"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.
Dan Rather American Journalist PHOTO: Creative Courtside
FROM “STEADY” FOR July 1, 2022:
A HARD RIGHT TURN
By Dan Rather and Elliott Kirschner
As the United States Supreme Court wrapped up its spring term today, its marbled halls risked representing the setup to an ironic joke — albeit one not funny but rather cruel, dangerous, and foreboding.
The building is supposed to symbolize stability, fairness, and temperance. Instead, it has become headquarters for a majority group of highly partisan, reactionary players who make clear that they are uninhibited by history, precedent, or the will of the majority of the American people.
Their black robes are meant to convey modesty, humility, and wisdom. Yet this collection of politicians demonstrates the direct opposite.
This Supreme Court term will be remembered as the moment a cynical and anti-democratic movement, decades in the making, reached its zenith, empowered by bad faith and opportunism. Now the cabal lords its power over a broken political system from a perch of increased influence and lack of accountability.
This is power politics by unelected actors, appointed largely by men who lost the popular vote for president. Its path was paved by Mitch McConnell’s Machiavellian exploitation of the deaths of two justices. He was a master of shamelessness with a single purpose — to accomplish via judicial appointment what he could never have achieved through democratic means.
The damage he and his hard-right radicals have wrought touches all aspects of society, from abortion rights to commonsense gun control to the environment to what I believe is an overlooked evisceration of the separation of church and state. What we have are the ruins of what many took for granted as our constitutional rights. And nothing suggests these justices are anywhere near sated.
We have now firmly left behind the realm of the theoretical. This is real, and it will get only more so. For years there were those who warned that Roe wasn’t safe, and neither was anything else, that these justices were licking their chops to devour a modern America and spit out a distorted version of the past. Too many of these prophets were dismissed as hysterical, their fears histrionic and overblown. Surely, they were lectured, precedent matters. Certainly there would have to be some legal basis to rewrite America’s social contract and decades of settled rights.
Wrong.
All of you who spoke up, who tried to get others to pay attention, you deserve an apology.
There can be no hiding from it now. All of this is out in the open. The justices aren’t even trying to obscure what they are doing and where they intend to go. But in their transparent power plays, there are still faint glimmers of hope.
I hear from people who in the past had rarely talked about the court. Now, they are suddenly enraged. Many are focused on how, just today, the justices accepted a case for next year that could allow state legislatures to take a torch to fair elections. How many people in the past got so riled up about an upcoming court docket?
The Supreme Court relies on its reputation, and these days, its reputation for humility, fairness, and wisdom is in tatters. Its rulings increasingly seem to be far outside where most Americans are. Wait until they tackle contraception and the privacy of one’s bedroom.
To all who feel bereft of hope, I offer the lessons of social movements of the past. Perseverance is power. Organizing inspires optimism. Resilience breeds results.
In order to solve a problem, you first have to see it, name it, contend with its truth. That is the stage many are in now. But many others have already been there for a long time. This is a movement that already has leadership. Now it has momentum born from a desire to ensure that America goes forward, toward progress, and true to the Constitution and the will of its people.
Wendy Young President, Kids In Need of Defense (“KIND”)
Dear Paul –
The entire team at Kids In Need of Defense is devastated by the news that at least 46 people were found dead in an abandoned tractor-trailer in Texas and more than a dozen others in the truck, including children, were taken to local hospitals for treatment. While we wait for more details to emerge, we wanted to share the following statement from our President, Wendy Young.
“As rising violence, natural disasters, and other threats force migrants to make impossible choices in their quest to find safety, our nation’s response cannot be to place families and children in further harm by indefinitely closing our borders to people seeking protection and ignoring the dangers they face in their home countries. This most recent tragedy and the disturbing rise in migrant deaths globally underscore the need to create safer pathways to protection for refugees. The Biden Administration should see this heartbreaking tragedy for what it is, a clarion call to abandon deeply flawed and dangerous immigration policies. It must reinstate humane and orderly processing, including reopening official ports of entry, hiring child welfare experts to care for and screen children, and provide fair adjudication of protection claims. It is time for the United States to regain its footing as a leader in the protection of migrant families and children.”
– The KIND Team
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The key part of Wendy’s statement: “including reopening official ports of entry, hiring child welfare experts to care for and screen children, and provide fair adjudication of protection claims.”
Denial rates for recent arrivals who manage to get hearings (see, e.g., Garland’s bogus “dedicated dockets,” — actually “dedicated to denial” and nothing else), many of them children and unrepresented, hover around 100%. They are “guided” by a “largely holdover,” anti-asylum BIA that lacks true asylum expertise and issues no positive precedents instructing judges on how to consistently and legally grant asylum. Consequently, there is no “fair adjudication” of asylum claims. That feeds the toxic nativist myth that nobody at the Southern Border is a “legitimate” asylum seeker.
Unless and until Garland tosses the unqualified jurists at EOIR and replaces them with experts committed to due process, fundamental fairness, and correct, generous, practical precedents and proper applications of asylum law, the system will remain in failure. It’s a monumental mistake by the Biden Administration not to fix that which they absolutely control — starting with the Immigration Courts at EOIR.
Refugees will continue to die at the hands of smugglers who were given control of our immigration system by the Trump Administration and remain empowered by Garland’s & Mayorkas’spoor performance combined with biased, White Nationalist, Federal Judges appointed by Trump at all levels of our failing justice system!
Today’s WashPost editorial described how far-right nativists have basically turned our immigration system over to smugglers:
The absence of any workable legal system that would admit migrants systematically, in numbers that would meet the U.S. labor market’s demand, is the original sin of the chaos at the border. That is Congress’s bipartisan failure, a symptom of systemic paralysis for many years. More recently, a public health rule has had the effect of incentivizing unauthorized migrants to make multiple attempts to cross the border. The rule, imposed by the Trump administration, retained for more than a year by the Biden administration, and now frozen in place by Republican judges, allows border authorities to swiftly expel migrants, but with no asylum hearings or criminal consequences for repeated attempts to cross the border. That has been a boon to migrant smuggling networks.
I take issue with the term “bipartisan failure” in the legislative context. It’s true that the Dems inexplicably squandered a golden chance to fix many immigration problems when they had 60 votes in the Senate in Obama’s first two years. But, before and after that time, the failure to achieve realistic, humane, robust legal immigration reform legislation has been on the nativist right of the GOP that now dominates the party. Pretending otherwise is useless and dishonest.
All of these proposals would have made long-overdue, common sense reforms to eliminate hopeless backlogs, benefit our economy, strengthen our legal system, and facilitate better allocation of Government resources. Yet, there has been scant GOP interest in improving the system. The GOP appears to believe that promoting a dysfunctional immigration system, denying human rights, and guaranteeing a large “extralegal population” available as scapegoats and exploitable labor best serves their parochial political interests.
And, speaking of useless and dishonest, here’s Leon Krausze, WashPost Global Opinions Contributor, on how the disingenuous performance of Texas Governor Greg Abbott and Mexican President Andres Manuel Lopez Obrador has helped fuel both resurgent Mexican migration and unnecessary deaths at or near the border. https://www.washingtonpost.com/opinions/2022/06/29/san-antonio-migrant-deaths-trailer-mexico-amlo/.
The “good guys” — those committed to due process, fundamental fairness, individual rights, equal justice, scholarship, and human dignity — need to fight back at every level of our political and judicial systems — while they still exist! Because if the GOP has its way, that won’t be for long!🏴☠️
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
The 6/10/22 order in Texas v. United States vacating the memo went into effect 6/24/22 and has not been stayed at this time. Regardless of the memo, it is important to continue arguing that prosecutorial discretion is a longstanding executive power and DHS retains the ability to join motions, stipulate to relief, etc. See Practice Alert: Judge Tipton Issues Decision Vacating Mayorkas Enforcement Priorities Memo.
USCIS: Where community levels are high, all federal employees and contractors—as well as visitors two years old or older—must wear a mask inside USCIS offices and physically distance regardless of vaccination status. Check CDC Level for Your Field Office.
Bustle: At a base level, the abortion restrictions detained women face are similar to the ones that low-income women face across the country because of the Hyde Amendment. For more than 40 years, the Hyde Amendment has prevented women on Medicaid from using federally funded insurance to pay for abortions, except in cases of rape, incest, or danger to the mother’s life. The same type of language exists in appropriations bills and healthcare regulations for all facets of the federal government, including the Immigration and Customs Enforcement agency.
AP: The Border Patrol paroled more than 207,000 migrants who crossed from Mexico from August through May, including 51,132 in May, a 28% increase from April, according to court records. In the previous seven months, it paroled only 11 migrants.
Guardian: At least 71,000 Ukrainians have entered the US since March, with Joe Biden’s pledge to welcome 100,000 people fleeing the Russian invasion on track to be met over the summer.
Bloomberg: The amendment, which faces a long path to the finish line in the appropriations process, would allow DHS to recapture family and employment-based visas that went unused due to bureaucratic snags, processing delays, and other disruptions since 1992.
AIC: Data analyzed by the Cato Institute shows that since Fiscal Year 2008, USCIS denied about 8% of employer-sponsored immigrants while the average denial rate by consular officers was 63%.
Law360: The Biden administration announced plans to issue a final Deferred Action for Childhood Arrivals rule by August and continue its efforts to undo multiple Trump-era regulations. Here are the main immigration highlights from the administration’s regulatory agenda for spring 2022.
WaPo: Critics of the measure say it perpetuates a false scarcity problem at a time when Virginia has a budget surplus, and it demands that lawmakers sacrifice one needy group of students for another.
Forbes: In a new book describing her years during the Trump administration, former Education Secretary Betsy DeVos revealed a plan by Stephen Miller to identify children at school for deportation under the pretext of checking for gang members.
Law360: The Biden administration has agreed to impose new living and sanitary standards on temporary emergency facilities housing hundreds of migrant children to resolve advocates’ claims that it was holding minors in unsafe and unsanitary conditions.
The Advocate: Immigration judges in Louisiana have denied asylum claims at a higher rate than almost any other courts in the nation over the past five years, according to federal data. However, a new federal rule might downsize their role in asylum proceedings.
CNN: The justices are considering whether the Biden administration can terminate a Trump-era border policy known as “Remain in Mexico.” Lower courts have so far blocked Biden from ending the policy.
SCOTUS: The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Tenth Circuit for further consideration in light of Matter of B-Z-R-, 28 I&N Dec. 563 (A.G. 2022).
BIA: A respondent who raises an objection to missing time or place information in a notice to appear for the first time in a motion to reopen has forfeited that objection.
