"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.
“Karla Iveth Garcia-Aranda petitions for review of two decisions of the Board of Immigration Appeals (“BIA”) denying asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Garcia-Aranda, a native and citizen of Honduras, testified before an Immigration Judge (“IJ”) that she and her family had been threatened, kidnapped, and beaten by members of the Mara 18 gang while a local Honduran police officer was present. Garcia-Aranda sought asylum and withholding of removal, arguing that the gang had persecuted her because she was a member of the Valerio family, which ran its own drug trafficking ring in Garcia-Aranda’s hometown. She also sought protection under CAT based on an asserted likelihood of future torture at the hands of the gang with the participation or acquiescence of the local Honduran police. Having reviewed both the IJ’s and the BIA’s opinions, we hold that the agency did not err in finding that Garcia-Aranda failed to satisfy her burden of proof for asylum and withholding of removal, but that the agency applied incorrect standards when adjudicating Garcia-Aranda’s CAT claim. Accordingly, the petition for review is DENIED IN PART and GRANTED IN PART, the decisions of the BIA are VACATED IN PART to the extent they denied Garcia-Aranda’s claim for CAT protection, and the case is REMANDED to the BIA for further proceedings consistent with this decision. … Because of these legal errors, we grant the petition as to Garcia-Aranda’s claim for protection under CAT and vacate the BIA’s decisions regarding CAT protection. See Rafiq v. Gonzales, 468 F.3d 165, 166–67 (2d Cir. 2006) (remanding a CAT claim for proper application of Khouzam). On remand, we direct the agency to consider, in light of all testimony and documentary evidence, whether Garcia-Aranda will more likely than not be tortured by, or at the instigation of, or with the consent or acquiescence of, any public official (or other person) acting under color of law. As more fully described above, that means considering questions such as whether it is more likely than not that the gang will torture Garcia-Aranda, including meeting all the harm requirements for torture under section 1208.18(a), and whether it is more likely than not that local police acting under color of law will themselves participate in those likely gang actions or acquiesce in those likely gang actions. The BIA is also instructed to remand to the IJ for any additional factfinding that is necessary for the BIA to make its determination.”
[NOTE: This PFR was filed in 2018! Hats off to Heather Axford and team!]
Heather Axford Senior Staff Attorney Central American Legal Assistance Brooklyn, NY
“Petition for review of a December 26, 2018 decision of the Board of Immigration Appeals (“BIA”) vacating a July 27, 2017 decision of an Immigration Judge (“IJ”) granting Petitioners’ application for asylum and protection under the Convention Against Torture (“CAT”). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the petition for review is GRANTED in part and DENIED in part. Accordingly, the decision of the BIA is VACATED in part, and the case is REMANDED for proceedings consistent with this summary order. … Remand is required in this case because the BIA did not give consideration to all relevant evidence and principles of law, as those have been detailed by this Court’s recent decision in Scarlett v. Barr, 957 F.3d 316, 332–36 (2d Cir. 2020). … Because Mejia did not fear torture at the hands of the Guatemalan authorities, the relevant inquiry is whether government officials have acquiesced in likely third-party torture. To make this determination, the Court considers whether there is evidence that authorities knew of the torture or turned a blind eye to it, and “thereafter” breached their “responsibility to prevent” the possible torture. Scarlett, 957 F.3d at 334 (quoting Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004)); see 8 C.F.R. § 1208.18(a)(7). … Here, record evidence raises questions as to the Guatemalan government’s inability to protect Mejia, insofar as it indicates that Mejia sought assistance from Guatemalan police and was told that they could not protect her and she should simply hide in her home. … Insofar as the BIA ruled without the benefit of Scarlett, a remand is warranted before this Court conducts any review. We therefore remand for the sole purpose of allowing the BIA to decide, after reasoned consideration of the record, whether the Guatemalan police’s inability to protect Mejia constituted acquiescence.”
Mikhail Usher, Esq. Senior Partner The Usher Law Group PLLC My & New Jersey PHOTO: Usher Law Group
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Congrats to NDPA superstars Heather and Mike!
Here’s commentary from my Round Table colleague Hon. “Sir Jeffrey” Chase on Heather’s performance on Garcia-Aranda v. Garland:
“Heather is a remarkable litigator who did a remarkable job on this case – it was a tough panel that had basically ruled out asylum from the start; it was most impressive to hear Heather persuade the judges over the course of oral arguments as to the CAT standard (during which one of the judges repeatedly referenced proposed Trump regs that had never taken effect, but were nevertheless listed on the government’s eCFR as if it had).
Best, Jeff“
And, here’s my response:
“Heather is truly an NDPA superstar. And, I’m proud that she got her start appearing at the Arlington Immigration Court!
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.
Texas Observer: But as the case of Felipe shows, immigration officials have continued to separate parents and children in violation of the policy. From the start of the new administration to August 2022—the latest month for which data has been published—U.S. authorities have reported at least 372 cases of family separation.
AP: Within hours, the Justice Department asked the judge to let the order take effect Dec. 21, giving it five weeks to prepare. Plaintiffs including the American Civil Liberties Union didn’t oppose the delay.
Politico: Party leaders are pushing hard for legislation aiding the undocumented population known as “Dreamers” before Republicans take the House. But GOP senators have little interest. See also House Judiciary GOP Highlights First Oversight Targets.
TRAC: The outcome for asylum seekers has long been influenced by the identity of the immigration judge assigned to hear their case. This continues to be true as documented by TRAC’s just released judge-by-judge report series, now updated through FY 2022. In Arlington, Virginia, judge denial rates ranged from 15 percent to 95 percent. In Boston, judge denial rates varied from 17 percent to 93.5 percent. In Chicago, they ranged from 16 percent to 90 percent, while in San Francisco one judge denied just 1 percent of the cases while another denied 95 percent.
NPR: Individuals held in immigration detention were barred from visits with relatives and friends for more than two years during the pandemic — far longer than federal prisons. In May, ICE lifted the ban, but immigrant advocates and people in detention centers argue that social visits have not been fully nor consistently reinstated.
Philly Inquirer: A second bus carrying immigrants from Texas arrived in Philadelphia Monday morning, a twice-in-six-days sequel that propelled the city to offer fresh welcome to more weary, uncertain travelers from the border.
AP: U.S. immigration authorities didn’t do enough to adequately vet or monitor a gynecologist in rural Georgia who performed unnecessary medical procedures on detained migrant women without their consent, according to results of a Senate investigation released Tuesday.
Intercept: According to ICE’s Performance-Based National Detention Standards, whenever there is a “calculated use of force,” staff are required to use a handheld camera to record the incident. The Intercept, with Kumar’s consent, requested the video through the Freedom of Information Act. After ICE refused to turn over the footage, The Intercept filed a lawsuit and ICE subsequently agreed to turn over the footage, but the agency redacted the faces and names of everyone who appears in it, aside from Kumar.
Guardian: A multi-country investigation by the Guardian finds at least 6,500 migrant workers from south Asia have died in Qatar in the 10 years since it was awarded the right to host the World Cup.
AG: (1) Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018), is overruled. (2) Pending the outcome of the rulemaking process, immigration judges and the Board of Immigration of Appeals may consider and, where appropriate, grant termination or dismissal of removal proceedings in certain types of limited circumstances, such as where a noncitizen has obtained lawful permanent residence after being placed in removal proceedings, where the pendency of removal proceedings causes adverse immigration consequences for a respondent who must travel abroad to obtain a visa, or where termination is necessary for the respondent to be eligible to seek immigration relief before United States Citizenship and Immigration Services.
Law360: The Biden administration on Thursday swept aside a Trump-era decision that mostly stripped immigration judges of their power to end removal proceedings, restoring immigration courts’ ability to terminate some deportation cases while it devises new policy.
Law360: A federal judge on Wednesday granted “with great reluctance” the Biden administration’s request for a five-week stay of his previous day’s order to end expulsions of migrants under Title 42, a public health provision the Trump administration began using at the start of the pandemic.
Law360: A split Fourth Circuit panel ordered the U.S. Board of Immigration Appeals to reconsider a Jamaican man’s removal order, criticizing the agency’s reasons for rejecting his claims that he diligently sought reversal of his order following a Supreme Court ruling.
LexisNexis: Michael Shannon writes: “I wanted to share a very good written decision from IJ Barbara Nelson, who granted asylum to my client based on her actual and imputed feminist political opinion under Hernandez-Chacon v. Barr.”
Law360: The federal government got the green light from an Arizona federal judge to conduct psychological examinations of asylum-seeking parents suing for damages for the alleged emotional trauma from being separated from their children at the southwestern U.S. border.
AILA: AILA and partners sent a letter to USCIS, EOIR, and OPLA addressing the unnecessary hurdles non-detained people in removal proceedings face in securing a biometrics appointment prior to their merits hearing.
AILA: USCIS notice of the automatic extension of the validity of TPS-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal set to expire on 12/31/22, through 6/30/24. (87 FR 68717, 11/16/22)
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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
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After two years of “drinking the koolaid,” the party might be over for Mayorkas & Garland, as McCarthy & his insurrectionist/White Nationalist zanies “move in for the kill.”
Two years of ineptness, failure to clean house at DOJ and DHS, unkept promises to advocates, lack of guts to quickly reverse Trump’s massive scofflaw program of racist-inspired human rights abuses, arrogant “tuning out” of experts, lack of engagement and presence at the border have been largely ignored by Dems in both Houses. Indeed, other than a hearing on the Article 1 bill before Chair Lofgren (at which Garland was not required to appear and explain his due-process-denying mess and abject failure to reform EOIR), Dems failure to conduct meaningful oversight of the Administration’s mishandling of refugee programs, asylum, detention, asylum seeker resettlement, and Immigration Courts will be “coming home to roost” as insurrectionist, racists from the House GOP take aim at “snuffing” humanity and abolishing the rule of law!
Two years of inept, immoral, “Miller Litism” from the Administration leaves Dems with no defense and no supporters of their actions. Nativist restrictionists wanted “100% kill” @ border! Experts wanted a return to the rule of law, orderly processing, and due process. The Biden Administration delivered neither!
