cases to allow the Board to reconsider asylum claims based on this change in the law.
The court certified to New York State Court of Appeals the question of whether an intent to “appropriate” property requires an intent to deprive the owner of property permanently or under circumstances where their property rights are substantially eroded. (Ferreiras Veloz v. Garland, 6/7/21) AILA Doc. No. 21061635
Law360: A split Third Circuit panel on Thursday refused to halt deportation proceedings for a Jamaican woman who pled guilty to defrauding the elderly in a lottery scam, ruling in a precedential decision that she didn’t prove she was likely to face retribution from the scam’s ringleader if sent back to her native country.
The court held that although the defendant, a former military officer, refused to shoot civilians during the Salvadorian Civil War, the fact that he “assisted” and “participated in the commission of” extrajudicial killings permitted his denaturalization. (United States v. Vasquez, 6/11/21) AILA Doc. No. 21061737
The court concluded that 8 CFR §212.7(e)(4)(iii), together with 8 CFR §§1003.10(b) and 1003.1(d)(1)(ii), gives IJs and the BIA the authority for administrative closure to permit noncitizens to apply for and receive provisional unlawful presence waivers. (Garcia-DeLeon v. Garland, 6/4/21) AILA Doc. No. 21061634
The court found that while the Memphis Immigration Court violated procedural rules in transferring the petitioner’s hearing to the Louisville Immigration Court, that violation was a procedural question relating to venue, not jurisdiction to hear the case. (Tobias-Chaves v. Garland, 6/8/21) AILA Doc. No. 21061636
The court granted the petition for review and remanded the case to the BIA in light of the U.S. Supreme Court’s recent decision in Niz-Chavez v. Garland. (Lorenzo Lopez v. Garland, 6/8/21) AILA Doc. No. 21061643
The court held that the BIA erred by reviewing the IJ’s decision de novo rather than for clear error, and found that the record established that the petitioner had met her burden to show it was more likely than not she would be tortured if removed to Mexico. (Soto-Soto v. Garland, 6/11/21) AILA Doc. No. 21061644
Law360: A split Tenth Circuit panel on Tuesday reversed a Utah federal judge’s order finding that American Samoans are birthright U.S. citizens, holding that the issue belongs in the hands of Congress, not the courts.
Law360: In a decision that established several court precedents, the Eleventh Circuit has revived a Sri Lankan man’s bid for asylum, ruling that both an immigration judge and the Board of Immigration Appeals failed to properly reconsider his asylum application after allowing him to stay in the United States.
Law360: The D.C. Circuit ruled Friday that it lacks jurisdiction to revive asylum-seekers’ challenge to how border officers carry out a policy that requires migrants to seek protections in other countries they pass en route to the U.S.
AILA: DHS filed a motion for partial summary judgment in district court on all the plaintiffs’ claims regarding the 30-day timeline repeal rule, which was published on June 22, 2020.
Law360: The Biden administration has asked a Maryland federal judge to keep intact a Trump-era asylum work rule that gives the U.S. Department of Homeland Security more time to process work permits, saying the increased flow of asylum-seekers justifies the change.
Law360: Three Mexican nationals have asked a Colorado federal court to declare that U.S. Citizenship and Immigration Services unlawfully denied their green card applications by finding them inadmissible under a 10-year bar on reentering the United States up to 20 years after they left the country.
USCIS provided guidance in the Policy Manual on employment authorization and deferred action for principal petitioners for U nonimmigrant status and qualifying family members with pending, bona fide petitioners. Comments and feedback is due by July 14, 2021. AILA Doc. No. 21061433
DHS and DOS issued a joint statement on the second phase of the Central American Minors (CAM) program’s reopening. Eligibility now includes legal guardians and parents and U.S.-based parents or legal guardians with pending asylum application or pending U visa petition filed before 5/15/21. AILA Doc. No. 21061631
Thanks Elizabeth!As previously noted, I remain skeptical of Biden Administration plans to “reform” asylum law without bringing in the progressive human rights experts who can handle the job!
Most needed “reforms” — like bringing in progressive judges, replacing the BIA, bringing in progressive managers and executives, slashing the largely self-created EOIR backlog, working with NGOs to provide universal representation to asylum seekers and other vulnerable individuals, eliminating unnecessary detention, issuing positive precedents to guide IJs and Asylum Officers, bringing on more Asylum Officers and offering them better training (see, e.g., VIISTA @ Villanova), restoring Administrative Closing, implementing e-filing at EOIR, expanding the Central American Minors Program and other refugee programs in Central America, and many others are “hiding in plain sight.”
The “blueprints” are already about there — in bulk! All that’s missing is the dynamic new progressive leadership to implement them and insure compliance.
Also, as I’ve pointed out before, no Administration in history has had the benefit of so much empirical data, practical scholarship, and “ready for prime time” workable solutions for such well-documented and glaring problems. The asylum and EOIR “fixes” are both highly doable and can produce immediate positive results with more to follow!
But, not necessarily the way the Biden Administration is going about it, with far too many of those needed to turn “rhetoric into reality” still on sidelines in the private sector. In the meantime, folks who have already proved beyond a reasonable doubt that they can’t fix the system remain in key positions.
For Pete’s sake, several of my Georgetown Law students rattled off some of these solutions in class yesterday, and asked me why nobody was working on them. I told them I couldn’t figure out why the Biden Administration was so “slow on the uptake” with so many resources and experts out here in the private sector!
One of my most obvious ideas — hire my three colleagues, Georgetown Professors Phil Schrag, Andy Schoenholtz, and Temple Associate Dean Jaya Ramji-Nogales who recently wrote “instant immigration classic” The End of Asylum and earlier wrote the classic “bad government” expose Refugee Roulette — on a six month consulting contract to come in and fix EOIR and the Asylum Office.
It’s not so much regulatory reform that’s needed (although to be sure improvements can be made), but rather bringing in progressive leadership and better judges in key positions at DHS, DOJ, and EOIR to insure that due process is maximized, best practices are instituted, and recalcitrant personnel still committed to the Trump/Miller White Nationalist agenda are placed in other jobs where they can’t overtly damage our justice system.
Not “rocket science!” 🚀 But, it’s not going to be solved by a “regulatory agenda” either!
Jeff Sessions’ Cage by J.D. Crowe, Alabama Media Group/AL.com Republished under licenseBill Barr Consigliere Artist: Pat Bagley Salt Lake Tribune Reproduced under license
Judge Garland wonders whether there could be some “problems” with these guys and their corrupt agendas. Meanwhile, his DOJ continues to sink deeper into the muck every day! Hey, what’s the rush? It’s “only justice” and human lives at stake here! Garland seems to think that can’t compare with protecting important “Departmental prerogatives” to cover up past and perpetuate future injustices @ Justice! He’s wrong! Dead wrong in some cases!
Donald Trump never did much to hide his dangerous belief that the US justice department and the attorneys general who helmed it should serve as his own personal lawyers and follow his political orders, regardless of norms and the law.
Former senior DoJ officials say the former president aggressively prodded his attorneys general to go after his enemies, protect his friends and his interests, and these moves succeeded with alarming results until Trump’s last few months in office.
The martyr who may rise again: Christian right’s faith in Trump not shaken
But now with Joe Biden sitting in the Oval Office, Merrick Garland as attorney general and Democrats controlling Congress, more and more revelations are emerging about just how far Trump’s justice department went rogue. New inquiries have been set up to investigate the scale of wrongdoing.