Law360: A Dominican man got a new chance to fight his deportation on Tuesday when the Third Circuit ruled that his felony conviction under Pennsylvania’s fleeing and eluding law didn’t necessarily amount to a crime of moral turpitude.
LexisNexis: For years, Petitioner Javier Garza-Flores did not believe he had a valid claim to U.S. citizenship. But now he thinks that he does. And he has presented documentary evidence sufficient to demonstrate, at a minimum, a genuine issue of material fact concerning his claim of U.S. citizenship. That is enough to warrant a factual proceeding before a federal district court to determine his citizenship.
CA7: The Board’s main quibble was with the relevance of that evidence to an Ethiopian citizen, which it assumed Menghistab to be. But that assumption was not warranted on the record that was before the Board. Denying the motion to reopen without a full hearing addressing Menghistab’s citizenship and its materiality to his risk of torture was therefore an abuse of discretion.
Law360: The Ninth Circuit on Friday granted a Salvadoran’s request to have the Board of Immigration Appeals review claims that he would be tortured if sent back to the Central American country, saying the board originally failed to consider all possible risk sources.
Law360: U.S. Customs and Border Protection and Davis Wright Tremaine LLP have settled a Freedom of Information Act suit the firm filed over reports the agency decided Canadian cannabis workers weren’t eligible to enter the U.S., which led to an overturned internal document contradicting officials.
Law360: A Boston federal jury has found a construction company and its owner liable for retaliating against an employee by reporting him to immigration authorities after his on-the-job injury triggered a workplace investigation, awarding $650,000 in damages.
USCIS: A noncitizen who again seeks admission more than 3 or 10 years after the relevant departure or removal, is not inadmissible under INA 212(a)(9)(B) even if the noncitizen returned to the United States, with or without authorization, during the statutory 3-year or 10-year period
CBS: While the suspension of ICE’s arrest prioritization scheme is unlikely to place the country’s estimated 11 million unauthorized immigrants in immediate danger of being arrested, the absence of national standards could lead to inconsistent enforcement actions across the U.S., including arrests of immigrants whom agents were previously instructed not to detain, legal experts said.
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Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
According to a new book from former Trump Education Secretary Betsy DeVos:
“Over the din of patrons slurping lattes and crunching salads, Miller’s men described a plan to put U.S. Immigration and Customs Enforcement (ICE) agents into schools under the pretext of identifying MS-13 gang members. The plan was, when agents checked students’ citizenship status for the alleged purpose of identifying gang ties, they could identify undocumented students and deport them. Not only was the prospect of this chilling, but it was also patently illegal. Nate and Ebony turned them down cold. But that didn’t stop Stephen Miller from subsequently calling me to get my thoughts on the idea.
For years, the BIA has had standard practice of giving short shrift to potentially valid claims for protection under the Convention Against Torture (“CAT”). Without meaningful analysis they simply cite John Ashcroft’s infamous “no CAT precedent” in Matter of J-F-F-,23 I&N Dec. 912 (A.G. 2006), requiring that “each link in the chain of torture be proved to be probable.”
Since there is almost always some allegedly “weak link in the chain” that’s an “easy handle” for denial.Also, The IJ and the BIA can “lengthen the chain” or ignore the evidence as necessary to “get to no.” In the process, compelling evidence of likelihood of torture from qualified expert witnesses is either ignored or minimized — again, without much analysis. That’s how the “denial factory” in Falls Church can keep churning out CAT rejections even to countries where torture is rampant and either furthered or willfully ignored by the repressive governments.
At least in the 9th Circuit, the BIA will now have to go “back to the drawing board” for denying CAT and returningindividuals to countries where torture with government participation or acquiescence is likely. The 9th Circuit case rejecting the BIA’s “formula for denial” is Velasquez-Samayoa v. Garland. Here’s a link in addition to the one provided by Elizabeth.https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca9-on-cat-velasquez-samayoa-v-garland
Louisiana has long been one of a number of EOIR “courts” — these are actually “prison courts” — where “asylum cases go to die.” The deadly combination of bad Immigration Judges, lack of skilled immigration attorneys able to take these cases pro bono, coercive use of detention in out of the way places in substandard conditions, a “denial oriented” BIA stacked by the Trump DOJ and not “unstacked by Garland,” and an indolent, often virulently anti-asylum 5th Circuit add up to potential death sentences for individuals who could gain protection under a system where due process and fundamental fairness were respected and followed.
As the report in The Advocate referenced by Elizabeth shows, Garland has failed to reform and improve this blot on American justice. And, there is little chance that assigning the cases to USCIS Asylum Office in the first instance under new regulations in this intentionally toxic environment is going to promote justice or efficiency.
One might view the wide discrepancy between “positive credible fear findings” and asylum grants in Immigration Court as a sign of a sick and dying EOIR, not lack of merit for the claims. With less detention, more representation, better Immigration Judges, and a new BIA of true asylum experts willing to grant protection rather than “engineer rejection,” I’ll bet that many, perhaps a majority, of the outcomes would be more favorable to applicants.
As noted by Mitch Gonzalez of the SPLC in the article, “dehumanization,” “de-personification,” and “Dred Scottification,” along with cruelty are the objects of what’s going on at EOIR in Louisiana. The “fit” with the Trump/Miller White Nationalist anti-immigrant program is obvious. What’s less obvious is why Garland and the Biden Administration haven’t intervened to make the necessary changes to restore EOIR in Louisiana and elsewhere to at least some semblance of a fair and impartial “court system.”
Nobody should be surprised that the Supreme Court’s conservative justices on Friday jettisoned nearly 50 years of precedent upon precedent in overturning Roe v. Wade. Heck, they didn’t even honor their own precedent articulated 24 hours earlier.
In their opinion Thursday morning forcing New York and other densely populated states to allow more handguns in public, the conservative majority, led by Justice Clarence Thomas, argued that medieval law imposing arms restrictions — specifically, the 1328 Statute of Northampton — “has little bearing on the Second Amendment” because it was “enacted … more than 450 years before the ratification of the Constitution.”
Yet in their ruling Friday morning in Dobbs v. Jackson Women’s Health, setting women’s rights back half a century (and cracking the door to banning same-sex marriage and contraception), the conservative justices, led by Samuel Alito (who was also in the guns majority) and joined by Thomas, argued precisely the opposite. They justified abortion bans by citing, among others, “Henry de Bracton’s 13th-century treatise.” That was written circa 1250 and referred to monsters, duels, burning at the stake — and to women as property, “inferior” to men.
The right-wing majority’s selective application of history reveals the larger fraud in this pair of landmark rulings: Their reasoning is not legal but political, not principled but partisan.
Still, there is a commonality to the rulings. Both decisions foment maximum chaos and were delivered with flagrant disregard for the instability and disorder they will cause.
The high court was meant to be the guarantor of law and order. But the conservative justices, intoxicated by their supermajority, have abandoned their solemn duty to promote stability in the law and are actively spreading real-world disruption.
Worse, this invitation to disorder comes as the nation is trying to restore the rule of law after a coup attempt led by a president who appointed three of the five justices in the abortion majority. The spouse of a fourth — Ginni Thomas, Clarence’s wife — aggressively pushed state legislators and the White House to overthrow the election. Yet Thomas, the senior associate justice, has refused to recuse himself from related cases.
After decades of crocodile tears over imagined “judicial activism,” the conservative supermajority has shed all judicial modesty and embraced radicalism. The liberal justices, Sonia Sotomayor, Elena Kagan and Stephen G. Breyer, wrote in their Dobbs dissent that the majority’s brazen rejection of stare decisis, respect for precedent, “breaches a core rule-of-law principle, designed to promote constancy in the law.”
Even Chief Justice John G. Roberts Jr., who joined the gun ruling, scolded fellow conservatives for blithely overturning the Roe v. Wade super-precedent. “Surely we should adhere closely to principles of judicial restraint here, where the broader path the court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed,” Roberts wrote. The majority’s “dramatic and consequential ruling is unnecessary,” he said, “a serious jolt to the legal system” that could have been avoided with a narrower decision that would have been “markedly less unsettling.”
Alito, in his (characteristically) sneering opinion in the abortion case, dismissed Roberts as unprincipled and public opinion as an “extraneous” concern. He likewise dismissed the pain the ruling would cause, writing that “this Court is ill-equipped to assess ‘generalized assertions about the national psyche.’ ” He washed his hands of answering the “empirical question” of “the effect of the abortion right … on the lives of women.”
. . . .
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Read the rest of Milbank’s op-ed at the link.
It would be tempting to breathe a “sigh of relief” that while off on their taxpayer-underwritten summer frolic, the “Gang of 6” can’t do any more damage to our Constitution, our nation, our institutions, or humanity. But, unfortunately, that’s not completely true. If and when their party calls on them, they can always go into “emergency session.”
So let’s hope that there will be no further “emergencies” this summer other than the disorder and divisions already caused by their disingenuous political decrees masquerading as (very thinly to tragicomically inept and inconsistent) “jurisprudence.”
Still, those who enjoy their humanity and their rights (other than gun rights)shouldn’t get too complacent. Vacation will end; the Supremes will be back at it in October — looking for more ways to turn back the clock and “Dred Scottify the other,” even though the majority of Americans actually are “some kind of other.” With a little help from their GOP friends, they will disenfranchise and dehumanize one group at a time until rights and political power look largely like they did in 1789 — when free White men of property ruled.
As for CJ Roberts, after years of trying to put a “genial spin” on the mockery of a fair, impartial, and qualified judiciary incubating at his Supremes, he has totally lost control of the far-right extremists appointed by his party and, in some cases, pushed through the process in a highly irregular manner. Hard to have much sympathy there.
Refugee and Forced Migration Studies, Grace School of Applied Diplomacy
Craig Mousin has been the University Ombudsperson at DePaul since 2001. He received a BS from Johns Hopkins University, a JD from the University of Illinois, Urbana-Champaign, and an M Div from Chicago Theological Seminary. He joined the College of Law faculty in 1990, and served as the Executive Director of the Center for Church/State Studies until 2001, Acting Director until 2003, and co-director from 2004–2007. Mousin co-founded and continues to participate in the Center’s Interfaith Family Mediation Program. He has taught in DePaul’s School of Continuing and Professional Studies, the Religious Studies Department, the Grace School of Applied Diplomacy, and the Peace, Justice and Conflict Studies program. He has also taught as an adjunct faculty member at the University of Illinois College of Law and Chicago Theological Seminary .
