"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.
Over the last several years, America has been rocked by evidence of the mistreatment of migrants in detention centers. While the nation makes its political judgments about the future of immigration policy, Stephen Manning has assembled a team of lawyers, organizers, and tech innovators working to squeeze more humanity out of the current system while imagining its replacement. We talked to Stephen about how he pursues justice and reform.
How did you get involved in immigration law in the first place?
I was volunteer teaching at an elementary school, helping immigrant children from Central America with homework. I asked, “Why don’t you do your homework?” and I found their answer hard to believe: “We’re going to be deported.” No one deports second-graders, I thought. It must be an administrative matter. Naively, I took the whole family to Immigration, unprepared for the experience. I discovered a system based on the otherization and exclusion of human beings, as core principles. I could have gotten the whole family deported but luckily everyone was ok, and are still ok—I’ve since presided over two of their weddings.
What is so dehumanizing about immigration?
In fact, immigration could be a deeply humanizing experience—it could be the ultimate humanizing concept, actually. Instead, though, today it is the opposite. Its purpose is to categorize persons and judge their desirability. Racism and other biases have corrupted these functions. For example, on April 22nd, President Trump issued a proclamation to end family-based immigration. The next day his advisor explained that they want to “re-white” the country. The Remain in Mexico program does the same thing. Take a person seeking asylum: they are treated based not on their individual lives and circumstances, but on their assignment to a less desirable macro category—the asylum-seeker. They lose their individuality and simply become members of an undesired group. That classification has nothing to do with their hopes, fears, dreams or their contributions to our collective prosperity.
The same sense of power affects the whole system and shows up in myriad small ways. For example, I remember being at a detention center filled with families, working on a very compelling claim by a mother and her children. I’m working on my laptop surrounded by small children playing. We had sent a letter to the officer showing cause for their release. He showed up armed, in aviator glasses, ignored the children, and crumpled up and threw away the letter right in front of everyone. That’s dehumanization on a micro scale.
What surprises people when they learn about the realities of the U.S. immigration system?
People expect law to reflect some kind of morality. We expect the power of the law to be used justly. When law and power seem to align against common sense—that’s a tough lesson, even for lawyers. The immigration legal system is a world unto itself, and even for experienced lawyers, nothing prepares them for it.
You started and lead Innovation Law Lab, one of the largest pro bono projects in the country, to push for reforms. How do you recruit lawyers to volunteer?
Innovation Law Lab is equal parts lawyers, organizers, and coders. Our core team is about 20 people. For volunteers, actually, we don’t have any formal recruitment mechanisms. The work itself is demanding—you’re volunteering, giving up family time, spending your own money to participate. What we offer is a chance to use the law for justice and to join a team of like-minded people. And we’ve also structured it so that it can scale. We ask, Can you come for a day, a week, three weeks? Big law does not have to worry—there’s no mass exodus coming, but there is a small trend towards movement-based lawyering. The last time I looked, our numbers at Innovation Law Lab were in the tens of thousands of volunteers. And about 30% are repeat volunteers; they participate in multiple projects.
. . . .
Stephen Manning is an Ashoka Fellow. You can read more about him and his work here.
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You can read the rest of the profile at the link.
Innovation Law Lab is doing some spectacular work in defending the Constitution, the rule of law, and humanity against the Trump regime’s relentless onslaught.
David H. Wetmore, Esq. is a career appellate litigator in the United States Department of Justice, currently serving as Associate Deputy Attorney General. During his tenure at the Department of Justice, Mr. Wetmore has also served as Senior Counsel to the Deputy Attorney General and as a Trial Attorney in the Civil Division. He has been the principal author of hundreds of appellate briefs and argued over twenty-five cases in federal courts of appeals. Prior to joining the Department of Justice, Mr. Wetmore was an associate attorney in Sidley Austin LLP’s District of Columbia office, and at Jenner & Block LLP’s Chicago office, where his practice focused on civil, criminal, and constitutional litigation. Mr. Wetmore has experience in all aspects of litigation, from initial investigation and discovery through trial and appeal, in both state and federal courts, including in the District of Columbia. He has also served as an Adjunct Professor at The George Washington University Law School.
Mr. Wetmore earned his Bachelor of Arts, magna cum laude, from Miami University, where he was elected to Phi Beta Kappa, graduated from the University Honors Program, and received Departmental Honors in Political Science and Philosophy. He earned his Juris Doctor, with High Honors, from The George Washington University Law School, where he was an Articles Editor of The George Washington Law Review, elected to Order of the Coif, and a member of the Moot Court Board. Following law school, Mr. Wetmore served as a law clerk to the Honorable Gordon J. Quist, in the United States District Court for the Western District of Michigan, and later to the Honorable Daniel A. Manion, in the United States Court of Appeals for the Seventh Circuit.
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Normally reliable, totally unofficial anonymous sources say Wetmore’s “the one.”
There is further rank, unverified speculation that the current Acting Chair, Judge Garry Malphrus, eventually will get the just-advertised “Vice Chair/Deputy Chief Appellate Judge” position as a reward for reliably furthering the BIA’s anti-immigrant jurisprudence during his tenure. Malphrus replaced former Chair David Neal who resigned suddenly last Fall.
Wetmore currently is an Associate Deputy Attorney General at the DOJ. That’s roughly the DOJ equivalent of the “Under Assistant West Coast Promo Man*.” The Associate Deputy Attorney General, of course, should never be confused with the Deputy Associate Attorney General, an entirely different position. Actually, it’s about as far up the DOJ hierarchy that a “career” attorney can get. The higher level positions, in this case the Deputy Attorney General, are Presidentially-appointed politicos.
With this development, the connection between the BIA and the Office of Immigration Litigation (“OIL”) should become “seamless.” The BIA staff can just “cut and paste” OIL briefs into their decisions and vice versa. This eliminates the need to sometimes request time-consuming Circuit Court remands to get the BIA to adopt OIL’s preferred litigating position. In turn, this should totally eliminate the possibility of an individual ever “winning” a BIA appeal and will eradicate any remainingtraces of due process or fundamental fairness at the BIA.
These moves, combined with an outrageous proposed increase in the filing fee for a BIA appeal, will undoubtedly be a powerful tool for deterring, discouraging, and punishing individuals for exercising their legal rights. These are critical steps in insuring the smooth operation of the regime’s “Deportation Railroad.”
Any way you look at it, today’s BIA certainly presents an “interesting diversity profile,” particularly considering the community whose rights it once was supposed to protect, but now has unabashedly abandoned as it seeks to carry out the Trump/Miller/Barr White Nationalist mission of “Dred Scottifying the other.”
It also continues a two-decades long “DOJ tradition” of intentionally failing to attract better-qualified candidates from the private immigration sector, with actual experience representing and interacting with asylum seekers and other migrants, for BIA judgeships. The “outside, non-restrictionist world” has also been overwhelmingly excluded from appointments to Immigration Courts, with essentially de facto preference being given to government prosecutors.
Obviously, the reduction of Immigration Judges and Appellate Immigration Judges to something akin to “deportation clerks” straining to meet “production quotas” and pressured by regime politicos to aid DHS Enforcement by churning out deportation orders has been an important step in “dumbing down” EOIR. Today, EOIR is probably more subservient to DHS Enforcement, less impartial, and more of an administrative disaster than it was under the “Legacy INS.” Except, now there is more of everything — more overt political interference in the adjudication process, more bad law intentionally created, more and bigger backlogs, more intellectual dishonesty, more chaos, more disrespect for and demeaning of respondents and their attorneys, and more lives ruined.
Due Process Forever! Weaponized, Captive, “Courts” Never!
PWS
05-21-20
*Stones, The Rolling, “The Under Assistant West Coast Promo Man”
Well, I’m waiting at the bus stop in downtown L.A.
Well, I’m waiting at the bus stop in downtown L.A.
But I’d much rather be on a boardwalk on Broadway
Well, I’m sitting here thinkin’ just how sharp I am
Well, I’m sitting here thinkin’ just how sharp I am
I’m an under assistant west coast promo man
Well, I promo groups when they come into town
Well, I promo groups when they come into town
Well they laugh at my toupee, they’re sure to put me down
Well, I’m sitting here thinking just how sharp I am
Yeah, I’m sitting here thinking just how sharp I am
I’m a necessary talent behind every rock and roll band
Yeah, I’m sharp
I’m really, really sharp
I sure do earn my pay
Sitting on the beach every day, yeah
I’m real real sharp, yes I am
I got a Corvette and a seersucker suit
Yes, I have
Here comes the bus, uh oh
I though I had a dime
Where’s my dime
I know I have a dime somewhere
I’m pretty sure
Family Separation 2.0: “You aren’t going to separate me from my only child.”
On April 7, 2020, Amnesty International issued a report, ‘We are adrift, about to sink’: The looming COVID-19 disaster in US immigration detention facilities, documenting how the Trump administration was failing to adequately protect tens of thousands of immigrants and asylum- seekers whom the U.S. Department of Homeland Security’s (“DHS”) Immigration and Customs Enforcement (“ICE”) agency was detaining in over 200 detention centers across the United States.1
Three of these facilities detain families, including infants as young as 1-year-old who are still breast-feeding. Deceptively named “family residential centers” (FRC), these detention facilities are: the Berks County Residential Center (“Berks”) in Leesport, Pennsylvania; the South Texas Family Residential Center (“Dilley”) in Dilley, Texas; and the Karnes County Residential Center (“Karnes”) in Karnes City, Texas.