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Trump’s disdain for legal principles and the constitution revealed itself repeatedly – especially during Bill Barr’s tenure as attorney general, during most of 2019 and 2020. During Barr’s term in office, Trump ignored the tradition of justice as a separate branch of government, and flouted the principle of the rule of law, say former top justice lawyers and congressional Democrats.
In Barr, Trump appeared to find someone almost entirely aligned with the idea of doing his bidding. Barr sought to undermine the conclusions of Robert Mueller’s inquiry into Russian interference in the 2016 elections, independent congressional oversight, and Trump critics in and out of government, while taking decisions that benefited close Trump allies.
But more political abuses have emerged, with revelations that – starting under attorney general Jeff Sessions in 2018 – subpoenas were issued in a classified leak inquiry to obtain communications records of top Democrats on the House intelligence committee. Targets were Adam Schiff and Eric Swalwell, who were investigating Kremlin election meddling, and also several committee staffers and journalists.
Democrats in Congress, as well as Garland, have forcefully denounced these Trumpian tactics. Garland has asked the department’s inspector general to launch his own inquiry, and examine the subpoenas involving members of Congress and the media. Congressional committees are eyeing their own investigations into the department’s extraordinary behavior.
“There was one thing after another where DoJ acted inappropriately and violated the fundamental principle that law enforcement must be even-handed. The DoJ must always make clear that no person is above the law,” said Donald Ayer, deputy attorney general in the George HW Bush administration.
Ayer thinks there could be more revelations to come. “The latest disclosure of subpoenas issued almost three years ago shows we don’t yet know the full extent of the misconduct that was engaged in.”
. . . .
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Read the full article at the link. Once again, thanks to Don Ayer, a former colleague in both public and private practice, for speaking out!
Don Ayer American Lawyer Former U.S. Deputy Attorney General Photo: www.ali.org
The record of anti-immigrant, White Nationalist bias at EOIR and the DOJ’s “Dred Scott” approach to justice for asylum applicants and other migrants is crystal clear! Thanks to the NDPA, courageous journalists, some “inside sources,” and the remarkable number of rebuffs from Federal Courts, the record on misfeasance and bias at EOIR, OIL, and the SG’s Office is clear.
For example, there is no “issue” that Sessions’s “child separation policy” violated the Constitution, that he and other Government officials like Rod Rosenstein and Kristen Nielsen lied about it ( ‘We Need to Take Away Children,’ No Matter How Young, Justice Dept. Officials Said
https://www.nytimes.com/2020/10/06/us/politics/family-separation-border-immigration-jeff-sessions-rod-rosenstein.html?referringSource=articleShare), and that the DOJ attorneys defending this abomination at least failed to do “due diligence” and probably misrepresented to Federal Courts.
In many illegal child separation cases, as the Biden Administration is discovering, the damage is irreparable! Yet, only the the victims have suffered! The “perps” go about their daily business without accountability!
Every day, Garland’s lackadaisical approach to restoring “justice @ Justice” and his apparent indifference to individual human rights and fair judging continue to harm vulnerable asylum seekers and other individuals and disintegrate our legal system. It’s “not OK!”
Progressives and members of the NDPA must recognize, if they haven’t already, that they can’t count on Garland! They will have to continue to use litigation, legislation, oversight, FOIA, public opinion, and political pressure to get the immediate common sense progressive reforms and overdue personnel changes that Garland, Monaco, Gupta, and Clarke are avoiding. Garland might view “justice” as too abstract a concept to require his immediate attention. Many of us don’t agree!
“When will it end, Judge G? When will it ever end?” –“She struggled madly in the torturing Ray” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
PANEL:Mary M. Schroeder and Marsha S. Berzon, Circuit Judges, and Salvador Mendoza, Jr.,* District Judge.
OPINION BY: Judge Mendoza
STAFF SUMMARY:
Granting Ravinder Kaur’s petition for review of a decision of the Board of Immigration Appeals, and remanding, the panel held that the Board erred in concluding that Kaur failed to establish material changed circumstances to warrant an exception to the time limitation on her motion to reopen, and in concluding that she failed to establish prima facie eligibility for asylum, withholding of removal, or protection under the Convention Against Torture.
Kaur sought to reopen her removal proceedings based on a combination of changed personal circumstances – the death of her abusive husband and his family’s threats that they would kill her if she returned to India because she was responsible for his death, and changed country conditions – including worsening conditions in India for women and widows.
The panel held that the Board mischaracterized the record and erred in concluding that Kaur presented evidence of only changed personal circumstances in support of reopening. The panel explained that while a self-induced change in personal circumstances does not qualify for the changed circumstances exception, that principle cannot apply rigidly when changed circumstances in the country of origin, while personal to the petitioner, are entirely outside her control, as was the case here. The panel further
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
KAUR V. GARLAND 3
explained that even where any change in personal circumstances is voluntary and did not originate in the country of nationality, the changed circumstances exception applies where changes in personal circumstances are made relevant due to changes in country conditions. The panel wrote that Kaur’s husband’s death, and his family’s death threats, were made relevant by increased violence in India against women, and in particular against widows. The panel further wrote that, contrary to the Board’s determination that Kaur provided evidence of only generalized conditions, Kaur presented evidence demonstrating that the prevalence and severity of human rights violations against women and widows had materially worsened in many respects.
The panel held that the Board also erred in concluding that Kaur failed to establish prima facie eligibility for asylum and withholding of removal relief. First, the panel concluded that the Board erred in determining that Kaur failed to establish that a protected ground, including her membership in a family social group, would be one central reason, or a reason, for the harm she fears. The panel wrote that a person may share an identity with a persecutor, and if a member of a particular social group is persecuted by other members of that same group because those members perceive the applicant as being “insufficiently loyal or authentic” to that group, she has been persecuted on account of a protected ground. Second, the panel concluded that the Board erred by requiring Kaur to show that her similarly situated family members had been mistreated. The panel explained that the safety of similarly situated members of the family who remained in the country of origin may be pertinent to a claim of future persecution, but does not itself disprove it, and in this case, the Board relied on the safety of Kaur’s daughter, who was not similarly situated. Third, the
4 KAUR V. GARLAND
panel concluded that the cultural context and Kaur’s evidence established more than a mere personal vendetta.
The panel held that the Board erred in concluding that Kaur failed to establish prima facie eligibility for CAT protection. First, the panel held that the Board erred in applying a “more likely than not” standard, rather than requiring Kaur to show a “reasonable likelihood” of meeting the statutory requirements for CAT protection. Moreover, the panel concluded that the Board abused its discretion in determining that Kaur did not meet the government consent or acquiescence requirement. The panel pointed out that Kaur presented evidence that her husband’s family is wealthy and has the means of carrying out their threats, that India suffers from widespread corruption, and that officials respond ineffectively to crimes, especially those against women. Based on that evidence, the panel concluded that the Board did not have substantial evidence to dismiss Kaur’s fears as speculation.