Prior to DePaul, he began practicing labor law at Seyfarth, Shaw, Fairweather & Geraldson in 1978. In 1984, Mousin founded and directed the Midwest Immigrant Rights Center, a provider of legal assistance to refugees which has since become the National Immigrant Justice Center. He also directed legal services for Travelers & Immigrants Aid between 1986 and 1990. The United Church of Christ ordained him in 1989. At that time, Wellington Avenue U.C.C. called him as an Associate Pastor. He was a founding co-pastor of the DePaul Ecumenica l Gathering (1996-2001). Mousin serves as a Life Trustee of the Chicago Theological Seminary. In addition, he is a member of the Leadership Council of the National Immigrant Justice Center, a member of the Leadership Council of the Marjorie Kovler Center for Survivors of Torture, a former President and member of the Board of the Eco-Justice Collaborative, and a former President and Board member of the Immigration Project of downstate Illinois. Mousin is a current member of the ABA Dispute Resolution Section Ombuds Committee.
Craig writes:
Comment: Paul,
You might be interested in a short interview I did with Chicago FOX news on World Refugee Day. I tied the celebration in with the honoring of Juneteenth. See:
Also, I do not know if you subscribe to my podcast, Lawful Assembly, but my last post tied together censorship of books in public schools with anti-immigrant sentiments. You can listen at:
Today’s WashPost Outlook Section contained a highly relevant article by author Dave Eggers about how far-right zealots — many with no real stake in our public schools — have taken over at local levels and apply extreme censorship — even to books and concepts that have been successfully and routinely taught for years. https://www.washingtonpost.com/outlook/2022/06/24/dave-eggers-book-bans-south-dakota/
In this case, it’s driving experienced teachers who believe in truth, freedom, and individual rights to flee in droves. So, what we’re really seeing is a shocking “dumbing down” of American education, libraries, and public discourse driven by far right fear-mongers seeking to impose their lack of values and intolerance on others.
We have seen this week how far-right activist extremists, from the Supremes to local politicians and school boards, have elevated guns that kill while gutting the individual rights to free speech, equal protection,and fundamental fairness guaranteed by the 1st, 5th, and 14th Amendments.
Justice Clarence Thomas is certainly a horrible jurist. But, in this instance he might be the only honest GOP appointee on the Supremes.
When Thomas says that immigrants’ human rights, gay rights, right to conception, marriage rights and most other meaningful individual rights guaranteed by the Constitution are on the chopping block, progressives had better believe him. Remember how “leaving things to the states” worked out for African Americans and other minorities attempting to exercise their fundamental rights, even after the Civil War and the 13th, 14th, and 15th Amendments. And, remember all those paeons to precedent and “not to worry” about Roe statements under oath from GOP Supremes’ candidates before they actually took their seats on the Court and started scheming to undo abortion rights for political, not legal, reasons!
“Social Justice Warriors” like Craig have been fighting the good fight for decades. But, at this point, it’s going to depend on the NDPA and other young progressive groups to take on the extremist right at the ballot box and to take back their individual rights — really all of our individual rights.
Otherwise, they will find themselves as a disempowered counterculture, hiding out and trying to keep ahead of Ray Bradbury’s firemen in Fahrenheit 451!
Anti-Asylum Judges In Action! Factual distortions, ignoring evidence, and misapplications of the law are some of the “weapons” wielded by some EOIR judges to stop asylum seekers from getting the life-saving legal protections they deserve! Article III Courts can compound the problem by mis-using “deference” to avoid critical examination of the frequent abuses of humanity and the rule of law inflicted by this parody of a court system. Albrecht Dürer, Public domain, via Wikimedia Commons
ONE TINY STEP FOR MANKIND: But It’s Going To Take Much More Than Finally Replacing A Few Stunningly Unqualified Judges To Save EOIR!
By Paul Wickham Schmidt
Courtside Exclusive
June 25, 2022
Over the last few weeks the long overdue and essential process of weeding out poorly qualified Immigration Judges — still on “probation” at EOIR — finally got off to a very modest start.
Imagine yourself as a refugee fighting for your life in an asylum system that’s already stacked against you and where the “judges” work for the Attorney General, part of the Executive Branch’s political and law enforcement apparatus.
How would you like your life to be in the hands of (now) former Immigration Judge Matthew O’Brien. He was appointed in 2020 by former AG Bill Barr — a staunch defender of the Trump/Miller White Nationalist, xenophobic, anti-immigrant agenda.
Nativism A “Qualification?”
What made O’Brien supposedly “qualified” to be a “fair and impartial” administrative judge?
Thankfully, O’Brien will pass into history. But, the damage inflicted by the “official policy of child abuse” will adversely affect generations.
Or, perhaps it was O’Brien’s intimate connection with a leading nativist group. Immediately prior to his appointment, he was the “Research” Director for the Federation for American Immigration Reform (“FAIR”) — a group renowned for sloppy to non-existent “research” and presenting racially-motivated myths and fear mongering as “facts.”
As noted by Nowrasteh, that’s not the only example of FAIR providing “bogus research papers” designed to “rev up hate” and demean the contributions of immigrants both documented and undocumented.
The Anti-Defamation League (“ADL”), one of America’s most venerable anti-hate, anti-misinformation groups, founded more than a century ago “To stop the defamation of the Jewish people and to secure justice and fair treatment to all,” had this to say about O’Brien’s former employer:
While the majority of the extreme anti-immigrant sentiment in the U.S. emanates from fringe groups like white supremacists and other nativists, there are a number of well-established anti-immigrant groups such as Federation for American Immigration Reform (FAIR), Center for Immigration Studies (CIS), NumbersUSA and The Remembrance Project which have secured a foothold in mainstream politics, and their members play a major role in promoting divisive, dangerous rhetoric and views that demonize immigrants. A number of these groups have attempted to position themselves as legitimate advocates against “illegal immigration” while using stereotypes, conspiracy theories and outright bigotry to disparage immigrants and hold them responsible for a number of societal ills. A decade ago, most of this bigotry was directed primarily at Latino immigrants, but today, Muslim and Haitian immigrants, among others, are also targeted.
. . . .
There is a distinct anti-immigrant movement in this country, whose roots can be traced back to the 1970s. Groups such as the Federation for American Immigration Reform (FAIR) and Center for Immigration Studies (CIS) hope to influence general audiences with somewhat sanitized versions of their anti-immigrant views. In their worldview, non-citizens do not enjoy any status or privilege, and any path to citizenship for undocumented immigrants or refugees is portrayed as a threat to current citizens. Like some other problematic movements, the anti-immigrant movement also has a more extreme wing, which includes border vigilante groups, as well as groups and individuals that seek to demonize immigrants by using racist, sometimes threatening language.
So, perhaps, you say, once actually “on the bench,” Judge O’Brien was able to overcome his biases and knowledge gaps and function as a fair and impartial judicial officer. Nope! Not in the cards!
According to TRAC, O’Brien denied almost every asylum case he heard (96.4% denials). That was, astoundingly, nearly 40% above the average of his colleagues in Arlington and nearly 30% higher than the nationwide asylum denial rate of approximately 67%.
But, to put this in perspective, we have to recognize that this denial rate had already been intentionally and artificially increased by a expanded,”packed,” politicized, “weaponized,” and intentionally “dumbed down” EOIR during the Sessions/Barr era at DOJ. For example, approximately 10 years ago, more than 50% of asylum, cases were being granted annually nationwide, and approximately 75% of the asylum cases in Arlington were granted. See, e.g., https://trac.syr.edu/immigration/reports/judge2014/00001WAS/index.html. And, even then, most asylum experts would have said that the nationwide grant rate was too low.
Gaming The System For Denial
It’s not that conditions in “refugee/asylum sending” countries have gotten better over the past decade! Far from it! The refugee situation today is as bad as it has ever been since WWII and getting worse every day.
So, why would legal refugee admissions be plunging to record lows (despite a rather disingenuous “increase in the refugee ceiling” by the Biden Administration) and asylum denials up dramatically over the past decade?
It has little or nothing to do with asylum law or the realities of the worldwide refugee flow, particularly from Latin American and Caribbean countries. No, it has to do with an intentional move, started under Bush II, tolerated or somewhat encouraged in the Obama Administration, but greatly accelerated during the Trump-era, to “kneecap” the legal refugee and asylum processing programs. Indeed, the “near zeroing-out” of refugee and asylum admissions and the illegal replacement of Asylum Officers by totally unqualified CBP Agents by the Trump Administration are two of the most egregious examples.
Ironically, the EOIR backlog tripled. Under the “maliciously incompetent management” of the Trump group at DOJ, more judges actually meant more backlog! How is that giving taxpayers “value” for their money?
Some of the new judges, like O’Brien and some of the Immigration Judges “elevated” to the BIA, were appointed specifically because of their established records of anti-asylum bias, rude treatment of attorneys, and dehumanizing treatment of asylum seekers and other migrants.
“Ignorance And Contempt”
It’s not like O’Brien was just your “garden variety” “conservative jurist.”(I’ve actually worked with many of the latter over the years). No, he was notorious for his lack of scholarship, rudeness, and bias!
Here are a few of the comments he received on “RateYourJudge.com:”
“Rarely grants cases. No knowledge of the law, only there to deny cases. He needs to be removed.”
“Biased judge, hates immigrants and even kids of immigrants.”
“Incompetent.”
“One of the most condescending and self-righteous judges I have had the displeasure to hear. His word choice and tone left absolutely no doubt that he considered the Respondent to be beneath his notice, even to the point of referring to her as “the female Respondent” and to her domestic partner as a “paramour”. I have heard other judges’ oral opinions on very similar sets of facts, and they were accomplished in a fifth of the time with no loss of dignity to anyone.”
“This guy’s ignorance about immigration law and contempt for the people who appear before him is staggering. The way he threatens lawyers is reprehensible. EOIR is a disgrace.”
“Horrible human being with no business being on the bench. Shame on EOIR for allowing him to continue adjudicating cases.”
“Late, abusive, made up his mind before the case even started, frequently interrupted testimony, yelled at immigrants and their lawyer, and refused to listen to anything we said. Ignorant of the law and facts of the case. He should go back to directing hate groups.”
Among the stream of negative comments there were three “positive” comments about O’Brien;
Most of the comments both positive and negative were “anonymous” or apparent user “pseudonyms;”
“RateMyImmigrationJudge” is neither comprehensive nor transparent.
Flunking the “Gold Standard”
So, was O’Brien really as horrible as most experts say? Let’s do another type of “reality check.”
