"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.
Dean Kevin Johnson reports @ ImmigrationProf Blog:
Yesterday, the Supreme Court granted certiorari in Sanchez v. Wolf, which presents the question under the Immigration and Nationality Act whether a Temporary Protected Status (TPS) recipient may adjust his or her status to that of a lawful permanent resident. The Third Circuit held that TPS recipients were not entitled to adjust their status because TPS status was not an “admission,” under 8 U.S.C. § 1255. The Third Circuit decision in Sanchez conflicts with the rulings of the Sixth and Ninth Circuits.
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Here’s the government’s position in a nutshell: Notwithstanding the “plain language” of section 244(f)(4) which makes holders of TPS status eligible to adjust status in the U.S. if they meet all of the requirements for legal immigration (usually an an approved visa petition based on family ties or job skills), we have employed legal gobbledygook to refuse to adjust them. Thereby, we mindlessly keep them in “suspended animation” in the U.S. although they are long-time productive members of our society who have resided here with permission and work authorization and now meet our criteria for permanent immigration.
Sound pretty stupid?That’s because it is! I actually had this issue argued before me at the Arlington Immigration Court. Not surprisingly, the ICE Assistant Chief Counsel was unable to come up with any rational reason for circumventing the statutory language to achieve a nonsensical result that actually unnecessarily inflated the case backlog and served no legitimate government purpose. Needless to say, I ruled in the respondent’s favor.
This isn’t “rocket science.” The new SG should join the petitioner’s counsel, JAIME W. APARISI (who regularly appeared before me in Arlington) and LISA S. BLATT (Williams & Connolly LLP) in agreeing that this issue was correctly resolved in the respondents’ favor by the Sixth & Ninth Circuits.
Then, ICE should ask the “new BIA” (real judges with immigration and human rights backgrounds appointed by AG Garland) to adopt this view nationwide.
Presto!
No more bogus, contrived “circuit split;”
TPSers with adjustment eligibility can be taken out of EOIR’s ridiculous 1.1 – 1.5 million case backlog and returned to USCIS for routine adjustment of status;
Productive, long-time members of our society can become green card holders, get on the path to citizenship, and reach their full productive potential for both their benefit and the benefit of our society;
A win, win, win, instead of wasting time attempting to achieve an illegal, undesirable, yet fundamentally stupid, irrational, and counterproductive result;
And, unlike the stupidity going on now, it actually doesn’t require expenditure of funds (actually will save and perhaps even generate money from adjustment filing fees), major regulatory changes, new legislation, or protracted litigation. It’s “low hanging fruit” that the Trump immigration kakistocracy has let rot on the tree! Rational administration of the immigration laws can actually be quite efficient.
Is it any wonder that the EOIR bogus “court,” whose “guiding principle” is “always construe the law against the individual and in favor of DHS” is building uncontrollable backlog hand over fist, even with double the number of “judges?” This is “fraud, waste, and abuse” in action! 💸🤮 Not something I’d want to “own” if I were Judge Garland (which, of course, I’m not, and never will be)!
That’s how “practical scholarship” @ EOIR, DOJ, and ICE; smarter, better, more ethical progressive leadership at the DOJ; and the private/NGO/academic bar can work together to solve legal problems and stop wasting the time of the Federal Courts and the Supremes. Perhaps, with the time saved, the Williams Connolly LLP team can even take some more pro bono asylum cases, make the system work better at the “retail level,” and save some deserving lives of vulnerable individuals who have been mistreated by Miller and his neo-Nazi gang of thugs and the malicious incompetents now “running” EOIR (into the ground) in the process.
Not rocket science! But, it will require Judge Garland to bring in some members of the NDPA who actually understand the interrelated issues of immigration, human rights, due process, civil rights, equal justice, and practical problem solving to replace the current “Clown Show” 🤡🦹🏿♂️ at EOIR and the DOJ. (Not to mention, a comprehensive “de-clownification” 🦹🏿♂️🤡 of DHS by Secretary-designate Mayorkas and his team). All of those skills have been conspicuously absent from the Executive branch during the last four years of kakistocracy.
⚖️🗽🇺🇸Due Process Forever! Let the De-Clownifying 🤡🦹🏿♂️ Of Government Begin!
Three resettlement agencies responsible for sponsoring refugees challenged the new policy. The agencies work with the State Department to welcome adults and children who have fled war and persecution in other countries. They connect refugees to housing, jobs and English classes needed to start their new lives in the United States.
Melanie Nezer, a senior vice president of the Silver Spring, Md.-based HIAS, one of the agencies behind the lawsuit, applauded the court’s decision.
“Especially right now, at this moment in history, it is really affirming and validating to see the court affirm the importance of the program,” Nezer said Friday.
“It will take a lot of work to rebuild a system that the Trump administration has broken down over the last four years,” she said.
[Maryland governor issues written consent for refugee admissions in response to Trump order]
Trump issued the order after he set the annual national refugee cap for fiscal 2020 at a historic low of 18,000, down from 110,000 in 2016.
Texas was the first state to publicly refuse to resettle new refugees, with Gov. Greg Abbott (R) saying the state has “carried more than its share.” The vast majority of other governors, however, signed letters saying they would accept refugees.
Nezer said the incoming Biden administration has committed to admitting refugees at levels more in line with historical figures.
A spokesman for the Justice Department did not immediately respond to a request for comment.
[Federal judge temporarily halts Trump administration policy allowing local governments to block refugees]
The appeals court upheld a nationwide injunction issued last year by U.S. District Judge Peter J. Messitte, who concluded that the requirement gave state and local governments veto power that he said is “arbitrary and capricious as well as inherently susceptible to hidden bias.”
The 4th Circuit agreed. The policy, the court said, would also impose an “extreme burden” on the nonprofit agencies required to obtain consent from local officials. The court warned that the policy would erode community relationships and was likely to result in the closure of some offices.
“The record is clear that the resettlement agencies were not designed for this role and have been forced to divert enormous resources from their core social service missions to their new lobbying responsibilities,” according to the 4th Circuit.
Ann Marimow covers legal affairs for The Washington Post. She joined The Post in 2005 and has covered state government and politics in California, New Hampshire and Maryland.
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Read the rest of Ann’s article at the link.
The 4th Circuit comes through for America! The court pointed out the malicious stupidity of the regime’s policy that dismantled and wasted the resources of the NGOs who conduct refugee resettlement, one of the most effective and beneficial programs in America. White Nationalism is a vile, anti-American perversion that “deconstructs” success and leaves chaos, suffering, and squandered resources in its wake.
To state the obvious, under sane, humane, effective government, the resources wasted in opposing, “defending,” and litigating this atrocious and unnecessary nonsense could better have been devoted to resettling more refugees! I’m confident that the Biden Administration will reinstitute a robust refugee program.
Additionally, I have proposed that the type of cooperation, expertise, and organization that has succeeded in refugee resettlement could be applied creatively to screening, obtaining representation, adjudicating, and resettling asylum seekers and those granted asylum. The Biden Administration should build on and expand things that work, particularly public private partnerships and grants to NGOs and state and local governments.
They must stop squandering money and resources on racist, “built to fail” enforcement gimmicks and unconstitutional, unnecessary, inhumane, expensive, and immoral detention! “Repurpose” the funds wasted on the “stunt wall” and devote them to getting asylum seekers processed in a fair, humane, and timely manner that complies with due process and our statutory and international obligations.
Greg Abbott is another sleazy White Nationalist who should be removed from office for lies, false narratives, religious bias, and overt racism.
Subject: [immprof] Amicus Brief on Behalf of Immigration Law Scholars on “Monster” Asylum Rule
Dear Colleagues:
Happy New Year! I hope you are staying well. We are pleased to share an amicus brief filed in the Northern District of California last week challenging the “monster” asylum rule, published as a final rule in December 2020. We are grateful to the immigration law scholars who signed onto this brief. The brief is focused on three aspects of the rule: 1) expansion of discretionary bars in general; 2) discretionary bars on unlawful entry and use of fraudulent documents in particular; and 3) expansion of the firm resettlement bar. The brief argues that these bars conflict with the immigration statute and further that the Departments have failed to provide a reasonable explanation for departing from past statutory interpretation with regard to these bars.