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This is outrageous! In addition to raising issues about Garland’s failure to replace the “Killer BIA” with real progressive judges who are experts in human rights, due process, and immigration law, as almost every expert recommended, it raises serious concerns about Associate AG Vanita Gupta’s inexplicable failure to bring in litigation competence at OIL. Presenting and defending this mess as acceptable performance by DOJ quasi-judicial officials raises very serious ethical questions about both the “judges” and the attorneys defending their obviously defective, bias-based, anti-asylum, anti-female work product.
As many of us have been saying ever since the election, the “thorough housecleaning” at DOJ can’t wait! There is plenty of evidence to get the government lawyers participating in this mockery of justice out of leadership and decision-making positions, at a minimum! The fact that this case was argued under the Trump regime does not change the unethical performance at OIL or the incompetence of the BIA. Folks who “go along to get along” with violations of law and ethics, particularly in support of a White Nationalist agenda, should not be holding responsible Government legal positions. PERIOD!
Every individual and group who believes in due process, equal justice, gender fairness, good government, humanity, racial justice, and legal ethical norms should be demanding that Garland, Monaco, Gupta, and Clarke change leadership at EOIR, immediately relieve and replace (even if on a temporary basis) the BIA, and bring ethics, expertise, and competence to OIL.
Kristen Clarke, some the most outrageous “civil rights abuses” in America here taking place right at the DOJ — at EOIR and OIL! Others are “hidden in plain sight” at DHS, particularly in their “New American Gulag.” You’re NOT going to solve voting rights, police misconduct, or any other civil rights problem inAmerica without first getting the DOJ’s house in order. And, that means standing up to your dawdling and, to date, remarkably ineffective “political bosses” and demanding immediate change!
It’s YOUR REPUTATION, along with the lives of refugee women like Ms. Kaur, that are on the line here!
“They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.”
Roger B. Taney, Chief Justice, Supreme Court, March 1857, Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)
“Congress is entitled to set the conditions for an alien’s lawful entry into this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater rights under the due process clause.”
Justice Samuel Alito, Department of Homeland Security v. Thuraissigiam, 591 U.S. ___ (2020)
Dred Scott (circa 1857) Public Realm — Black asylum seekers and other migrants aren’t celebrating the continuing disgraceful “Dred Scottification of the other” in Mayorkas’s “New American Gulag” and Garland’s “Miller Lite” Immigration “Courts” that aren’t “courts” at all!
Yacouba, a political activist in Ivory Coast, knew if he didn’t immediately flee his home country, he wouldn’t survive.
After being threatened, attacked and tortured by people sympathetic to those in power, Yacouba fled his country in 2018. He went to Brazil for a few years, then made a perilous trek through Peru, Ecuador, Colombia, Panama, Costa Rica, Honduras and Mexico before finally arriving in the United States.
The journey was one of the two most challenging periods of his life. The second was being detained as a Black immigrant in the U.S.
As the nation celebrates Juneteenth — a day commemorating the emancipation of African Americans who had been enslaved in the United States — as a federal holiday for the first time, Black Americans and immigrants are fighting to dismantle institutional racism, including within the immigration system. Black immigrants are disproportionately detained, receive higher bond costs, and say they face racist treatment within detention centers.
Recognizing and celebrating the emancipation of slaves is vital, activists say ― but continuing to take down systemic racism needs to come with it.
“From an immigration perspective, Black immigrants face disproportionate levels of detention and exclusion,” Diana Konate, policy director at the advocacy group African Communities Together, said Thursday on a press call. “These can be life-threatening, as Black immigrants often get deported back to unsafe and dangerous conditions. While we celebrate the victories, we keep in mind that a lot of work remains.”
. . . .
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Read the rest of Rowaida’s article at the link.
Every day that Garland, Monaco, Gupta, and Clarke drag their collective feet on ending “Dred Scottification,” racial bias, and xenophobia at EOIR diminishes their credibility on all racial and social justice issues. To date, Garland has appointed zero (O) progressive judges at EOIR, has only scratched the surface of the White Nationalist bias in decision-making in the Immigration Courts, and has failed to re-establish due process and the rule of law for Blacks and other migrants of color at the border.
Justice Alito and his colleagues in the majority disgracefully basically “dressed up” the core of Dred Scott dehumanization and bias in “21st century faux constitutional gobbledygook and intentional, disingenuous fictionalization!” Make no mistake: asylum seekers applying at our borders with their lives and humanity at stake are “persons” subject to our jurisdiction and are entitled to full Constitutional due process and statutory rights that are being denied to them every day, currently by the Biden Administration.
While Alito & Co. are wrong, DEAD WRONG in all too many cases, nothing in their dishonest and misguided “jurisprudence” prevents Garland from providing due process to individuals, regardless of status, in Immigration Court and to ending the racism and dehumanization underneath both the mess at EOIR and the cowardly abdication of duty by the Supremes’ majority in Thuraissigiam! In human rights, you either solve the problem or become part of it. And, experts, journalists, and historians are making a permanent record of the actions of the Supremes and the Biden Administration when democracy and racial justice are under stress!
You don’t have to look very far to “connect the dots” between Alito’s dismissive attitude toward the human rights of Asians and other asylum seekers of color and the increase in hate crimes directed against Asian Americans and unfair policing of African Americans. Once courts and government officials endorse “dehumanization of the other based largely on ethnicity” the “protections” and “distinctions” of citizenship tend to also vanish. If the lives of migrants of color can be declared worthless, what difference does citizenship mean for those of the same ethnic heritage that Alito deems below humanity? Obviously, the Trump kakistocracy’s attack on migrants of color was just a “place holder” for their attack on the rights of all persons of color in America!
How can Garland’s DOJ demand racial justice in state law enforcement while operating America’s most notorious “Jim Crow Court System?”
James “Jim” Crow Symbol of American Racism — He still “rules the roost” at Garland’s EOIR!
It’s time for all civil rights and civil liberties organizations to join forces in demanding an end to bias and “Dred Scottification of the other” in Garland’s disgracefully dysfunctional Immigration “Courts.” Not rocket science!🚀 Just human decency, common sense, available (yet ignored) progressive expertise, and Con Law 101!
This appears to be Judge Garland’s vision of “justice” for migrants and people of color @ Bailey’s Crossroads. Isn’t it time to put the past behind us and move forward with housecleaning and reforms at EOIR? Ask Judge Garland “What are you thinking, man?” Is this YOUR vision of due process and expert “judging?” — Public Realm
Thamotar v. U.S. Att’y Gen., 11th Cir., 06-17-21, Published
PANEL: WILSON, JILL PRYOR and LAGOA, Circuit Judges.
OPINION: JILL PRYOR, Circuit Judge
KEY QUOTE:
Visavakumar Thamotar, a Sri Lankan citizen of Tamil ethnicity, seeks review of the Board of Immigration Appeals’ (“BIA”) order affirming an Immigration Judge’s discretionary denial of his application for asylum and grant of withholding of removal. Mr. Thamotar argues that because removal was withheld, federal regulation 8 C.F.R. § 1208.16(e)1 required reconsideration of his asylum claim, which the Immigration Judge and BIA failed to give. We agree with Mr. Thamotar that the agency failed to conduct the proper reconsideration. When an asylum applicant is denied asylum but granted withholding of removal, 8 C.F.R.
§ 1208.16(e) requires reconsideration anew of the discretionary denial of asylum, including addressing reasonable alternatives available to the petitioner for family reunification.2 And where the Immigration Judge has failed to do so, the BIA must remand for the Immigration Judge to conduct the required reconsideration.