Among the other IJs at the Arlington Immigration Court, two stand out as widely respected expert jurists who have served for decades across Administrations of both parties. Judge John Milo Bryant was first appointed as an Immigration Judge in 1987 under the Reagan Administration. Judge Lawrence Owen Burman was appointed in 1998 under the Clinton Administration. With 66 years of judicial service between them, they would be considered more or less the “gold standard” for well-qualified, subject matter expert, fair and impartial Immigration Judges.
Significantly, according to the last TRAC report, O’Brien’s asylum grant rate of 3,6% wasapproximately 1/15th of Judge Bryant’s and approximately 1/22 of Judge Burman’s. https://trac.syr.edu/immigration/reports/judgereports/. Case closed! O’Brien should never have been on a bench where asylum seekers lives were at stake and expertise and fairness are supposed to be job requirements!
“Worse Than O’Brien”
What about now former Arlington Immigration Judge David White who was removed at the same time as O’Brien? Apparently, during his relatively short tenure (appointed by Barr in 2020), White was unable to deny enough asylum to qualify for TRAC’s system (100 decisions minimum).
Yet, he made an indelible impression on those “sentenced” to appear before him. Here are comments from RateMyImmigrtionJudge.com:
“This judge is absolutely terrible. Unfair and biased. He is only here to deny asylum cases regardless of what the person has been through. Completely misstates the facts, doesn’t know the law so goes after credibility (using those misstated facts) as an excuse to say there’s no past persecution. Absolute disgrace.”
“Worst judge ever. The clerks at the Immigration Court told the private bar attorneys that they have NEVER seen this judge approve an asylum case. Not one. They have running bets and jokes about him, but he never grants. He writes the denial during the trial instead of listening to the person testify. He is insulting and rude and not at all compassionate about trauma.”
“This is the worst immigration judge in Arlington, hands down. He’s even worse than O’Brien, and O’Brien is an former hate-group director.”
“Terrible immigration judge. Had his mind made up well before our hearing. Came in with a prewritten denial that misstated the law. Was rude and dismissive about my client’s trauma.”
Wow! Worse than O’Brien. That’s quite an achievement.
GOP Court Packing
Fact is, the overt politicization, “weaponization,” and “dumbing down” of the Immigration Courts goes back nearly two decades to AG John Ashcroft and the Bush II Administration. Ashcroft reduced the size of the BIA as a gimmick to “purge” the supposedly “liberal” judges — those, including me, who voted to uphold the legal rights of migrants against government overreach. In other words, our “transgression” was to stand up for due process and the individual rights of immigrants — actually “our job” as properly defined.
And, the downward spiral has continued. The DOJ Office of Inspector General (“OIG”) actually confirmed some of the Bush II improper Immigration Judge hires. But, they avoided dealing with the “BIA purge” that got the ball rolling downhill at EOIR! The GOP has been much more skillful than Dems in reshaping the Immigration Courts to their liking.
During the Trump Administration, putting clearly unqualified IJs who were some of rudest highest denying in America on the BIA was certainly “packing” and “stacking” EOIR against legitimate asylum seekers. Again, however, the OIG failed to “seal the deal” regarding this outrageous conduct that has undermined our entire justice system, fed uncontrollable backlog, and cost human lives that should and could have been saved.
Trump’s “court packing scheme” was no “small potatoes” matter, even if some in the Biden Administration are willfully blind to the continuing human rights and due process disaster at EOIR.
Removing two of the most glaringly unqualified Barr appointees in Arlington is a very modest step by AG Garland in the right direction. But, it’s going to take more, much more, decisive action to clean out the unqualified and the deadwood, bring in true expertise and judicial quality, and restore even a modicum of legitimacy and integrity at EOIR.
Reactionaries’ Predictably Absurdist Reaction
Meanwhile, even this long overdue, well justified, and all too minimal change at EOIR produced totally absurdist reactions from O’Brien and fellow nativists (including some still “hiding out in plain sight” at DOJ) which were picked up by the Washington Times (of course). Don’t believe a word of it!
The removal of guys like O’Brien and White — who never had any business being placed in “quasi-judicial” positions where they exercised life or death authority over refugees of color whose humanity and legal rights they refused to recognize, is just a beginning. The ethical, competence, and judicial attitude rot at EOIR goes much deeper.
Garland has been dilatory in “cleaning house” at EOIR. Vulnerable individuals who were wrongly rejected rather than properly protected have needlessly suffered, and probably even died, as a result. Poor Immigration Judging and lack of effective, correct, courageous, positive asylum guidance by the BIA has helped fuel a human rights disaster and rule of law collapse at the border!
Perhaps, at long last, Garland has slowly started fixing the unconscionable and unnecessary dysfunction andintentionally ingrained institutional bias at EOIR. But, I’ll believe it when I see it!
Keep Up The Pressure
In the meantime, it’s critical that NDPA members: 1) keep applying for EOIR judgeships; and 2) ratchet up the pressure and demand the removal of all unqualified Immigration Judges and Appellate Immigration Judges who are undermining sound scholarship, due process, fundamental fairness, and human dignity at EOIR!
Human rights matter! Individual rights matter! Immigrants’ rights matter! Good judges matter!
Today, we are surrounded by too many bad judges, at all levels of our justice system, who reject the first three in favor of warped far-right ideologies, dangerous myths, and disregard for human dignity. The existential battle to get good judges into our system has begun. And, Immigration Courts are the primary theater of action!
Located on bluffs above the mighty and historic Fox River in Appleton, Wisconsin, on the ancestral homelands of the Menominee and Ho-Chunk people, Lawrence University was founded in 1847 as the second coeducational college in America and the first in Wisconsin! Today, approximately 1,500 Lawrentians attend one of America’s leading liberal arts colleges!
INVOCATION
Reunion convocation Lawrence University Saturday, June18 –11AM
Rev. Scott W. Alexander – Class of 1971
Dear Spirit of life and love – that holy-yet- fragile presence which animates and informs this troubled world of ours, and constantly tries to lure us toward goodness, compassion and truth — be with us this hour as we remember and recommit to the highest principles and purposes of this institution.
The Motto of Lawrence University – this treasured institution that helped shape our lives and give meaning to our work in this world – is”VERITASESTLUX[Veritas-est-lucks]”-
Latin (of course) for “Truth Is light.1
Simple, right?…The light of Truth will show us the way to our best human selves, and a rational, just and humane world.
Maybe…but in these complicated times, truth itself (and all the intellectual. scientific and moral standards that underpin it) are dangerously up for grabs.
Sadly, our culture is now on the tragic cusp of becoming a rudderless “POST-TRUTH SOCIETY”…where everything Lawrence University stands for– truth, reason, critical thinking, discernment and progress — are no longer self-evident, or the dominant modes of thinking and discourse. This time we live in is polluted by rampant disinformation, gaslighting, conspiracy theories, sinister deceptions, and outright lies. In such a dangerous environment, this University becomes “counter-culture” when it insists on clear and rigorous intellectual and moral standards…and a reliance of facts and data — rather than revisionist history or one’s “personal” truths.
Let us then, on this day and all days to follow, defend and honor the values and commitments upon which this University stands. And let us refuse to abrogate what we learn here – that truth matters…that all people have inherent worth and dignity…and that together (with wisdom and goodwill) we can build a social order of decency, inclusion, justice and hope.
Amen
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Rev. Alexander also received the George B. Walter ’36 Service to Society Award. Afterward, he was kind enough to share the “delivery copy” of his Invocation with me for publication here.
Here’s his bio from the Lawrence University Alumni Office:
Scott Alexander ’71
Scott Alexander ’71
Alexander, of Vero Beach, Florida, has been an ordained minister with Unitarian Universalist congregations and has served in numerous UU leadership roles over the past four-plus decades. He travels widely, speaking, preaching, and offering in-depth workshops on a variety of UU and faith-related subjects. He has authored or edited five books as part of his UU ministry, covering topics ranging from affirming LGBTQ inclusion to AIDS resources to everyday spiritual practices.
A student-athlete while at Lawrence, Alexander continues to enjoy endurance events. The former marathoner has now completed four coast-to-coast charity bike rides that have raised more than $150,000.
Along the lines of Lincoln’s Gettysburg Address, “Rev. Scott” shows that you can say a lot without speaking a lot! That’s one of the many, many benefits of a liberal arts education and a reason for promoting diversity and expansion of availability within the liberal arts educational “model.”
Folks at the reunion had excelled and given back to society in a mind-bogglingly wide range of fields — from farming to art, business, medicine, biophysics, law, religion, entertainment, healing, craft brewing, real estate, library science, journalism, philosophy, aviation, military service, religion, pet services, language learning, writing, working with vets, law enforcement, music, hospitality, civil service, child care, elder care, social work, philanthropy, deaf services, performing arts, administration, economics, international understanding, finance, environmental protection, and almost everything in between.
One of my classmates had been through 22 different jobs in 50 years since we graduated and contributed, learned, and grew in every one of them! Talk about flexibility and being prepared to find meaning in anything life throws your way! Another earned my “vote for God” through her consistently positive view of life, intellectual creativity, and ability to combine them in a never-ending quest for spiritual healing of those, like vets and abused populations, suffering from severe trauma!
I had lunch with two stars of the “new generation” who — 15 years out — were inspiring a diverse groups of younger Americans — including Native Americans — as teachers in secondary and higher education. One was a former student of my son-in-law (now a Professor at Beloit College), showing how interconnected we all are!
In the words of Rev. Scott, we all worked to promote a “societyof decency, inclusion, justice and hope.” I wish I could say the job is done. But, obviously it isn’t. Despite our efforts, there has been disheartening backsliding and regression in the fight for truth over lies, justice over bias, and humanity over hate!
We “50+ Reunionists” are fighters and “applied idealists.” We will never stop battling for our values!
But, we are also imperfect humans and realists. We must accept our human mortality and rely on the upcoming generation (“the NDPA”) to complete the job we inevitably will leave as a “work in progress.” Ultimately, whether truth, light, and human dignity; or lies, vile myths, hate, and intentional dehumanization, triumph will be up to them and their vision of the world in which they will live and leave to future generations!
The forces of darkness and illiberality alluded to by Rev. Scott are present, energized, and determined to thwart justice and human progress. Triumphing over them and “lighting the world with truth” will take constant, concerted, inspired, and never-ending energy and effort!
I am a proud LU ’70 graduate. My wife Cathy (Piehl) Schmidt is LU ’69. Our daughter Anna Patchin Schmidt is LU ’06.
🇺🇸🗽⚖️ Due Process Forever!