We tried to tell them, but they wouldn’t listen! No,McCarthy and his insurrectionist White Nationalist zany-haters have the floor. Just have to hope that historians are fully documenting the lies and Neo-Nazi views that these GOP hacks will be promoting — to help future generations understand how America “went off the rails” in the 21st century! Understandably, the GOP would rather focus on Biden’s failed immigration policies than on the rampant gun violence, hate crimes, child abuse, forced births, and dumbing down of America at the heart of their vile agenda!
🇺🇸Due Process Forever! The GOP’s “New McCarthyism,” Never!
Kathleen Guthrie Woods American Journalist & Writer San Francisco, CA PHOTO: GoodreadsHon. Dana Leigh (“NanaDana”) Marks U.S. Immigration Judge (Ret.) San Francisco Immigration Court Past President, National Association of Immigration Judges; “Founding Mother of U.S. Asylum Law”
By the time she retired from San Francisco’s Immigration Court on December 31, 2021, Judge Dana Leigh Marks* had built an inspiring reputation as a leader, mentor, and advocate. She is known for her fierce advocacy for the court. She is known for her compassion and fairmindedness. She is known for her intelligence and wit, having coined oft-repeated, appropriate zingers that help people better understand the challenges of immigration court, including “Immigration judges do death penalty cases in a traffic court setting” and “Immigration is more complicated than tax law. How do I know this? Because there is no TurboTax for immigration law.”
Talking with her former colleagues—many of whom are now also her friends—is an uplifting experience. They speak of a woman who broke through barriers, applied the law fairly and compassionately, fought hard fights, and inspired others to join her. “She’s the GOAT of immigration judges!” declares Francisco Ugarte, Manager of the Immigration Defense Unit of San Francisco’s Public Defender’s Office.
Who is Judge Marks, and how did she positively influence and impact so many lives?
. . . .
Judge Marks also thrived in this arena because she saw beyond the expectation that her role was solely to facilitate deportations; she saw the humanity inherent in the proceedings. “Every story is individual,” she says, and every person deserves to be heard.
. . . .
“She showed us all how to be fierce advocates for justice—for what is true and right and just—without crossing over lines,” says Judge King. Jamil adds Judge Marks’s “tireless” work for the union and “giving a professional, female voice to immigration judges” to her list of accomplishments. “When she started, she was one of few women. After her, all these really amazing women came to the bench,” says Shugall, women Judge Marks mentored and encouraged to apply for the bench. That roster includes Judges Jamil, King, Miriam Hayward, Stockton, Webber, and Laura Ramirez. “She helped start that trajectory,” says Shugall.
“She helped create an inspiring model for how courts can be,” says Ugarte, and Judge Webber states, simply, “She inspires people all the time.”
“While she has had some limelight in her career, the vast majority of her work has been thankless,” says Judge King. “She perseveres solely because she believes it is important to make a difference wherever you can.”
*Today Judge Marks is known as “NanaDana,” a title that celebrates her role as caretaker for her granddaughter and helps people correctly pronounce her name (“dan-uh,” not “day-nuh”).
Kathleen Guthrie Woods is a long-time contributor to San Francisco Attorney magazine. She first interviewed Judge Marks, then-president of NAIJ, for “Understanding the Crisis in Our Immigration Courts” (Spring 2015).
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Every judge, lawyer, and law student in America, and particularly AG Garland and his lieutenants, should read Kathleen’s interview with Judge Marks (full version at link) about what “American judging” should, and could, be — all the way up to the Supremes!
Dana, my friend and colleague, your inspiring career is yet more evidence of the “then-available” talent who could have led long-overdue change at EOIR and the BIA. Like you, much of that talent has moved on to our Round Table, and we’re stuck with the dysfunctional mess at EOIR. But, others are arising in your image to fight for justice, sanity, and humanity from “the retail level on up” in our Federal Courts.
I will always think of you as the “Founding Mother of US Asylum Law” because of your stellar advocacy in Cardoza-Fonseca and your unending, unapologetic, and highly vocal commitment to due process, independent thinking, and judicial excellence.
As you probably remember, I was in Court for your OA in Cardoza-Fonseca, sitting at the SG’s table as you won the day for your client. My “client,” INS, “lost” that day. But, American justice, due process, and human rights won!
As it was for you and those many you inspired, “realizing the promise of Cardoza-Fonseca” became the “guiding light” of my subsequent judicial career at EOIR, on both the appellate and trial benches. Despite the more than quarter-century since Cardoza, the battle to make judges at all levels actually follow its dictates, and perhaps more importantly, its generous humanitarian spirit, is far from won!
Congrats on your new position as “NanaDana.” 😎 I always look forward to working with you and our amazing Round Table colleagues to give due process and fundamental fairness an unyielding voice before courts throughout America, and to continue the unending fight for best judicial practices in a life-determining system that has “lost its way” as millions needlessly suffer!”
We “Knightesses and Knights of our Round Table” 🛡⚔️ will “never let the bastards grind us down!” You continue to inspire all of us in our never ending quest for justice for the most vulnerable individuals among us!
“NanaDana’s” fierce fighting spirit continues to inspire our Round Table of Former Immigration Judges to new heights in the never-ending pursuit of “due process and fundamental fairness for all!” (Ironically, the latter was actually EOIR’s long-abandoned “vision!” )
“Judge” Roy Bean (1825-1903) American Saloon Keeper & “Jurist” Public Realm His reputation for “rough justice” in the West would be right at home in the “Asylum Free Zones” of Garland’s EOIR. Bean “was once trying a Mexican on a charge of horse stealing and his charge was the shortest on record: Gentlemen of the Jury, there’s a greaser in the box and a hoss missing. You know your duty, and they did.”
Here’s the latest analysis of Garland’s ongoing abuse of his office from Austin Kocher, PhD, at TRAC:
Has Alfred E. Neumann been “reborn” as Judge Merrick Garland? “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?” PHOTO: Wikipedia Commons
If someone NOT Merrick “What Me Worry” Garland (the “Alfred E. Neumann of Biden’s immigration bureaucracy”) took a look at the data, one major thing would jump out! There are likely more than 400,000 refugees entitled to asylum sitting in Garland’s 770,000 case asylum backlog (52% x 770,000). (The asylum backlog at EOIR is a “subset” of Garland’s largely self-inflicted, ever mushrooming, nearly 2 million case EOIR backlog — more judges have produced more backlog, so that’s likely NOT the answer here).
And, this is in a system currently governed by skewed anti-asylum BIA “precedents” and a chronic “anti-asylum culture” actively encouraged and fed by the Trump Administration. In a properly staffed and functioning court system with qualified, due-process oriented, judges and an expert BIA that enforced some decisional consistency and properly and generously interpreted asylum law, a “grant rate” of 75% or more would be a plausible expectation.
Given the obvious (and I would argue intentional) lack of reliable data on how a legitimate asylum system, one consisting at all levels of judges with well-recognized expertise in asylum law and human rights, and overseen by competent, due-process-oriented judicial administrators, might function, the 75% figure is just an “educated guesstimate.” But, it matches my own personal experience over 13 years on the bench in the (now defunct) Arlington Immigration Court.
It’s also in line with my recent conversations with the head of one of the largest NGOs in the DMV area involved in meeting busses and counseling those “orbited” from the Southern border by the racist/nativist GOP Govs that Biden, curiously, has chosen to run our domestic refugee resettlement program. This is a person who, unlike Garland, his lieutenants, and most of the other politicos and nativist blowhards participating in the “border travesty,” actually spent years of a career representing individuals in Immigration Court. They estimated that “at least 70%” of the “arriving bus riders” had very viable asylum claims.
This is a far cry from the nativist, restrictionist myths promoted by both the Trump and Biden Administrations — obviously to cover up their gross human rights violations in knowingly and illegally returning hundreds of thousands of legal refugees to danger zones! Many human rights experts would consider such gross misconduct to be “crimes against humanity.” Consequently, it doesn’t take much imagination to see why self-interested scofflaw officials like Garland, Mayorkas, and White House advisors seek to manipulate the system to keep the asylum grant rates artificially low while eschewing proper, realistically robust use of the overseas refugee program to take the pressure off the border — by acting legally rather than illegally!
Almost all the EOIR asylum backlog consists of “regular docket” (I use this term lightly with EOIR where “normalcy” is unknown) cases. Those are refugees who have had time to get lawyers, adequately prepare, document their cases, but are stuck in Garland’s chronically dysfunctional system. Consequently, they are “denied by delay” legal immigration status, a chance to get green cards, and to eventually qualify for citizenship. The American economy is denied an important source of legal workers who should be part of our permanent workforce and well on their way to full participation in our political system and society!
An expert looking at this system would see a “golden opportunity” to move most of the backlogged “easily grantable” asylum cases out of the system with stipulated grants or short hearings (the kind you actually might be able to do 3-4 a day without stepping on anyone’s due-processrights or driving the private bar nuts). These cases would also avoid the BIA’s appellate backlog, as well as eliminating unnecessary workload in the U.S. Circuit Courts (which already have their own inconsistency, rubber stamp, and bias issues in the human rights/racial justice area that seem to be getting worse, not better).
Knocking 400,000+ cases off the backlog wouldn’t completely solve Garland’s 2 million case backlog problem — only a complete “house cleaning” at EOIR, replacing many of the current bureaucrats with competent leaders and expert Immigration Judges well-versed in asylum law, will do that. But, cutting EOIR’s backlog by 20% (and the asylum backlog by over 50%) without stomping on anyone’s rights, while bolstering much-needed legal immigration, and harnessing the strengths of the private/pro bono bar, is nothing to “sneeze at!” That’s particularly true in comparison with Garland’s two years of mindless “designed to fail” gimmicks and astounding mismanagement, which have produced exactly the opposite results!
How bad has Garland’s leadership been at on human rights, due process, and racial justice at DOJ. A number of seasoned asylum practitioners have told me that today’s EOIR, also suffering from a tidal wave of Garland’s“Aimless Docket Reshuffling” — is actually significantly worse than it was under Trump! That’s right, Garland’s tone-deaf incompetence has exceeded the disorder and systemic unfairness caused by overt xenophobia, anti-asylum bias, misogyny, “dumbing down,” and enforcement-biased “weaponization” of the Sessions/Barr years.