Here, the Immigration Judge failed to reconsider Mr. Thamotar’s asylum claim under § 1208.16(e). The BIA’s failure to remand on this issue was therefore
1 Mr. Thamotar refers to both 8 C.F.R. §§ 208.16(e) and 1208.16(e) in his briefing. The two provisions are identical in substance, but § 1208.16(e) specifically applies to the BIA (and Immigration Judges) because of the enactment of the Homeland Security Act of 2002, Pub. L. No. 107-296, tit. IV, subtits. D, E, F, 116 Stat. 2135, 2192 (Nov. 25, 2002) (as amended), and the promulgation of final rule 68 Fed. Reg. 9823, effective February 28, 2003. 68 Fed. Reg. 9823, 9824–25, 9834 (Feb. 28, 2003); see Huang v. INS, 436 F.3d 89, 90 n.1 (2d Cir. 2006) (discussing this legislative history). For consistency, we will refer only to 8 C.F.R. § 1208.16(e).
2 Because we vacate the BIA’s order on this ground, we do not address Mr. Thamotar’s additional challenges to the order, which included that the BIA erred by affirming the Immigration Judge’s adverse credibility determination, which he contends was not supported by substantial evidence, and relying on his method of entry into the United States when affirming the Immigration Judge’s decision.
2
USCA11 Case: 19-12019 Date Filed: 06/17/2021 Page: 3 of 32
manifestly contrary to law and an abuse of discretion. It is clear that neither the Immigration Judge nor the BIA conducted the proper reconsideration because the record contained no information about Mr. Thamotar’s ability to reunite with his family, information that the agency must review under § 1208.16(e). Thus, the BIA should have remanded the case for further factfinding. We grant the petition, vacate the BIA’s order, and remand to the BIA with instructions to remand to the Immigration Judge for reconsideration of the discretionary denial of asylum.
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Lots of work for a bogus asylum denial by EOIR! And the utter nonsense isn’t over! Just a “remand” to give EOIR yet another chance to deny for specious reasons (as they have already done twice). Thisidiocy will continue until Judge Garland replaces the BIA with real judges who will properly, fairly, and timely apply the law and regulations!
The poor analysis of the IJ, mindlessly affirmed by the BIA, failed to come anywhere close to the “most egregious adverse factors” requirement of the BIA’s own precedent in Matter of Kasinga, 21 I&N Dec. 357, 367 (BIA 1996):
A grant of asylum to an eligible applicant is discretionary. The final issue is whether the applicant merits a favorable exercise of discretion. The danger of persecution will outweigh all but the most egregious adverse factors. Matter of Pula, 19 I&N Dec. 467, 474 (BIA 1987).
Get this, folks! The IJ and the BIA both found that meeting the higher standard for withholding of deportation based on probability of persecution somehow was an “adverse factor” that outweighed family separation! That’s right, an “adverse factor!”
I can’t imagine how this gang of so-called “judges, got through law school and admitted to the bar! Maybe “imposters” took their exams for them! THIS is the best American justice has to offer? If not, why are they making life or death decisions and imposing potential permanent family separation on refugees?
Notwithstanding the assembly line climate and lackadaisical approach to law in Garland’s Immigration “Courts,” these are NOT TRAFFIC COURTS! They are more like “death penalty courts” or “courts of last resort” and those humans appearing before them and their representatives deserve better.
Judge Garland and his team should hypothesize that this type of inferior justice were being meted out in life or death cases to THEIR FAMILY MEMBERS AND LOVED ONES — actual human beings, NOT “just migrants” who, according to Garland’s EOIR, appear to exist in a twilight zone beneath the rest of humanity. That’s what the ongoing “Dred Scottification of the other” still being permitted andpromoted by Garland at DOJ is all about!
A fitting celebration of the first Federal Juneteenth Holiday would have been to remove the entire BIA so that they can no longer inflict “Dred Scottification” on migrants of color, their families, their friends, and their communities, among others! Symbolism is only effective if followed by action. And, so far, Garland’s actions on wiping out the “vestiges of Dred Scott at Justice” have fallen woefully short!
This raises serious, unaddressed questions of why such weakly qualified individuals are on the bench in the first place when there are many immigration experts out there who can and would do better. Much better!And it wouldn’t take them years and multiple hearings, appeals, and trips to the Circuit to grant asylum.
This isn’t a “deep” case except that it represents the “deep dodo” 💩 at EOIR, the stench of which is fouling our entire justice system and shaking the foundations of our democracy! This case is about following the Code of Federal Regulations, properly applying precedent, and fairly treating asylum seekers. It’s “Law 101” — things L-1s would have to know to get to L-2! I can’t begin to think what the paper would look like like if one of my students gave me this kind of garbage on a final exam. Fortunately, to date, nobody ever has!
Those who want a more complete run down of the ongoing “Atlanta disgrace” — a cancer on our justice system — should just go to the “Atlanta Immigration Court” tab on immigrationcourtside.com. There is more than enough compiled to have triggered an investigation, removals from office, and corrective action in a functioning Government! And my collection is just “the tip of the iceberg” on what has been written about the disgraceful, systemic denial of fairness, impartiality, and justice in Atlanta!
And, why was OIL defending this ridiculous mess in the first place? It’s a “comedy” of errors, questionable ethics, and amateurish legal work that the DOJ should be ashamed of and which Garland should end — NOW! No wonder this ridiculous national embarrassment has created an unnecessary 1.3 million case backlog that continues to grow under Garland!
Don’t let Garland or anyone else in the Administration tell you that this self-created backlog justifies a truncation of due process or more “bogus attempts to expedite” asylum cases. NO! What it requires is for Garland to bring in real judges and experts from the private/NGO sector to fix the Immigration Courts so they comply with due process and fundamental fairness!
Judge Garland, “come on man!” These deadly robed clowns and their “defenders” represent YOU — “the top legal officer in our Executive Branch!” YOU have a responsibility to the American people (NOT just the failed DOJ or the President) to “get out the big hook” and “yank” these anti-due process, anti-immigrant, anti-asylum, anti-racial-justice clowns 🤡 off YOUR bench and replace them with competence and fairness. A little (now missing) diversity wouldn’t hurt either! It’s called fulfilling the promises made by Biden and Harris during the election!
It’s not going to improve until Garland replaces the BIA with qualified judges, hires only Immigration Judges who know how to fairly adjudicate asylum cases, (with outstanding public reputations for fairness, scholarship, timeliness, teamwork, and respect), and AAG Vanita Gupta brings in better leadership at OIL to put an end to this tragic, totally unnecessary, disgracefully wasteful abuse of our Federal Judicial system and the resulting human carnage!
NDPA warriors, don’t be fooled or lured into complacency by this week’s long overdue positive developments in A-B- and L-E-A- — things that experts said should have been done by Judge Garland on “Day 1.” Keep showing your total dis-satisfaction and disgust with the glacial pace of reform at DOJ and the myriad of highly unqualified “judges” still being allowed to continue to inflict racial injustice and “worst imaginable practices” on vulnerable individuals (and their lawyers) who are entitled to due process and justice — not a continuing deadly ☠️ clown 🤡 show! Keep letting Garland, Monaco, Gupta, Clarke, Biden, Harris, Congress, the Article IIIs, and the American people know that “The EOIR Clown Show Has Got To Go!” NOW! There will be neither racial justice nor equal justice for all in America (wake up, Vanita Gupta and Kristen Clarke) while Garland operates his “star chamber courts” at EOIR!