PWS
06-22-22
But, wait, there’s more!
Lawrence University Class of 1970: Five generations out and still going strong! — From one turbulent time in America to another!
Rev. John Fease (LU ‘70), one of Appleton’s most passionate advocates for social justice, talking with retired librarian Walter Stitt (LU ‘70), John Kaufman (LU ‘67), and LU Athletic Hall of Famer, former coach, and well-known pottery artist Rich Agnes (LU ‘67). I dubbed Rev. Fease “Appleton’s Mr. Condom” for his leadership and tireless work on behalf of Planned Parenthood!LU Alums gather for the “Parade of the Classes.”Class of ‘70 buddies for life (l-r) Dr. Sue Mahle, Mary Freeman Borgh, Martha Esch Schott, Class Secretary Extraordinaire Phyllis Russ Pengelly, and Emeritus LU Trustee Jeff “Ralph” Riester share some good times, past and present.Generations confabbing at Brat Picnics are a Lawrence tradition (mine, of course, was totally “plant based”). Carolyn Grieco (LU ‘08) is bringing truth and light to new generations as a Spanish teacher in Antioch, Illinois! You can actually see “the light of Lawrence” shining above us through the campus tree canopy! Lawrence currently is leading the way among institutions of higher learning in sustainable energy and renewable resources!
Donald G. Sanders, a former Senate lawyer who uncovered the White House tapes that led to President Richard M. Nixon’s resignation, died on Sunday at a hospital in Columbia, Mo. He was 69.
Mr. Sanders, who lived in Columbia, died of cancer, said his wife, Dolores.
A former F.B.I. agent, Mr. Sanders was a Republican staff lawyer for the Senate committee investigating the Watergate break-in when he brought to light ”the smoking gun” that eventually pointed to Nixon’s complicity in a cover-up of the break-in.
It was in a closed-door preliminary interrogation that Mr. Sanders’s curiosity was aroused by seemingly apprehensive answers from Alexander P. Butterfield, Nixon’s former appointments secretary.
Mr. Sanders dug deeper and asked if it were possible that some sort of recording system had been used in the White House.
Mr. Butterfield answered, ”I wish you hadn’t asked that question, but, yes, there is.”
Mr. Sanders then hurried to tell Fred D. Thompson, the lead minority counsel who is now a Republican senator from Tennessee.
”We both knew then it was important,” Mr. Sanders recalled in a 1997 interview.
Then, in nationally televised hearings, Mr. Thompson asked Mr. Butterfield about the recording system.
”It was actually Don who discovered the existence of the White House taping system, but he was too unassuming to ever mention it,” Mr. Thompson said on Monday in an interview with The Associated Press.
Mr. Sanders had returned to his home state in the 1980’s after more than two decades of Federal Government service as a lawyer for Congressional committees, an F.B.I. agent and an Assistant Secretary of Defense under President Gerald R. Ford.
Donald Gilbert Sanders was born on April 26, 1930, in St. Louis. He graduated from the law school of the University of Missouri and then spent two years in the Marines. From 1956 to 1959, he was city attorney for Columbia.
From 1959 to 1969, Mr. Sanders worked for the F.B.I.
In 1969, he started working as a lawyer for Congressional committees.
After returning to Missouri, Mr. Sanders served as a commissioner in Boone County in 1989 and 1990, but he did not seek re-election. He had a private law practice in Columbia until his death.
In 1997, Mr. Sanders, while battling cancer, tried to start a national campaign to draft Senator Thompson for the 2000 Republican Presidential nomination, but Mr. Thompson declined to enter the race.
In addition to his wife, Mr. Sanders is survived by two sons, Michael, of Dallas, and Matthew, of Monrovia, Calif.; a daughter, Deborah Sanders, of Arlington, Va., and his mother, Ann Sanders of Columbia.
A version of this article appears in print on Sept. 29, 1999, Section A, Page 25 of the National edition with the headline: Donald G. Sanders Dies at 69; Brought Nixon Taping to Light. Order Reprints | Today’s Paper | Subscribe
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Well, my friend Deb knew, of course!
What an important role! And, one that is antithetical to most of today’s GOP, with a few exceptions. It’s an interesting (discouraging) contrast with the total lack of integrity among most GOP politicos and “parallel universe” supporters whose corrupt willingness to face truth about Trump’s criminal conspiracy to overthrow our Constitution and our duly elected Government still threatens our American democracy!
Anna Flagg is The Marshall Project’s senior data reporter.
Julia Preston is a contributing writer at The Marshall Project.
This article was published in partnership with The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. Sign up for their newsletters, and follow them on Twitter, Instagram and Facebook.
During their harrowing journey from Venezuela to the Texas border, the three Zaragoza children liked to imagine the refuge they would find when they reached the United States, a place where they would finally be free from hunger and police harassment and could simply be kids
Instead, when they reached the border in March, they were detained — dirty with mud from the Rio Grande and shivering with cold — in frigid cinder block cells. They spent sleepless nights on cement floors, packed in with dozens of other children under the glare of white lights, with agents in green uniforms shouting orders.
The siblings were booked by officers who asked questions they didn’t understand and were told to sign documents in English they couldn’t read. Even after their release three days later, they feared the U.S. would never be the haven they had longed for.
Since early 2017, one of every three people held in a Border Patrol facility was a minor, a far bigger share than has been reported before now, according to an analysis by The Marshall Project of previously unpublished official records. Out of almost 2 million people detained by the Border Patrol from February 2017 through June 2021, more than 650,000 were under 18, the analysis showed. More than 220,000 of those children, about one-third, were held for longer than 72 hours, the period established by federal court rulings and an anti-trafficking statute as a limit for border detention of children.
For most young migrants crossing without documents, the first stop in the U.S. is one of some 70 Border Patrol stations along the boundary line. The records reveal that detaining children and teenagers has become a major part of the Border Patrol’s everyday work. The records also show that conditions for minors have not significantly improved under President Joe Biden. While the numbers of kids in Border Patrol custody peaked in 2019 under former President Donald Trump, they rose again when Biden took office and have remained high.
Those numbers could surge to new highs when the Biden administration eventually lifts Title 42, a public health order that border authorities have used for more than two years to swiftly expel most unauthorized border crossers, including many children.
But the Border Patrol has resisted making changes to its facilities and practices to adapt to children, even while officials acknowledge that the conditions young people routinely face are often unsafe.
“A Border Patrol facility is no place for a child,” Homeland Security Secretary Alejandro Mayorkas, the nation’s highest immigration official, has repeatedly said. However, even now, as authorities are scrambling to beef up enforcement and expand detention capacity in preparation for a post-Title 42 influx, the Border Patrol’s basic approach to kids remains the same: Just move them out of custody as fast as possible.
Without broader changes, many thousands of kids seeking protection will remain at risk for harsh, demeaning and sometimes dangerous treatment as their first experience of the United States.
. . . .
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Read Anna’s and Julia’s complete, disturbing, infuriating report at the link. Unnecessary, immoral, inappropriate, and just plain stupid and evil! Did I mention stupid and evil?
Thanks, in part, to the Trump Administration’s policies of racist child abuse masquerading as “immigration enforcement,” there is a large body of recent, available, accessible empirical data on the devastating effects on children, families, society, and our world’s future of immigration enforcement that targets children, teens, and other vulnerable groups!
The “perps” of these repulsive policies will “check out” at some point in the future. The Biden Administration, which pledged to do better but disgracefully hasn’t delivered, also can’t and should not escape accountability.
The damage they are inflicting on future generations and the ability of our world to harness and utilize in a cooperative fashion the “human capital” needed for our planet’s and humanity’s survival is totally unacceptable! People of intelligence, courage, energy, innovation, and compassion must work together to stop this disgraceful abuse. Those chosen as responsible leaders and officials in the future must represent “our better angels!” 😇
While those of us in the “senior generation” who believe in social justice and a better future for humanity will continue the fight, our “time on the stage” is inexorably winding down. It will be up to the NDPA and the rest of the upcoming generation — in America and elsewhere — to decide what kind of world they want to live in and what they are willing to do, and sometimes sacrifice, to make it happen.
As I have said many times: “We can diminish ourselves as a nation, but it won’t stop human migration!”
It’s past time for a better, more realistic, more human, and “robustly humane” approach to human migration!😎 One that focuses on the long-term welfare of children and society, NOT short-term mythical “enforcement goals” or fears!
“Petitioner Mario Rajib Flores Molina (“Flores Molina”) participated in demonstrations against the ruling regime in his native Nicaragua, where he witnessed the murder of his friend and fellow protester by police and paramilitary members. Thereafter, he was publicly marked as a terrorist, threatened with torture and death by government operatives, and forced to flee his home. Flores Molina, however, was tracked down at his hideaway by armed paramilitary members, and was forced to flee for his life a second time. Flores Molina still was not safe. He was discovered, yet again, assaulted, and threatened with death by a government-aligned group. Flores Molina ultimately fled a third time— from Nicaragua altogether—out of fear for his safety. He eventually presented himself to authorities at the United States border and sought asylum and other relief. When Flores Molina sought asylum, withholding of removal and protection under the Convention Against Torture (“CAT”), an Immigration Judge (“IJ”) and the Board of Immigration Appeals (“BIA”) determined that his past experiences in Nicaragua did not rise to the level of persecution. They also determined that Flores Molina did not establish a well-founded fear of future persecution. The IJ and BIA denied all forms of relief and ordered Flores Molina’s removal to Nicaragua. Flores Molina petitions for review of the BIA’s denial of his appeal of the IJ’s decision, as well as of the BIA’s subsequent denial of his motion to reopen proceedings. Because the record compels a finding that Flores Molina’s past experiences constitute persecution and because the BIA erred in its analysis of the other issues, we grant the first petition and remand for further proceedings. Accordingly, we dismiss the second petition as moot.
[Hats off to Mary-Christine Sungaila (argued) and Joshua R. Ostrer, Buchalter APC, Irvine, California; Paula M. Mitchell, Attorney; Tina Kuang (argued) and Natalie Kalbakian (argued), Certified Law Students, Loyola Law School!]