Co-counsel included Loeb & Loeb, Peter Margulies, and myself. We are grateful to the Harvard Immigration and Refugee Clinical Program and other organizations who served as counsel to plaintiffs in this case.
Best wishes, Peter and Shoba
Shoba Sivaprasad Wadhia (she, her)
Associate Dean for Diversity, Equity and Inclusion
Samuel Weiss Faculty Scholar | Clinical Professor of Law
Many thanks to Peter, Shoba, Loeb & Loeb, and all the many great minds with courageous hearts ♥️ involved in this effort!
I’ve said it often: It’s time to cut through the BS and bureaucratic bungling that have plagued past Dem Administrations and put progressive practical scholars like Shoba, Peter, and their NDPA expert colleagues in charge of EOIR, the BIA, and the rest of the immigration bureaucracy. It’s also time to end “Amateur Night at the Bijou” 🎭🤹♀️and put “pros” like this in charge of developing and implementing Constitutionally compliant, legal, practical, humane immigration and human rights policies that achieve equal justice for all (one of the Biden-Harris Administration’s stated priorities), further the common interest, and finally rationalize and optimize (now “gonzo out of control”) immigration enforcement.
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify information on the relevant government websites and with colleagues as best you can.
EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, January 22, 2021 (no change from last week posted at this time, possibly due to holidays). NYC non-detained remains closed for hearings.
CN: The Trump administration failed to satisfy the requirements of a landmark settlement when it sought to impose new rules governing the detention and release of immigrant children in federal custody and therefore cannot terminate the agreement, a Ninth Circuit panel ruled Tuesday.
CN: In a 2-1 decision penned by U.S. Circuit Judge Daniel Collins, a Trump appointee, the appellate court ruled that the proclamation was within the president’s authority and reversed a federal court decision to block implementation of the order.
CBS: Through a proclamation issued 20 days before Inauguration Day, Mr. Trump ordered a three-month extension of the visa restrictions, which were first enacted in April as a ban on some prospective immigrants and expanded in June to also halt several temporary work programs.
FPA: Subsumed within the $900 billion spending bill passed by Congress on Dec. 21, 2020, was a provision extending the Liberian Refugee Immigration Fairness program, or LRIF, for one more year
AZ Republic: Immigration lawyers are upset over a recent decision that forces a return to appear in-person for hearings at the Eloy Immigration Court amid a rising number of COVID-19 cases in Arizona. The development comes as nearly two dozen immigration courts across the country have had to close in recent weeks for cleaning after possible exposure to COVID-19.
Reuters: U.S. immigration arrests fell by 27% in 2020 as the coronavirus pandemic led to fewer border crossings and reduced operations, a falloff that pro-immigrant activists say should continue when President-elect Joe Biden takes office in January.
SCOTUSblog: Biden has pledged to end both construction of the wall and the “remain in Mexico” policy, although it is not clear when he will do so. Perhaps as a nod to the possibility that the oral arguments in both cases could be canceled, the two cases were both scheduled on the same day as another argument – the only two days of the argument session with two arguments.
The court held that substantial evidence supported the BIA’s denial of withholding of removal to petitioner where he had failed to establish a nexus between his treatment by the police and his membership in the particular social group of his immediate family. (Ruiz-Varela v. Barr, 12/23/20) AILA Doc. No. 20123106
Rejecting the petitioner’s argument that her asserted persecution was based on membership in a proposed social group consisting of “Guatemalan women,” the court found that the scope of the petitioner’s persecution did not extend beyond a personal vendetta. (Pojoy-De León v. Barr, 12/21/20) AILA Doc. No. 20123105
The court reversed an injunction of PP 9945, which requires IV applicants to demonstrate acquisition of health insurance or ability to pay for future healthcare costs. The court found the proclamation within the president’s executive authority. (Doe, et al., v. Trump, et al., 12/31/20) AILA Doc. No. 21010436
USCIS provided guidance for completing Form I-9 for employees with extended work authorization under DACA. Per USCIS, employees may present their unexpired EAD with category code C33 issued on or after 7/28/20, along with an I-797 Extension Notice showing a one-year extension under DACA. AILA Doc. No. 21010431
USCIS announced that the filing period for certain Liberian nationals and certain family members to apply for adjustment of status under the Liberian Refugee Immigration Fairness (LRIF) provision has been extended from one year to two years. USCIS must now receive applications by December 20, 2021. AILA Doc. No. 20123107
President Trump issued a proclamation continuing Proclamations 10014 and 10052, which suspended the entry of certain immigrants and nonimmigrants into the United States in light of the COVID-19 pandemic. The proclamations have been continued until March 31, 2021. AILA Doc. No. 21010100
President Trump issued a memorandum extending his 4/10/20 memorandum imposing visa sanctions on any country that denies or delays the acceptance of its citizens after being asked to accept them during the COVID-19 pandemic. The memorandum will continue in force until terminated by the President. AILA Doc. No. 20123103
DOS provided an update on the extension of Presidential Proclamations 10014 and 10052. The proclamations have been extended until March 31, 2021. AILA Doc. No. 20042435
EOIR issued a memo (PM 21-12) rescinding and cancelling Operating Policies and Procedures Memoranda (OPPM) 90-09 and 91-1 concerning El Salvadoran and Guatemalan cases subject to temporary protected status and settlement in American Baptist Churches v. Thornburgh and ABC v. Thornburgh. AILA Doc. No. 21010430
On December 31, 2020, the OCIJ updated its Immigration Court Practice Manual, a comprehensive guide on uniform procedures, recommendations, and requirements for practice before immigration courts. AILA Doc. No. 21010435
USCIS notice withdrawing a previous notice published at 85 FR 72682 on 11/13/20, which requested comments on proposed revisions to Form I-821D, Consideration of Deferred Action for Childhood Arrivals. (85 FR 86946, 12/31/20) AILA Doc. No. 20123100
DOS updated its announcement and FAQs on the phased resumption of visa services, noting that resumption would occur on a post-by-post basis, but that there are no specific dates for each mission. DOS also announced that it has extended the validity of Machine Readable Visa (MRV) fees to 9/30/22. AILA Doc. No. 20071435
DOS announced that it has temporarily expanded consular officers’ ability to waive in-person interviews for individuals applying for a nonimmigrant visa in the same classification. Applicants whose nonimmigrant visas expire within 24 months are now eligible. The policy is effective until 3/31/21. AILA Doc. No. 20082503
Looking forward to your report for the week of January 25, 2021, Elizabeth!Thanks for all you and those around you have done to “keep the due process fires”⚖️🔥 burning during the darkness of the last four years of cruelty, human rights abuses, scofflaw officials, and unrestrained kakistocracy. I see some light at the end of the tunnel here, although there is still lots of work to be done!
The Next-Level Shamelessness of the COVID Security Regs
On December 23, EOIR and USCIS published final rules designed to brand most people a “security risk,” and thus ineligible for asylum. The rules won’t become effective until January 22 (i.e. after the Biden Administration is in office), so will presumably be pulled back before they hurt anyone other than the reputations and careers of those responsible for their publication. Nevertheless, it seems worthwhile to refute the present administration’s claimed justification for such a rule. First, there will certainly be other bad administrations in our future, and as we’ve seen with the present one, they might look to the past for inspiration.
Furthermore, even without the rule going into effect, individual immigration judges will still be faced with interpreting the clause it invokes on a case-by-case basis. I’m hoping the following analysis will prove useful, as I’m pretty sure it wasn’t covered in the judges’ training.
But most importantly, the assaults of the past four years on facts and reason have taught us the need to constantly reinforce what those presently in charge hope to make us forget: that there are laws passed by Congress; that the Judiciary has created strict rules governing their interpretation, and that executive agencies are not free to simply ignore or reinvent the meaning of those laws to their own liking.
The regulations in question seek to take advantage of the present pandemic to render any asylum seeker who either exhibits symptoms of the virus, has come in contact with it, or has traveled from or through a country or region where the disease is prevalent ineligible for asylum. The administration seeks to justify this by claiming that there are reasonable grounds for regarding the above a danger to the security of the United States.