While the dangerous conditions in immigration detention remain little changed since Amnesty International published its April report, ICE has now introduced a new element of harm: family separation. Once again, this administration is weaponizing its public health response to COVID- 19 to punish and deter people seeking safety.
. . . .
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Read the complete report at the above link.
The regime’s “Dred Scottification” — dehumanization of “the other” before the law — continues unabated as those institutions charged with preventing such abuses tank.
This November, vote like your life depends on it! Because it does!
Another day, another extreme cruelty: according to a report in the New York Times, the Trump administration has deported almost 1,000 migrant children and teens during the past two months of the covid-19 pandemic, sending them out of the United States alone and at times putting them on a flight without even telling their family members. Stephen Miller, who is unfortunately still alive, must be thrilled.
Trump’s latest tactic in the service of slashing immigration is, as the New York Times points out, a complete 180 from past policy:
The deportations represent an extraordinary shift in policy that has been unfolding in recent weeks on the southwestern border, under which safeguards that have for decades been granted to migrant children by both Democratic and Republican administrations appear to have been abandoned.
Historically, young migrants who showed up at the border without adult guardians were provided with shelter, education, medical care and a lengthy administrative process that allowed them to make a case for staying in the United States. Those who were eventually deported were sent home only after arrangements had been made to assure they had a safe place to return to.
But now, not even children who are already in the United States with pending asylum cases are safe from deportation. As the Times reported, in addition to the more than 900 children and teens who were deported in March and April shortly after arriving at the border, 60 young people who were already being held in government shelters were also abruptly sent out of the United States, at times “rousted from their beds in the middle of the night.”
According to the Times, even young children have been put on flights by themselves. Take the case of Sandra Rodríguez and her 10-year-old son Gerson, whom she sent across the southern border with the expectation that once Gerson arrived in the United States, he would be able to eventually live with Rodríguez’s brother in Houston. But instead, shortly after entering the U.S., Gerson was sent to Honduras alone.
This incredibly callous treatment of young migrants as well as their families is part of the Trump administration’s attempt to erase any vestige of due process at the border with Mexico. Citing the pandemic, immigration officials have used provisions in the 1944 Public Health Act as justification to essentially close the United States to all asylum seekers who cross the border. The impact has been severe: In an almost two-month period from mid-March to May, only two people seeking protection on humanitarian grounds at the border were allowed to stay within the United States.
“What is happening at the border right now is a tragedy. We are abandoning our legal commitment to provide asylum to people whose lives are in danger in other countries,” Kari Hong, an immigration attorney and Boston College law school professor, told the Washington Post. “By invoking these emergency orders, the Trump administration is simply doing what it’s wanted to do all along, which is to end asylum law in its entirety,” she said.
While Trump administration officials have justified their likely illegal use of emergency orders in the name of public health, the fact that officials have also deported children and teens who were already in the care of the federal government sure indicates that something else is going on here. I wonder what that could be.
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Who would have thought that America would become a nation of child abusers and that Federal Courts would be so feckless and complicit in the face of such clear abuses? Three years of concerted failure, led by John Roberts and the Supremes, to give meaning to Due Process and Equal Protection in the face of the “New Jim Crow” have emboldened the regime’s White Nationalist, anti-American abusers while kneecapping democratic and constitutional institutions.
Then, there’s the extreme, wanton cruelty and dehumanization inflicted on the mostly vulnerable among us that has come to symbolize our nation in the Age of Trump. Like all the other abuses by the regime, it’s been “normalized” by feckless legislators and judges: “Another day, another extreme cruelty!” ☠️⚰️🤮🏴☠️
Somewhere down there in the fires of the underworld, Chief Justice Roger Taney, author of the infamous “Dred Scott Decision” must be feeling totally vindicated by Roberts and his gang!
Is this really how we want to be remembered by future generations? If not, vote ‘em out this November!
WASHINGTON — The Trump administration has expedited the deportation of child migrants during the coronavirus pandemic, citing public health, but documents obtained by NBC News show that as far back as 2017, now–DHS Acting Secretary Chad Wolf sought to expedite child deportations in order to discourage Central American asylum seekers.
Recent reports from immigration lawyers, DHS officials and congressional staff have indicated a rise in the number of rapid deportations of unaccompanied migrant children. Previously, children who arrived in the U.S. without a parent or legal guardian were given protections under anti-trafficking laws, which included the right to claim asylum and to be placed in the custody of the Department of Health and Human Services until they could be placed with a guardian.
The New York Times recently reported that more than 900 children have been deported under a new policy that sends children back to their home countries before they have had a chance to coordinate plans with a guardian at home or claim asylum in the U.S.. Many of those children, according to the Times, were in the U.S. and living in HHS custody or with family members before the pandemic began.
DHS has said the deportations are justified under Title 42, which allows restrictions on immigration to slow the spread of disease.
But a 2017 policy proposal by Wolf shows that the agency has long sought the ability to deport children more quickly, long before the threat of a virus gave it cover to do so.
The documents were first obtained by Sen. Jeff Merkley, D.-Ore., and then shared with NBC News.
Wolf, who was then chief of staff to DHS Secretary Kirstjen Nielsen, sent a collection of policy ideas to the Justice Department, which included plans to reclassify unaccompanied migrant children as accompanied once they had been placed in the care of a parent or sponsor.
. . . .
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Read Julia’s complete article at the link.
As I keep saying, ever since “tanking” on the so-called “Travel Ban Cases,”John Roberts and his GOP buddies on the Supremes have been avoiding their duty to critically examine the clearly invidious motives of the Trump regime. They have encouraged legal and intellectual fraud by inviting the regime to present a plethora of demonstrably bogus pretexts to thinly cloak their unlawful intent.
Undoubtedly, we’re just seeing the “tip of the iceberg” here. Future historians will unearth overwhelming evidence of the racism and other improper drivers of the regime’s cowardly attack on vulnerable children and asylum seekers. They will expose fully the disgraceful role of Roberts and his gang in encouraging and covering up what future generations will almost universally view as grotesque abuses of human rights and the rule of law. Which they are!
This November, we have a chance to change course and start writing an end to this disgraceful chapter of American history. Don’t blow it!
Juan Antonio v. Barr, 6th Cir., 05-19-20, published
PANEL: COLE, Chief Judge; BOGGS and GIBBONS, Circuit Judges
OPINION BY: Judge Gibbons
CONCURRING OPINION: Judge Boggs
KEY QUOTES:
Footnote 3:
3Matter of A-R-C-G was overruled by Matter of A-B, which held that the Board in Matter of A-R-C-G- did not conduct a rigorous enough analysis in its determination that the particular social group was cognizable. See Matter of A-B-, 27 I. & N. Dec. 316, 331 (A.G. 2018) (noting that because DHS conceded that particular social group was cognizable, “the Board performed only a cursory analysis of the three factors required to establish a particular social group”). Our sister circuits have determined that this change counsels remand. See Padilla- Maldonado v. Att’y Gen. U.S., 751 F. App’x 263, 268 (3d Cir. 2018) (“While the overruling of A-R-C-G- weakens [the applicant’s] case, it does not automatically defeat her claim that she is a member of a cognizable particular social group. As we remand to the BIA to remand to the IJ, the IJ should determine whether [the applicant’s] membership in the group . . . is cognizable . . ..”); Moncada v. Sessions, 751 F. App’x 116, 118 (2d Cir. 2018) (“This Court, like the BIA, applies the law as it exists at the time of decision. And, where, as here, intervening immigration decisions from the executive branch alter the applicable legal standards, we have previously exercised our discretion to remand the matter to the BIA to apply the new standards in the first instance. Recognizing the wisdom of this practice, we take the same tack here and remand this case ‘for the BIA to interpret and apply the standards set forth in [Matter of A-B-] in the first instance.’” (quoting Biao Yang v. Gonzales, 496 F.3d 268, 278 (2d Cir. 2007) (internal citations omitted)).
However, Matter of A-B- has since been abrogated. See Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018). Grace found that the policies articulated in Matter of A-B- were arbitrary, capricious, and contrary to law. See id. at 126–27 (holding that there is no general rule against claims involving domestic violence as a basis for membership in a particular social group and that each claim must be evaluated on an individual basis under the statutory factors). The district court’s decision in Grace is currently on appeal to the D.C. Circuit. We acknowledge that we are not bound by Grace but find its reasoning persuasive. Because Matter of A-B- has been abrogated, Matter of A-R-C-G- likely retains precedential value. But, on remand, the agency should also evaluate what effect, if any, Matter of A-R-C-G- and Grace have had on the particular social group analysis. See Bi Xia Qu, 618 F.3d at 609 (“When the BIA does not fully consider an issue, . . . the Supreme Court has instructed that a reviewing court ‘is not generally empowered to conduct a de novo inquiry into the matter being reviewed.’ Rather, ‘the proper course, except in rare circumstances, is to remand to the [BIA] for additional investigation or explanation.’” (quoting Gonzales v. Thomas, 547 U.S. 183, 186 (2006))).