Hi, Judge Garland! This is how “justice” is administered in the 11th Circuit Immigration Cours and at the Bailey’s Crossroads’ Tower. Glad you like it! I guess the screams of the innocent can’t be heard across the river! Not even sure why you would need a law school degree to be “judges” in your EOIR star chambers. It’s really just about dehumanization, degradation, and “productivity!” — Public realm
🇺🇸Due Process Forever! Garland’s “Asylum Free Zones,” Never!
The U.S. government on Wednesday ended two Trump administration policies that made it harder for immigrants fleeing violence to qualify for asylum, especially Central Americans.
Atty. Gen. Merrick Garland issued a new policy saying immigration judges should cease following the Trump-era rules that made it tough for immigrants who faced domestic or gang violence to win asylum in the United States. The move could make it easier for them to win their cases for humanitarian protection and was widely celebrated by immigrant advocates.
“The significance of this cannot be overstated,” said Kate Melloy Goettel, legal director of litigation at the American Immigration Council. “This was one of the worst anti-asylum decisions under the Trump era, and this is a really important first step in undoing that.”
Garland said he was making the changes after President Biden ordered his office and the Department of Homeland Security to draft rules addressing complex issues in immigration law about groups of people who should qualify for asylum.
Gene Hamilton, a key architect of many of then-President Trump’s immigration policies who served in the Justice Department, said in a statement that he believed the change would lead to more immigrants filing asylum claims based on crime and that it should not be a reason for the humanitarian protection.
. . . .
In the current fiscal year, people from countries such as Russia and Cameroon have seen higher asylum grant rates in the immigration courts than those from El Salvador, Guatemala and Honduras, the data show.
One of the Trump administration policies was aimed at migrants who were fleeing violence from nonstate actors, such as gangs, while the other affected those who felt they were being targeted in their countries because of their family ties, said Jason Dzubow, an immigration attorney in Washington who focuses on asylum.
Dzubow said he recently represented a Salvadoran family in which the husband was killed and gang members started coming after his children. While Dzubow argued they were in danger because of their family ties, he said the immigration judge rejected the case, citing the Trump-era decision among the reasons.
Dzubow welcomed the change but said he doesn’t expect to suddenly see large numbers of Central Americans winning their asylum cases, which remain difficult under U.S. law.
“I don’t expect it is going to open the floodgates, and all of a sudden everyone from Central America can win their cases. Those cases are very burdensome and difficult,” he said. “We need to make a decision: Do we want to protect these people?”
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Read the full article at the link.
You know for sure you’re doing the right thing when anti-asylum shill and Stephen Miller crony Gene Hamilton criticizes it!
I tend to agree with my friend Jason that under present conditions, asylum cases for women refugees from Central America are likely to continue to be a “tough slog” at EOIR. The intentionally-created anti-asylum, misogynist, anti-Latino, anti-scholarship, anti-quality, anti-due-process culture at EOIR that emerged under Sessions and Barr isn’t going to disappear overnight, particularly the way Judge Garland is approaching it. He needs to “get out the broom,🧹 sweep out the current BIA and the bad, anti-asylum judges, get rid of ineffective administration, and bring in human rights and due process professionals to get this system operating again!
Jason, for one, would be an outstanding judicial choice for building a functioning, fair, efficient Immigration Court; one that would fulfill the long-abandoned vision of “through teamwork and innovation, being the world’s best tribunals guaranteeing fairness and due process for all.” Under the Trump regime, EOIR was the antithesis of that noble vision!
Cases such as that described by Jason (incorrectly decided by the Immigration Judge) utilizing A-R-C-G- and “family friendly” precedents from the Fourth Circuit were usually well-represented and well-prepared by attorneys like Jason, Clinics, and NGOs like CLINIC, CAIR Coalition, Human Rights First, and Law School Clinics. After review by ICE Counsel, many were candidates for my “short docket” in Arlington where asylum could easily be granted based on the documentation and short confirming testimony.
To their credit, even before the BIA finally issued A-R-C-G-, the Arlington Chief Counsel’s Office was not opposing well-documented asylum grants based on domestic violence under what was known as the “Martin Brief” after former DHS/INS Senior Official, renowned immigration scholar, and internationally recognized asylum expert, now emeritus Professor David A. Martin of UVA Law. I remember telling David after one such case that his brief was still “saving lives” even after his departure from DHS and return to academia.
Professor (Emeritus) David A. Martin UVA Law PHOTO: UVA Law
Rather than building on that real potential for efficiency, cooperation, quality, and due process, under Sessions those things that were working at EOIR and represented hope and potential for future progress were maliciously and idiotically dismantled. From the outside, throughout the country, I saw DV cases that once would have been “easy short docket grants” in Arlington require lengthy hearings and often be incorrectly decided in Immigration Court and the BIA. Sometimes the Circuits corrected the errors, sometimes not.
At best, what had been a growing census around recognizing asylum claims based on DV became a “crap shoot” with the result almost totally dependent on what judges were assigned, what Circuit the hearing was held in, and even the composition of the Circuit panel! And, of course, unrepresented claimants were DOA regardless of the merits of their cases. What a way to run a system where torture or death could be the result of a wrong decision!
But, it doesn’t have to be that away! Experts like Jason and others could get this system functioning fairly and efficiently in less time than it took Sessions and Barr to destroy it.
However, it can’t be done with the personnel now at DOJ and EOIR Headquarters. If Judge Garland wants this to function like a real court system (not always clear to me that he does), he needs to recruit and bring in the outside progressive experts absolutely necessary to make it happen. At long last, it’s time for “Amateur Night at the Bijou” to end its long, disgraceful, debilitating “run” @ EOIR!
Time for this long-running show at DOJ/EOIR to end! PHOTO: Thomas Hawk Creative Commons Amateur Night
UNHCR welcomes US decision to restore protections from gang and domestic violence
UNHCR, the UN Refugee Agency, welcomes the U.S. government’s decision announced 16 June to reverse legal rulings introduced several years ago that effectively made people forced to flee life-threatening domestic and gang violence in their home countries ineligible from being able to seek safety in the United States.
“These rulings have put the lives of vulnerable people at risk,” said Matthew Reynolds, UNHCR Representative to the United States and the Caribbean, after the U.S. Justice Department announced that the legal rulings known as Matter of A-B- and Matter of L-E-A- had been vacated in their entirety.
“Today’s decisions will give survivors fleeing these types of violence a better chance of finding safety in the United States and being treated with the basic compassion and dignity that every single person deserves. UNHCR welcomes this important humanitarian step,” Reynolds said.
UNHCR, he added, also welcomes the U.S. administration’s commitment to bringing its asylum system into line with international standards and specifically to writing new rules on determining membership of a “particular social group,” one of five grounds spelled out in the 1951 Refugee Convention defining who is entitled to international protection as a refugee.
“In keeping with international standards, a simple and broad definition of ‘particular social group’ is an essential part of a fair and efficient asylum system,” Reynolds said, adding that UNHCR stands ready and willing to support the asylum review and rulemaking process in any way requested by the U.S. government.