The “danger to the security of the United States” bar to asylum1 which the new regulations reference derives from Article 33(2) of the 1951 Convention Relating to the Status of Refugees, which serves as the international law basis for our asylum laws. That treaty (which is binding on the U.S.) states that the prohibition against returning refugees shall not apply to those “whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
However, Article 33(2) applies to those who have already been recognized as refugees, and have then committed crimes in the country of refuge, which is not the class to whom the new regulations would apply. The bases for excluding those seeking refugee status for reasons arising prior to their arrival are found under Article 1D through 1F of the 1951 Convention. The prohibitions found there cover three groups: those who are already receiving protection or assistance (Article 1D); those who are not considered to be in need of protection (Article 1E); and those “categories of persons who are not considered to be deserving of international protection (Article 1F).2 Individuals posing a danger to the community fall into the final category.
No ground contained in the 1951 Convention excludes those in need of protection for health-related purposes. To understand why, let’s look closer at the Convention’s use of the word “deserving” as it relates to refugee protection. In 1997, UNHCR published a note providing additional insight into the Article 1F “exclusion grounds.” Explaining that “the idea of an individual ‘not deserving’ protection as a refugee is related to the intrinsic links between ideas of humanity, equity, and the concept of refuge,” the note explains that the primary purpose of the clauses “are to deprive the perpetrators of heinous acts and serious common crimes, of such protection.” The note explains that to do otherwise “would be in direct conflict with national and international law, and would contradict the humanitarian and peaceful nature of the concept of asylum.”
The European Council on Refugees and Exiles covered this same issue in its 2004 position paper on Exclusion from Refugee Status. At page 8, the ECRE stated that the “main aim” of Article 1F was not “to protect the host community from serious criminals,” but rather to preserve the integrity of the international refugee system by preventing it from being used to “shelter serious criminals from justice.” These sources make it extremely clear that the intent was certainly not to exclude someone who might have been exposed to a virus.
In including six exceptions to eligibility in our asylum statute,3 Congress followed the lead of the 1951 Convention, as all six domestic clauses fall within the three categories listed in paragraph 140 of the UNHCR Handbook as listed above. Of the six grounds listed under U.S. law, the last one, regarding persons firmly resettled in another country prior to arrival in the U.S., is covered by the Convention categories of those already receiving assistance or not in need of assistance.
The remaining five exceptions under U.S. law fall within the category of those not considered to be deserving of protection (Article 1F). The statute lists those categories as: (i) persecutors of others; (ii) persons posing a danger to the community of the U.S. by virtue of having been convicted of a particularly serious crime; (iii) persons whom there are serious reasons to believe committed serious nonpolitical crimes prior to their arrival in the U.S.; (iv) persons whom “there are reasonable grounds for regarding…as a danger to the security of the United States,” and (v) persons engaged in terrorist activity.
Agencies may only apply their own interpretation to the term “as a danger to the security of the United States” to the extent such term is ambiguous. But the courts have instructed that in determining whether a statute is in fact ambiguous, traditional tools of construction must be employed, including canons.4 The Supreme Court has recently applied one such canon, ejusdem generis, for this purpose.5 In its decision, the Court explained that “where, as here, a more general term follows more specific terms in a list, the general term is usually understood to ‘ “embrace only objects similar in nature to those objects enumerated by the preceding specific words.”’”6
Former Attorney General Barr himself recently applied the ejusdem generis canon to the term “particular social group,” stating that pursuant to the canon, the term “must be read in conjunction with the terms preceding it, which cabin its reach…rather than as an “omnibus catch-all” for everyone who does not qualify under one of the other grounds for asylum.”7
A very similar canon to ejusdem generis is noscitur a sociis (the “associated words” canon). Whereas ejusdem generis requires a term to be interpreted similarly to more specific terms surrounding it in a list, noscitur a sociis applies the same concept to more specific terms across the same statute.8
In 8 U.S.C. § 1158(b)(2)(A), the more general term “danger to the security of the United States” is surrounded by the more specific terminology describing the accompanying grounds of asylum ineligibility. When thus “cabined” by the more specific classes of persecutors of others, those convicted of serious crimes, and those engaged in terrorist activities, it is clear that Congress intended a “risk to security” to relate to similar types of criminal activity, and not to health grounds. As the intent of Congress is clear, the term “threat to the security of the United States” is not open to any interpretation the agencies might wish to apply to it. Yet in its published rule, EOIR and USCIS here create the type of “omnibus catch-all” that the Attorney General himself has elsewhere declared to be impermissible.
The rule is further at odds with circuit case law in its application to those who simply “may” pose a risk. The Third Circuit has found the statutory language of the clause in question to unambiguously require that the asylum-seeker pose an actual, rather than merely a possible, threat to national security.9 Even if it were assumed that COVID could somehow fit into the category of security risk, simply having traveled from or through an area where the virus is prevalent doesn’t establish that the individual presents an actual risk.
There is also the issue of the transient nature of the risk. In the same decision referenced above, the Third Circuit relied on the Refugee Act’s legislative history to conclude “that Congress intended to protect refugees to the fullest extent of our Nation’s international obligations,” allowing for exceptions “only in a narrow set of circumstances.”10 This is obviously a correct reading where exclusion can lead to death, rape, or indefinite imprisonment. The other classes deemed undeserving of asylum are defined by more permanent characteristics. In other words, the attribute of being a terrorist, a persecutor, or a serious criminal will not wear off in two weeks time. To the contrary, any risk posed by one exposed to COVID-19 is likely to pass within that same time frame. Wouldn’t the “fullest extent” of our obligations call for simple quarantining for the brief period in question?
These issues were all raised in comments to the proposed regs. And of course, dubious reasons were employed to dismiss these arguments. For example, the agencies acknowledged the need for the danger posed be an actual rather than a merely possible one. But somehow, that requirement was dismissed by the inadequate excuse that the danger posed by a pandemic is “unique.”
The rule stands as one of the final examples of the extremes this administration will go to in order to circumvent our asylum laws and turn away those entitled to avail themselves of our immigration courts in order to determine if they are entitled to protection. As demonstrated here, the degree to which this administration veered from the actual intent of the statute in interpreting the security bar wouldn’t have been much greater if it attempted to deny asylum to those wearing white after Labor Day.11 The law must not be twisted or ignored by executive branch agencies when it conflicts with an administration’s policy objectives.
Notes:
8 U.S.C. § 1158(b)(2)(A).
UNHCR Handbook at ❡ 140.
8 U.S.C. § 1158(b)(2)(A).
See, e.g., Arangure Jasso v. Whitaker, 911 F.3d 333, 338-39 (6th Cir. 2018).
See Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1625 (2018).
Ibid (citing Circuit City Stores, Inc. v. Adams, 121 S.Ct. 1302, 149 (2001); National Assn. of Mfrs. v. Department of Defense,138 S.Ct. 617, 628–629 (2018)).
Matter of L-E-A-, 27 I&N Dec. 581, 592 (A.G. 2019).
Thanks to Prof. Jaclyn Kelley-Widmer for sharing her expertise on these terms. See Jaclyn Kelley-Widmer and Hillary Rich, “A Step Too Far: Matter of A-B-, Particular Social Group, and Chevron,” 29 Cornell J. of Law and Public Policy 345, 373 (2019).
Yusupov v. Att’y Gen. of U.S., 518 F.3d 185, 201 (3d Cir. 2008).
Id. at 203-204.
If it had done so, EOIR would undoubtedly have defended the move through the traditional, completely acceptable, totally normal method of issuing a “Myths vs. Facts” sheet. The document might contain the following entry: “Myth: EOIR issued a rule banning asylum to anyone wearing any color at any time. Fact: That’s completely absurd! Only those wearing white (which technically might not even be a color) are banned, and even then, only after Labor Day. As Pantone lists 1,867 colors, white consists of .05 percent of all colors one could wear. And that’s only if white is in fact a color. And, again, only after Labor Day.”
Copyright 2021 Jeffrey S. Chase. All rights reserved.
Republished by permission.
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Jeffrey’s article points out how deeply the corruption and racism of the regime have penetrated into the Federal Bureaucracy, even infecting supposedly “professional and apolitical” agencies like CDC. Fixing this will be a formidable task for the Biden-Harris Administration.
But, there is a larger issue here: Why has the Supremes’ GOP majority “lapped up” the transparent pretexts for unconstitutional actions presented by the regime’s ethics-challenged DOJ lawyers?While an impressive array of U.S. District Court Judges, from both parties, have generally courageously stood tall for the rule of law against White Nationalist abuses, not so the GOP majority of the Supremes!