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EOIR’s deadly, incorrect approach to sending refugees back to face persecution is legally incorrect, factually erroneous, and morally bankrupt. But, it does have one huge fan. Recently appointed Trump Ninth Circuit Judge Lawrence VanDyke:
In the Immigration and Nationality Act (INA), Congress codified the highly deferential substantial evidence test and established what should be our court’s guiding star in the review of immigration decisions: that “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” INA § 242(b)(4)(B) (codified as 8 U.S.C. § 1252(b)(4)(B) (emphasis added)). Congress later amended the INA by passing the REAL ID Act, further reining in our role and discretion as a reviewing court and stripping federal courts of jurisdiction to hear certain immigration claims. See Nasrallah v. Barr, 140 S. Ct. 1683, 1698 (2020) (Thomas, J., dissenting). Over time, however, this court’s decisions have chipped away at these statutory standards—broadening the scope and standard of our review far beyond the limited and deferential posture that Congress unmistakably set out in the INA. See id.
To properly apply our deferential standard of review, we are supposed to scour the record to answer a single question: could any reasonable adjudicator have agreed with the agency’s result, or does the record as a whole compel a different conclusion? See INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (explaining that substantial evidence review requires that we review “the record considered as a whole” and reverse the agency only if no reasonable factfinder could agree with its conclusion); see also Prasad v. INS, 47 F.3d 336, 339 (9th Cir. 1995) (describing Elias-Zacarias as “the touchstone” and “definitive statement of ‘substantial evidence’ in the context of . . . factual determinations in asylum cases”). On its face, this is an exceptionally deferential standard of review. But there’s more.
“Scour the record” to defeat asylum claims that should have been granted below, huh?That clearly defective, biased, one-sided approach is “due process and fundamental fairness” for a “person” under our Constitution? Or maybe asylum seekers of color aren’t “persons” to VanDyke and his righty cronies? That’s how VanDyke would like the Constitution applied if his life were at stake?
He’d like to use legal mumbo-jumbo to allow refugees to have their lives ended or threatened by non-expert decision makers making it up as the go along to deny meritorious claims. Under his “standard of review,” judicial review would be no review at all. Just scour the record for any obscure reason to deny asylum or, failing that, just make one up. Doesn’t matter as long as the individual loses and gets removed! That’s pretty much what too many EOIR judges and BIA “panels” (which can be a single judge) are already doing. Why add another layer of intellectual dishonesty, moral corruption, and absence of judicial ethics to the mess?
Mr. Flores-Molina is not buy any means the only one subjected to Judge VanDyke’s loony right-wing legal nonsense.You can “meet” the judge right here:
“The Rude Trump Judge Who’s Writing the Most Bonkers Opinions in America.”
One might legitimately ask why already vulnerable asylum seekers and their courageous lawyers are being subjected to such judicial abuse at all levels of our system. Why doesn’t Garland just appoint “real, expert, fair EOIR Judges” who will do the right thing at the “retail level” without having to enter the “appellate circus” 🤡 that Trump and the GOP have created?
“[T]he BIA upheld an adverse credibility determination that the IJ reached in part based on an inconsistency in Reyes’s story that simply was not an inconsistency. Nor can we say that absent the adverse credibility finding, Reyes’s CAT claim would necessarily fail. We therefore must vacate the BIA’s ruling affirming the IJ’s denial of that claim. … Reyes’s petition for review is granted, the ruling of the BIA is vacated, and we remand for further proceedings consistent with this opinion.”
Here’s a key sentence from the preamble to the L.A. Declaration on Migration and Protection:
We are committed to protecting the safety, dignity, human rights, and fundamental freedoms of all migrants, refugees, asylum seekers, and displaced and stateless persons regardless of their migratory status.
So I’d like to know how the following fit within our solemn commitment to “protecting the safety, dignity, human rights, and fundamental freedoms of all migrants, refugees, asylum seekers?”
Falsely finding that systematic assaults, death threats, being driven from your home, and being tracked down after fleeing, carried out by a Nicaraguan Government so repressive that it wasn’t even invited to the L.A. Conference, do not constitute persecution; and
Inventing a bogus inconsistency in an asylum seeker’s testimony and using it to wrongfully deny asylum.
Clearly they don’t! And, this kind of official misconduct goes on somewhere at EOIR on both levels every day! Just ask any experienced asylum practitioner! So, why hasn’t Garland replaced the EOIR judges who are not qualified to be deciding asylum claims with readily available expert talent?
Asylum seekers face systematically unfair treatment by “judges” who serve at Garland’s pleasure. Many of those judges, particularly at the BIA, were appointed or “elevated” by Garland’s openly xenophobic, virulently anti-asylum predecessors during the Trump regime. Yet, inexplicably, they continue to inflict bad decisions and sloppy, legally defective, morally vapid work on the most vulnerable? Why?
What if we had an expert, due-process-oriented Immigration Court that uniformly interpreted asylum law correctly and actually granted much-needed and well-deserved protection? What if asylum seekers didn’t have to enter the “Circuit Court crap shoot” — or deal with bad “no review is judicial review” judges like Judge VanDyke — to get life-saving justice? What if the rule of law and human rights were honored and advanced in Immigration Court rather than being mocked and disparaged? What if Immigration Courts modeled good judicial behavior instead of operating as a shockingly dysfunctional parody of due process, fundamental fairness, and best practices?
Wouldn’t it be better for everyone?
Perhaps there is some modest movement in the right direction. I’ve received reports from at least two Immigration Courts that unqualified Trump-era appointees have been removed over over the past week. That’s a start! But, it will take lots more “removals or reassignments” and a complete “redo” of the mal-functioning BIA to get due process, expertise, fundamental fairness, and best (as opposed to worst) judicial practices back on track at EOIR!
Garland’s Dedicated Courts: Deny and deport, deny and deport, deny and deport, deny and deport . . . . .” Creative Commons License
Transactional Records Access Clearinghouse
5,000 Asylum-Seekers Added to the Migrant Protection Protocols 2.0, Few Are Granted Asylum
During the last six months, over 5,000 asylum seekers have been required to remain in Mexico under the current implementation of the Migrant Protection Protocols (MPP)—also known as MPP 2.0—while awaiting their Immigration Court hearings. Cases in MPP are generally being completed within the 180-day time frame set by the administration, but the problem with low rates of access to attorneys and unusually low rates of asylum success that plagued the first implementation of MPP continue this year.
As a result of low representation rates and accelerated hearings, just 27 people out of the 5,100 asylum seekers in MPP 2.0 so far, have received asylum or some other form of relief. These 27 cases account for just 2.4 percent of the 1,109 MPP 2.0 cases which have been completed to date. By contrast, during the same period of FY 2022, fully half of all Immigration Court asylum decisions decided for people inside the United States resulted in a grant of asylum or other relief.
While MPP 1.0 under Trump had also been designed to attempt to expedite processing of these asylum cases, MPP 2.0 is intended to speed case completions even further. Under current guidelines, cases assigned to MPP should be completed within 180 days. The Biden administration has been largely successful in meeting this deadline. During December 2021, a total of 129 asylum seekers were assigned to MPP 2.0, which means that most of these cases are reaching their 180-day deadline now (or soon). For these initial 129 cases, over eight out of ten (81%) were completed at the end of May. Nonetheless, it may be difficult for the Court to maintain this same processing pace as the monthly total of new MPP court filings has steadily grown to over 2,000 in May 2022.
MPP 2.0 cases have not been evenly spread among hearing locations. Cases added to MPP 2.0 in December were primarily heard by the El Paso Immigration Court which received 109 cases. The El Paso MPP court currently has 923 cases assigned to it. By contrast, the MPP Brownsville Immigration Court has now been assigned 2,752 new cases—more than half (54%) of all MPP 2.0 assigned cases as of the end of May. The MPP Laredo, Texas (Port of Entry) Immigration Court has been assigned 404 MPP cases, and an additional 76 cases have been assigned to the Laredo Immigration Court. The MPP Court San Ysidro Port has received 386 cases so far.
It is still early in the implementation of MPP 2.0, and TRAC’s report on MPP 2.0 should be understood as a preliminary analysis However, these findings do raise concerns similar to MPP 1.0. Further detailed analysis will be warranted as more cases are added to the current implementation of the Migrant Protection Protocols.
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:
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Garland’s performance on EOIR is disgraceful. Question is, what will advocates do about it?
Curiously, going into difficult midterms where every vote supposedly counts, the Biden Administration appears to have decided that they don’t need the support and votes of their base. They might well be following “Miller Lite” or “Miller Genuine” policies of abusing asylum seekers. But, I doubt they will be getting any votes from the “Miller Right!”
An interesting “strategy” to be sure. We’ll see how it works out!
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 21–147. Argued March 2, 2022—Decided June 8, 2022
Respondent Robert Boule owns a bed-and-breakfast—the Smuggler’s Inn—in Blaine, Washington. The inn abuts the international border between Canada and the United States. Boule at times helped federal agents identify and apprehend persons engaged in unlawful cross-bor- der activity on or near his property. But Boule also would provide transportation and lodging to illegal border crossers. Often, Boule would agree to help illegal border crossers enter or exit the United States, only to later call federal agents to report the unlawful activity.
In 2014, Boule informed petitioner Erik Egbert, a U. S. Border Pa- trol agent, that a Turkish national, arriving in Seattle by way of New York, had scheduled transportation to Smuggler’s Inn. When Agent Egbert observed one of Boule’s vehicles returning to the inn, he sus- pected that the Turkish national was a passenger and followed the ve- hicle to the inn. On Boule’s account, Boule asked Egbert to leave, but Egbert refused, became violent, and threw Boule first against the ve- hicle and then to the ground. Egbert then checked the immigration paperwork for Boule’s guest and left after finding everything in order. The Turkish guest unlawfully entered Canada later that evening.
Boule filed a grievance with Agent Egbert’s supervisors and an ad- ministrative claim with Border Patrol pursuant to the Federal Tort Claims Act (FTCA). Egbert allegedly retaliated against Boule by re- porting Boule’s “SMUGLER” license plate to the Washington Depart- ment of Licensing for referencing illegal activity, and by contacting the Internal Revenue Service and prompting an audit of Boule’s tax re- turns. Boule’s FTCA claim was ultimately denied, and Border Patrol took no action against Egbert for his use of force or alleged acts of re- taliation. Boule then sued Egbert in Federal District Court, alleging a Fourth Amendment violation for excessive use of force and a First Amendment violation for unlawful retaliation. Invoking Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, Boule asked the Dis- trict Court to recognize a damages action for each alleged constitu- tional violation. The District Court declined to extend Bivens as re- quested, but the Court of Appeals reversed.
Held: Bivens does not extend to create causes of action for Boule’s Fourth Amendment excessive-force claim and First Amendment retaliation claim. Pp. 5–17.