As for Dr. Kocher’s cogent observation that input from the Immigration Judges who actually decide these cases is a “missing ingredient,” good luck with that, my friend! Perhaps understandably in light of his unseemly failures at EOIR, Garland has taken EOIR’s traditional opaqueness and “muzzling” of Immigration Judges to new heights — even barring their participation in CLE events aimed at improving the level of practice before his courts.
Apparently, “studied incompetence” in a Democratic Administration can be even worse than the “malicious incompetence” of the Trump Kakistocracy — at least where immigrants rights/human rights/racial justice/ women’s rights are concerned at EOIR. That’s an astounding observation! One that I actually never thought I’d hear from practitioners!
The only way for human rights and racial justice experts and advocates to “communicate” with Garland in his “ivory tower” is to ‘“sue his tail” in court! Judge Sullivan’s recent opinion finding Title 42 illegal incorporates the very facts and law used by human rights experts and advocates in years of fruitless pleading and begging Garland to “cease and desist” his support for unlawful conduct and “just follow the law.” The latter seems like a modest “no-brainer” request to a guy once nominated by an Dem President for the Supremes.
Waiting for Merrick Garland to fix the mess at EOIR to provide even a bare minimum of due process and rational administration is like waiting for the guy pictured below. Frustrated and “Garland-weary” as they might be, human rights advocates should take it to heart and act accordingly!
Waiting for Merrick Garland and his “clueless crew” at DOJ to fix the dysfunctional Immigration Courts will be an exercise in futility. He only pays attention when ordered by a Federal Judge, which, somewhat ironically, he used to be. But, he’s proven “beyond a reasonable doubt” that he is unqualified to run one of the most important and life-determining Federal Judiciaries — one where due process has been buried beneath an avalanche of expediency, incompetency, intellectual dishonesty, and dumb gimmicks. When will “enough be enough?” https://creativecommons.org/licenses/by-sa/3.0
A federal judge on Tuesday struck down a Donald Trump-era policy used by U.S. border officials to quickly expel migrants because of the covid pandemic, saying the ban had little proven benefit to public health even as it shunted migrants to dangerous places.
U.S. District Judge Emmet G. Sullivan in the District of Columbia vacated the order known as Title 42, effectively restoring asylum seekers’ access to the borders for the first time since the Trump administration issued it during the earliest days of the pandemic.
The decision — which takes effect immediately — knocks down one of the last remaining barriers to asylum from the Trump administration, advocates for immigrants said. It also poses an immediate logistical challenge for the Biden administration after two consecutive years of record apprehensions on the U.S.-Mexico border, with the possibility that the numbers could grow.
Biden officials have long worried about a mass rush to the border creating an emergency similar to the one that occurred in Del Rio, Texas, in Sept. 2021, when thousands of migrants crossed illegally and overwhelmed U.S. agents, creating a squalid camp on the banks of the Rio Grande that embarrassed the Biden administration.
Sullivan’s ruling also comes days after top border official Chris Magnus resigned under pressure after clashing with Homeland Security Secretary Alejandro Mayorkas.
The Justice Department and the Department of Homeland Security had no immediate response to the ruling.
The American Civil Liberties Union, one of the organizations that brought the lawsuit on behalf of migrants, said Sullivan’s decision to vacate the Title 42 policy means the policy ends for all migrants, including families and adults traveling without children.
“Title 42 unfortunately had a long shelf life but has finally been ended, and that will mean enormous relief to desperate asylum seekers,” said ACLU lawyer Lee Gelernt.
Sullivan also made clear that that he would not stay his order pending appeal, leaving it to a higher court to do so if the Biden administration sought more time to address the ruling.
. . . .
Key Quote:
Sullivan wrote that the federal officials knew the order “would likely expel migrants to locations with a ‘high probability’ of ‘persecution, torture, violent assaults, or rape’ ” — and did so anyway.
“It is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals,” Sullivan wrote. “It is undisputed that the impact on migrants was indeed dire.”
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The horrific consequences for lawful asylum seekers subjected to this unlawful policy have indeed been “dire:” rape, assault, kidnapping, beating, torture, extortion, starvation, illness, sickness, death, family separation, despair, to name a few.
By contrast, there have been NO consequences for Stephen Miller and the other Trump Administration officials who fabricated and directed this ruse on the justice system and attack on humanity and the rule of law! Nor have there been any consequences for lower level officials who “went along to get along” with what they knew or should have knownto be deadly abuses of our laws.
Additionally, Biden officials who continued to violate the law and even concocted ways of expanding its illegal and immoral use have escaped accountability and continue in their jobs. DOJ lawyers who failed to do “due diligence” and defended a policy based on pretext, misrepresentations of fact, racism, and xenophobia have also continued to operate in the “ethical twilight zone” that normally would have serious professional consequences!
Of course the whole history of the Title 42 charade ☠️🤮has been one of one step forward and three steps back. The corrupt decision-making extends to unqualified right-wing zealots with lifetime sinecures on the Federal Article III bench and to equally corrupt GOP state AG’s for their dishonest scheme to force continued illegal Title 42expulsions.
So, despite these “crimes against humanity,” don’t expect that “heads will roll!” Given the current sorry state of our Federal Courts and the DOJ, it’s not certain that Judge Sullivan’s order will actually have effect or that asylum seekers will ever get the fundamentally fair and humane treatment to which they are entitled.
But, I am certain that this will eventually go down in history as one of the most disgraceful intentional abrogations of law, with the most drastic consequences for humanity and our nation’s reputation, in 21st Century legal history!
It’s also worthy of note that rather than getting the asylum system properly staffed and trained, bringing in Immigration Judges with the required expertise, installing a BIA of expert judges capable of issuing correct, realistic, generous, practical asylum precedents, working cooperatively with the private bar to facilitate representation, and developing an orderly process for resettlement (away from the border) of asylum applicants who pass credible fear, Garland, Mayorkas, and a White House officials have dithered away two years of time without getting the necessary robust, fair, expert, efficient, timely asylum adjudication system up and running!
The advice and pleas of experts and advocates have been “tuned out” or ignored by those in charge! Now, as all of us predicted, the “chickens have come home to roost” for the Administration’s indifferent, incompetent, and lackadaisical approach to the biggest racial justice and human rights crisis facing our nation.
Thanks Judge Sullivan! Thanks ACLU! Apologies to the hundreds of thousands of asylum seekers wronged by the cowardly failure of America to uphold our laws, Constitution, and international obligations — that “subset” of victims who are still alive despite our Government’s grotesque misconduct!
This California town ran its Chinese residents out. Now the story is finally being told
Mary Chin stands beside a mural in downtown Eureka, Calif., depicting her late husband, Ben Chin, who was said to be the first Chinese American to move to the town in seven decades. (Myung J. Chun / Los Angeles Times)
EUREKA, Calif. — Beauty drew Brieanne Mirjah D’Souza to Eureka.
In 2018, she and her husband — Michigan natives who had been living for a spell in the Bay Area — moved up to this chilly old timber town to build a life beneath the redwoods and by the sea.
But last winter, pregnant with her first child, D’Souza began reflecting on this pretty place she would bring her son into.
D’Souza, a 32-year-old digital marketer, is of Chinese and West Indian descent. And Humboldt County is very white.
As D’Souza’s belly grew and the headlines told of a dramatic surge in anti-Asian hate crimes amid the COVID-19 pandemic, D’Souza set out to find other people who looked like her.
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A fledgling group started meeting over Zoom and trading emails. They learned there had once been a Chinatown in Eureka. Maybe they could commemorate it with a plaque, they figured.
But where had it gone?
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In the late 19th century, Chinatown occupied a single block in the middle of the remote, misty port town.
A historical photo is held up at the corner of 4th and E Streets in Eureka during a guided tour of the city’s old Chinatown, which stood on the right in both images. (Myung J. Chun / Los Angeles Times)
A few hundred Asian immigrants — mostly men — lived in Eureka after a federal law barred immigration from China in 1882.
They toiled in redwood logging camps, laundries and restaurants. They were nannies and household servants and vegetable growers. They were former gold prospectors priced out of the work because of a predatory state tax on foreign miners.
When the economy soured in the 1880s, white people blamed them, claiming they stole jobs. Newspapers whipped up anti-Chinese sentiment.
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“There were a lot of stereotypes: that Chinese people were diseased, they were morally corrupt, they would not assimilate to the rest of American society at the time,” said Katie Buesch, a former director and curator at the Clarke Historical Museum in Eureka.
That sentiment was par for the course in the Golden State at the time.
Some California city officials are now acknowledging the ugly past — a counter-movement to red-state politicians pushing to ban books and limit the teaching of history that involves race.
Antioch and San Jose apologized last year for burning their Chinatowns in the late 1800s. San Francisco apologized for barring Chinese children from public schools.
Los Angeles is working on a memorial to commemorate an 1871 massacre in which at least 18 Chinese people were fatally shot or hanged. And in Pacific Grove earlier this year, organizers canceled a pageant that had long featured performers in yellowface.
In Humboldt County, Buesch, who had put together a small museum exhibit on Eureka’s Chinese community just before the pandemic, was struck by an 1885 article in the Daily Times-Telephone newspaper about Chinatown.
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“The time has come when these plague spots should be removed,” the newspaper wrote.
On Feb. 5, 1885, the newspaper, which called the Chinese neighborhood a violent, drug-addled “leper’s colony,” wrote that it would probably be “goodbye to Chinatown” if an “unoffending white man” were killed there.
A Chinese vegetable merchant carries his goods in Eureka before the Chinese expulsion in 1885.(Courtesy of Jean Pfaelzer)
The very next day, a white Eureka city councilman who lived near Chinatown was walking past. Shots rang out between what is said to be two Chinese men, although details are scant. A stray bullet killed the councilman.
An angry mob of more than 600 white people — loggers, fishermen, miners and merchants — filled the streets, said Jean Pfaelzer, author of “Driven Out: The Forgotten War Against Chinese Americans.”