. . . .
When an asylum claim focuses on non-governmental conduct, the applicant must show that the alleged persecutor is either aligned with the government or that the government is unwilling or unable to control him. See Khalili, 557 F.3d at 436. An applicant meets this burden when she shows that she cannot “reasonably expect the assistance of the government” in controlling her perpetrator’s actions. Al-Ghorbani, 585 F.3d at 998. For example, in In re S-A, the Board found that an applicant was eligible for asylum when she suffered domestic abuse at the hands of her father. In re S-A-, 22 I. & N. Dec. 1328 (BIA 2000). Relying on evidence showing that “in Morocco, domestic violence is commonplace and legal remedies are generally unavailable to women,” and that “‘few women report abuse to authorities’ because the judicial procedure is skewed against them,” the Board held that “even if the respondent had turned to the government for help, Moroccan authorities would have been unable or unwilling to control her father’s conduct.” Id. at 1333, 1335 (quoting Committees on International Relations and Foreign Relations, 105th Cong., 2d Sess., Country Reports on Human Rights Practices for 1997 1538 (Joint Comm. Print 1998)).
Here, both the immigration judge and Board agreed that the beatings, rape, and threats Maria suffered were severe enough to constitute persecution, but that she failed to show that the Guatemalan government was unwilling or unable to control Juan. In support of its conclusion,
No. 18-3500 Juan Antonio v. Barr Page 16
the Board noted that the government issued a restraining order against Juan, the mayor fined Juan for beating their daughter, and that Maria and their children were able to remain in their home for the year before she left Guatemala. AR 5, BIA Decision. Maria argues on appeal that the Board’s decision was not supported by substantial evidence on the record as a whole. We agree with her.
Taken as a whole, the record compels the conclusion that Maria cannot “reasonably expect the assistance of the government” in controlling Juan. Al-Ghorbani, 585 F.3d at 998. First, the Board’s conclusion that the restraining order effectively controlled Juan is clearly contradicted by the evidence. Maria testified that Juan “did not obey [the restraining order] because there [was] no police” and “[h]e wasn’t afraid” of any consequences, AR 180, Immigration Ct. Tr., and that at some time that year, Juan came to Maria’s home and beat their oldest child with his belt. She further testified that she went to the police station to file a complaint, but the police never investigated the crime. Second, the Board’s conclusion that “the respondent and her children were able to live legally in the family house” for a year does not paint an accurate picture of that year. AR 5, BIA Decision. The year was not a “period of calm,” as the Board characterized it, but rather, a year which affirmed that the Guatemalan government had not effectively gained control over Juan. Id at 5 n.2. Throughout the course of the year, Maria received threats that Juan “was going to kill [her], and if not[,] that he would pay someone to do something.” AR 188, Immigration Ct. Tr. Juan’s girlfriend also “began threatening [Maria] about once a week, yelling at [her] . . . that she and Juan would kill [her] if [she] didn’t move out of the house.” AR 332, I-589 Appl. In May 2014, Juan’s sister told Maria that “Juan had bought a gun and that he planned to kill [Maria].” Id. at 333. The events of that year indicate that the government had not effectively gained control over Juan.
Moreover, that Juan received a fine of approximately $200 for beating up their oldest child (from a judge who no longer works in town, at a courthouse that has since been destroyed) may indicate some willingness of the Guatemalan government to control Juan but it does not indicate its ability to do so. The concurrence points to the restraining order and fine as evidence
No. 18-3500 Juan Antonio v. Barr Page 17
Guatemala is willing to enforce its laws but may not always be successful.4 While the concurrence would emphasize what Guatemala did, it is more important to look at the numerous instances when the government failed to act or even respond as well as the harm the government failed to prevent. The death threats Maria received continued even after Juan was fined. And Juan’s purchasing of a gun—which ultimately led Maria to flee—came after Juan was fined. Moreover, the police failed to respond to Maria’s calls for help on two occasions when Juan came to Maria’s house and threatened her and/or their children. In reviewing this evidence, the immigration court opined that it “would be left to wonder if Juan intended to kill the respondent, the mother of his four children, why would he not have done so.” AR 70, Immigration Ct. Order. But it cannot be that an applicant must wait until she is dead to show her government’s inability to control her perpetrator.
The supplemental evidence regarding Guatemala’s country conditions corroborates that Maria could not “reasonably expect the assistance of the government” in controlling Juan’s actions. Al-Ghorbani, 585 F.3d at 998; see In re S-A-, 22 I. & N. Dec. 1328 (BIA 2000). The evidence Maria submitted shows that “[t]he systemic marginalization of indigenous communities . . . continues with no meaningful efforts by the government to overcome it.” AR 285, State of the World’s Minorities and Indigenous Peoples 2015—Guatemala. It also indicates that “[i]mpunity for perpetrators remain[s] very high,” AR 255, Country Reports on Human Rights Practices for 2016, and that for Mayan indigenous women, there is “increased vulnerability and gender-based violence . . . exacerbated by a weak state apparatus that struggles to implement laws and programming to protect these groups.” AR 274, Guatemala Struggles to Protect Women Against Endemic Violence. Indigenous Mayan women are particularly unable to seek help from the government because they speak a different language from most of the country’s authorities. To be sure, the supplemental material does not indicate no willingness on behalf of the Guatemalan government—indeed, the country has taken some steps to codify laws prohibiting violence against women—but rather, the material reinforces the country’s lack of
4The concurrence’s reference to the enforcement of domestic abuse law violations in this country is both inapt and irrelevant.
No. 18-3500 Juan Antonio v. Barr Page 18 resources and infrastructure necessary to protect indigenous Mayan women from their perpetrators.
Further, the Board’s conclusion that Maria did not meet her burden of showing that the Guatemalan government was “helpless” relies on a standard that has since been deemed arbitrary and capricious. AR 5, BIA Decision. The United States District Court for the District of Columbia found that the “complete helplessness” standard is arbitrary, capricious, contrary to law, and “not a permissible construction of the persecution requirement.” Grace v. Whitaker, 344 F. Supp. 3d 96, 130 (D.D.C. 2018).
Thus, the Board’s conclusion that Maria did not demonstrate that the Guatemalan government was unwilling or unable to control Juan is not supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” Zhao, 569 F.3d at 247 (quoting Koulibaly, 541 F.3d at 619). Maria’s testimony about her experiences, corroborated by supplemental evidence of the conditions for indigenous Mayan women in Guatemala, compels a contrary conclusion to that of the Board. See Mandebvu, 755 F.3d at 424. Based on the evidence in the record, Maria could not “reasonably expect the assistance of the government” in controlling Juan’s actions. Al-Ghorbani, 585 F.3d at 998. We therefore vacate the Board’s finding that Maria did not show that the government was unable or unwilling to protect her and remand so the agency can reconsider her application consistent with this opinion.
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Thanks to my Round Table colleague Judge Jeffrey Chase for spotting this decision and sending it my way.
And congratulations to Margaret Wong, Esquire, of Cleveland, OH, who represented the respondent so ably before the 6th Circuit. Margaret and the attorneys from her firm appeared before me numerous times during the many years that I was assigned to the Cleveland docket part-time from Arlington, with most of the hearings taking place by televideo.
Margaret W./ Wong Senior PartnerMargaret W. Wong & Associates LLC
The BIA’s bogus “helpless standard” came directly from Matter of A-B- — Sessions’s unethical, legally incorrect, and misogynistic attempt to write female domestic violence victims from Central America out of refugee protections as part of his White Nationalist agenda. Judge Gibbons’s opinion found persuasive U.S. District Judge Sullivan’s (D. D.C.) conclusion in Grace v. Whitakerthat Sessions’s A-B- atrocity was “arbitrary, capricious, and contrary to law.”
This further confirms the problems of a politicized and weaponized Immigration Court system controlled by anti-asylum politicos. How many more “Marias” are out there who are arbitrarily denied protection by the Immigration Courts and the BIA, but lack the ability to obtain competent counsel to assist them and/or are not fortunate enough to have a Court of Appeals panel that takes their case seriously, rather than just “deferring” to the BIA? For example, the Fifth Circuit has “tanked” on the A-B- issue. And, today, the Trump regime is being allowed to turn away asylum seekers at the border in violation of law and without any meaningful opportunity whatsoever to present a claim.
Disgraceful as the BIA’s performance was in this case, worse happens every day in the broken Immigration Court system and the abusive, scofflaw enforcement system administered by the Trump regime.And those charged with putting an end to such blatant violations of law and human rights – the Article III Judiciary – have largely shirked their duty to put an end to this unconstitutional, illegal, unethical, and inhumane “bad joke” of a “court system” and to stop the regime’s illegal abrogation of U.S. asylum laws.
“Manuel Guzman, a native and citizen of Mexico, petitions for review of the decision of the Board of Immigration Appeals (“BIA”) affirming an immigration judge’s denial of his application for withholding of removal. Because the IJ and BIA erred in failing to give Guzman an opportunity to explain why he could not reasonably obtain certain corroborative evidence, because substantial evidence does not support the Immigration Judge (“IJ”) and BIA’s determinations regarding the unavailability of evidence to corroborate Guzman’s claim about abuse by his stepfather, and because the BIA incorrectly required Guzman to demonstrate that his membership in a particular social group was “at least one central reason” for his persecution, we GRANT the petition for review, VACATE the BIA’s order, and REMAND for proceedings consistent with this opinion.”