UNHCR, the UN Refugee Agency: 70 years protecting people forced to flee.
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The unethical and illegal “bogus precedents” issued by Sessions and Barr have cost lives! Much of the damage done to date is irreparable. So is the continuing damage resulting from the Biden Administration’s failure to reopen ports of entry to legal asylum seekers.
🆘A functioning asylum system at ports of entry, establishing a viable refugee program in or in the region of the Northern Triangle, and a wholly reformed, due process oriented EOIR with real judges who understand how to fairly and efficiently evaluate and grant asylum under the very generous standard enunciated by the BIA in Matter of Mogharrabi but never in fact uniformly applied in practice will reduce the number of individuals crossing the border between ports of entry to seek refuge. We also need the help of NGOs in providing representation to those arriving and resettlement assistance for those “screened in” for hearings.
Right now, we have no legal asylum system at our border despite very clear statutory language commanding it. That’s a BIG problem that must be addressed immediately! Clearly, the Biden Administration must cooperate with and seek help from human rights experts now outside Government including the UNHCR.
As I’ve said before many times, expert human rights leadership needs to be brought into their Biden Administration to “kick some tail,” eradicate incompetence and bias, and fix EOIR and the asylum system.
The NDPA needs to keep the pressure building for more immediate, common sense reforms to our asylum system and a legitimate EOIR of experts who function independently from DHS enforcement and politicos.
Friday marked three years since former Attorney General Jeff Sessions declared that people fleeing gender-based violence, gang brutality, and other human rights violations are undeserving of protection — in the reprehensible decision known as Matter of A-B-.
Human Rights First and over 70 organizations of the Welcome With Dignity campaignurged the Biden administration to end Trump-era cruelty and restore fairness to the asylum process.
Today, news broke that the Department of Justice had vacated Matter of A-B-, a welcome move that will help protect refugees who are persecuted by violent gangs, suffer domestic abuse, or are endangered because of their family ties.
Amid news that the Biden administration is considering issuing an interim final rule in asylum processing that may cut back vital due process protections, Human Rights First led over 40 organizations in a letter calling on the administration to adjust course and provide the requisite notice and comment period for the rule.
This week, Human Rights First also applauded the Biden administration’s plans to expand the categories of people who can petition to bring children to safety in the U.S. through the Central American Minors Program (CAM) to include asylum seekers and others.
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Unlike the Administration folks pushing this misguided policy, I’ve actually worked in and on our asylum system for nearly five decades. I’ve seen it from the inside and the outside. I’ve been to the border. I’ve adjudicated lots of asylum cases at both the trial and appellate levels. I’ve seen them at the border, the interior, and places in between. I’ve worked through every past “asylum emergency” and experienced, and sometimes had to defend or oppose, the failed policies of Administrations of both parties over the past four decades.
Reviewing asylum claims on records created by non-judicial officials doesn’t work! Because of the importance of credibility, a de novo hearing is required! The last misguided attempt to do what the Biden Administration apparently intends failed with respect to “Asylum Only” cases at the BIA more than two decades ago and resulted in transfer of the function to the Immigration Courts;
I have the greatest respect for Asylum Officers. But, perhaps because so many individuals were unrepresented at the Asylum Office and because of the defects in developing the record, the majority of Asylum Office referrals I experienced in 13 years on the Arlington Immigration Court resulted in grants of asylum after full hearings! Sometimes, after full hearing and/or full documentation, the grants were so obvious that they were agreed upon or uncontested by ICE Counsel;
Yes, many cases coming from the border could be granted by the Asylum Office without referral to Immigration Court! But, referral of non-granted cases to a radically reformed and better EOIR for a full de novo hearing is absolutely necessary for due process and fundamental fairness. Anything less is “built to fail” and will endanger lives to boot!
We need a BIA of real asylum experts to provide and enforce informed, legally correct, and practical asylum precedents for both Asylum Officers and Immigration Judges. Only experts who have experienced and resisted the current illegal and impractical “denial-based” EOIR system — an intentional perversion of the Supreme Court’s generous decision in Cardoza-Fonseca and a complete mockery of the BIA’s implementing precedent in Matter of Mogharrabi — should be on the reformed BIA. Time to break up the “denial club” in Falls Church, eradicate disgraceful “Asylum Free Zones” in poorly-functioning, anti-asylum Immigration “Courts” throughout the country, and re-establish the rule of law, due process, fundamental fairness, and human dignity at EOIR! (Fair application of asylum laws to protect rather than rejectwould also reduce the many cases unnecessarily clogging the Court of Appeals that could and should easily have been granted at a fair, functional, expert EOIR!)
Preserving a right to meaningful judicial review of denials by the independent Article III Judiciary is also absolutely essential to due process.
The Administration needs to bring in experts with asylum expertise and actual Immigration Court experience — folks like Karen Musalo of CGRS, Judge Ilyce Shugall, Michelle Mendez of CLINIC, Temple Law Associate Dean Jaya Ramji-Nogales, and retired Judge Paul Grussendorf (who additionally served as an Asylum Officer and has written a book about the shortcomings of both systems) — to solve the problem. That must include getting rid of the deadwood, the folks who don’t understand the problem, and those who see asylum policy wrongly as a “deterrent,” rather than an essential part of our legal immigration system!
Getting rid of the atrocious “precedents” in Matter of A-B- and Matter of L-E-A- is just a start! The asylum system needs help from progressive experts. The NDPA must keep up the pressure on the Administration to stop fumbling and dawdling and bring in the now-missing progressive expertise and dynamic leadership to solve the problems that threaten our democracy!
Yes, not everybody qualifies for asylum or another form of protection. But, you can “bet the farm” that in an honest, expert, properly functioning, due-process-oriented EOIR many more would qualify than under the current broken, biased, and disgraceful charade of justice still going on @ Justice! And, even those who don’t ultimately qualify deserve to be treated fairly, respectfully, and as human beings — “persons” under the Due Process Clause, because that’s exactly what they are!
The Attorney General has issued a decision in Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021).
(1) Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) (“A-B- I”), and Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021) (“A-B- II”), are vacated in their entirety.
(2) Immigration judges and the Board should no longer follow A-B- I or A-B- II when adjudicating pending or future cases. Instead, pending forthcoming rulemaking, immigration judges and the Board should follow pre-A-B- I precedent, including Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014).
The Attorney General has issued a decision in Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021).
(1) Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) (“L-E-A- II”), is vacated in its entirety so as to return the immigration system to the preexisting state of affairs pending completion of the ongoing rulemaking process and the issuance of a final rule addressing the definition of “particular social group.”
(2) Immigration judges and the Board should no longer follow L-E-A- II when adjudicating pending and future cases.
Judah Larkin Partner, Lakin & Wille Oakland, CA PHOTO: Larkin & Wille
Subject: [fedcourtlitigation] Habeas Win on Post-Preap Constitutional Challenge to 236(c)
Dear All:
We wanted to share an exciting decision we received on Friday from Judge Freeman in the Northern District of California on Friday granting our client a bond hearing.
We, together with our co-counsel Jenny Zhao and Monica Ramsy from Asian Americans Advancing Justice—Asian Law Caucus, and Scott Mossman, brought a habeas challenging mandatory detention under 1226(c) for an individual who was arrested by ICE in the community, 6 years after he finished his criminal sentence. Our client is an LPR with an aggravated felony conviction (drug trafficking). We asked for the local ICE office to follow the Johnson memo and release him, but they refused. We elevated it to headquarters and they likewise refused.