A gallows was erected. An effigy of a Chinese man swung from a noose.
Someone suggested slaughtering the Chinese, but that was deemed un-Christian, Pfaelzer said. Others said they should burn Chinatown, but its scrap wood buildings belonged to a white man, since the Chinese were not allowed to own property.
They instead appointed a committee of 15 men to go into Chinatown and order everyone to leave. The sheriff commissioned wagons to gather their belongings. Armed vigilantes roamed on horseback.
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According the the Clarke Museum website, a group of Chinese and Japanese people were secretly brought in to work in a local cannery but were expelled after being found out. They were sent by barge to an island in Humboldt Bay before catching a ship back to Washington. (Myung J. Chun / Los Angeles Times)
The next morning, about 300 Chinese people were marched to the wharf and eventually loaded onto two steamships: The Humboldt and The City of Chester.
They were shipped to San Francisco, where no one knew they were coming, Pfaelzer said. They disembarked and fled.
A few dozen sued the city of Eureka, but a judge tossed out their lawsuit.
The purge, which became known as the “Eureka method,” was copied in other towns across California and hailed by white people as nonviolent.
By 1890, the business directory for Humboldt County was boasting that it was “the only county in the state containing no Chinamen.” A Eureka law, in effect until the mid-20th century, banned Chinese people from working in the city.
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Eureka’s Chinatown consisted of one square block, bottom center, in what is now the city’s downtown. The city forced expelled its Chinese residents in 1885 after the shooting death of a white city councilman. (Myung J. Chun / Los Angeles Times)
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In the spring of 2021, a gunman killed eight people, including six women of Asian descent, at three Atlanta-area spas.
The shootings sparked an outpouring of activism and calls to #StopAsianHate. They followed months of heightened attacks on Asian Americans amid a political climate in which then-President Trump was calling the coronavirus the “Chinese virus” and “kung flu.”
Around that time, D’Souza had set up an Instagram account she called APA Humboldt.
D’Souza quickly heard from a local group of Asian Americans who had organized a series of Japanese taiko drum performances before the pandemic.
They began meeting virtually. Their numbers grew. There was a real hunger for community in this county where only 3% of the population is Asian or Pacific Islander.
The group delved into local history, poring through legal briefs, census data, letters, maps and journals to piece together the little-known story of Eureka’s Chinatown, which had been told mostly from a white perspective.
“We all had an awakening of sorts,” D’Souza said. “There was no awareness that there was once a thriving Chinese community here … and they faced the same kind of discrimination and racism that we’re still facing today.”
D’Souza figured they would install a plaque before her baby came, and that would be that.
Eureka’s Chinatown, pictured in the late 19th century.(Courtesy of Jean Pfaelzer)
With support from the city, they erected signs describing the expulsion in Historic Chinatown — which, today, is a downtown business district with banks, parking lots and no trace of the neighborhood that once stood.
There are plans for a monument.
And — with a mural and a renamed roadway — the Eureka Chinatown Project honored two local Chinese American pioneers whose legacies were too little known.
. . . .
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Read the complete article at the link.
We can’t build for a better future on the positive foundations of America without honestly acknowledging, discussing, and addressing the racism and injustices of the past. The GOP “history deniers” are hamstringing our nation!
You can trace today’s rise in anti-Asian-American hate crimes, anti-Asian racial slurs from a former President, and snarky “anti-woke proclamations” from DeSantis directly to the ugliest truths about America’s past.
And, just because the latter can speak in complete sentences doesn’t mean that he isn’t just as dangerous to democracy and unsuited to public office as Donald Trump! White Nationalist theocracy and lies are bad for our country no matter who utters them.
DeSantis’s self-proclaimed “Red Florida Paradise” also relies on the hard work of migrants, many of them undocumented, and some other charitable out of state benefactors to literally remain above water: Joe Biden, Democrats, and lots of “Blue State taxpayers:”
Gov. Ron DeSantis has been a persistent critic of President Joe Biden on nearly every policy front as he moves toward a likely potential 2024 presidential bid. But the Florida Republican likes one thing about the president: his wallet.
DeSantis is every bit the charlatan, flim-flam man, would-be theocrat, and purveyor of a whitewashed version of US “history that never was” as Trump. (Concededly, unlike Trump, he actually has won the popular vote in elections.) Under our system, if Floridians have the colossal bad judgement to elect him, that’s their call (although at some point, it could get tiresome for the rest of us to keep bailing them out). But, they have no right to inflict him on the rest of our nation. For the sake of democracy, humanity, and integrity, the rest of us must insure that DeSantis remains where he belongs — below the “Florida-Georgia line.”
Along the 2,000-mile (3,219km) boundary between the US and Mexico, the 2022 fiscal year proved the deadliest on record for people trying to make unauthorized crossings of this heavily patrolled international line.
In Eagle Pass’s regional enforcement sector alone, border patrol agents discovered more than 200 dead migrants between October 2021 and the end of July, compared to an already heartbreaking 34 bodies during the entire 2020 fiscal year.
Ahead of this week’s crucial midterm elections, Republicans have manipulated these harrowing statistics as yet another opportunity to make much ado about what various rightwing players call Joe Biden’s “open border policies”, accusing his administration of incompetence that is causing “body bags [to] keep piling up”.
It’s close to sealed by a hostile combination of pandemic-era public health measures cynically retooled as federal immigration control and mass policing by state troops who arrest, jail and criminalize migrants.
Cruelly, these hardline deterrence mechanisms advanced by both Democrats and Republicans have probably only made the US’s south-west border bloodier.
Deterrence as a strategy has informed some of the US’s most controversial immigration policies, from separating families, to detaining children, to stranding asylum seekers in dangerous Mexican border towns.
But desperate people still find ways to make it on to US soil: last fiscal year, Customs and Border Protection documented nearly 2.38m enforcement encounters at the southern border, a record high causing headaches for Biden as conservatives accuse the president of being “lax” on border crime.
The truth is more complex, and not at all lax. More than a million of last fiscal year’s border enforcement encounters were processed under Title 42, now invoked as a federal immigration enforcement tool but originally disguised as a public health measure amid the Covid-19 pandemic.
The policy allowed the Trump and now the Biden administrations to expel huge numbers of people from the US without even letting them ask for asylum, seemingly in violation of domestic and international law.
Far from ending unauthorized migration, the invocation of Title 42 has in fact dramatically inflated the number of encounters at the US-Mexico border, as people who are expelled feel compelled to cross again – and again, and again. Sometimes, relentless migrants have been so determined to complete their journeys that they have risked life and limb dozens of times, fueling a political and humanitarian disaster.
And both parties continue to police people seeking security and opportunity over violence, persecution and poverty as if they’re national security threats.
In the shadow of it all, the corpses amass.
Back in Eagle Pass, locals like Rosalinda Medrano who have lived for decades along a porous border understand that migrants have and will always come or, increasingly, die trying.
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“Even though there’s one fence, and another fence, and so many troopers, and the national guard, and you name it – Border Patrol, here and there and everywhere – it’s not gonna stop these families,” she said, adding simply: “They want a better life.”
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Read the complete article at the link, in which Alexandra points to the numerous achievable solutions that both parties eschew — for political reasons — some cynical, dishonest, and racist (GOP) — others cowardly (Dems). None of what Alexandra reports will come as news to faithful readers of Courtside, or, indeed, to anyone who has taken the time to actually study and reflect on America’s decades of expensive, inhumane, “deterrence policies.”
Fact is, existing law, if correctly applied and administered, offers some obvious ways to start solving the problem:
Robust realistic “overseas” refugee programs in the Western Hemisphere — 150,000 would be a modest start — rather than the piddling, restricted numbers now slowly doled out by the Biden Administration.
Reopen legal ports of entry to legal asylum seekers, as required by law, to incentivize and reward them for not seeking to cross between ports of entry.
Staff the Asylum Office and the Immigration Courts with real experts in asylum law (there are plenty of well-qualified lawyers now in the private sector) who are committed to due process and can rapidly recognize and grant the many meritorious cases. Then, individuals are admitted in legal status, on their way to green cards, rather than aimlessly wandering the US with government-issued packets of misinformation (or no information at all) waiting for hearings that will come either too soon or too late, but never in a reasonable manner and often with incorrect preordained results designed to abuse the legal system as an “enforcement deterrent.” (NOTE: To act as an incentive/reward for appearing at ports of entry, the asylum system must be credible, transparent, and timely — something that no Administration has achieved to date, but which is possible with more vision, leadership, and better personnel making decisions.)
Work with, bolster, support, and learn from the many NGOs in the U.S. to insure that asylum seekers are informed of their obligations, represented on their applications, and resettled, mostly away from the borders to areas that need them, in an orderly fashion.
“Even though there’s one fence, and another fence, and so many troopers, and the national guard, and you name it – Border Patrol, here and there and everywhere – it’s not gonna stop these families,” she said, adding simply: “They want a better life.”
We can, and must, do better than “more body bags” as a matter of national policy! Migrants aren’t going to stop coming. That, we can’t change in the long run — no matter how many lies, myths, and distortions nativists throw out there, and no matter how fast spineless Dem politicos run from or attempt to hide the truth. But, we can deal with reality in a more humane, practical, realistic manner that will serve our nation’s, and humanity’s, interests into the future.
Too many Biden Administration Immigration officials appear to share Stephen Miller’s “upside down” view of the Statue of Liberty, in whole or in part! Why can’t they just follow the Refugee Act of 1980 and establish the robust, timely, generous legal approach to refugees and asylum seekers that best serves America?Bill Frelick Director Refugee and Migrant Rights Division Human Rights Watch
Refugees are people who flee for their lives. Escape from danger and abuse is usually chaotic, sudden, desperate. The Biden administration’s rollout of its new policy for Venezuelan refugees seems oblivious to this refugee reality and risks doing more harm than good.
. . . .
Announcing the program on Oct. 12, Homeland Security Secretary Alejandro N. Mayorkas said Venezuelans who enter irregularly “will be returned to Mexico.”
He didn’t mention — and appeared to disregard — U.S. law, which recognizes that anyone who arrives in the United States has the right to seek asylum “whether or not at a designated port of arrival” and “irrespective of such alien’s status.”