PANEL: MERRITT, MOORE, and MURPHY, Circuit Judges.
OPINION: Judge Moore
DISSENT: Judge Murphy
In looking for ways to deny protection, the BIA continues to “blow the basics.” That’s going to continue to happen as long as EOIR is allowed to operate as a branch of DHS Enforcement rather than a fair-minded, impartial court system with true expertise and which grants needed protection in meritorious cases, rather than searching for specious “reasons to deny.”
No wonder the EOIR backlog is mushrooming out of control when those responsible for doing justice waste countless time and resources “manufacturing denials,” rather than just promptly granting relief in many meritorious cases.
Immigration courts in ‘chaos,’ with coronavirus effects to last years
By Tal Kopan
WASHINGTON — Raquel and her sons fled gang threats in El Salvador, survived the weeks-long journey to the U.S., and then endured the Trump administration’s 2018 separations at the southern border.
This month, she was finally going to get her chance to convince an immigration judge in San Francisco that she should be granted permanent asylum in the U.S., ending the agony of having to prepare for her court date by reliving the danger in her native country and her weeks of detention at the border.
Thanks to the coronavirus, she will have to endure the wait for three more years.
“It’s really traumatizing, because I have to keep telling them the same thing,” Raquel said. “I thought I had gotten over everything that had happened to me … but every time I remember, I can’t help crying.”
Raquel’s case is one of hundreds of thousands in the immigration courts that are being delayed by the pandemic. The courts, run by the Justice Department, have been closed for health reasons in the same way that much of U.S. public life has been on hold. But many of those who work in the system say the Trump administration has handled the shutdown in an especially haphazard manner, increasing the stress on judges and attorneys in addition to immigrants and making it harder for the courts to bounce back.
“There isn’t a day that goes by that there isn’t mass chaos behind this veil of business as usual,” said Ashley Tabaddor, president of the National Association of Immigration Judges.
The Justice Department began postponing hearings for immigrants who are not in detention on March 18, and the delays have been extended every few weeks. Hearings are now set to resume June 15. But many courts technically remain open, including the one in San Francisco, with frequently changing statuses announced on social media and a website. It also took weeks for all judges to get laptops that would allow them to work remotely, said Tabaddor, who hears immigration cases in Los Angeles.
The scattershot communications make it difficult to prepare for if and when the hearings are held, immigrants say. And it’s worse for those who have no lawyer who can help navigate the changes. About one-third of immigrants with pending cases have no representation, according to Justice Department statistics, and missing a hearing is grounds for deportation.
The Justice Department says it is being proactive in balancing safety with immigrants’ rights. A spokeswoman said the agency is “deeply concerned” for the health of its staff and the public.
In a recent legal filing, the director of the immigration courts, James McHenry, said a “one size fits all” approach to court closures and procedures wouldn’t work, given varying situations at different locations.
With postponements happening on short notice, most immigrants fighting deportation feel they must prepare for court even if pandemic-caused delays seem likely. But doing so can force them to revisit the terrifying situations they say they came to the U.S. to escape.
None who spoke with The Chronicle said they wanted to risk their health by keeping the courts open. But they and their attorneys said they wished the administration was doing more to take immigrants’ and staffers’ needs into account.
Because the immigration courts already have a backlog of more than 1 million cases, it can take years for an asylum applicant such as Raquel to go before a judge. In the meantime, they build lives here, knowing that can be yanked away if they’re ordered deported.
Raquel and others whose hearings have been postponed won’t go first when the courts reopen — they go to the back of the line. The alternative for the immigration courts would be a logistical nightmare of rescheduling everyone else’s hearings, which are now booked years in advance.
The Trump administration ended the practice of prioritizing cases of criminal immigrants or recent arrivals, and has curtailed judges’ ability to simply close the case of a low-risk migrant less deserving of deportation, which would clear court schedules for more serious cases.
The Justice Department declined to say how many hearings have been postponed because of the pandemic. But a nonprofit statistics clearinghouse estimated that the government shutdown of 2018-19 resulted in the cancellation of 15,000 to 20,000 cases per week.
Raquel’s case is emblematic of the thousands that are now in limbo. The Chronicle has agreed not to use her real name out of her concern for her safety, in accordance with its anonymous sourcing policy.
Raquel says she came to the U.S. in 2018 because a gang in the area of El Salvador where she lived threatened her family after her two sons refused to join.
She was among the immigrant families that were forcibly separated at the border. She spent a month and a half apart from her teenage son as she was shuffled between detention centers and jails. She says she endured numerous indignities, including having to shower in front of guards and being shackled by her wrists and ankles.
“It was the most bitter experience I’ve ever had,” she said in Spanish.
After finally being reunited with her son and released, Raquel rejoined her husband and other son who had come here previously, settling in San Francisco. She was ordered to wear an ankle monitor, which again made her feel like “a prisoner.”
“I had never felt so hurt like I did in this country, which hurt me so much just for crossing a border illegally,” Raquel said. “That was the sin and the crime that we committed, and we paid a high price.”
Raquel spoke with The Chronicle before receiving word that her May hearing was canceled. She and her attorney had felt forced to prepare despite a high likelihood of postponement, just in case the Justice Department forged ahead.
San Francisco attorneys who are working with immigrants during the pandemic say it is an acute challenge. Stay-at-home orders complicate preparing for cases that could have life-and-death consequences for those who fled violence back home.
Difficulties include trying to submit 1,000-page filings from home, needing to discuss traumatic stories of domestic and sexual violence with immigrants who are sharing one-bedroom apartments with 10 other people, and navigating courts’ changing status on Twitter.
“It’s taking an already not-user-friendly system and spinning it into chaos to the extent that even savvy practitioners don’t know how to get information, let alone the applicant,” said Erin Quinn, an attorney in San Francisco with the Immigrant Legal Resource Center.
She added, “The stakes are high, and at the same time, a comment I got yesterday from a practitioner was, ‘I’m tired of trying to figure out what to do with my practice based on tweets.’”
Judges and court staffers are also frustrated. On March 22, an unprecedented partnership was formed among the unions representing Immigration and Customs Enforcement attorneys who serve as prosecutors in the courts, judges and the association for attorneys who represent immigrants. They wrote a letter to the Justice Department demanding it close all the courts, not just postpone hearings for immigrants who are not in detention. The agency later expanded the ability of attorneys to appear by telephone and for some judges to work from home.
Even now, however, the Justice Department is requiring some judges and staff to come in to court to handle cases of immigrants who are being detained — those hearings have not been canceled — or to process filings.
“It is very, very upsetting. Employees do not feel like they are, No. 1, being protected and, No. 2, you don’t feel respected and valued,” said Immigration Judge Dana Leigh Marks, president emerita of the judges’ union.
Marks and Tabaddor say it’s part of a Trump administration pattern of stripping immigration judges of their independence at the expense of fair proceedings— an example of “haste makes waste,” Marks said. The Justice Department has set performance metrics to push judges to complete more cases, and Trump’s attorneys general have issued rulings that made it more difficult for judges to prioritize their caseloads.
The Justice Department, for its part, says it is making the courts more efficient. In November, McHenry testified before Congress that his agency had “made considerable progress in restoring (the courts’) reputation as a fully functioning, efficient and impartial administrative court system fully capable of rendering timely decisions consistent with due process.”
Quinn, the San Francisco attorney, said the Justice Department should work more closely with immigrants’ lawyers like Raquel’s to prioritize cases that are ready to move forward.
“Everything this administration has done to speed up or deal with the backlog are actually actions that limit the meting out of justice in the courts, which even before this crisis have been gumming up the system further,” Quinn said. “We will see the impact of that now as we try to come out of this crisis.”
Meanwhile, for immigrants like Raquel, the wait will continue. Even with the hardship, she says coming to the U.S. was worth the risks.
“It’s about protecting my children,” she said. “I’ve always told my sons, if God let us get here, they have to take advantage of it. … In my country, someone walks down the block and they get assaulted or kidnapped and nobody ever finds them. But not here. Here you feel safe.”
San Francisco Chronicle staff writer Alexei Koseff contributed to this report.
It’s great to have you back, Tal! We’ve missed you!
It’s well worth going to the link to read Tal’s full article! Also, you’ll see some great pictures from the “home chambers” of my good friend and colleague Judge Dana Leigh Marks of the San Francisco Immigration Court, a Past President of the NAIJ.
What also would be great is if the dire situation in the U.S. Immigration Courts had actually improved over the past few months. But, predictably, the “downward spiral” has only accelerated.
Tal’s article brings to life the “human trauma” inflicted not only on those poor souls whose constitutional due process rights have been “sold down the river” by this “maliciously incompetent” regime, but also the unnecessary trauma inflicted on everyone touched by this disgraceful system: private and pro bono counsel, judges, interpreters, clerical staff, government counsel, and their families all get to partake of the unnecessary pain and suffering.