Let’s go back to the beginning of the regime. After a string of lower Federal Court defeats, “ethics-free” DOJ lawyers massaged and slightly watered down Trump’s “Muslim Ban” and repackaged it as a bogus “national security” measure. But, even as these disingenuous lawyers were advancing this bogus pretext in court, Trump was reassuring his White Nationalist base that this was indeed the “Muslim Ban” he had promised to his supporters.
Nevertheless, the Supremes’ GOP majority “bought into” the patently (and demonstrably) bogus “national security” pretext, hook, line, and sinker:
Of the Supreme Court’s decision on Muslim ban 3.0, Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, said, “This ruling will go down in history as one of the Supreme Court’s great failures. It repeats the mistakes of the Korematsu decision upholding Japanese-American imprisonment and swallows wholesale government lawyers’ flimsy national security excuse for the ban instead of taking seriously the president’s own explanation for his action.”
“It is ultimately the people of this country who will determine its character and future. The court failed today, and so the public is needed more than ever. We must make it crystal clear to our elected representatives: If you are not taking actions to rescind and dismantle Trump’s Muslim ban, you are not upholding this country’s most basic principles of freedom and equality.”
In doing so, the GOP Supremes’ associated themselves with a long line of racially biased pretexts used by courts to uphold invidious discrimination that violated our Constitution
Internment of Japanese-Americans (but not German-Americans) is about national security.
Truth: Dehumanize, punish, and dispossess Japanese Americans on the West Coast;
Poll taxes are about raising revenue.
Truth: Preventing African-Americans from voting;
Literacy tests (“grandfathering” ignorant White guys) are about insuring an informed electorate.
Truth: Excluding African-American voters;
Separate is equal.
Truth: Insuring that African-Americans will be educationally disadvantaged;
Voter ID laws are about election integrity.
Truth: Designed by a primarily White GOP ruling class to suppress African American, Latino, and other minority voters who tend to support Democrats;
Gerrymandering to favor the GOP can be solved through the political process.
Truth: Gerrymandering is intended by the GOP to rig the political process so that voters of color will never achieve political representation proportional to their numbers.
These are just a few of the obvious examples of how the “legal power structure” has often been on the “wrong side of history.” Sadly, it continues with today’s GOP Supremes’ majority which often embraces obvious pretexts and bogus “right wing legal gobbledygook” to systematically dump on vulnerable minorities and others whose political power and humanity they refuse to recognize.
Finally, to reinforce what Jeffrey and others have said, we have a legal obligation to protect refugees.Article 33 of the Convention to which we are party, now incorporated into the INA, is mandatory, not “optional” or “discretionary.”
As I pointed out before, refugees more often than not arrive in times of international crisis and turmoil. “Tough times” or internal problems (in this case aggravated and magnified by a maliciously incompetent regime) are NOT a legal (not to mention moral) basis for us to jettison our legal obligation to offer them protection.
Had the Supremes courageously and unanimously stood up for the Constitution, rule of law, and simple human decency against the regime’s obvious lies, false narratives, overt racism, religious bigotry, and general disregard for the rule of law (now in full, foul bloom every day), the last four years might have been very different. Lives lost forever could have been saved.
Folks, here we are, two decades into the 21st Century. Yet, we have a highly “un-representative” Supremes’ GOP majority that has willingly promoted the anti-democracy antics of, and carried water for, a patently corrupt White Nationalist regime seeking to “Dred Scottify” tens of millions of persons of color, religious minorities, and those “suspected” of not supporting the GOP.
Even if many would like to, this is not something that can simply be swept under the table (again). Failure of the Supremes majority to stand up for the individual rights and human dignity of all persons in America is something that will haunt us until it is fixed or we disappear as a nation!
Lousy judging has a huge cost for humanity and democracy. We need and deserve better from the highest levels of our privileged, yet too often ineffective andfeckless in the face of tyranny, life-tenured judges!
Better Judges for a Better, Fairer America.🇺🇸 Make Equal Justice Under Law ⚖️ A Reality Rather Than an Ongoing, Judicially-Enabled, Charade!
Perhaps you’ve reserved some optimism for the whole “Barrett’s a mom and a Catholic so there must be some compassion there” thing. Sorry, but no. In her confirmation hearings, she spoke about how the George Floyd video was “very, very personal” for her family, and that she and her children “wept together” over what must have been the zillionth police murder in her history as a lawyer and mother. But her mentor, the late Antonin Scalia, seemed to think it was constitutional to put innocent people to death, despite his ultra-Catholicism. There’s no reason to believe that any sort of ideological consistency will prevail simply because of a judge’s familial status or bizarre metaphysical beliefs, and those factors made no apparent difference in Brad’s case.
Here’s where this gets complicated: In saying that being part of this horrendous decision should disqualify a judge from serving on the Supreme Court, by extension, I’m saying that damn near every federal judge is similarly unqualified. Almost none of them believe that cops should be held accountable for killing mentally ill people who call for help. This sort of thinking, in which cops are extended every benefit of every doubt, feasible or unfeasible, is the norm. Barrett didn’t even write the opinion in Brad’s case. It was written by a liberal judge who, like all her colleagues (of whatever political persuasion), was willing to write the police a blank check. That’s how our courts have operated for decades, and even in a post-BLM society, few of those in robes have the intestinal fortitude to do anything different.
So I am unmoved by Justice Barrett’s faith. I am unmoved by her status as a working mother of seven. I am particularly unmoved by her fake expression of sympathy for George Floyd, whose case she had nothing to do with, when she couldn’t spare any for the people who actually appear before her. I’m unmoved because I’ve seen so little compassion for grieving parents like Matt and Gina throughout my career, from any federal judge, let alone the Federalist Society drones who have lately taken over the judiciary. The basic inability to do what’s right for families like the Kings should be disqualifying. Not just for Amy Coney Barrett, but for the whole lot of ‘em.
A version of this originally appeared in LEO Weekly.
Civil rights lawyer and law prof, writing about the Midwest, the untold horrors of the justice system, and the ongoing battle between the law and humanity.
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Read Dan’s complete article chronicling the tone-deaf mishandling of the police shooting death of a young man (his clients’ son) suffering from mental health issues.
This echoes what I’ve been saying on Courtside about the need for a “new breed of better, more progressive Federal Judges” who recognize the compelling human side of the law and why the Constitutional requirements of due process, equal protection, and fundamental fairness are there in the first place. They exist to protect individuals from tyranny and government overreach, not to be ignored, watered down, or woodenly distinguished away to protect government abusers from accountability or to further ideological agendas (primarily, but not exclusively those developed by right wingers) out of touch with the most vulnerable levels of humanity they are supposed to be serving.
Life tenure means that Coney Barrett and the rest of her unqualified colleagues will be around for a long time. But, change needs to start somewhere, now!
In my experience, internal pushback, dissent, and constant confrontation of the complicit, complacent, judicial status quo with an aggressive implementation of due process, fundamental fairness, and a commitment to human rights and the best interpretations of the law can over time play a critical role in improving the law, changing results, and perhaps most important, saving lives!⚖️🗽👩⚖️🧑🏽⚖️👨🏻⚖️🇺🇸 That, not the hollow ideological agendas of Coney Barrett and others like her, is what “good judging” is really all about!
Intentional lack of compassion, empathy, and humanity (“Dred Scottification” of the “other”) have been themes of Trump, Miller, Wolf, Sessions, Barr, Rosenstein, Nielsen, Pompeo and the other neo-fascist toadies and moral misfits who have gleefully served the regime over the past four years. But, lack of overall resolve and courage to stand up and uniformly and authoritatively “just say no” to these toxic, anti-American, anti-humanity policies and to hold the “perps” accountable for their systemic lawlessness has plagued the Federal Judiciary, with a feckless and often downright complicit Supremes’ majority “leading” the way.
The current sorry state of our democracy, where GOP demagogues, who falsely swore to uphold our Constitution, openly spread lies, knowingly false narratives, and total BS in an attempt to incite violence, undermine our duly elected incoming President, and destroy democratic institutions, including the courts, is in part a reflection of the sad failure of our life-tenured Federal Judiciary to perform its core Constitutional function. That is, to stand up for the Constitution, the rule of law, and individual law human rights in the face failures by the other two branches of Government to uphold their Constitutional responsibilities.