The impact of this announcement, “effective immediately,” was the summary return to Mexico without examination of their asylum claims of any Venezuelans entering the United States without authorization. Mexico has given no assurances that it will examine their refugee claims or provide asylum to those who fear return to Venezuela. In fact, the 4,050 Venezuelans expelled to Mexico since the implementation of the policy have been given visas valid for only one week and instructed to leave the country.
. . . .
With the Biden administration’s plan in effect, we might as well apply a blowtorch to Emma Lazarus’s welcoming poem at the foot of the Statue of Liberty and chisel in a new message: “Give me your well-rested, your well-to-do, your properly ticketed jet-setters yearning to breathe free.”
Read Bill’s complete op-ed act the link. Bill is one of many “practical experts” who would do a much better job than current Administration politicos in establishing and running a refugee and asylum program that would comply with the law, due process, human dignity, and America’s best interests.Why is Biden following the lead of his “clueless (and spineless) crew?”
The Refugee Act of 1980was enacted and amended to deal with these situations! Robust, realistic refugee programs outside the U.S. should encourage many refugees to apply, be screened abroad, and admitted legally.
Other refugees arriving at our border can be promptly screened for credible fear. Those who fail that test can be summarily removed in accordance with existing law.
Those who pass that test should have access to counsel and receive timely, expert adjudications, with full appeal rights, under the generous “well founded fear” (1 in 10 chance) international standard established by the Refugee Act. See, e.g., INS v. Cardoza-Fonseca (Supremes); Matter of Mogharrabi (BIA).
It’s not “rocket science!” With dynamic, experienced refugee experts running the system and “practical scholars” with expertise in refugee processing and human rights laws serving as USCIS Asylum Officers and EOIR judges at the trial and appellate levels the legal system should be flexible enough to deal with all refugee situations in an orderly manner.
Many, probably a majority, of today’s asylum seekers should be granted asylum and admitted to the U.S. in full legal status, authorized to work, and on their way to green cards and eventual citizenship. Like those admitted from abroad, they could also be made eligible for certain resettlement assistance to facilitate integration into American communities who undoubtedly will benefit from their presence.
The more robust, realistic, and timely our overseas refugee programs become, the fewer refugees who will be forced to apply for asylum at our borders. Also, real, bold, dynamic humanitarian leadership, including accepting our fair share of refugees and asylees, could persuade other countries signatory to the Geneva Refugee Convention to do likewise.
No insurmountable backlogs; no bewildered individuals wandering around the U.S. in limbo waiting for hearings that will never happen; few “no shows;” no long-term detention; no botched, biased “any reason to deny” decisions from unqualified officers and judges leading to years of litigation cluttering our legal system, no diverting Border Patrol resources from real law enforcement, no refugees huddled under bridges or sitting on street corners in Mexico!
It’s not “pie in the sky!” It’s the way our legal system could and should work with competent leadership and the very best available adjudicators and judges! It would support the proper, important role of refugees as an essential component of LEGAL IMMIGRATION, not an “exception” or “loophole” as racists and nativists like to falsely argue.
Instead of demonstrating the competence and integrity to use existing law to deal with refugee and asylum situations, the Biden Administration resorts to ad hoc political gimmicks. Essentially, the “RA80” has been repealed “administratively.” Effectively, we’re back to the “ad hoc” arbitrary approaches we used prior to ‘80 (which I worked on during the Ford Administration, and where I recollect I first heard of Bill Frelick).
I doubt that the late Senator Ted Kennedy, former Rep. Elizabeth Holtzman, and the rest of the group who helped shepherd the Refugee Act of 1980 through Congress would have thought that using Border Patrol Agents as Asylum Officers or packing the Immigration Courts and the BIA with judges prone to deny almost every asylum claim, regardless of facts or proper legal standards, was the “key to success!”
Congress specifically intended to eliminate the use of parole to deal with refugees except in extremely unusual circumstances, not present here. Biden’s latest ill-advised gimmick violates that premise. It’s totally inexcusable, as the refugee flow from Venezuela is neither new nor unpredictable. I was granting Venezuelan asylum cases before I retired in June 2016. Even then, there were legions of documentation, much of it generated by the USG, condemning the repressive regime in Venezuela and documenting the persecution of those who resisted!
A better AG would say “No” to these improper evasions of existing law. But, we have Merrick “What Me Worry” Garland! His botching of the Immigration Courts has been combined with a gross failure to stand up for equal justice for migrants (particularly those of color) across the board! America and refugees deserve better from our chief lawyer.
The Refugee Act of 1980 actually provides all the tools and flexibility the Biden Administration needs to establish order on the border and properly and fairly process refugees and asylees. Why won’t they use them?
AG Merrick Garland has “looked the other way” while the Biden Administration flaunts applicable protection laws in and outside the U.S. He also runs a dysfunctional “court system” where anti-asylum bias, worst practices, poorly qualified decision makers, and grotesque inconsistencies undermine the legal rights of asylum seekers and other refugees. Doesn’t America deserve more competence from its top lawyer? PHOTO: Wikipedia Commons
Asylum seekers and lawyers must cross hostile territory, with a dearth of naturally-occurring due process, to successfully negotiate Garland’s dysfunctional EOIR. Most never make it! Death Valley Creative Commons
INSIDE THE NUMBERS FOR THE TRAC 10-09-22 IJ REPORT
NOTE: Does not account for: IJs no longer on the bench; IJs appearing in more than one location; differences among detained, non-detained dockets; profiles of high and non-high-denying courts excluded locations with fewer than four IJs listed. No guarantee of accuracy for my “hand count” — but, in accordance with the old government motto, “I did the best I could under the circumstances.”
Precipitous unexplained rise in nationwide denial rate since FY 2012, from 44.5% to 63.3%, even though human rights conditions in most so-called “sending countries” remained horrible and in some cases significantly deteriorated.See for FY2012 stats, https://trac.syr.edu/immigration/reports/306/
Lots of “Nay-Sayers” on the Immigration Bench:
92 IJs denied asylum 90% or more of the time.
Another 94 IJs denied 85-90% of the time.
Total of 186 “High Deniers” — those who denied 85% or more — significantly (21.7% or more) above already inexplicably high 63.3% national rate.
High Denying Courts (majority of IJs listed denied 85%+)
Atlanta (including ATD-Detained) (10 of 10 IJs)
Charlotte (6 of 8 IJs)
Conroe (5 of 9 IJs)
Houston (19 of 22 IJs)
Houston-Greenspoint (4 of 5 IJs)
Jena (6 of 6 IJs)
LA – North (8 of 11 IJs)
Los Fresnos (5 of 6 IJs)
Lumpkin (5 of 7 IJs)
Memphis (6 of 11 IJs)
Miami (20 of 31 IJs)
Miamii – Krome (7 of 9 IJs)
Non-High-Denying Courts (all, or almost all, listed IJs denied less than 85%)
Adelanto (5 IJs)
Arlington (3 of 25 IJs High Deniers)
Bloomington (1 of 13 IJs High Denier)
Boston (1 of 15 IJs High Denier)
Baltimore (1 of 16 IJs High Denier)
Batavia (1 of 4 IJs High Denier)
Chicago (1 of 16 IJs High Denier)
Denver (2 of 8 IJs High Deniers)
Detroit (4 IJs)
Elizabeth (5 IJs)
Imperial (5 IJs)
New York (46 IJs, 0 High Deniers) **
New York Detained (17 IJs, 1 High Denier)
Newark (3 of 16 IJs High Deniers)
Otay Mesa (7 IJs)
Pearsall (5 IJs)
Philadelphia (8 IJs)
Portland OR (4 IJs)
San Francisco (2 of 27 High Deniers)
Seattle (8 IJs)
Tacoma (5 IJs)
Van Nuys (1 of 7 IJs High Denier)
Telling stats:99.1%, 97.4%, 94.3% 90.4% — Asylum denial rates for four BIA Appellate Immigration Judges listed in the chart who continue to serve on Garland’s BIA. No wonder asylum seekers are saddled with bad law and sloppy, one-sided appellate review within Garland’s dysfunctional EOIR.
Best courts for asylum seekers: Generallyin the Northeast and Northern California: Arlington, Boston, Baltimore, New York, Philadelphia, Newark, San Francisco, Chicago.
Worst places for asylum seekers: Atlanta, Miami, Charlotte, Houston, Louisiana.
Mind-blowing stat: Compare the performance of IJs in Arlington and Baltimore with those in Charlotte, all within the 4th Circuit.
Observations:
New York, followed by San Francisco, appear to be the largest and best functioning courts with respect to actually following the generous standards for asylum seekers set forth by the Supremes in Cardoza-Fonseca, enunciated (but seldom followed) by the BIA in Mogharrabi, and to a large extent incorporated into sporadically enforced regulations.
In NY, 46 IJs, 0 High Deniers, 24 listed IJs granted at least 50% or more of the cases, denial rates ranging from 7.1% to 83.5%, still a rather mind-boggling range.The 24 IJs in the 50% or more grant range would seem like a good place for Garland to look for a model for rebuilding EOIR as a fair, due-process-oriented, subject matter expert court. He doesn’t seem interested in doing that, but it could be done with better leadership.
Although generally one would expect Detention Courts to be in the “High Denier” category, that’s not always the case. Courts like NY-Detained, Elizabeth, Adelanto, Otay Mesa, and Pearsall, all had some significant asylum grant rates. Conversely, several predominantly non-detained courts like Atlanta, Charlotte, Miami, and Houston were unseemly “dead zones” for asylum seekers. Garland’s failure to address the gross inconsistencies and abuses of asylum law going on in those and other “High Denier Courts” is disgraceful.
Overall, this is a statistical picture of a failed and dysfunctional court system where critical life or death decisions depend more on where you are and who your judge or BIA “panel” is than on the quality of the evidence or the state of the law. It has failed to deliver on its promise of being a court of widely acknowledged subject matter experts who will guarantee due process, fundamental fairness, and best judicial practices for all on some of the most important and life-determining decisions in American jurisprudence. It’s bad; and not significantly improving under the Dems!