While it undoubtedly would take years to restore due process, fundamental fairness, and some measure of efficiency to this dysfunctional mess, the starting points aren’t “rocket science” – they are deceptively simple. One was eloquently stated by Erin Quinn, an attorney with the Immigrant Legal Resource Center in San Francisco who “said the Justice Department should work more closely with immigrants’ lawyers like Raquel’s to prioritize cases that are ready to move forward.” That’s actually how it used to be done in places like Arlington.
As Judge Marks points out, a host of “haste makes waste” gimmicks and enforcement schemes by this Administration (and to a lesser extent by the Obama Administration) have resulted in massive “Aimless Docket Reshuffling” and total chaos as politicos in at the DOJ and bureaucrats in EOIR HQ “redesign and reshuffle” dockets to achieve political objectives and “send messages” without any meaningful input from the Immigration Judges and attorneys (on both sides) who actually do the work and understand the dynamics of a particular docket.
In particular, under a fair and unbiased application of legal standards there are thousands of well-documented meritorious asylum and cancellation of removal cases that could be handled in “short hearings.”Other individuals could be removed from the docket to pursue U and T nonimmigrant visas or “stateside processing” permanent immigration with USCIS. Still others have documentation establishing that they are productive, law-abiding tax-paying members of their communities, often with U.S.citizen family, who should be removed from the dockets through the type of sensible, mutually beneficial “prosecutorial discretion” (“PD”) programs that were beginning to show meaningful results before being arbitrarily terminated by this Administration.
This is just the “tip of the iceberg.” There are many more improvements in efficiency, without sacrificing due process, and “best practices” that could be made if this were operated as a fair and impartial court system, rather than an appendage of DHS Enforcement committed to Stephen Miller’s nativist agenda.
The other necessary piece is the one promoted by Judge Tabaddor and the NAIJ and endorsed by nearly all “non-restrictionist” experts in the field: establishing an independent Immigration Court outside of the Executive Branch. That’s not likely to happen without “regime change.”
Moreover, it’s clear from his recent actions that Billy Barr, who is currently running the Immigration Courts into the ground, actually aspires to “kneecap” the Article III Judiciary in behalf of his lord and master, Trump. Barr would be delighted if all Federal,Courts, including the Article IIIs, were functionaries of the all powerful “Unitary Executive.” Given the Supremes’ failure to stand up for immigrants’ and asylum seekers’ legal rights as they are systematically dismantled by the regime, Barr is already a ways down that road!
Tal’s article also highlights another glaring deficiency: the lack of a diverse, merit-based Immigration Judiciary committed solely to “due process with efficiency” and fair and impartial adjudications under the law, particularly the asylum laws. Experts like Erin Quinn, folks with a deep scholarly understanding of immigration and asylum laws and experience representing the individuals whose lives are caught up in this system, should be on the Immigration Bench. They are the ones with the knowledge and experience in making “hard but fair” choices and how to achieve “practical efficiency” without sacrificing due process.
Rather than actively recruiting those outstanding candidates from the private, academic, and NGO sectors with asylum experience and knowledge, so that they could interact and share their expertise and practical experiences with other judicial colleagues, the current system draws almost exclusively from the ranks of “insiders” and government prosecutors. They apparently are hired with the expectation that they will churn out orders of removals in support of DHS Enforcement without “rocking the boat.” To some extent this was also true under the Obama Administration, which also hired lopsidedly from among government attorneys.
Indeed, prior immigration experience is not even a job requirement right now. The hiring tends to favor those with high volume litigation skills, primarily gained through prosecution. That doesn’t necessarily translate into fair and scholarly judging, although it might and has in some instances.
Of course, a few do defy expectations and stand up for the legal and due process rights of respondents. But, that’s not the expectation of the politicos and bureaucrats who do the hiring. And the two-year probation period for newly hired Immigration Judges gives Administration politicos and their EOIR subordinates “leverage” on the new judges that they might not have on those who are more established in the system, particularly those who are “retirement eligible.”
Moreover, the BIA has now been “stocked” with judges with reputations for favoring enforcement and ruling against asylum seekers in an unusually high percentage of cases.The design appears to be to insure that even those who “beat the odds” and are granted asylum by an Immigration Judge get “zapped” when the DHS appeals. Even if the BIA dared not to enforce the “restrictionist party line,” the Attorney General can and does intervene in individual cases to change the result to favor DHS and then to make it a “precedent” for future cases.Could there be a clearer violation of due process and judicial ethics? I doubt it. But, the Courts of Appeals largely pretend not to see or understand the reality of what’s happening in the Immigration Courts.
Beyond that, the Immigration Judge job, intentionally in my view, has been made so unattractive for those who believe in due process for individuals and a fair application of asylum laws, that few would want to serve in the current environment. Indeed, a number of fine Immigration Judges have resigned or retired as matters of conscience because they felt unable to square “system expectations” with their oaths of office.
To state the obvious, the current version of Congress has become a feckless bystander to this ongoing human rights, constitutional, ethical, and fiscal disaster. But, the real question is whatever happened to the existing independent Article III Judiciary? They continue to remain largely above the fray and look the other way as the Constitution they are sworn to uphold is further ground into the turf every day and the screams of the abused and dehumanized (“Dred-Scottified”) emanating from this charade of a “court system” get louder and louder.Will they ever get loud enough to reach the refined ears of those ensconced in the “ivory tower” of the Article III Judiciary?
Someday! But, the impetus for the necessary changes to make Due Process, fundamental fairness, and equal justice for all a reality rather than a cruel, intellectually dishonest, and unfulfilled promise is going to have to come from outside the current broken and intentionally unfair system and those complicit in its continuing and worsening abuses of the law and humanity!
THE WORLD CHANNELS “COURTSIDE” — A Shocked & Dismayed World Now Sees America Under The Trump Clown 🤡🤡 Kakistocracy For What It Is: A Rich, Arrogant, Willfully Ignorant, Dishonest, Dangerous “Failing State” To Be Pitied — Not To Be Trusted, Followed, Or Admired — “But there is one emotion that has never been directed towards the US until now: pity.”
The Trump administration has repeatedly claimed that the US is “leading the world” with its response to the pandemic, but it does not seem to be going in any direction the world wants to follow.
Across Europe, Asia, Africa and Latin America, views of the US handling of the coronavirus crisis are uniformly negative and range from horror through derision to sympathy. Donald Trump’s musings from the White House briefing room, particularly his thoughts on injecting disinfectant, have drawn the attention of the planet.
“Over more than two centuries, the United States has stirred a very wide range of feelings in the rest of the world: love and hatred, fear and hope, envy and contempt, awe and anger,” the columnist Fintan O’Toole wrote in the Irish Times. “But there is one emotion that has never been directed towards the US until now: pity.”
The missing six weeks: how Trump failed the biggest test of his life
The US has emerged as a global hotspot for the pandemic, a giant petri dish for the Sars-CoV-2 virus. As the death toll rises, Trump’s claims to global leadership have became more far-fetched. He told Republicans last week that he had had a round of phone calls with Angela Merkel, Shinzo Abe and other unnamed world leaders and insisted “so many of them, almost all of them, I would say all of them” believe the US is leading the way.
None of the leaders he mentioned has said anything to suggest that was true. At each milestone of the crisis, European leaders have been taken aback by Trump’s lack of consultation with them – when he suspended travel to the US from Europe on 12 March without warning Brussels, for example. A week later, politicians in Berlin accused Trump of an “unfriendly act” for offering “large sums of money” to get a German company developing a vaccine to move its research wing to the US.
People gather to protest the stay-at-home orders outside the state capitol building in Sacramento, California, this month. Photograph: Josh Edelson/AFP via Getty Images
The president’s abrupt decision to cut funding to the World Health Organization last month also came as a shock. The EU’s foreign policy chief, Josep Borrell, a former Spanish foreign minister, wrote on Twitter: “There is no reason justifying this move at a moment when their efforts are needed more than ever to help contain & mitigate the coronavirus pandemic.”
A poll in France last week found Merkel to be far and away the most trusted world leader. Just 2% had confidence Trump was leading the world in the right direction. Only Boris Johnson and Xi Jinping inspired less faith.
A survey this week by the British Foreign Policy Group found 28% of Britons trusted the US to act responsibly on the world stage, a drop of 13 percentage points since January, with the biggest drop in confidence coming among Conservative voters.
Dacian Cioloș, a former prime minister of Romania who now leads the Renew Europe group in the European parliament, captured a general European view this week as the latest statistics on deaths in the US were reported.
“Post-truth communication techniques used by rightwing populism movements simply do not work to beat Covid-19,” he told the Guardian. “And we see that populism cost lives.”
Around the globe, the “America first” response pursued by the Trump administration has alienated close allies. In Canada, it was the White House order in April to halt shipments of critical N95 protective masks to Canadian hospitals that was the breaking point.
The Ontario premier, Doug Ford, who had previously spoken out in support of Trump on several occasions, said the decision was like letting a family member “starve” during a crisis.
‘It will disappear’: the disinformation Trump spread about the coronavirus – timeline
“When the cards are down, you see who your friends are,” said Ford. “And I think it’s been very clear over the last couple of days who our friends are.”
In countries known for chronic problems of governance, there has been a sense of wonder that the US appears to have joined their ranks.