Compare the (finally) unified position of the judiciary on the frivolous election challenges by Trump and his cronies with the failure to stand up for the legal and human rights of asylum seekers, refugees, immigrants, and migrants from the “git go.” Even now, the Courts have failed to sanction Trump and his lawyers for their unethical behavior in bringing frivolous civil suits, with no supporting evidence, for the specific purpose of undermining a free and fair election and using the legal system to attack the legitimacy of the duly elected President-elect and his incoming Administration. “Corruptly weaponizing the law for improper purposes” is clearly inappropriate and unethical. Yet, folks like Rudy and Sydney Powell retain their law licenses and are free to continue to abuse and undermine the system with frivolous litigation.
Dan points to the “ongoing battle between the law and humanity.” That’s the problem! The law should and must be about defending and advancing humanity in the face of tyranny and injustice. We need judges who stand for human justice. For, as MLK, Jr., said “Injustice anywhere is a threat to justice everywhere!”
Better judges for a better America! 🇺🇸Not just a slogan; a requirement for our democracy to survive!
Dumping Asylum Seekers in Honduras Artist: Monte Wolverton Reproduced under licenseAmanda Holpuch Reporter The Guardian
Erika Pinheiro, Litigation & Policy Director, Al Otro Lado, speaks at TEDSalon: Border Stories, September 10, 2019 at the TED World Theater, New York, NY Photo: Ryan Lash / TED, Creative Commons License
Amanda Holpuch reports from the Gulag for HuffPost:
. . . .
The Centers for Disease Control and Prevention (CDC) bars asylum seekers and refugees from the US under an order called Title 42. People who attempt to cross the border are returned, or expelled, back to Mexico, without an opportunity to test their asylum claims. More than 250,000 migrants processed at the US-Mexico border between March and October were expelled, according to US Customs and Border Protection data.
The situation is dire. Thousands of asylum-seekers are stuck at the border, uncertain when they will be able to file their claims. The camps they wait in are an even greater public health risk that before.
Outside the border, Al Otro Lado has fought for detained migrants to get PPE and medical releases. Prisons are one of the worst possible places to be when there is a contagious disease and deaths in the custody of US immigration authorities have increased dramatically this year. They have also provided supplies to homeless migrants in southern California who have been shut out of public hygiene facilities.
Pinheiro said there will be improvements with Trump out of office, but some of the Biden campaign promises to address asylum issues at the border will be toothless until the CDC order is revoked. It’s a point she plans to make in conversations with the transition team.
A prime concern for advocates about the Biden administration is that it will include some of the same people from Barack Obama’s administration, which had more deportations than any other president and laid the groundwork for some controversial Trump policies.
While it is a worry for Pinheiro, she has hope that the new administration will build something better. “I would hope a lot of those people, and I know for some of them, have been able to reflect on how the systems they built were weaponized by Trump to do things like family separation or detaining children,” she said.
Family separation, which has left 545 children still waiting to be reunited with their parents, was a crucial issue for many voters and Pinheiro hopes that energy translates to other immigration policies.
“How did you feel when your government committed the atrocity of family separation in your name?” Pinheiro said. “The next step is really understanding that similar and sometimes worse atrocities are still being committed in the name of border security and limiting migration.”
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Read the complete article at the link.
I totally agree with Erika Pinheiro that there is no excuse for the continuing violations of our Constitution, statutes, international obligations, and simple human decency. The regime’s policies are nothing more than “crimes against humanity” thinly disguised as “law enforcement,” “national security,” and “public health” (from a regime whose “malicious incompetence,” cruelty, and callous intentional undermining of medical advice during the pandemic have contributed to the unnecessary deaths of tens of thousands of Americans).
Even more disgracefully, the Supremes and other Federal Courts have failed in their Constitutional duty to stand up to the abusers and hold the regime’s scofflaw “leaders” (to where, one might ask?) accountable. What’s the purpose of life-tenured judges who lack the training, wisdom, ethics, and most of all courage to enforce the legal and human rights of the most vulnerable against lawless, dishonest, and fundamentally cowardly “Executive bullies” hiding behind their official positions? Not much, in my view! There are deep problems in all three branches of our badly compromised and ailing Government!
I have also spoken out on Courtsideagainst the dangers of putting the same failed Dem politicos who thoroughly screwed up immigration policy, and particularly the Immigration Courts, back in charge again. I agree with Erika’s hope that some of them have gained wisdom and perspective in the last four years. But, why rely on the hope that those who failed in the past have suddenly gotten smarter, when there are “better alternatives” out there ready to step in and solve the problems?
Why not put in place some talented new faces from the NDPA with better, more progressive ideas, tons of dynamic energy, and the demonstrated willingness and courage to stand tall against bureaucratic tyranny? Give them a chance to solve the problems! Erika looks like one of those who should be solving problems and implementing better immigration policies “from the inside” in the Biden-Harris Administration!
The “deterrence only paradigm” that has driven our border enforcement policies over the past half century has been a demonstrable failure, both in terms of law enforcement and the unnecessary and unjustifiable human carnage that it has caused. Why keep doing variations on discredited policies and expecting better results?
We know that ugly, racist rhetoric, jailing families and kids in punitive conditions, weaponizing courts as enforcement tools, suspending the rule of law, denying hearings, and even summarily, illegally, and immorally returning asylum seekers to death won’t stop folks from fleeing unbearable conditions in their native countries! They will continue to seek protection in America, even in the face of predictable abuses, life-threatening dangers, and little chance of success in a system intentionally “gamed” to mistreat and reject them while denying their humanity.
Desperate people do desperate things. They will continue to do them even in the face of inhuman abuses inflicted by those whose better fortunes in life have not been accompanied by any particular compassion, understanding of the predicament of others, or recognition of an obligation to abjure the power to bully and torment those less fortunate in favor of addressing their situations in a fair, reasonable, and humane manner.
Human migration is far older than nation states, zero tolerance, baby jails, family incarceration, biased judging, national selfishness disguised as “patriotism,” and border walls. It has outlasted and outflanked all of the vain attempts to artificially suppress it by force and gimmicks. It’s time for some policies that recognize reality, see its benefits, and work with the flow rather than futilely in opposition to it.
It’s past time to look beyond the failures of yesterday to progressive solutions and new leadership committed to solving problems while enhancing justice, respecting human dignity, and enhancing human rights (which, in the end, are all of our rights)!
Due Process Forever!⚖️🗽🇺🇸 Same old, same old never!
Knightess of the Round TableHon. Ilyce Shugall U.S. Immigraton Judge (Retired)Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
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Thanks to our friends Steve Schulman 😇 and Michael Stortz 😇 at Akin Gump for their truly outstanding pro bono assistance on this brief.Couldn’t do it without you!😎
Such an honor to be “fighting the good fight” for due process and fundamental fairness with my colleagues on the Round Table🛡⚔️👩⚖️🧑🏽⚖️👨🏻⚖️. We have made a difference in the lives of some of the most vulnerable and deserving among us. 🗽We have also helped educate the Federal Courts and the public on the ugly realities of our failed, unjust, and totally dysfunctional Immigration “Courts” ☠️🤡🦹🏿♂️, modern day “Star Chambers” ☠️⚰️😪that have become weaponized appendages of “White Nationalist 🤮🏴☠️⚰️👎🏻 nation.”
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleBIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
⚖️🗽Due Process Forever!
Happy New Year! 🍾🥂🎉Looking forward to Jan. 20 and the end of the kakistocracy!👍🏼⚖️🗽😎🇺🇸
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify information on the relevant government websites and with colleagues as best you can.
EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, January 22, 2021. NYC non-detained remains closed for hearings.
Vox: Excluded from stimulus relief up until now, US citizens and permanent residents who filed a joint tax return with an undocumented spouse will receive a check for $600, as well as $600 per dependent child. The benefits phase out for individuals making more than $75,000 and couples making more than $150,000.
AP: Susan Rice, Biden’s incoming domestic policy adviser, and Jake Sullivan, his pick for national security adviser, as well as Biden himself, warned that moving too quickly could create a new crisis at the border.