As someone who has not represented asylum seekers in his “Houses of Horror” and who disdains engaging with those who have, Merrick Garland has shown that he is unqualified to be Attorney General of the US. His “Clown Courts” are now “Houses of Horror” that are no joke, particularly for those who have to deal with his beyond dysfuntional mess on a daily basis! Reaper Image: Hernan Fednan, Creative Commons License
I received this from a practitioner in response my earlier post about Garland’s ongoing scheduling and due process fiasco @ EOIR:
Glad you wrote this. It has been so hard. I am working 7 days a week and feel like I am losing my mind. Hopefully they start making changes, because how this is currently going is just not sustainable. Many of the Judges are not granting the continuances or making you go to the IH and giving you a hard time about it. Multiple Judges told me a month or even less notice was “plenty of time.” O boy!
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.
This gathering will bring together existing universal representation projects as well as groups considering starting/supporting new programs to reflect on best practices, adapting models while seeking to end detention, and ways to expand universal representation. The deadline to register for virtual attendance is tomorrow, October 25, 2022.
CNN: There were 227,547 migrant encounters along the US-Mexico border in September, up 12 percent from the previous month. The sharp increase in migrants from Venezuela, Cuba, and Nicaragua contributed to the uptick.
NYT: The number of Venezuelans entering the United States illegally dropped from about 1,200 a day to 150 in the first days after the Biden administration rolled out the new policies.
Reuters: The Ethiopian military and allies including troops from neighboring Eritrea have been battling forces from the northern region of Tigray on and off for two years. The conflict has killed thousands, displaced millions and left hundreds of thousands on the brink of famine.
The Hill: The Coast Guard stopped 185 Cubans on Friday, 94 on Saturday and 40 on Sunday. In total, the service says it has intercepted 921 Cubans since Oct. 1.
AP: Molina was among 13 migrants who recently arrived in the U.S. who agreed to share documents with The Associated Press that they received when they were released from U.S. custody while they seek asylum after crossing the border with Mexico. The AP found that most had no idea where they were going — nor did the people at the addresses listed on their paperwork.
CNN: It has been an endless cycle since President Joe Biden took office, according to multiple administration officials and sources close to the White House. Agency officials dream up a plan but then struggle to get White House approval, even as the problem compounds and Republicans step up their criticism. See also Immigrant advocates feel abandoned as they stare at Biden’s first-term checklist.
TRAC: According to new data obtained by TRAC through Freedom of Information Act (FOIA) requests, 480,301 people have been enrolled in ICE’s electronic monitoring program known as Alternatives to Detention (ATD) between August 2020 and June 2022. Many of these individuals, about 196,000, were previously active in ATD but have since ceased to be monitored under ATD, while 284,000 immigrants were still in ATD as of the end of June.
TRAC: As of the end of September 2022, Immigration Court judges dismissed a total of 63,586 cases because Department of Homeland Security officials, chiefly Border Patrol agents, are not filing the actual “Notice to Appear” (NTA) with the Immigration Court. Without a filed NTA, the Court has no jurisdiction to hear the case.
GBH: Police in New York arrested about 57,000 unlicensed drivers a year before state lawmakers narrowly approved the Green Light Law in 2019, making most immigrants eligible for licenses regardless of their legal status. In 2021, those arrests declined to about 30,000 and are on a similar pace for this year, according to records obtained by GBH News from the New York State Unified Court System.
Block Club: As a major city that attracts immigrants, Chicago specifically has been struggling to support the recent influx of asylum seekers. After dealing with cuts under the Trump administration and then the COVID-19 pandemic, immigrant serving organizations’ resources were already strained before the war in Ukraine and the U.S. withdrawal from Afghanistan and subsequent Taliban takeover sent thousands of refugees and asylum seekers to Chicago. The recent arrival of migrants from Texas has only added to the strain on organizations’ resources, including legal services and representation.
LexisNexis: He argues that the immigration judge (“IJ”) applied the incorrect legal standard in assessing whether he would more likely than not be tortured with the “consent or acquiescence” of the Honduran government, and that the BIA erred in its review of the IJ’s decision. He also argues that the BIA failed to consider whether the Honduran government would likely torture him and whether the MS-13 gang is a de facto government actor. We agree that the agency erred in these respects, and we therefore grant his petition for review, vacate the order of the BIA to the extent it denied him CAT relief as to Honduras, and remand for further proceedings consistent with this opinion.
CA1: We thus remand for the BIA to consider in the first instance whether Chavez’s proposed social group satisfies the requirements for constituting a particular social group under the INA to which he belongs. We express no opinion as to the merits of that issue other than to emphasize that the BIA cannot reject such a group based solely on its determination that current or former gang members cannot form a particular social group.
LexisNexis: The plain language of the statute, coupled with the reasoning of Mahn and Ramirez-Contreras, persuades us that the Pennsylvania felony fleeing statute does not qualify as turpitudinous. While the failing to stop for a police officer while crossing a state line is conduct that may put another in danger, it does not necessarily do so. The agency therefore erred in its conclusion that King was convicted of a CIMT.
LexisNexis: We conclude: (1) the record in this case compels the conclusion that two of De Leon’s attackers were police officers during a July 2011 incident; (2) De Leon showed acquiescence on the part of the Guatemalan government with respect to that incident because government officials— namely, the two police officers—directly participated in the incident; and (3) the record indicates that the IJ and BIA’s conclusion that De Leon is not likely to be subjected to torture with government acquiescence if returned to Guatemala disregards several important circumstances pertinent to evaluating the likelihood of future torture. In light of these errors, we grant the petition and remand for the agency to reconsider De Leon’s application for relief.
Law360: The state of Texas on Wednesday agreed to drop its challenge to a provision of the pandemic-era Title 42 policy which exempted unaccompanied minor migrants from being expelled from the U.S. during the COVID-19 pandemic.
Law360: An Illinois university professor and students can’t stop the Biden administration from enforcing a Trump-era policy barring student visas to Chinese nationals who are connected to any entity in China that supports its “military-civil fusion strategy,” a federal judge has ruled, denying the plaintiffs’ bid for a temporary restraining order.
Law360: A class of foreign-born military recruits who sought $10 million in attorney fees after winning back their expedited path to naturalization two years ago have settled for $2.75 million in the interest of conserving resources and avoiding further litigation risks.
AIC: Several legal services organizations filed a lawsuit today against Immigration and Customs Enforcement (ICE) for unlawfully preventing attorneys from communicating with immigrants detained in four detention facilities in Florida, Louisiana, Texas, and Arizona.
USCIS: U.S. Citizenship and Immigration Services is extending certain COVID-19-related flexibilities through Jan. 24, 2023, to assist applicants, petitioners, and requestors.
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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
But immigrant advocates note that some of their demands aren’t contingent on Congress or the courts, which makes it all the more exasperating as to why the administration has failed to deliver.
Some told POLITICO they simply wanted to see the administration remedy the harm caused by the Trump administration’s family separation policies. Others want to see follow-up on early proposals to protect immigrant workers in labor disputes.
The administration further angered the community last week when it announced plans to use the Trump-era pandemic policy, Title 42, to expel Venezuelan migrants crossing the border illegally as part of its new humanitarian parole program for them. Advocates decried the expansion of Title 42, which the Justice Department is fighting in court, as a continuation of the Trump “playbook.”
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The biggest, most significant “unforced error” by the Biden Administration has been the failure to “clean house” at EOIR and to reform the Immigration Courts to be a model of great, scholarly, humane judging, and a bastion of due process, fundamental fairness, and best judicial practices.
The Federalist Society and the Heritage Foundation set forth a successful “blueprint” for a far-right takeover of not only the Immigration Courts, but the entire Article III Judiciary. The Trump Administration adopted and successfully followed it!
By stark contrast, the Dems have failed to act timely and decisively on the one all-important Federal court system that they completely control! EOIR is a system that probably has more impact on the future of America — or whether there will even be a future America — than any court short of the Supremes!
Garland’s dismissive treatment of the informed views of immigration, human rights, and racial justice experts — who have had “hands on” experience with “America’s most dysfunctional courts” (the Immigration Courts) — has undermined our legal system and hamstrung almost every other progressive social justice initiative — from voting rights to abortion!
Garland’s failure to bring in experienced, dynamic, inspirational, respected, “Tier One” progressive practical scholar/leaders — folks like, for example, Dean Kevin Johnson, Professor Karen Musalo, Marielena Hincapie, Professor Phil Schrag, Margaret Stock, Professor Michele Pistone, and Judge Dana Leigh Marks — to clean up EOIR, kick some tail, and create “the best, fairest, most efficient courts in America” — is beyond inexcusable!
Dems are a self-inflicted mess when it comes to immigration — apparently because those “calling the shots” are more “Stephen Miller Lite” than they are Julian Castro and other Democrats who understand the essential importance of immigrants and of standing up for their rights — starting with the “retail level” of American justice.
As one frustrated experienced practitioner recently told me: “Biden’s entire immigration policies are a train wreck. He didn’t take the action he said he would. The practice of immigration law is soul crushing.”
“Soul crushing!” Those words should be a “wake up call” to the “tone deaf” policy honchos in the Administration. It shouldn’t be this way in a Dem Administration that was elected because they promised to do better and to stand up to the lies, myths, and false narratives of the nativist right! Once in power, Dems don’t seem to be able to distinguish between their friends and their adversaries. That’s proven NOT to be a “formula for success!”
For every immigrant/racial justice advocate that the Biden Administration wears down and demoralizes, two “new recruits” for the NDPA will arise, fully energized to keep litigating, winning, and raising hell until due process, human rights, fundamental fairness, and racial justice get some long overdue ACTION. Based on results to date, that means continuing to “beat Garland’s brains out” in court! The talent and creativity is obviously “out here,” not in Garland’s “Halls of (In)Justice!” Given that the “Stephen Miller Group” is also challenging the Administration in court, Garland will eventually find himself doing nothing but litigating immigration issues and getting walloped by both sides!