. . . .
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Read the full article at the above link.
Are we still “to be feared,” even if no longer admired or respected?Good question!
Probably, insofar as our collapse would take down a chunk of the world’s economy with it, leave a leadership vacuum, and change the balance of power, perhaps in favor of China, Russia, South Korea, Canada, and India. We also still have a big military and lots of sophisticated weapons, although modern terrorism has shown that sophistication in expensive weaponry is not always the “be all and end all” either for winning wars or causing mass disorder, death, and mayhem.
Still, as our civil governance and international influence disintegrates, what happens with and to our military is a huge concern and a “big X factor.” Will the tradition of “civilian control over the military” also fall victim to the kakistocracy and the failure of civilian governing institutions? What’s happened to our intelligence community under the Trump kakistocracy is likely a bad omen.
Who would have thought that Trump could do so much permanent or at least long-term damage in such a short period of time? And who would have believed that our centuries-old constitutional and democratic institutions, meant to protect individual rights, enforce the rule of law, and check unrestrained abuses of power by a megalomaniac, yet highly incompetent, dishonest, dangerous, and evil Executive would have crumbled so quickly and performed so haplessly when confronted by a President and an unscrupulous, corrupt, authoritarian regime and party of toadies perfectly willing to press aggressively inane and illegal policies and false narratives to destroy the nation and everyone in it as a means of pillaging and enhancing their own power?
Yet, here we are! Much of the rest of the world appears to “get” it. Yet tens of millions of Americans who continue to support and enable the kakistocracy don’t, or they simply don’t care about our nation and the common good.
This November, vote like your life depends on it! Because it does!
For the foregoing reasons, in the absence of clear and convincing evidence that his release would endanger the public or that he is a flight risk, coupled with the known risks associated with the presence of COVID-19 at Pulaski, this Court concludes that Galan-Reyes’ continued indefinite detention violates his Fifth Amendment right to due process. The government’s interests in continuing his detention must therefore yield to his liberty and safety interests.6
Disposition
IT IS HEREBY ORDERED that the Petition for writ of habeas corpus is GRANTED.
Respondents are ORDERED to IMMEDIATELY RELEASE Omar Galan-Reyes, pursuant to the following conditions:
1. Petitioner will reside at a certain residence, will provide his address and telephone contact information to Respondents, and will quarantine there for at least the first 14 days of his release;
2. If Department of Homeland Security (DHS) determines that Petitioner is an appropriate candidate for Alternatives to Detention (ATD), then Petitioner will comply with DHS instructions as to any ATD conditions;
3. Petitioner will comply with national, state, and local guidance regarding staying at home, sheltering in place, and social distancing and shall be placed on home detention;
4. The Court’s order for release from detention shall be revoked should Petitioner fail to comply with this order of release;
5. This Order does not prevent Respondents from taking Petitioner back into custody should Petitioner commit any crimes that render him a threat to public safety or otherwise violate the terms of release;
6. Petitioner will be transported from Pulaski County Detention Center to his home by identified third persons;
7. Petitioner will not violate any federal, state, or local laws; and
8. At the discretion of DHS and/or ICE, to enforce the above restrictions, Petitioner’s whereabouts will be monitored by telephonic and/or electronic and/or GPS monitoring and/or location verification system and/or an automated identification system.
The Clerk of Court is DIRECTED to close this case and enter judgment accordingly.
6 In light of the Court’s conclusion on Petitioner’s due process claim, it is not necessary to address his Administrative Procedures Act claim.
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Many thanks to Dan Kowalski over at LexisNexis for passing this along. And congrats to NDPA members A. Ross Cunningham, Esquire, and Jake Briskman, Esquire, for their representation of the prisoner rotting in the New American Gulag (“NAG”) in this case!
This decision reads like an indictment of the entire badly failed and fundamentally unfair DHS Enforcement and Immigration Court systems as mismanaged, weaponized, and politicized by the Trump regime Politicos and their toadies:
Abuse of detention system by detaining non-dangerous individuals who are not flight risks;
Uselessness of bond determinations by Immigration Judges who are functioning like enforcement officers, not independent judicial decision-makers;
Extraordinarily poor judgment by DHS Detention officials;
Delays caused by backlogged dockets driven by failure of DHS Enforcement to exercise prioritization and reasonable prosecutorial discretion compounded by the Immigration Judges who lack the authority, and in some cases the will, to control their dockets — dockets structured by politicos for political, rather than practical or legal, reasons (see, e.g., “Aimless Docket Reshuffling” or “ADR”);
Adangerously useless BIA that fails to set reasonable national bond criteria and fails to properly and competently consider Due Process interests in bond cases;
The importance of placing the burden of proof in bond cases where it constitutionally belongs: on DHS, rather than on the individual as is done in Immigration Court;
In this case, the US District Judge had to do the careful analytical work of individual decision making that should have been done by the Immigration Court, and which the Immigration Court should have, but has failed to, require DHS to adopt;
Leaving the big question: Why have Immigration Courts at all if the meaningful work has to be done by the U.S. Courts and U.S. Magistrates?
Why not “cut out the useless middleman” and just have U.S. Magistrate Judges under the supervision of U.S. District Judges conduct all removal and bond proceedings in accordance with the law, Due Process, and the Eighth Amendment until Congress replaces the current constitutionally flawed Immigration Courts with an independent immigration judiciary that can do the job and that functions as a “real court” rather than an arm of DHS Enforcement thinly disguised as a “court?”
The Trump administration’s emergency coronavirus restrictions have shut the U.S. immigration system so tight that since March 21 just two people seeking humanitarian protection at the southern border have been allowed to stay, according to unpublished U.S. Citizenship and Immigration Services data obtained by The Washington Post.
Citing the threat to public health from the coronavirus, the Trump administration has suspended most due-process rights for migrants, including children and asylum seekers, while “expelling” more than 20,000 unauthorized border-crossers to Mexico under a provision of U.S. code known as Title 42.
Department of Homeland Security officials say the emergency protocols are needed to protect Americans — and migrants — by reducing the number of detainees in U.S. Border Patrol holding cells and immigration jails where infection spreads easily. But the administration has yet to publish statistics showing the impact of the measures on the thousands of migrants who arrive in the United States each year as they flee religious, political or ethnic persecution, gang violence or other urgent threats.
AD
The statistics show that USCIS conducted just 59 screening interviews between March 21 and Wednesday under the Convention Against Torture, effectively the only category of protection in the United States that is still available to those who express a fear of grave harm if rejected. USCIS rejected 54 applicants and three cases are pending, according to the data, which does not indicate the nationality of those screened or other demographic information.
U.S. deportees go through ‘disinfection tunnel’ in Mexico
Mexican authorities sent U.S. deportees through “disinfection tunnels” on April 16 at a border crossing in Reynosa, Mexico. (Tamaulipas Migrant Institute)
Lucas Guttentag, an immigration-law scholar who served in the Obama administration and now teaches at Stanford and Yale universities, said the border measures “are designed to pay lip service” to U.S. law and international treaty obligations “without providing any actual protection or screening.”
“The whole purpose of asylum law is to give exhausted, traumatized and uninformed individuals a chance to get to a full hearing in U.S. immigration courts, and this makes that almost impossible,” Guttentag said. “It’s a shameful farce.”
Among migrants who sought protection to avoid being deported, U.S. immigration courts granted asylum to 13,248 in 2018, according to the most recent DHS statistics.
. . . .
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Read the rest of Nick’s article at the link.
A “shameful farce” to be sure, as Lucas Guttentag says. But, with those whose job it is to protect the rule of law from a corrupt Executive’s overreach having largely “fled the field,” or “buried their heads in the sand,” it’s a farce that isn’t likely to abate until we get “regime change.”
This November, vote like your life depends on it! Because it does!
The absence of a checked alien classification box on a Notice to Appear (Form I-862) does not, by itself, render the notice to appear fatally deficient or otherwise preclude an Immigration Judge from exercising jurisdiction over removal proceedings, and it is therefore not a basis to terminate the proceedings of an alien who has been returned to Mexico under the Migrant Protection Protocols. Matter of J.J. Rodriguez, 27 I&N Dec. 762 (BIA 2020), followed.
The lesson of this case: The DHS intentionally puts superfluous information on its form NTA so it doesn’t make any difference whether they fill it in or not. The BIA is there to “fill in the blanks” and help their DHS buddies rack up maximo removals, preferably without in person hearings because it’s faster and helps fulfill “quotas,” under the Let ‘Em Die in Mexico Program (a/k/a “jokingly” as the “Migrant ‘Protection’ Protocols” (“MPP”) — which, of course, serve to intentionally endanger and discourage, not protect, asylum seekers).
This follows Matter of J.J. Rodriguezwhere the BIA found that the DHS wasn’t required to put a usable mailing address for the respondent on the NTA. I can only imagine what would have happened in the Arlington Immigration Court if a respondent had given me “Fairfax County, Virginia, USA” as his one and only address! The former is actually probably a “better” address than “Known Domicile, Tijuana, Baja California, Mexico” which was used in this case. What a farce! But, of course, it’s not very funny when it’s your life, or that of a loved one or client that is going down the tubes☠️.