TRAC: Detailed case-by-case government records obtained by TRAC after successful litigation show that in early 2018, the number of federal prosecutions for all immigration-related charges climbed sharply and crested 12,000 for the first time in May after the Department of Justice’s “zero-tolerance” policy went into effect.
TRAC: Not surprisingly, Immigration Court closures and delays in hearings for courts that are conducting hearings have drastically reduced the number of completed cases for the first two months of this fiscal year as compared with prior years at the same time.
MPI: Based on their analysis of data from the Census Bureau’s American Community Survey (ACS), Migration Policy Institute (MPI) researchers find that during the first three years of the Trump administration, participation in TANF, SNAP, and Medicaid declined twice as fast among noncitizens as citizens.
WaPo: A new policy allowing Iranian women to pass down their citizenship to their children marks a long-sought victory for activists and is raising hopes for an estimated 1 million undocumented children born to foreign fathers in the country.
Changes the default filing deadline for non-detained individual hearings from 15 days to 30 days. There also is guidance on the contents of motions for extensions.
DHS and DOJ issued a joint final rule based on a 7/9/20 NPRM clarifying that the danger to the security of the U.S. statutory bar to eligibility for asylum and withholding of removal may encompass emergency public health concerns. Rule is effective 1/22/21. (85 FR 84160, 12/23/20) AILA Doc. No. 20122311
Law 360: A Texas federal judge seemed likely at a hearing Tuesday to strike down an Obama-era program protecting young unauthorized immigrants, but he indicated he may leave open a window to “slice and dice” the program or send it back to the government to revise it.
SCOTUSblog: If the justices take up the border-wall case, it will be the second case added to the court’s docket this term involving the legality of border-wall construction.
The BIA ruled that a conviction for child neglect in the second degree under §163.545(1) of the Oregon Revised Statutes is categorically a “crime of child abuse, child neglect, or child abandonment” under INA §237(a)(2)(E)(i). Matter of Rivera-Mendoza, 28 I&N Dec. 184 (BIA 2020) AILA Doc. No. 20122205
The court held that substantial evidence supported the BIA’s denial of withholding of removal to petitioner, finding he had failed to prove a nexus between the alleged persecution and membership in his proposed particular social group of “Honduran landowners.” (Marquez-Paz v. Barr, 12/18/20) AILA Doc. No. 20122109
Law360: The Sixth Circuit on Tuesday held that migrant children are not guaranteed a free lawyer when fighting deportation in immigration court, upholding a Guatemalan man’s conviction for entering the U. S. without authorization after he was deported as a teenager. In a published opinion, a three judge panel said that foreign-born minors do not have a constitutional right to a government-provided lawyer in immigration court, finding that certain sufficient “safeguards” already exist for them, including that immigration judges help pro se immigrants develop the court record and that the government must produce clear evidence that an individual should be deported.
The court found that the petitioner had failed to exhaust his administrative remedies before the BIA for his argument that his 2019 motion to reconsider was timely because it related back to his still-pending 2004 motion to reconsider. (Hernandez-Alvarez v. Barr, 12/16/20) AILA Doc. No. 20122112
The court issued an order granting the petitioner’s unopposed motion to vacate the BIA’s decision in Matter of E-R-A-L-, which pertains to establishing a particular social group based on landownership, and remanded to the BIA for further proceedings. (Albizures-Lopez v. Barr, 12/10/20) AILA Doc. No. 20122203
The court held that USCIS’s denial of the H-1B visa was arbitrary and capricious where USCIS had ruled that computer programmers did not “normally” require a bachelor’s degree, despite relevant language in DOL’s Occupational Outlook Handbook (OOH). (Innova Solutions, Inc. v. Baran, 12/16/20) AILA Doc. No. 20121733
The court held that vehicular homicide in Florida is a crime involving moral turpitude (CIMT), and thus upheld the BIA’s determination that the petitioner was removable for having been convicted of two or more CIMTs pursuant to INA §237(a)(2)(A)(ii). (Smith v. Att’y Gen., 12/18/20) AILA Doc. No. 20122113
A district court judge granted summary judgment in favor of two nationwide classes suing USCIS and ICE for failing to timely produce the class members’ immigration files (A files). (Nightingale, et al., v. USCIS, et al., 12/17/20) AILA Doc. No. 20122104
A district court granted the plaintiffs’ motion for class certification and motion to amend the nationwide preliminary injunction in a lawsuit challenging USCIS policy limiting asylum jurisdiction over UAC applicants. (J.O.P. et al., v. DHS, et al., 12/21/20) AILA Doc. No. 20122321
CGRS: A group of asylum seekers and immigrant services organizations are suing the Department of Homeland Security (DHS), purported Acting Secretary Chad Wolf, and purported Acting DHS General Counsel Chad Mizelle to vacate two rules that have drastically curtailed access to work authorization and identity documentation for people who flee to the United States and apply for asylum protection.
CGRS: Set to take effect on January 11, 2021, the rule completely transforms the asylum process, severely limiting the availability of asylum and related protections to individuals fleeing persecution or torture.
AIC: The fee increase rule scheduled to take effect January 18 would apply when individuals facing deportation submit certain applications, appeals, and motions to the nation’s immigration courts or the Board of Immigration Appeals, both of which are overseen by the Executive Office for Immigration Review, within the Department of Justice.
CLINIC: Seven Temporary Protected Status (TPS) beneficiaries — who live in the District of Columbia, Maryland, Virginia, and Miami, Florida — and the Central American Resource Center (CARECEN) filed a motion for a preliminary injunction in their suit against the Trump administration for unlawfully blocking TPS beneficiaries’ path to permanent U.S. residence.
DHS announced that it has extended the flexibilities in rules related to Form I-9 compliance during the COVID-19 pandemic until January 31, 2021. AILA Doc. No. 20032033
USCIS determined that for January 2021, F2A applicants may file using the Final Action Dates chart. Applicants in all other family-sponsored preference categories must use the Dates for Filing chart. Applicants in all employment-based preference categories must use the Final Action Dates chart. AILA Doc. No. 20122305
USCIS announced it is publishing a notice in the Federal Register revising Form I-131 to remove sections on the Haitian Family Reunification Parole and the Filipino World War II Veterans Parole programs. These changes will terminate the programs when form instruction changes are finalized. AILA Doc. No. 20122312
DHS notice of agreement between the government of the United States of America and the government of the Republic of El Salvador for cooperation in the examination of protection claims. (85 FR 83597, 12/22/20) AILA Doc. No. 20121631
DHS announced that the United States and Honduras have concluded the implementation accords for the Asylum Cooperative Agreement, under which certain migrants requesting asylum or similar humanitarian protection at the border will be transferred to Honduras to seek protection in Honduras. AILA Doc. No. 20122108
President-elect Biden has promised a broad array of reforms that would impact refugees, asylum seekers, and other forced migrants. He has indicated he will restore Temporary Protected Status, place a moratorium on deportations, and end prolonged detention and for-profit detention centers. These are all crucially important to the safety and security of migrants and their families in the United States and other countries, especially in the Western Hemisphere. President-elect Biden has also promised to end the Trump administration’s policy of making asylum seekers “remain in Mexico” while awaiting hearings in U.S. immigration court.
However, in recent weeks, a flawed and fatalistic view of migration to the U.S. southern border has taken hold in some media accounts and reports. It goes like this: President Trump’s Remain in Mexico (or MPP) policy has created a logistical and humanitarian crisis at the southern U.S. border that, despite President-elect Biden’s promises, will be very difficult to undo. Further, a combination of pull and push factors (especially in the wake of hurricanes in Central America) will lead to increased migration to the southern U.S. border this spring such that President-elect Biden will have little choice but to keep the border sealed under an order from the Centers for Disease Control and Prevention (CDC), as he attempts to deal with COVID-19 in border states and fulfill other immigration policy promises—including uniting families the Trump administration ripped apart two years ago.