Meanwhile, as the Administration daily fails on immigration, human rights, and racial justice within the Executive Branch, my mailbox and message box are overflowing with desperate requests from Dem politicos, from Joe, Kamala, Nancy, and Chuck on down, for more donations of money and time. But, once the election cycle is over, our views are ignored, and we are treated as “PNGs.” Meanwhile, those who actively undermined immigrants’ rights and diminished due process are rewarded or retained in key positions where they continue to heap damage on the most vulnerable among us and frustrate their supporters.
Doesn’t seem like a sustainable future for the Democratic Party or for American democracy! But, hey, I’m just a retired Immigration Judge. Maybe my friends in the social justice movement enjoy being treated as “chopped liver” — frozen out and ignored — once they have helped elect Dems.
Republicans boldly “run on the big lie.” Meanwhile, Dems “run from the truth” about immigrants and their all-important role in America’s future! Go figure!
A quote from a recent NY Times article struck me as aptly summarizing the failure of leaders of both political parties to take an honest, creative, and practical approach to the opportunity presented by continuing human migration:
Immigration in the United States is broken, but one side of the fence wants to study the root causes of the problem, and don’t want to see what’s happening right here,” Mr. [John] Martin [deputy director of the Opportunity Center for the Homeless in El Paso] said, squinting beneath the brim of his cowboy hat. “And the other side wants to build a wall which would become a dam and eventually burst.”
Former AG Jeff “Gonzo Apocalypto” Sessions went to the border to preach his “gospel” of anti-immigrant hate, lies, nativist myths, and to “fire up” officials for one of the biggest unconstitutional abuses of prosecutorial authority in modern American history. Indeed, that is when one reporter coined the term “Gonzo Apocalypto” to describe the absolute nonsense spewing from Sessions’s mouth.
Sessions orchestrated a vile “strategy” of family separation from which the victims haven’t yet, and may never, fully recover. Interestingly, he has also escaped accountability.
By contrast, Garland, to my knowledge, has never bothered to visit the border and engage first-hand with the human carnage his failed “courts” and abuse of both the Constitution and asylum law inflict on others. He interacts neither with those outside government trying to uphold the rule of law nor the enforcement officials given “mission impossible.” He absolves himself from observing the effect that his failure to carry out orderly, humane, legally compliant refugee and asylum processing — using existing law rather than extralegal “gimmicks” — has on communities on the border and in the interior.
Sessions was a vile, intellectually dishonest, and immoral leader; Garland is simply a failed and disengaged one. But, the difference might not be readily apparent to most practitioners laboring in the foul trenches of Garland’s dysfunctional “court” system.
From my observation, there are folks out here interested in, and capable of, addressing the opportunities, potential benefits, and challenges presented by the inevitability of human migration in the 21st Century. Most of them, unlike “pontificating politicos,” have, at some point, “walked the walk” with those humans caught up in the migration dilemma, on both sides of the border.
But, leaders of neither party are interested in the constructive ideas and solutions developed within the rule of law that these unusually talented and dedicated individuals can offer. As long as that is the case, the realities of human migration, false promises, racially driven bias, and wildly inconsistent application of justice in America will continue to vex both politicians and the voters who put such “non-problem-solvers” in office!
Garland’s approach to immigrant justice in his courts harkens back to “the bad old days.” Yet he remains impervious — and unaccountable! The Wasp 1882-01-06 cover Slow but sure.jpg Slow, but Sure. Cartoon depicts Lady Justice riding a tortoise, about to hang a man. George Frederick Keller Public domain
Dean Kevin Johnson @ ImmigrationProf Blog previews upcoming book by Professor Maya Pagni Barack:
The publisher’s description of the book reads as follows:
“Each year, hundreds of thousands of migrants are moved through immigration court. With a national backlog surpassing one million cases, court hearings take years and most migrants will eventually be ordered deported. The Slow Violence of Immigration Court sheds light on the experiences of migrants from the “Northern Triangle” (Guatemala, Honduras, and El Salvador) as they navigate legal processes, deportation proceedings, immigration court, and the immigration system writ large.
Grounded in the illuminating stories of people facing deportation, the family members who support them, and the attorneys who defend them, The Slow Violence of Immigration Court invites readers to question matters of fairness and justice and the fear of living with the threat of deportation. Although the spectacle of violence created by family separation and deportation is perceived as extreme and unprecedented, these long legal proceedings are masked in the mundane and are often overlooked, ignored, and excused. In an urgent call to action, Maya Pagni Barak deftly demonstrates that deportation and family separation are not abhorrent anomalies, but are a routine, slow form of violence at the heart of the U.S. immigration system.”
KJ
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The ongoing national disgrace called “EOIR” continues to mete out injustice and inane bureaucratic nonsense under a DEMOCRATIC Administration that pledged to return the rule of law and humanity to our broken Immigration Court system!
That system is “headed and controlled” by a DEMOCRATIC AG, Merrick Garland. He is a former Federal Appellate Judge who certainly knows that what passes for “justice” in his broken “court” system is nothing of the sort! Also this ongoing debacle doesn’t say much good about Garland’s “lieutenants:” Deputy AG Lisa Monaco, Associate AG Vanita Gupta, Assistant AG for Civil Rights Kristen Clarke, and Solicitor General Elizabeth Prelogar.
They have all “looked the other way,” defended, or failed to condemn this travesty undermining our entire justice system, unfolding under their collective noses at EOIR every day! At some point in the future, all these guys will be “making the rounds” of major law firms, NGOs, universities, mainstream media, and corporations — seeking to “cash in” on their DOJ “experience.” Then, folks should remember how they ACTUALLY PERFORMED (or didn’t) when they had a chance to fix “America’s worst courts” — hotbeds of racial and ethnic injustice, purveyors of bad law, and a haven for ridiculously dysfunctional procedures!
Perhaps a suitable future for these willfully blind “public servants” would be to require them to spend the balance of their careers practicing on a pro bono basis before the “star chambers” they inflicted on others! See how they like being “scheduled,” with no or inadequate notice, to do 15 or 20 asylum cases per month; appearing before too many ill-qualified “judges” who have already decided to deny regardless of the law and facts; appealing to a captive “appellate court” dominated by individuals, working for the Executive, whose main “judicial qualification” was that they denied close to 100% of the asylum claims that came before them in Immigration Court and were known for their rude and dismissive treatment of asylum applicants and their lawyers! See, e.g., “Confronting The American Star Chamber . . .,” https://wp.me/p8eeJm-4Vm.,
Here’s Professor Barak’s bio from the U of Michigan-Dearborn website:
Maya Barak, Ph.D.
Associate Professor of Criminal Justice Studies
Maya P. Barak, PhD Assistant Professor of Criminal Justice Studies U. of Michigan -Dearborn PHOTO: UM-D Websitew
Teaching Areas: Arab American Studies, Criminology & Criminal Justice Studies, Master of Science in Criminology and Criminal Justice, Women’s & Gender Studies
Research Areas: Capital Punishment, Criminal Justice, Criminology, Gangs, Immigrants / Crimmigration, Legal Sociology, Procedural Justice, State-Corporate Crime
Biography and Education
I am an Assistant Professor of Criminology and Criminal Justice at the University of Michigan-Dearborn. I hold a PhD in Justice, Law and Criminology from American University (2016), an MA in Criminology and Criminal Justice from Eastern Michigan University (2011), and a BA in Social Anthropology and Peace and Social Justice from the University of Michigan (2009). My research brings together the areas of law, deviance, immigration, and power, utilizing interdisciplinary approaches that span the fields of criminology, law and society, and anthropology.
Gould, Jon B. and Maya Barak. 2019. Capital Defense: Inside the Lives of America’s Death Penalty Lawyers. New York: NYU Press.
Selected Articles
Barak, Maya. 2021. “Can You Hear Me Now? Attorney Perceptions of Interpretation, Technology, and Power in Immigration Court.” Journal on Migration and Human Security (https://doi.org/10.1177/23315024211034740).
Barak, Maya. 2021. “A Hollow Hope? The Empty Promise of Rights in the U.S. Immigration System”/ “¿Una promesa vacía? La ilusión de “los derechos” en el sistema migratorio de los Estados Unidos.” Las Cadenas Que Amamos: Una panorámica sobre el retroceso de Occidente a todos los niveles.
Barak, Maya. 2021. “Family Separation as State-Corporate Crime.” Journal of White Collar and Corporate Crime Vol. 2(2), 2021, pp. 109-121 (https://journals.sagepub.com/doi/10.1177/2631309X20982299). (2021 Outstanding Article or Book Chapter Award, Division of White-Collar and Corporate Crime, American Society of Criminology)
Barak, Maya. 2017. “Motherhood and Immigration Policy: How Immigration Law Shapes Central Americans’ Experience of Family.” In Forced Out and Fenced In: Immigration Tales from the Field, edited by Tanya Golash-Boza. New York: Oxford University Press.
Advocates and all Americans committed to racial justice and equal justice under law need to keep raising hell — and supporting progressive candidates — until this horrible system is replaced by a real court system, with subject matter expert judges, totally focused on delivering due process, fundamental fairness, and best judicial practices to all!
What’s happening to individuals (fellow humans, “persons” under our Constitution) and their lawyers at EOIR is NOT OK, nor is it acceptable from a DEMOCRATIC ADMINISTRATION!
Yeah, “there’s trouble, right here in River City!” And, it begins with “E,” ends with “R,” and rhymes with “EYORE!”
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Every fall, the U.S. president sets a refugee ceiling — the maximum number of refugees that may be resettled annually to the United States. For the new fiscal year that started Oct. 1, President Biden plans to resettle up to 125,000 refugees. Because of dramatic cuts to the refugee program during the prior administration, that goal will be hard to meet. A year ago, Biden set the same target, but more than 100,000 refugee slots went unused.
Historically, only the U.S. government, working with international refugee agencies and nonprofits, has determined which refugees will be admitted to the United States. That’s a mistake. To meet its goal of admitting 125,000 refugees this fiscal year, the United States should also promptly allow private sponsorships of refugees.
In February 2021, Biden issued an executive order to rebuild our refugee program, including through private refugee sponsorships. Subsequently, the State Department announced plans to start a pilot program, but the launch has been delayed. Over a year after the first announcement, and close to the end of 2022, the State Department has not decided on the funding of prospective partners or issued guidelines on the pilot. The clock is ticking.