There actually is an old legal axiom of construing problems against the drafter of a document, particularly when the drafter is in a more powerful position than the recipient. It even has a fancy legal name: Contra proferentem. But, today’s EOIR follows a much simpler maxim: The respondent always loses, particularly in precedent decisions.
I suppose at some point the BIA will be called upon to enter an in absentia removal order in a case where the NTA is blank except for the respondent’s name. I have no doubt, however, that they will be “up to the job.”
To his credit, Judge Edward Kelly entered a brief “concurring opinion” specifically noting that the statutory or constitutional authority for the so-called MPP was not at issue. In plain terms, that means, thanks in large measure to a complicit Supremes’ majority, even if that program, certainly a illegal and unconstitutional hoax, were later found to be unconstitutional, it would be far too late for those already removed, extorted, kidnapped, maimed, tortured, sickened 🤮, or dead ⚰️ thereunder. But, of course, the BIA, like Trump himself, will take no responsibility for any of the deadly fallout of their actions.
Great way to run a government! But, it’s the “New America” under Trump. Most of those in a position to stop the abuse merely shrug their shoulders, look the other way, and plug their ears so as not to have their serenity and complicity, as well as their paychecks, bothered by the screams and fruitless pleas of the abused. Except, of course, for true sadists ☠️ like Stephen Miller and his White Nationalist cronies 🏴☠️ who actually “get off” on the death, ⚰️ torture, abuse, and suffering of “others” they believe to be of “inferior stock” and therefore deserving of dehumanization and death⚰️.
Apparently, the “Tower Rumor Mill” @ EOIR HQ says that Acting Chief Immigration Judge Christopher Santoro will soon be replaced by a permanent Chief Immigration Judge hand selected from among DOJ political hacks by none other than one of the American taxpayers’ most highly paid, unelected White Nationalists, White House Advisor Stephen Miller. The name of Gene Hamilton, like Miller an uber restrictionist former sidekick of “Gonzo Apocalypto” Sessions, still kicking around the DOJ, has been bandied about. However, other parts of the “rumor mill” have expressed skepticism about whether Hamilton really wants the job. He might be able to score more “kills” from his current job, whatever it is.
Stay tuned! In the absence of a functioning Congress or a courageous Federal Judiciary, the “killing fields”⚰️⚰️⚰️⚰️⚰️👎 are just getting rolling @ EOIR. Under the Trump regime, EOIR is now on a breakneck pace to write one of the most dismal, disgusting🤮, and disturbing 😰chapters in modern American legal history involving a catastrophic failure of integrity, courage, and humanity spanning all three rapidly disintegrating branches of our flailing democracy.
For more than a month, under the guise of fighting the coronavirus, the Trump administration has used the nation’s public health laws as a pretext for summarily deporting refugees and children at the border.
This new border policy runs roughshod over legal rights, distracts from meaningful measures to prevent spread of the coronavirus and undermines confidence in the Centers for Disease Control and Prevention, the nation’s top health protection agency, which delivered the directive that imposes these deportations.
The administration has weaponized an arcane provision of a quarantine law first enacted in 1893 and revised in 1944 to order the blanket deportation of asylum-seekers and unaccompanied minors at the Mexican border without any testing or finding of disease or contagion. Legal rights to hearings, appeals, asylum screening and the child-specific procedures are all ignored.
More than 20,000 people have been deported under the order, including at least 400 children in just the first few weeks, according to the administration and news reports. Though the order was justified as a short-term emergency measure, the indiscriminate deportations continue unchecked and the authorization has been extended and is subject to continued renewal.
The deportation policy was issued by the C.D.C. based on an unprecedented interpretation of the public health laws. The policy bears the unmistakable markings of a White House strategy imposed on the C.D.C. and designed to circumvent prior court rulings to achieve the administration’s political goals.
The Border Patrol is carrying out the C.D.C. directive by “expulsion” of anyone who arrives at U.S. land borders without valid documents or crosses the border illegally, not because they are contagious or sick but because they come from Mexico or Canada, regardless of their country of origin. The deportations violate the legal right to apply for asylum and ignore the special procedures for unaccompanied children.
Our immigration laws guarantee that any noncitizen “irrespective” of status, no matter how they arrive, is entitled to an asylum process. U.S. law has adopted the international obligation that refugees cannot be returned “in any manner whatsoever” to a place where they risk persecution. The courts have protected these rights again and again. When the administration tried to impose an asylum ban more than a year ago, the U.S. Court of Appeals for the Ninth Circuit blocked it, calling it an “end-run” around Congress, a decision the Supreme Court refused to overturn.
Now, with the C.D.C. directive, the administration is imposing an even more sweeping prohibition on asylum by exploiting pandemic fears, and U.S. Border and Customs Protection is labeling the policy a public health “expulsion” instead of an immigration deportation.
Despite what the administration says, the order is not part of any coherent plan to stop border travel or prevent introduction or spread of contagious people or the virus, which is already widespread in the United States. Nothing limits travel from Mexico or Canada by truck drivers, those traveling for commercial or educational purposes, and many others, including green card holders and U.S. citizens. And the restrictions that exist do not apply at all to travel if it’s by airplane.
. . . .
The administration’s order expelling refugees and children tarnishes the C.D.C., does nothing to protect public health, targets the most vulnerable, tramples their rights and cloaks the deportations as fighting the coronavirus in order to escape accountability. “Flattening the curve” should not be an excuse for dismantling the law.
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Read the full op-ed at the link.
While the authors quite legitimately “out” the CDC for its corrupt performance, the real problem here goes much higher and cuts much more broadly across our failing democratic institutions of government. A feckless Congress, under the control of Moscow Mitch and the GOP, and the “J.R. Five” on the Supremes have given the “green light” to the Trump regime’s White Nationalist assault on the rights of asylum seekers and migrants. It’s “Dred Scottification” at its worst, and it threatens the continued existence of our nation and the lives and well-being of many of our fellow Americans.
They are a huge part of the problem: an institution charged with protecting our legal rights, including the rights of the most vulnerable among us, supposedly immune from partisan politics, that has abdicated that duty while hiding behind a barrage of right-wing legal gobbledygook.
Why is it only the four “moderate to liberal” justices that have an obligation to cross over and help the conservatives, Charlie, my man? Where was Chief Justice Roberts when the regime carried out the “Miller White Nationalist plan” running roughshod over decades of well-established legal and constitutional rights of refugees, asylum seekers, children, and other migrants, usingrationales so thin, fabricated, and totally dishonest that most high school civics students could have seen right through them. How does a bogus Immigration “Court” system run by uber partisan politicos like Jeff “Gonzo Apocalypto” Sessions and now Billy Barr come anywhere close to complying with the Due Process Clause of the Fifth Amendment?
Pretending like the Supremes aren’t a broken, politicized institution won’t help fix the problem. Even “regime change” in November won’t get the job done overnight.
The damage is deep, severe, life-tenured, and ultimately life-threatening. But, insuring that corrupt kakistocrats like Trump and Mitch won’t be in charge of future appointments to the Supremes and rest of the Federal Judiciary is an essential starting place.
A failure to vote this regime out of office in November likely spells the end of American democracy, at least as the majority of us have lived and understand it. And, even though they obviously, and arrogantly, believe themselves to be above the fray and accountability for their actions, the “J.R. Five” eventually would go down in the heap with the rest of our nation.
If nothing else, Trump has made it very clear that HE is the only “judge” he needs, wants, or will tolerate. We have only to look as far as the failed and flailing Immigration “Courts” under Billy Barr to see what the “ideal Trump judiciary” would look and act like.
This November, vote like your life depends on it. Because it does!
Richard W. Mark, Esquire Partner Gibson Dunn New YorkAmer S. Ahmed, Esquire Partner Gibson Dunn New YorkHon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Retired Immigration JudgesKnightess of the Round Table
It is an axiom of due process that a party charged to defend against a legal proceeding must receive notice of the time and place of the proceeding and an opportunity to be heard. This Court’s ruling in Pereira v. Sessions, 138 S. Ct. 2105 (2018), reflects that axiom in the context of initiating removal proceedings by “notice to appear.”
This petition presents a straightforward question of enormous practical significance that has divided the five courts of appeals to have considered the issue: Must the initial written notice served on noncitizens to commence their removal proceedings provide—in
1 All parties have consented to the filing of this brief. Amici state that this brief was not authored in whole or in part by counsel for any party, and that no person or entity other than amici or their counsel made a monetary contribution intended to fund the preparation or submission of this brief.
2 The appendix provides a complete list of signatories.
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one document—the “time and place at which the proceedings will be held” (along with charges and other specified information) in order to satisfy the require- ments of 8 U.S.C. § 1229(a), or does the statute allow the government to cobble together the required elements of a “notice to appear” from multiple documents, issued at different times, none of which alone contain all of the statutorily required information?
Resolution of this issue will affect thousands of people in the immigration system. For noncitizens applying for cancellation of removal, service of a valid “notice to appear” triggers the so-called “stop-time” rule, which terminates the period of continuous pres- ence required for cancellation eligibility. For noncitizens ordered removed in absentia, whether that se- vere penalty is proper depends on whether the notice served on the noncitizen satisfied the requirements of § 1229(a).