(a) In Bivens, the Court held that it had authority to create a dam- ages action against federal agents for violating the plaintiff’s Fourth Amendment rights. Over the next decade, the Court also fashioned new causes of action under the Fifth Amendment, see Davis v. Pass- man, 442 U. S. 228, and the Eighth Amendment, see Carlson v. Green, 446 U. S. 14. Since then, however, the Court has come “to appreciate more fully the tension between” judicially created causes of action and “the Constitution’s separation of legislative and judicial power,” Her- nández v. Mesa, 589 U. S. ___, ___, and has declined 11 times to imply a similar cause of action for other alleged constitutional violations, see, e.g., Chappell v. Wallace, 462 U. S. 296; Bush v. Lucas, 462 U. S. 367. Rather than dispense with Bivens, the Court now emphasizes that rec- ognizing a Bivens cause of action is “a disfavored judicial activity.” Ziglar v. Abbasi, 582 U. S. ___, ___.
The analysis of a proposed Bivens claim proceeds in two steps: A court asks first whether the case presents “a new Bivens context”—i.e., is it “meaningfully different from the three cases in which the Court has implied a damages action,” Ziglar, 582 U. S., at ___, and, second, even if so, do “special factors” indicate that the Judiciary is at least arguably less equipped than Congress to “weigh the costs and benefits of allowing a damages action to proceed.” Id., at ___. This two-step inquiry often resolves to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy. Further, under the Court’s precedents, a court may not fash- ion a Bivens remedy if Congress already has provided, or has author- ized the Executive to provide, “an alternative remedial structure.” Ziglar, 582 U. S., at ___. Pp. 5–8.
(b) The Court of Appeals conceded that Boule’s Fourth Amendment claim presented a new Bivens context, but its conclusion that there was no reason to hesitate before recognizing a cause of action against Agent Egbert was incorrect for two independent reasons. Pp. 9–13.
(1) First, the “risk of undermining border security provides reason to hesitate before extending Bivens into this field.” Hernández, 589 U. S., at ___. In Hernández, the Court declined to create a damages remedy for an excessive-force claim against a Border Patrol agent be- cause “regulating the conduct of agents at the border unquestionably has national security implications.” Id., at ___. That reasoning applies with full force here. The Court of Appeals disagreed because it viewed Boule’s Fourth Amendment claim as akin to a “conventional” exces- sive-force claim, as in Bivens, and less like the cross-border shooting in Hernández. But that does not bear on the relevant point: Permitting suit against a Border Patrol agent presents national security concerns that foreclose Bivens relief. Further, the Court of Appeals’ analysis betrays the pitfalls of applying the special-factors analysis at too gran- ular a level. A court should not inquire whether Bivens relief is appro- priate in light of the balance of circumstances in the “particular case.” United States v. Stanley, 483 U. S. 669, 683. Rather, it should ask “[m]ore broadly” whether there is any reason to think that “judicial intrusion” into a given field might be “harmful” or “inappropriate,” id., at 681. The proper inquiry here is whether a court is competent to authorize a damages action not just against Agent Egbert, but against Border Patrol agents generally. The answer is no. Pp. 9–12.
(2) Second, Congress has provided alternative remedies for ag- grieved parties in Boule’s position that independently foreclose a Bivens action here. By regulation, Border Patrol must investigate “[a]lleged violations” and accept grievances from “[a]ny persons.” 8 CFR §§287.10(a)–(b). Boule claims that this regulatory grievance pro- cedure was inadequate, but this Court has never held that a Bivens alternative must afford rights such as judicial review of an adverse determination. Bivens “is concerned solely with deterring the uncon- stitutional acts of individual officers.” Correctional Services Corp. v. Malesko, 534 U. S. 61, 71. And, regardless, the question whether a given remedy is adequate is a legislative determination. As in Her- nández, this Court has no warrant to doubt that the consideration of Boule’s grievance secured adequate deterrence and afforded Boule an alternative remedy. See 589 U. S., at ___. Pp. 12–13.
(c) There is no Bivens cause of action for Boule’s First Amendment retaliation claim. That claim presents a new Bivens context, and there are many reasons to think that Congress is better suited to authorize a damages remedy. Extending Bivens to alleged First Amendment vi- olations would pose an acute “risk that fear of personal monetary lia- bility and harassing litigation will unduly inhibit officials in the dis- charge of their duties.” Anderson v. Creighton, 483 U. S. 635, 638. In light of these costs, “Congress is in a better position to decide whether or not the public interest would be served” by imposing a damages ac- tion. Bush, 462 U. S., at 389. The Court of Appeals’ reasons for ex- tending Bivens in this context—that retaliation claims are “well-estab- lished” and that Boule alleges that Agent Egbert “was not carrying out official duties” when the retaliation occurred—lack merit. Also lacking merit is Boule’s claim that this Court identified a Bivens cause of ac- tion under allegedly similar circumstances in Passman. Even assum- ing factual parallels, Passman carries little weight because it predates the Court’s current approach to implied causes of action. A plaintiff cannot justify a Bivens extension based on “parallel circumstances” with Bivens, Passman, or Carlson—the three cases in which the Court has implied a damages action—unless the plaintiff also satisfies the prevailing “analytic framework” prescribed by the last four decades of intervening case law. Ziglar, 582 U. S., at ___–___. Pp. 13–16.
998 F. 3d 370, reversed.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and ALITO, KAVANAUGH, and BARRETT, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment. SOTOMAYOR, J., filed an opinion con- curring in the judgment in part and dissenting in part, in which BREYER and KAGAN, JJ., joined.
KEY QUOTE FROM JUSTICE SOTOMAYOR’S CONCURRENCE DISSENT (joined by Justices Breyer and Kagan):
This Court’s precedents recognize that suits for damages play a critical role in deterring unconstitutional conduct by federal law enforcement officers and in ensuring that those whose constitutional rights have been violated receive meaningful redress. The Court’s decision today ignores our repeated recognition of the importance of Bivens actions, particularly in the Fourth Amendment search-and-seizure context, and closes the door to Bivens suits by many who will suffer serious constitutional violations at the hands of federal agents. I respectfully dissent from the Court’s treat- ment of Boule’s Fourth Amendment claim.
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Thus, the Border Patrol is free to egregiously violate Constitutional rights of citizens and other “persons” in the U.S. without meaningful accountability. But, I suppose it’s what one might expect from a right-majority Court that generally views rights of corporations and guns as fundamental while treating most individual rights of persons in the U.S. as expendable.
As for Justice Thomas’sludicrous suggestion that filing a complaint with the CBP hierarchy is a “remedy” for wrongdoing? That’s in the “sick joke” category as anyone who has actually tried to file such a complaint would know.See, e.g., https://www.nbcnews.com/politics/immigration/aclu-asks-dhs-take-action-complaints-abuse-misconduct-u-s-n1259657. Clearly, Thomas and his colleagues live in a privileged “parallel universe” where they have never had to rely on the DHS’s internal bureaucracy for redress of Constitutional violations!
As cogently pointed out by Justice Sotomayor, the majority’s intentional misuse and mischaracterization of the “national security fiction” to immunize government conduct from meaningful review in a case that actually has little or nothing to do with national security or foreign relations should also be of grave concern to all of us. Right-wing judges’ propensity to use “fictions” and “pretexts” to mask their real intent and to arrive at preconceived results is a major exercise in intellectual dishonesty!
It also reinforces my observation that it is wrong to keep appointing Justices who lack personal experience with representing individuals within our broken, dysfunctional, and often lawless immigration bureaucracy, which currently includes the U.S. Immigration “Courts” at EOIR.In many professions and occupations, the “future movers and shakers” are required to “start at the retail level” — like the rest of us — so that they understand their “customers'” needs, wants, expectations, problems, and concerns. Why do we exempt our most powerful judges from this “basic training” in delivering justice to human beings at the “retail level” of our justice system?
While many folks are too blind to see it, the lack of informed judicial oversight of the Constitutional performance of DHS, DOJ, DHS, DOS, DOL and the rest of the often underperforming USG immigration bureaucracy undermines the Constitutional rights of everyone in America, including citizens!
Life-tenured Federal Judges might act as if they are “immunized” and “above the fray” (also, to a disturbing extent, above the law and our Constitution, particularly where migrants are concerned). Meanwhile, it’s “the people’s rights” that are on the chopping block with an unprincipled “out of touch” far-right judiciary too often wielding the ax!
Most experts view the Biden Administration’s approach to refugees, asylum, human rights, and racial justice in America as disturbingly short-sighted! Mr. Magoo PHOTO: Gord Webster Creative Commons License
From Human Rights First, June 1, 2022:
Human Rights First yesterday submitted a public comment on the Biden administration’s Interim Final Rule that creates a new process for adjudication of some asylum claims.
Under the rule, asylum seekers who are placed in the expedited removal process and who establish a credible fear of persecution may be assessed in an initial full asylum interview with the U.S. Citizenship and Immigration Services. Cases not granted by the Asylum Office will be referred to immigration court removal proceedings, as will other asylum cases that are not granted by the Asylum Office.
Courtesy Getty
Asylum seekers and U.S. Customs and Border Protection agents at the US-
Mexico border near Yuma, Arizona.
While Human Rights First welcomes some aspects of the rule, we expressed our concern about unreasonably fast deadlines that would sacrifice fairness, thwart efficiency, and exacerbate backlogs. We also oppose provisions that threaten asylum seekers’ right to a full and fair hearing on their asylum claims.
The rule guts a crucial safeguard in the credible fear process: it provides that the new asylum process will be conducted after subjecting asylum seekers to the fundamentally flawed expedited removal process, which has been shown to return refugees to persecution and death.
In our public comment on the rule and a factsheet on its concerning provisions, we have recommended changes to help asylum seekers receive timely, fair, and accurate adjudications.
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The full HRF comment is available at the above link!
As with most Government immigration/civil/human rights programs, a large part of the problem is WHO is making these decisions, WHO is setting precedents, and WHO is overseeing the process and enforcing accountability.
The Biden Administration is still operating EOIR and large portions of the immigration bureaucracy at DHS with Trump-era “holdovers” who were improperly “programmed to deny” asylum.
There is a dearth of positive precedents from the BIA on gender-based asylum and othertypes of common asylum applications at the border that are routinely and wrongfully mishandled and denied.
There are cosmic problems resulting from failure to provide qualified representation of asylum seekers at the border.
Detention continues to be misused as a “deterrent” to legal claims and “punishment” forassertingthem.
Despite “touting” a much larger refugee admissions program beyond the border, the Administration has failed to deliver a robust, realistic, refugee admissions program for Latin America and the Caribbean which would take pressure off the border.