As a result, we brought an as-applied constitutional challenge to his detention without a bond hearing—a claim which was expressly left open by the Supreme Court in Preap. He had been detained for about 6 weeks at the time we filed the habeas, so it is a non-prolonged detention case.
Judge Freeman applied the Mathews framework and granted our TRO motion, concluding that the Constitution requires a bond hearing in this case. The bond hearing is scheduled for this week, pursuant to the TRO order, so we are optimistic he will be free soon. We’re also hopeful that this case can be used by others as we continue to work to dismantle mandatory detention.
The TRO decision is attached and is available at: Perera v. Jennings, No. 21-CV-04136-BLF, 2021 WL 2400981 (N.D. Cal. June 11, 2021).
Judah Lakin (he/him/his/Él)
Attorney at Law | Lakin & Wille LLP
Here’s a copy of Judge Freeman’s decision, basically a “primer” on Matthews v. Eldridge due process and its blatant violation under immigration bureaucracies of Administrations of both parties.
EOIR plans to resume non-detained hearings on July 6, 2021 at all remaining immigration courts. Attorneys have reported seeing non-detained cases advanced or continued with less than 30 days’ notice before the individual hearing, so check your EOIR portal.
Reception window: weekdays 8:30am – 12:00pm. In-person, hard-copy service of documents will only be accepted at the window for detained cases pending at the Varick Street Immigration Court.
eService: For detained and non-detained cases pending before the Varick Street Immigration Court, you must use the “Varick Street NYC” location. For cases pending before the Immigration Courts at 26 Federal Plaza and 290 Broadway, you must use the “New York City” location. Beginning July 6, 2021, documents submitted with the wrong location designation will be rejected.
TOP NEWS
Judge Robert A. Katzmann (1954-2021) Second Circuit Court of Appeals PHOTO: US Courts.com
NYT: “Almost single-handedly he convinced the organized bar to provide free quality representation for thousands of needy immigrants,” said Jed S. Rakoff, a senior U.S. District Court Judge. “No judge ever took a broader view of the role of a judge in promoting justice in our society, or was more successful in turning those views into practical accomplishment.”
Vox: While details of the plan are short, [Biden] has asked the Justice Department to restart its access to justice work, which was on hiatus during the Trump administration, and convened a roundtable of civil legal aid organizations to advise him. But the Biden administration need not look far for potential solutions: The New York Immigrant Family Unity Project, a first-of-its-kind program that provides publicly funded lawyers to every detained or incarcerated immigrant in the state, offers a helpful model.
Bloomberg: The Justice Department and Department of Homeland Security plan to propose new criteria for asylum-seekers as part of Biden’s broader goal to retool the nation’s immigration system. The Department of Homeland Security will draft ways to strengthen protections for undocumented individuals brought to the U.S. illegally as children, under the program known as Deferred Action for Childhood Arrivals (DACA). See also Aaron Reichlin-Melnick’s Twitter thread summarizing the agenda.
Reuters: A new U.S. immigration policy announced on Monday will expand access to work permits and deportation relief to some immigrants who are crime victims while their visa cases are pending.
WaPo: Though President Biden quickly signed several executive orders to roll back some of President Donald Trump’s most draconian policies — including one that sent asylum seekers back to Mexico to await their court hearings — a number of other restrictive measures and rulings that directly affect domestic violence survivors remain in place.
NBC: Among the judges’ concerns, as described to NBC News: There aren’t enough of them, they need more support staff, and they’ve felt political pressure from their bosses at the Justice Department.
AP: VOICE will be replaced by The Victims Engagement and Services Line, which will combine longstanding existing services, such as methods for people to report abuse and mistreatment in immigration detention centers and a notification system for lawyers and others with a vested interest in immigration cases.
Reuters: An effort by U.S. President Joe Biden to reunite migrant families separated by the previous administration is moving slowly, with only seven children reunited with parents by a task force launched in February, according to a U.S. Department of Homeland Security (DHS) report released on Tuesday. Another 29 families are set to be reunited in the coming weeks, the report said.
NYT: There was a slight increase in the number of border crossings, encounters and apprehensions overall during the same time period, a sign that the record surge of migrants trying to get into the country this spring could be starting to stabilize.
WaPo: As of May 31, nearly 9,000 children were kept at unlicensed sites, compared with 7,200 at licensed shelters, court filings by the U.S. government said. While the unlicensed facilities were running at near capacity in May, the licensed facilities were only about half full, according to a report filed by the agency tasked with the children’s care.
WaPo: U.S. Customs and Border Protection apprehension numbers for May released recently show the share of families — about 20 percent — being expelled under Title 42 continued to decline. Although the overall number of families reaching the Southwest border declined as well, the data shows that eight out of 10 families that Border Patrol encountered were released into the country and allowed to pursue immigration cases.
ABC: Her trip to meet with Guatemalan and Mexican leaders is part of a two-track approach to the issue, senior administration officials have said, of “stemming the flow” of migration in the near term and establishing a “strategic partnership” with Mexico and Northern Triangle countries “to enhance prosperity, combat corruption and strengthen the rule of law” in the longer term.
ImmProf: It’s one of those wonky SCOTUS plurality opinions. Justice Kagan announces the judgement of the court and gets three justices (Sotomayor, Kennedy, and Gorsuch) to sign onto her opinion, which focuses on the statutory phrase “against the person of another.” Justice Thomas concurs, agreeing in the judgment that Borden’s conviction doesn’t qualify as a violent felony, though he focuses on different statutory language: “use of physical force.”
Law360: The Fifth Circuit declined to review a Salvadoran man’s appeal for humanitarian deportation relief Wednesday, finding that immigration judges had rightfully denied his claims after he failed to show he was a member of a persecuted group.
LexisNexis: Arnoldo Antonio Vasquez, a former Salvadorian military officer, was a naturalized American citizen. Based on his role in extrajudicial killings and a subsequent cover-up occurring during armed conflict in El Salvador, the government sought to revoke his citizenship, that is, to denaturalize him.
The court held that the Honduran petitioner did not face past persecution based on her membership in a particular social group (PSG) consisting of her family; rather, the court found she was targeted because she owned land that once belonged to her father. (Padilla-Franco v. Garland, 6/2/21) AILA Doc. No. 21060736
Applying the “reason to believe” standard under INA §212(a)(2)(C), the court held that substantial evidence supported the BIA’s conclusion that there was probable cause to believe that petitioner was involved in illicit drug trafficking and was thus inadmissible. (Rojas v. Garland, 5/27/21) AILA Doc. No. 21060735
The court held that the government is not required to prove that a returning lawful permanent resident (LPR) meets an exception under INA §101(a)(13)(C) before it can parole the returning LPR into the United States for prosecution under INA §212(d)(5). (Vazquez Romero v. Garland, 5/28/21) AILA Doc. No. 21060737
Denying the petition for review, the court held that the Salvadoran petitioner was ineligible for asylum, because the gang that targeted her family had done so only as a means to the end of obtaining funds, not because of any animus against her family. (Sanchez-Castro v. Att’y Gen., 6/1/21) AILA Doc. No. 21060738
The BIA ruled that a mere continuation of an activity in the United States that is substantially similar to the activity from which an initial claim of past persecution is alleged cannot establish changed circumstances under INA §208(a)(2)(D). Matter of D-G-C-, 28 I&N Dec. 297 (BIA 2021) AILA Doc. No. 21060899
Law360: The First Circuit should stand by its decision to wipe a lower court ruling that blocked federal immigration authorities from making arrests in and around Massachusetts courthouses, despite the Biden administration’s order curbing many such arrests, the federal government argued Thursday.