There are several problems with this line of argument, many of which are addressed in this report. Most fundamentally, keeping the border sealed and migrants waiting in Mexico will perpetuate serious abuses. Family separations and other violations of human rights, as well as violations of U.S. law, will continue to occur under a Biden administration that does not implement new policies at the border. Recently, MPP and the CDC border closure have exacerbated smuggling and trafficking at the border, as well as other forms of abuse against migrants. For example, the CDC order has led to the repatriation of Nicaraguan dissidents as well as the return of a sexually abused Guatemalan child. It has also led asylum seekers to try to cross undetected in remote desert areas. Further, unwinding MPP and allowing asylum seekers to ask for protection at the border is not only the right thing to do, but also feasible with the proper planning. Indeed, it presents the incoming administration with an opportunity to rethink migration management, especially for those seeking asylum, and to implement a new screening process that is both more humane and more efficient.
President-elect Biden has invoked President Franklin Delano Roosevelt—healer, rebuilder, and practical problem solver—as a model. During World War II, Roosevelt planned and devoted significant resources to resolving the largest displacement crisis the world had ever known. This planning was part of an effort to ensure that what happened in 1939 to the S.S. St. Louis—a ship of asylum-seeking Jews turned away by the United States and other countries—would not occur again.
During his first week in office, President-elect Biden should issue an executive order on border asylum policy that departs dramatically from that which President Trump put forth during his first week. President Biden’s executive order should give asylum seekers access to the border and provide for cooperation with border states and shelters to safely and humanely receive asylum seekers. It should allocate resources to alternatives to detention, including case management, and to improved adjudication of asylum claims in immigration courts, especially through provision of legal services. It should also commit to ending practices associated with expedited removal of asylum seekers that have resulted in abuses, and to the use of parole to unwind MPP. Finally, through revocation of Trump administration decisions, regulations, and policies, as well as through settlement of lawsuits and the withdrawal of appeals to federal courts regarding these policies, the executive order should commit to restoring asylum eligibility to those who have fled persecution but have been denied or prevented from obtaining protection.
In taking such action, President-elect Biden would be fulfilling not only his campaign promises but the commitment he made when he voted for Senate passage of the Refugee Act of 1980. That law, supported by large majorities of both parties, promised to ensure fair access to asylum at the border.
This report shows why it is imperative that the Biden administration do this rather than keep us mired in a policy framework that does not work and that has led to a cycle of crises. It does so by looking back to a momentous time of transition about thirty years ago. With the Cold War ending, the United States had to rethink its assumptions about who merited refugee status. Only a handful of refugee resettlement slots in the U.S. Refugee Program were allotted to Central Americans, and the United States had not yet developed clear procedures for effectively handling asylum seekers at the southwestern border. Rather than acknowledge the forces pushing people northward, U.S. policymakers adopted a paradigm that was focused primarily, if not exclusively, on deterrence. This is a paradigm that we are still in today.
At different points over the past thirty years, humanitarian and constructive policies have tempered the harshness of this paradigm, and such policies have also brought benefits in terms of cost and efficiency. These policies need to be adapted and scaled up. But they also need to be placed within a welcoming framework that does not presume asylum seekers are a threat. Instead of devoting tremendous resources to a futile and rights-violating attempt to block those already on the move, we have to try to better understand the drivers of migration, which, for Central Americans, include corruption, poverty, insecurity, and violence.We must devote resources instead to humanely receiving asylum seekers and adjudicating their claims fairly. We also have to stop assuming that the best place to manage admissions of all Central Americans seeking protection is at the border.
The Deterrence Paradigm
The deterrence paradigm has been implemented repeatedly using the same counterproductive strategies.
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Read the rear of Yael’s article at the link.
👍🏼👍🏼👍🏼👍🏼👍🏼⚖️🗽🇺🇸
Folks like my Round Table 🛡⚔️ colleague Judge Paul Grussendorf and I have been “preaching” for an abandonment of the unlawful, inhumane, incredibly wasteful, and demonstrably ineffective “deterrence paradigm.”
The skill set to establish a lawful, better, humane, efficient asylum system, consistent with our Constitutional, statutory, and international obligations is out there, mainly in the private/NGO/academic communities. I/O/W the “practical scholars, litigators, and advocates” in the NDPA.
It’s a just a question of the incoming Biden/Harris Administration getting beyond the “enforcement only” mentality, personnel, and White Nationalist nativist thinking that currently infects the entire USG immigration bureaucracy, at all levels. Replace the current failed leadership with experts from the NDPA and empower them to work with other experts in the private sector to institute a better system that would be no more costly, likely less, than the current “built to fail” abominations that not only waste resources but destroy human lives and are an ugly stain on our national conscience!
I also appreciate Yael’s recognition of the pressing and compelling need to “end the Clown Show 🤡🦹🏿♂️☠️@ EOIR:”
Immigration Court Reform
EOIR policies during the Trump administration have been at odds with principles of due process and judicial independence. These include the imposition of numeric case completion quotas and docket management policies that deprive asylum seekers of procedural protections; appointment of judges who almost exclusively come from prosecutorial backgrounds (especially working at DHS and in law enforcement); promotion to permanent positions on an expanded BIA of judges with asylum denial rates much higher than the national average; and procedures that limit the ability of claimants to effectively appeal their cases. The Biden administration should conduct an urgent review of EOIR hiring practices and immigration court procedures and develop recommendations for regulatory or structural changes consistent with the protection needs of asylum seekers.
The critical “urgent review” should be done by a “Team of Experts from the NDPA” brought in on an immediate temporary basis, if necessary, in accordance with Federal Personnel Rules, to replace the current Senior “Management” @ EOIR as well as the entire BIA. There’s no better way to fix the system than to take over management, restore fairness and order, and get inside the current disastrous mess @ the Clown Show 🤡🦹🏿♂️! Importantly, the “Team of Experts” with effective operational control could immediately begin fixing (and conversely stop aggravating and creating) the glaring problems while putting the structure and personnel in place for long-term reforms.
Lives ☠️⚰️ are at stake here! We need ACTION, not merely study and evaluation. “Fixing the system on the fly” may be challenging, but it’s perfectly within the capabilities of the right team of NDPA experts! Dems often prefer study and dialogue to effective actions. As Toby Keith would say: We need “a little less talk and a lot more action.”
Thanks to our leading “Warrior Queen” Ilyce and her team of knightesses and knights who took the lead on this phase of the never ending battle for “truth, justice, and the American way.”
I trust that it will take more than another pathetic “Alternative Fact Sheet” 🤥 to save the sorry bunch @ “EOIR’s Clown Tower”🤡🦹🏿♂️ in Falls Church from accountability for their sycophancy, false narratives, and constant assaults on due process, the rule of law, truth, and human decency. 👎🏻🏴☠️☠️⚰️🤮 https://www.justice.gov/eoir/page/file/1161001/download
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleBIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
Indicative and very telling that as justice further deteriorates, backlogs mushroom, productivity drops, public outrage grows, chaos reigns, (already rock bottom) morale plummets, and vulnerable humans suffer, the “malicious incompetents” 🤡🦹🏿♂️ at EOIR spend time and public resources on this nonsense!
There will be neither racial justice nor social justice in America without “radical due process reform” that ends forever the disgraceful “Dred Scottification” of “the other” (particularly migrants of color, women, families, and, most disgustingly, children) by the EOIR Clown Courts!🤡🦹🏿♂️☠️ To paraphrase Rev. King, “Injustice to one is injustice to all.”
Due Process Forever!⚖️🗽🇺🇸👍🏼 EOIR’s Assault On Asylum Seekers, Never!👎🏻🏴☠️
Trump has brought impunity to the highest office in the land, wielding a wrecking ball to the most precious windowpane of all – American democracy.
The message? A president can obstruct special counsels’ investigations of his wrongdoing, push foreign officials to dig up dirt on political rivals, fire inspectors general who find corruption, order the entire executive branch to refuse congressional subpoenas, flood the Internet with fake information about his opponents, refuse to release his tax returns, accuse the press of being “fake media” and “enemies of the people”, and make money off his presidency.
And he can get away with it. Almost half of the electorate will even vote for his reelection.
A president can also lie about the results of an election without a shred of evidence – and yet, according to polls, be believed by the vast majority of those who voted for him.
Trump’s recent pardons have broken double-pane windows.
Not only has he shattered the norm for presidential pardons – usually granted because of a petitioner’s good conduct after conviction and service of sentence – but he’s pardoned people who themselves shattered windows. By pardoning them, he has rendered them unaccountable for their acts.