Racism and White Nationalism continue to drivethe Administration’s dramatically inconsistent approach to White refugeesfrom Ukraine compared with refugees of color at the Southern Border.
In plain terms, because of what the Biden Administration hasn’t done over the past 17 months, the new asylum regulations are “programmed for failure.”
“Tough noogies, ladies, suck it up and accept your fate,” say Federal Judges Southwick, Jones, and Oldham of the 5th Cir! Amazing StoriesArtist Unknown, Public domain, via Wikimedia CommonsNo “particular social group” here says 5th Circuit Judge Southwick and his buddies Jones and Oldham. Just a little “good old fashioned trial by ordeal.” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Toxic Trio of “America’s Worst & Most Cowardly Judges” sticks it to Salvadoran refugee woman who survived domestic violence in country where femicide is rampant and uncontrolled by corrupt and inept government.
Lopez Perez v. Garland, 5th Cir., 06-02-22, published
BEFORE:Edith Jones (Reagan), Andrew Oldham (Trump), and Leslie H. Southwick (Bush II) Circuit Judges
OPINION: Judge Southwick
Lopez-Perez argues here that the IJ erred under Matter of A-R-C-G- by concluding that she had not established a nexus between her persecution and her social group. Further, she argues that the IJ incorrectly decided that the government of El Salvador was willing and able to protect her.2 These issues were identified in her Notice of Appeal and are preserved for our review here.
It is true that the IJ concluded that Lopez-Perez had not demonstrated the requisite nexus and further that she had not shown that the government was unable or unwilling to help her. Although the IJ’s analysis was cursory, we nonetheless conclude that his decision must be upheld because remand would be futile. Jaco, 24 F.4th at 406. The IJ intimated that Lopez-Perez’s proffered social groups — “Salvadoran women in domestic relationships who are unable to leave; or Salvadoran women who are viewed as property by virtue of their position in a domestic relationship” — were cognizable.
2 Lopez-Perez also argues for the first time that we should remand to the IJ for consideration in light of intervening decisions in Matter of A-B-, 27 I. & N. Dec. 316 (Att’y Gen. 2018) and Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018), aff’d in part, rev’d in part sub nom. Grace v. Barr, 965 F.3d 883 (D.C. Cir. 2020). We decline this invitation. In addition to the fact that this argument was not raised in her Notice of Appeal, Matter of A- B- has been overruled, see A-B- III, 28 I. &. N Dec. 307 (Att’y Gen. 2021), and this court specifically rejected Grace in Gonzales-Veliz, 938 F.3d at 233–34. See also Meza Benitez v. Garland, No. 19-60819, 2021 WL 4998678, at *4 (5th Cir. Oct. 27, 2021) (explaining this Circuit’s rejection of Grace).
7
Case: 20-60131 Document: 00516340524 Page: 8 Date Filed: 06/01/2022
No. 20-60131
We have disagreed, holding that circularly defined social groups are not cognizable. See id. at 405; accord Gonzales-Veliz, 938 F.3d at 226. Indeed, the social groups identified in Jaco are nearly identical to those claimed by Lopez- Perez: “Honduran women who are unable to leave their domestic relationships . . . and Honduran women viewed as property because of their position in a familial relationship.” Jaco, 24 F.4th at 399. Because the IJ is bound to follow the law of this circuit on remand, he would be forced to conclude that Lopez-Perez’s social groups were not cognizable, thus ending the analysis. See In re Ramos, 23 I. & N. Dec. 336, 341 (BIA 2002) (noting that the BIA is “unquestionably bound” to follow circuit court rulings).
We DENY the petition for review.
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It’s worthy of note that neither party challenged the propriety of the “particular social group!” So, this panel actually went beyond the issues before them to “stick it to” this abused refugee woman by gratuitously rejecting a well-established formulation of a “particular group” that has been the basis for granting protection in literally thousands of cases going back over two decades. (I note that even before A-R-C-G-, in Arlington the DHS Counsel routinely accepted this formulation of a “PSG” based on the so-called “Martin Memo” from DHS.)
Perhaps, that’s because even this panel acknowledged that the IJ’s “nexus analysis,” the actual ground of denial was “cursory.” In other words, this vulnerable women sought legal protection only to be shafted by poorly qualified Federal Judges at every level — the Immigration Court, the BIA, and the Fifth Circuit!
Here’s what Wade Henderson, then President and CEO of the Leadership Conference on Civil and Human Rights had to say about Judge Leslie H. Southwick in opposition to his confirmation:
Given the tremendous impact that federal judges have on civil rights and liberties, and because of the lifetime nature of federal judgeships, no judge should be confirmed unless he or she demonstrates a solid commitment to protecting the rights of all Americans. Because Judge Southwick has failed to meet this burden, we must oppose his confirmation.
Here’s what the progressive group “Suit Up Maine” had to say about Judge Andrew Oldham at the time of his confirmation:
ANDREW OLDHAM: Confirmed by the Senate on July 18, 2018. Collins voted YES; King voted NO. Nominated to be federal judge for the 5th Circuit Court of Appeals, Oldham is young, aggressively conservative, and has been involved in controversial litigation that emphasized ideology over the law. Oldham has worked on cases aimed at limiting reproductive rights, challenging the Affordable Care Act, challenging California’s law requiring good cause for concealed carry of firearms, and challenging habeas rights, all of which were ultimately unsuccessful. He defended Texas laws that limited women’s access to abortions that were ultimately determined by the Supreme Court to put “undue burden” on women’s right to choose. His challenge to the Affordable Care Act based on the “Origination Clause” of the Constitution was dismissed by the 5th Circuit for lack of standing. He attempted to barr the use of habeas corpus claims by two plaintiffs, but appeals courts allowed the claims. He also filed an amicus brief on behalf of multiple states (including Maine) using the Second Amendment to challenge a California law requiring good cause for concealed carry of firearms. The 9th Circuit ruled that the Second Amendment does not protect a right to concealed carry of firearms. Additionally, Oldham was involved in challenging the EPA’s greenhouse gas rules under the Clean Air Act, and he defended Texas campaign finance laws that were being challenged by multiple nonprofits and political committees under the First Amendment. His record of unsuccessful attempts to shape the law according to his own conservative ideology suggests that this bias is likely to accompany him to the federal bench.
All these fears, criticisms, and predictions of bias have proved to be all too well-founded in the mal-performance of this “Toxic Trio” of far right ideologues.
“Heard (not Amber) on the street:
“So the one BIA precedent in the past 20 years that actually recognized a PSG as valid isn’t worthy of Chevron deference, but A-B- was?!!”
“No more judicial restraint? Why is DOJ not changing position and or dropping these cases?”
“The 5th Circuit decision claims to direct all IJs in the 5th NOT to apply ARCG. And, most 5th Circuit IJs are high deniers anyway, so they don’t exactly need encouragement.”
“Perhaps better IJs could think of creative ways to work around the 5th’s decision. But, they don’t exist in the 5th Circuit in Garland’s EOIR.”
“It also shows the problems caused by Garland’s failure to “redo” the BIA and the IJ corps on “Day 1.” By now, it’s too late.”
Unqualified, far-right Federal Judges, egged on and supported by Stephen Miller and GOP State AGs, have basically usurped the power of Congress and the Executive to set immigration policies. There is lots of contempt for humanity, racism, misogyny, religious intolerance, and disrespect for true individual liberty driving their vile and illegal agenda.
The Constitutional rights of all Americans and the future of our democracy is at stake here. Will enough folks wake up and resist this takeover before it ‘s too late? TBD!
When immigration officials come to Aaliyah’s home and take her father, she and her family find themselves coping with a variety of emotions. As they prepare themselves for the legal proceedings in Immigration Court, Aaliyah realizes how brave she is, and the family realizes how important communication about what is happening helps to empower her.
Designed as a resource for parents, teachers, social workers, advocates, and lawyers, Aaliyah The Brave helps readers understand the impact immigration enforcement can have on children and what emotions children may feel in the aftermath.
Reviews
“Rekha’s book makes a much-needed contribution in relating, in a first-personal way, the destructive impact immigration enforcement has on children’s lives. It will hopefully help create more space for kids to verbalize and make sense of their own experiences with the confusing and oppressive system that is such a big part of their families’ journeys.”
“Aaliyah the Brave is a story of resilience and an amazing tool for any adult that wants to start a difficult conversation with their child but does not know how. Immigration and family separation is a reality that we can no longer ignore. The book’s author does an incredible job at teaching the public about the process while encouraging open communication and emotional validation within the family unit.”
Dr. Marina G. Villani Capó
Bilingual Clinical Psychologist at a children’s hospital, Miami, FL
“Aaliyah The Brave is a much-needed and inspiring story for children impacted by the harsh reality of our immigration laws. Parents, attorneys, adjudicators, and all adults involved in our immigration system can help children like Aaliyah process their feelings when faced with separation from a loved one. Sharma-Crawford’s story is a thoughtful, accurate portrayal of what many families face, and demonstrates that even the youngest members of the family can benefit from honest and compassionate communication through uncertain times.”
“Aaliyah the Brave is an intimate narrative on the delicate nature of legal status in America. The story offers a simple yet thought-provoking conversation starter to build empathy for the children facing these issues and the community around them.”
“The story of a little girl who finds great courage in the face of unspeakable hardship, AALIYAH THE BRAVE is a go-to resource for parents, lawyers, and teachers helping children process the pain of family separation and immigration enforcement.”
Valarie Kaur
Civil rights leader and author of SEE NO STRANGER: A MEMOIR AND MANIFESTO OF REVOLUTIONARY LOVE
ABOUT REKHA SHARMA-CRAWFORD, ESQUIRE:
Rekha Sharma-Crawford ESQUIRE Partner and Co-Founder Sharma-Crawford Law Kansas City, KS
Rekha Sharma-Crawford is a nationally recognized, award-winning, attorney and advocate for immigrant families and children. She represents clients across the United States but calls Kansas City home. More information about her practice can be found at Sharma-Crawford.com
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My friend Rekha Sharma-Crawford is an award winning human rights attorney (“a fiery advocate”), educator, author, and parent. I recently had the pleasure of working with Rekha, my Round Table colleagues Judges Lory D. Rosenberg and Sue Roy, and a cast of outstanding instructors at the Sharma-Crawford Clinic Immigration Trial College (a/k/a “The Litigation Boot Camp”) in Kansas City, KS, April 28-30, 2022.
At a time when there is far, far too much talk about intentional cruelty, exclusion, dehumanization, and rejection of the “most vulnerable” (and often the bravest) among us, this book is a welcome and refreshing change!