Law360: A lawful permanent resident of the U.S. sued the Department of Homeland Security in Maryland federal court Wednesday, claiming an unreasonable delay in processing his wife’s spousal visa application, which he says has not been acted on since it was filed in January 2020.
USCIS issued three policy updates in the Policy Manual to clarify the expedited processing, improve RFE and NOID guidance, and increase the validity period for initial and renewal EADs for certain pending adjustment of status applications. AILA Doc. No. 21060934
USCIS updated policy guidance in its Policy Manual regarding the criteria used to determine whether a case warrants expedited treatment. AILA Doc. No. 21060936
USCIS: USCIS is updating the USCIS Policy Manual to implement a new process, referred to as Bona Fide Determination, which will give victims of crime in the United States access to employment authorization sooner, providing them with stability and better equipping them to cooperate with and assist law enforcement investigations and prosecutions.
USCIS: USCIS has made historical versions of the USCIS Policy Manual available to the public. These historical versions will reflect the pertinent policy in effect on a particular date and are being provided for research and reference purposes only. Users can find the historical versions under the “History” tab within the Policy Manual chapters. However, this tab will only reflect historical changes moving forward. For historical versions before June 11, you can visit the Internet Archive.
ICE provided interim guidance on motions to reopen in light of SCOTUS’s decision in Niz-Chavez v. Garland, stating that some noncitizens may now be eligible for cancellation of removal. Until 11/16/21, ICE attorneys will presumptively exercise prosecutorial discretion for these individuals. AILA Doc. No. 21061030
ICE provided guidance on submitting a prosecutorial discretion request to OPLA including a listing of relevant email addresses that can be used when submitting a request to OPLA field locations. AILA Doc. No. 21061430
EOIR issued a memo that provides EOIR policies regarding the effect of DHS’s updated enforcement priorities and initiatives. Memo is effective as of 6/11/21. AILA Doc. No. 21061133
EOIR: As part of EOIR’s ongoing efforts to improve operations and review existing policy memoranda, the following Policy Memorandum (PM) is rescinded: 1.PM 21-10, Fees.
I note that Judge Robert A. Katzmann spoke at several of our Immigration Judge Conferences and also attended a Georgetown Law Judicial seminar on inconsistency in asylum adjudication that I participated in as an Immigration Judge. He was instrumental in creating both the Immigrant Justice Corps and the NYC representation program for migrants.
Notably, Liz Gibson, of “The Gibson Report,” one of my former Georgetown Law students was also selected by Judge Katzmann and other experts for the super-competitive Immigrant Justice Corps! And we can see what a difference Liz is making every day!
Those of us committed to due process and fundamental fairness mourn Judge Katzmann’s passing. His enlightened, humane, and compassionate leadership will be missed.
Lots of important information for practitioners here. It illustrates that while ICE and USCIS are moving forward with some modest, long overdue due process and “best practices” reforms, EOIR under Garland continues to lag behind.
This week’s disclosures about the deep problems at the Trump DOJ, which have not been effectively addressed, show that under Garland the DOJ isn’t inclined to fix even the most obvious defects at Justice until they are exposed by outside groups and the public pressure grows. At a time when the DOJ needs bold, proactive progressive leadership, Garland’s “reactive” style of management and lack of aggressive progressive leadership continues to erode confidence in our justice system.
As illustrated by last week’s NBC Nightly News report on dysfunction, polarization, and lack of due process and fundamental fairness at EOIR, the ongoing disaster in our Immigration Courtsactually dwarfs all of the other problems at the DOJ. And, it certainly adversely affects more human lives and American communities.
Due process, human rights, and racial justice advocates and experts should not trust Garland and his team to fix EOIR before it’s too late. In the first place, he currently has nobody on his “team” with the Immigration Court experience and the progressive expertise to get the job done!
So it’s going to take more aggressive litigation, more demands to Congress for Article I, more op-eds, more front page articles and news reports, more calls and letters to the White House, and more “creative disruption” to force Garland’s hand on EOIR reform.
Additionally, rather remarkably, and contravening the Biden Administration’s pledge of honoring diversity, the DOJ has done nothing on its own to recruit or attract a diverse group of expert progressive judges. Indeed, Garland actively undermined the effort with an outrageous “17-judge giveaway” to the disgraced Billy Barr. This week’s revelations showed just how ridiculous was Garland’s inappropriate “deference” to Barr-selected, non-progressive, non-diverse judges!
Therefore, it’s absolutely critical that the rest of us keep beating the drum and encouraging the “best and brightest” progressive immigration experts to apply for judicial and executive positions at EOIR. In particular, the immigration judiciary lacks representation by talented Latina and Latino judges with experience representing asylum applicants and other migrants.
They are out there, for sure! But EOIR’s aggressively anti-Hispanic, often misogynist culture, the anti-Hispanic “jurisprudence” churned out by Sessions, Barr, and the BIA, and the demeaning and “dumbing down” of the Immigration Judge jobs to be nothing more than glorified “deportation clerks” has effectively discouraged the folks we need on the bench from applying. And, posting for short periods on “USA JOBS” is not a serious effort at recruiting from the outside or creating a more representative pool of applicants.
NAIJ is doing some of the “diversity outreach” that that should be DOJ’s job. But, they need help! Another reason why Garland’s failure to restore NAIJ as the representative of Immigration Judges is highly problematic! These things should be “no brainless” under a Dem Administration. Instead, at Garland’s DOJ, it’s like pulling teeth!
A number of minority attorneys have told me that they felt unwelcome at the “Trump EOIR” or thought that they couldn’t function independently and effectively in a culture that obviously demeaned and dehumanized people of color.
We can’t force positive, progressive change in the toxic culture at EOIR without getting “agents of change” and judicial role models from currently underrepresented communities on the inside, where they belong. Also, those who actually have represented individuals in Immigration Court have both organizational skills beyond those of many government bureaucrats and practical problem solving ability that simply isn’t promoted or recognized within the inefficient “top-down” EOIR bureaucracy.
So, members of the NDPA, get those EOIR applications in there! Garland is tone deaf to the necessity and the opportunity for a progressive judiciary at EOIR that he squanders every day with his lackadaisical non-leadership. So, as is often the case with Dem Administrations, you’re going to have to take the initiative, break down the the doors of bias and incompetence at EOIR, and create the progressive judiciary of the future with or without Garland’s support!
EOIR is going to have trouble continuing to keep the “best and brightest” progressives out of the Immigration Judiciary. Don’t wait for change to come to you — not going to happen under Garland! Be an agent of aggressive, progressive change! Take the due process/racial justice revolution to the halls of justice @ Justice!
“O.K., that’s like saying, ‘Stay home and die,’” according to the Rev. Pat Murphy, a Scalabrini priest who runs the Casa del Migrante shelter in Tijuana, Baja California. “That message is falling on deaf ears.”