They include aides convicted of lying to the FBI and threatening potential witnesses in order to protect him; his son-in-law’s father, who pleaded guilty to tax evasion, witness tampering, illegal campaign contributions, and lying to the Federal Election Commission; Blackwater security guards convicted of murdering Iraqi civilians, including women and children; Border Patrol agents convicted of assaulting or shooting unarmed suspects; and Republican lawmakers and their aides found guilty of fraud, obstruction of justice and campaign finance violations.
It’s not simply the size of the broken window that undermines standards, according to Wilson and Kelling. It’s the willingness of society to look the other way. If no one is held accountable, norms collapse.
Trump may face a barrage of lawsuits when he leaves office, possibly including criminal charges. But it’s unlikely he’ll go to jail. Presidential immunity or a self-pardon will protect him. Prosecutorial discretion would almost certainly argue against indictment, in any event. No former president has ever been convicted of a crime. The mere possibility of a criminal trial for Trump would ignite a partisan brawl across the nation.
Congress may try to limit the power of future presidents – strengthening congressional oversight, fortifying the independence of inspectors general, demanding more financial disclosure, increasing penalties on presidential aides who break laws, restricting the pardon process, and so on.
But Congress – a co-equal branch of government under the Constitution – cannot rein in rogue presidents. And the courts don’t want to weigh in on political questions.
The appalling reality is that Trump may get away with it. And in getting away with it he will have changed and degraded the norms governing American presidents. The giant windows he’s broken are invitations to a future president to break even more.
Nothing will correct this unless or until an overwhelming majority of Americans recognize and condemn what has occurred.
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Read Reich’s full article at the link.
As I have mentioned, the lack of accountability could be a problem for the Biden-Harris Administration. And, 74 million voters who pulled the lever for an overtly corrupt, anti-American, racist, clown is an even bigger obstacle to the future of our nation.
On the other hand, although he was a “minority President” from the git go, Trump had nothing but contempt for the majority of us who didn’t favor his maliciously incompetent and divisive policies; he completely disregarded both truth and the common good.
Biden and Harris start with something that Trump never had — the support of a clear majority of 7 million plus voters. So, if they govern wisely, humanely, and in the public interest they could succeed in saving our nation from the 74 million who joined Trump’s war against American democracy. And despite their short-signtedness and intransigence, the 74 million and their families in Trumpland will get the benefits of better government in the public interest. Sometimes, you have to save folks in spite of themselves.
If the policies of decency, honesty, courage, and governing in the public interest work, it could create a longer-term governing majority. If not, it will still be worth a shot at saving our democracy. Another Administration of Trump and his minority minions would be the end of our democracy anyway —the majority of us have little to lose by giving it our best shot with the Biden Harris Team!
Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings LawBlaine Bookey Legal Director Center for Gender & Refugee Studies @ Hastings Law Photo: CGRS website
Groups Challenge Trump Administration Rule Gutting Asylum
Thursday, December 24, 2020
Four immigrant rights organizations – Pangea Legal Services, Dolores Street Community Services, Inc., Catholic Legal Immigration Network, Inc. (CLINIC), and Capital Area Immigrants’ Rights Coalition – have requested a temporary restraining order in a lawsuit challenging a sweeping new rule that will eviscerate access to protection for people seeking refuge in the United States. Set to take effect on January 11, 2021, the rule completely transforms the asylum process, severely limiting the availability of asylum and related protections to individuals fleeing persecution or torture. The plaintiff organizations are represented by the Center for Gender & Refugee Studies, the Harvard Immigration and Refugee Clinical Program, and the law firm of Sidley Austin LLP.
“Published in the waning hours of the Trump administration, this rule marks its most far-reaching attempt to end asylum yet, and a death knell to our country’s longstanding commitment to offer safe haven for the persecuted,” said Jamie Crook, Director of Litigation at the Center for Gender & Refugee Studies. “The rule violates our laws, flouts our treaty obligations, and upends decades of legal precedent. If the mammoth rule is permitted to take effect, it will result in people being deported to face persecution, torture, and even death in their home countries.”
The rule deprives asylum seekers of any semblance of due process, imposing many barriers to relief before they even have the opportunity to present their case in immigration court. Among its numerous harmful provisions, the rule allows judges to deny an asylum application without holding a hearing. The rule also establishes 12 new “discretionary” factors that will bar many asylum seekers from life-saving protection. These include a de facto bar to asylum for applicants who pass through another country en route to the United States, effectively codifying and expanding the Trump administration’s third country transit bar, which the courts have already struck down as unlawful.
For those who are able to get their case before a judge, the new rule radically redefines who qualifies as a “refugee,” distorting the law so thoroughly that adjudicators can deny relief to virtually all applicants. The rule explicitly excludes from protection survivors of gender-based violence, children and families targeted by gangs, and people fleeing other abhorrent abuses. It also redefines “persecution” in such a way that judges will be directed to deny asylum even to individuals who have been detained and threatened with death due to their beliefs.
“Despite its enormous scope, the administration rushed this rule through the regulatory process without regard for its life-or-death implications for asylum seekers,” said Sabrineh Ardalan, Director of the Harvard Immigration and Refugee Clinical Program. “The administration chose to brush aside nearly 90,000 public comments raising serious concerns with the proposed rule.”
The plaintiffs in this lawsuit are nonprofit organizations that provide immigration legal services and have previously come together to stop other Trump administration attempts to erect unlawful barriers to asylum. They contend that the new rule will make it far more difficult to assist asylum-seeking clients and cause serious harm to the immigrant communities they serve.
The plaintiffs have asked the U.S. District Court for the Northern District of California to issue a permanent nationwide injunction to prevent the rule from taking effect, arguing that the rule violates the Immigration and Nationality Act, the Administrative Procedures Act, the Due Process Clause of the U.S. Constitution, and the United States’ duty under international law not to return people to persecution or torture. On Wednesday the plaintiffs requested a temporary restraining order to immediately halt implementation of the rule while the court considers the case.
The plaintiffs also argue that the rule is procedurally invalid, as it was co-issued by Acting Department of Homeland Security Secretary Chad Wolf, whom multiplecourts have declared was unlawfully appointed to his position and lacks the authority to promulgate such a rule.
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Speeding up executions, killing and torturing the most vulnerable humans, denying COVID relief to desperate Americans, issuing corrupt pardons to murderers, fraudsters, cronies, and dishonest politicos, plotting treason against the USG — that’s how the regime and its sycophants have spent their waning days.
Despite the obvious desire to move on and avoid dealing with the crimes and overt corruption of the defeated regime, it will be difficult for the Biden-Harris Administration to avoid questions of accountability for the worst President, worst regime, and worst major party in U.S. history. Honestly coming to grips with the past is often a prerequisite for a better future.
The bipartisan compromise was considered a done deal and won sweeping approval in the House and Senate after the White House assured GOP leaders that Trump supported it.
If he refuses to sign the deal, which is attached to a $1.4-trillion government funding bill, it will force a federal government shutdown, in addition to delaying aid checks and halting unemployment benefits and eviction protections in the most dire stretch of the pandemic.
“Made many calls and had meetings at Trump International in Palm Beach, Florida. Why would politicians not want to give people $2000, rather than only $600?” he tweeted after leaving the golf course Friday afternoon. “It wasn’t their fault, it was China. Give our people the money!”
Trump’s attack on the bill has been seen, at least in part, as punishment for what he considers insufficient backing by congressional Republicans for his push to overturn the Nov. 3 election results with unfounded claims of fraud.
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Read the full article at the link.
Of course it’s not about China; it’s about the worst President in history and his totally worthless party of sycophants, bigots, and anti-American “situational skinflints.”
Plenty of public funding for tax breaks, unneeded walls, environmental destruction, and abusive “law enforcement.” Not so much for American workers, small businesses, essential workers, teachers, civil servants, and others struggling to survive during the crisis unnecessarily deepened by the “malicious incompetence” of the “Evil Clown Prez”🤡🦹🏿♂️ and his anti-democracy party.
BTW, is Lindsay “Scumbag” Graham 🤮going for the title of “third worst human on the public dole” — right behind the “ECP”🤡🦹🏿♂️ & the Grauleiter☠️?
26 days and counting to the end of the kakistocracy🏴☠️!