This Court should grant review to resolve the accelerating circuit split over this issue. The Fifth Circuit, agreeing with the Sixth Circuit, held that a defective “notice to appear” lacking the statutorily required time-and-place information could be “cured” by a subsequent “notice of hearing” containing that information, such that the separate documents considered together become “a notice to appear,” with the stop- time rule being triggered upon later service of the “curative” notice of hearing. See Yanez-Pena v. Barr, 952 F.3d 239 (5th Cir. 2020); Garcia-Romo v. Barr, 940 F.3d 192 (6th Cir. 2019). The Third and Tenth Circuits, based on the plain language of § 1229(a) and this Court’s decision in Pereira, 138 S. Ct. at 2105, have reached the opposite conclusion. See Guadalupe v. Atty. Gen., 951 F.3d 161 (3d Cir. 2020); Banuelos v. Barr, 953 F.3d 1176 (10th Cir. 2020). A divided panel
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of the Ninth Circuit was in accord with the Third and Tenth Circuits, before that court granted rehearing en banc. See Lopez v. Barr, 925 F.3d 396, 405 (9th Cir. 2019), vacated and reh’g en banc granted, 948 F.3d 989 (9th Cir. 2020).
This Court should bring harmony to federal law by granting certiorari, reversing the Fifth Circuit, and restoring the common-sense interpretation of § 1229(a) as requiring one document that satisfies the statute’s requirements.
I. The question presented affects many thousands of people across the country. As the government told this Court in 2018, “almost 100 percent” of putative notices to appear omit the required time-and-place in- formation. Pereira, 138 S. Ct. at 2111. Hundreds of thousands of notices to appear are served each year; a dispute about validity is embedded in every proceed- ing initiated with a notice that lacks time-and-place information. Indeed, tens of thousands of cancellation applications remain pending, each one requiring an IJ to determine whether the stop-time rule was triggered by § 1229(a) notice. Similarly, tens of thousands of in absentia removal orders are issued every year, each one dependent on whether proceedings began with the noncitizen’s being served a notice to appear that com- plies with § 1229(a).
This case involves the application of § 1229(a) in both the cancellation of removal and in absentia removal contexts, thus presenting an optimal vehicle to address the question presented. See Petition for a Writ of Certiorari (“Pet.”) at 22-24.
II. Deciding the question presented will also pro- mote uniformity in the nation’s immigration laws. Uniformity in this sphere is a foundational principle
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of American law, with the Constitution explicitly directing Congress “[t]o establish an uniform Rule of Naturalization.” U.S. Const. art. I, § 8, cl. 4. But there can be no uniform law if basic questions affect- ing the right of an individual to remain in the country get an answer that varies among the circuits. Such a regime would result in divergent outcomes based on geography alone, not the merits of any particular noncitizen’s case.
This unfairness may be exacerbated by the Department of Homeland Security’s (“DHS”) discretion to select the venue for a removal proceeding, and thus the law that governs the case. DHS’s ability to choose the venue, coupled with its ability to transfer detainees wherever it sees fit, opens the door to unfair forum shopping for the circuit law it prefers.
III. Requiring DHS to work with the Executive Office for Immigration Review (“EOIR”) to obtain time-and-place information before serving a notice to appear—and including such information in that document, as § 1229(a) and Pereira require—is practical and will reduce administrative inefficiency and error. Doing so will also achieve the legislative purpose of the Illegal Immigration Reform and Immigration Responsibility Act (“IIRIRA”), Pub. L. 104-208, Div. C, 110 Stat. 3009-546, of which § 1229(a) was a part, by instituting a “single form of notice” to “simplify procedures for initiating removal proceedings.” H.R. Rep. 104-469(I), 1996 WL 168955 at *159.
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Many thanks to our GOOD friends Richard W. Mark and Amer S. Ahmed and their team over at the NY Office of Gibson Dunn for their extraordinary pro bono assistance in drafting our brief.
Former GULG prisoner Nicholas Morales writes in the LA Times:
I consider myself an American. I came to the United States from Mexico when I was a teenager. I’m now 37 years old. My wife and son are U.S. citizens. For years, I ran my own mechanic shop in New Jersey. I have paid taxes and nearly all my family members live in and around New Jersey, including my brothers, mother, cousins, nephews and nieces. This is the only home I know.
My life shattered on Nov. 21, 2019, when immigration officers picked me up right after I had dropped off my 5-year-old son at school. Although I had been living in the U.S. for almost 20 years, I had not managed to get the right paperwork to be here. The immigration officers took me to the Elizabeth Detention Center — a prison-like structure run by the private corporation CoreCivic. I didn’t have a chance to say goodbye to my son or my wife.
I spent five months at the Elizabeth Detention Center. As the coronavirus pandemic hit our nation and New Jersey became an epicenter, I grew increasingly worried because neither I nor hundreds of immigration detainees had any way to protect ourselves from getting sick.
I first heard rumors of COVID-19 in February. I heard it was a highly contagious illness, that it was worse than the flu, and that it was killing many people. The detention center personnel told us nothing. An Immigration and Customs Enforcement supervisor told us not to believe the news, that the danger of the virus was exaggerated. But by mid-March, we started hearing that someone in the medical unit was showing symptoms.
The Elizabeth Detention Center has capacity for just over 300 people. At nearly all times, I was packed into a large room with other immigrants. Our beds were close together, with only two to three feet between them. We shared toilets, showers, sinks, communal surfaces and breathing air. We did not have hand sanitizer or masks. We could not disinfect our shared surfaces. We could not maintain any meaningful distance among us, let alone six feet of distance. We were never permitted outside; there is no meaningful outdoor space.
As the days passed, we grew increasingly anxious about COVID-19, especially those of us who had health issues or were older. I have bad asthma and I wasn’t alone in wanting to get out. Everyone wanted out. I didn’t have a lawyer, but I was in regular contact with pro bono attorneys who wanted to help me.
Then, on March 13, the detention center halted all visitations, including by attorneys. On March 19, an ICE employee at the facility tested positive for the virus. Still, the facility staff refused to communicate with us about the pandemic, their plans to keep us safe, or whether we might be released. We still did not have access to hand sanitizer or masks to protect ourselves. The facility’s supervisors told us that we couldn’t have any hand sanitizer. The dormitories were still packed with approximately 40 people per unit.
One day in March, I watched a detainee collapse. He was taken away. I do not know if he had the virus. In mid-March, I was diagnosed with bronchitis. I could hear rattling noises in my chest and could not seem to get enough air.
My fellow detainees and I worried we were being left to die. Some of us, in desperation, decided to go on a hunger strike on March 20. The guards then put me in isolation to punish me. While in the box, I felt some relief to be away from the masses.
My breathing continued to worsen. I finally ate food again on March 25, hoping that would improve my condition. On March 31, a pro bono lawyer made an emergency request for my release, which immigration officials denied even though I had such trouble breathing that I needed treatment with an albuterol machine. On April 3, an immigration judge denied my request for release on bond.
Every way I turned seemed to be another dead end. The guards commented disapprovingly when they heard I had been talking to the media about our dire predicament. No help came for us.
I had one last hope for release. I had been included in a group habeas petition filed before the federal district court in New Jersey. Thankfully, I was let out on April 20 because a federal judge determined that COVID-19 posed a particularly serious health risk to me and four others and ordered our immediate release.
I have since returned to my family and isolated myself for 14 days. I lost my mechanic shop while I was in detention because I wasn’t able to pay rent, but I am grateful to be released. I’m now in the process of appealing my deportation order.
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Read the rest of this first-hand account at the link.
Many, many thanks to the pro bono attorneys from the “New Due Process Army” (“NDPA”) who stepped in to save Nicholas’s life snd the lives of many others abandoned in the Gulag. You are the real “warriors” and heroes of our age!🏅🥇😇 Hats off!🎩
It’s clear from accounts like this across the country that the only “real” bond hearings for Gulag inmates that comply with Due Process take place before U.S. District Judges or the U.S. Magistrate Judges who work for them.
So what’s the purpose of a bogus “Court System” run by Sessions and now Billy Barr to function as a subservient branch of DHS Enforcement? None, obviously!
But, it’s worse than that. Because of the outward trappings of a judiciary, the Immigration “Courts” put a “false veneer of justice” on an inherently tainted and unfair process. This wastes time, unnecessarily prolongs detention, squanders public funds, and sometimes leads Article III Judges who are unwilling or unable to understand the process to give “undeserved deference” to the decisions of these kangaroo 🦘courts.
An independent Article I Immigration Court could provide the expertise and efficiency necessary for fair impartial adjudications that comply with due process and develop “best practices.” This, in turn, would relieve the Article III Courts of the burden of having to constantly intervene to correct basic errors in legal analysis, judgment, and process inevitably caused by the improper political objectives driving EOIR’s dysfunction.
Going on five decades in the law has shown me that problems are best corrected by getting things right at the earliest point in the system. That’s clearly not happening with today’s inept, inefficient, and intentionally unjust, politicized, and weaponized Immigration “Courts.”
Until Congress and/or the Article IIIs do their jobs and put an end to this deadly nonsense, it will continue to endanger lives☠️⚰️, burden the justice system⚓️⚖️, and waste public funds 🔥💰.