Several countries, including Canada, Australia, Argentina, Germany, Ireland, New Zealand, the United Kingdom and Spain, already allow private sponsorships of refugees. Under private sponsorships, individuals and community groups collaborate to provide financial, emotional, and practical support for refugees. Some countries also empower sponsors to nominate specific refugees to enter and stay in their country.
Canada’s experience shows that private sponsorships can work. A 2020 study confirmed that privately-sponsored refugees are more likely than government-sponsored refugees to be working within the first year after entering Canada, with an employment rate at 90% for men and 71% for women. Findings from Canada also suggest that privately-sponsored refugees are more likely to stay at their initial destinations and private sponsorships could contribute to geographic dispersal of resettled refugees.
Americans are already engaged in private sponsorships for Afghans and Ukrainians through the Sponsor Circles initiative. This initiative supports Americans who decide to become sponsors by assisting them in the application process, offering temporary housing credits through Airbnb.org, as well as ongoing expert guidance and other sponsor tools and resources. More than 123,000 Americans have applied to financially sponsor Ukrainians, and over 87,000 Ukrainians have been granted permission to travel to the United States. The number of arrivals will likely exceed 100,000 by the end of 2022.
While technically most Ukrainians and Afghans have not entered the United States as refugees, lessons learned from the Sponsor Circles initiative could help establish a formal private refugee sponsorship model. Because most Ukrainians enter the United States under parole power, they can be authorized for travel in as little as two weeks. However, prospective sponsors have recently reported longer processing times.
To transform private sponsorships from an emergency one-time program to a formalized program where beneficiaries enter as refugees, with access to long-term residence and citizenship, the backlog issue becomes even more concerning. Current tests of 30-day streamlined visa processing for Afghans in Doha could be expanded and serve as a role model for both parolees and refugees. Moreover, to mobilize private refugee sponsors and enable them to prepare, the U.S. government needs to move forward quickly and specify a program design for private refugee sponsors, including financial requirements, sponsorship time commitments, and concrete sponsor responsibilities.
Once a private refugee sponsorship program gets launched, sponsors will have to accomplish challenging tasks. They will have to deal with language barriers, find affordable housing and help new refugees apply for public benefits. For such a process to work, it is important to set up communication streams between private refugee sponsors and existing refugee resettlement agencies.
Public-private partnerships work in other areas. For example, they have become an increasingly popular way to upgrade infrastructure and address the challenges of climate change. By incorporating a private refugee sponsorship model, the U.S. government can supplement its own efforts to admit 125,000 refugees this fiscal year.
More importantly, private refugee sponsorships would allow Americans to participate directly in welcoming refugees and facilitating their successful integration. Experience in the United Kingdom shows that private sponsorship can be a powerful tool in expanding communities’ understanding and capacity for welcoming newcomers. It can reduce fears about others more generally, change working practices to make them more inclusive for diverse populations, and bring new perspectives into relatively homogeneous communities. Involving U.S. citizens in the immigration process could thus be a way to dampen the current heated debate about immigration and allow Americans to see the mutual benefits of immigration.
Janine Prantl is an immigration postdoctoral associate in the Cornell Law School Immigration Law and Policy Research Program. Stephen Yale-Loehr is professor of immigration law practice at Cornell Law School.
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Lots of creative ideas out here on how to improve our broken refugee and asylum systems! But, from those in charge of migration policy in the Biden Administration, not so much!😢
No, they are stuck in reverse. A small-time “overseas” refugee program forVenezuelans (24k “slots” for a refugee crisis that has generated more than 6 million refugees)🤯; a heavy dose of cruel and discredited “Stephen Miller Lite” Title 42 for those who exercise their legal right to apply for asylum at or near the border 🤮; more “due process free” illegal returns to abusive conditions in Mexico☠️.
Perhaps inadvertently, a recent NBC Nightly News report on the border mentioned a widely ignored fact. It pictured and described desperate Venezuelans patiently waiting in line toturn themselves in to CPB to exercise their legal rights to apply for asylum and other protections in the U.S. That’s right — “turn themselves in!”
This is NOT real law enforcement, nor does it present a security crisis! Nor are the oft repeated “record numbers” of border “apprehensions” legitimate!
Since individuals are often returned to Mexico with neither proper processing nor due process, many of these “apprehensions” are inflated — representing repeated “apprehensions” of the same individual merely seeking to apply for asylum — a legal right denied to them by both the Trump and Biden Administrations!
One might also ask whether an individual turning him or herself in and requesting legal asylum is “apprehended” at all? That’s why CBP has started using the more ambiguous term “encounter” to disguise what’s really happening at the border.
Under the Biden Administration’s latest discriminatory and brain dead application of Title 42, those Venezuelans who voluntarily turn themselves in at ports of entry or near the border will be illegally returned to Mexico to rot — as a “reward” for attempting to follow the law. Does this make sense? Of course not. And the consequences of this horrible “policy” are dire for both the refugees and our nation. In many ways, the Biden Administration inexplicably has gone even beyond the cruel stunts of DeSantis and Abbott in making “political footballs” 🏈out of vulnerable Venezuelan refugees! It’s an ongoing national disgrace, masquerading as “policy!”
The only avenue for legal refugee for these Venezuelans fleeing a repressive left-wing dictatorship is to hire a smuggler to get them past the border where they can lose themselves in the interior of the U.S. That is, under the Biden policy, “do it yourself, black market refuge” substitutes for a variable legal system and adds to the unscreened and often unknown underground population of undocumented migrants. in the U.S.
A robust, realistic refugee program for Venezuela, operating both in Mexico and in or near Venezuela, might well reduce the incentives for extralegal migration. It could also take some pressure off of other “receiving” countries in the Hemisphere. But, the “token” — unduly limited — program proposed by the Biden Administration will do nothing of the sort!
Extralegal entries and underground populations are not good. Robust, realistic, timely, refugee and asylum programs — properly focused on using existing laws for protection, not rejection — would reduce the incentive for extralegal migration while reaping the many potential benefits and strengths that refugees and asylees “bring to the table.”
Such a beneficial program is achievable — under current law. But, not without a radical shakeup in both the leadership and substance of the Biden Administration’s so-called human rights bureaucracy!
“Can’t anybody here play this game,” wonders Casey Stengel about the cruel, clueless crew in charge of human rights and immigration (non)policy in the Biden-Harris Administration.
PHOTO: Rudi Reit
Creative Commons
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration JudgesDan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)
Dan Kowalski reports for LexisNexis Immigration Community:
“The need for effective assistance of counsel applies in immigration law just as it does in criminal law. Aliens, many of whom do not speak English and some of whom are detained before their immigration hearings, can be particularly susceptible to the consequences of ineffective lawyers. Petitioner Arckange Saint Ford paid a lawyer to represent him in removal proceedings, but Saint Ford’s requests for relief from deportation were denied after the lawyer failed to present important and easily available evidence going to the heart of Saint Ford’s claims. Saint Ford retained new counsel, and his new lawyer asked the Board of Immigration Appeals to reopen his case because of his former attorney’s ineffective assistance. The Board declined to do so. Because Saint Ford presents a meritorious ineffective-assistance claim, we will vacate the Board’s decision and remand. … AMBRO, Circuit Judge, concurring Arckange Saint Ford will get a second shot at seeking withholding of removal—that’s what matters. The majority is remanding because of his former counsel’s deficient performance at Saint Ford’s removal hearing. I agree with that and concur in full. But former counsel was not the only one who made significant missteps at the hearing. The Immigration Judge did as well. I therefore would have granted Saint Ford’s initial petition for review and remanded on that basis. I write separately to explain these errors in the hope that similar ones will not be made at Saint Ford’s new hearing. [Emphasis added.]”
“The opinion and judgment filed on May 16, 2022 [34 F.4th 201 (3d Cir. 2022)] are hereby vacated. The Clerk is directed to file the amended opinion and re-enter the judgment contemporaneously with this order.” – Saint Ford v. Atty. Gen.
“Singh argues the BIA committed legal error in denying his motion to reopen because it failed to cite or apply the prejudice standard from Matter of Lozada and its progeny—i.e., that the alien “show a reasonable likelihood that the outcome would have been different,” Molina, 763 F.3d at 1263 (internal quotation marks omitted)— and instead applied an elevated standard of prejudice from Matter of F-S-N-, 28 I. & N. Dec. 1, 3 (B.I.A. 2020)—i.e., that the alien “overcome” a prior adverse credibility determination. We agree. … The BIA applied an incorrect legal standard in deciding whether Singh had been prejudiced by his attorney’s alleged ineffective assistance because it required him to “overcome” the adverse credibility determination to show prejudice. The BIA therefore abused its discretion in denying Singh’s motion to reopen. See Qiu, 870 F.3d at 1202 (“[C]ommitting a legal error . . . is necessarily an abuse of discretion.” (internal quotation marks omitted)). On remand, the BIA should consider whether there is “a reasonable likelihood that the outcome would have been different but for counsel’s deficient performance.” Mena-Flores, 776 F.3d at 1169 (internal quotation marks omitted).”
Wrong legal standards, mistakes at both trial and appellate levels, sloppy work, unfair results in “life or death” cases. Why is this “acceptable quasi-judicial performance” in the Biden Administration? Why isn’t Garland being held accountable for his life-threatening, ongoing, anti-due-process “clown show” @ EOIR?🤡☠️
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept“Lady Injustice” has found a home at Garland’s dysfunctional EOIR! Public Realm
The Biden Administration thinks carrying out his policies is A-OK. Many of those who,helped put them in office disagree. Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
WASHINGTON — The Biden administration will expand its use of a public health rule to start expelling to Mexico thousands of Venezuelans who illegally cross the U.S. border and announced a new humanitarian parole program to provide a narrow legal pathway to the United States for up to 24,000 Venezuelans.
The administration hopes that Venezuelans will apply for the parole plan remotely and fly to the United States rather than making the dangerous trek to the southwest border.
But the reliance on a Trump-era pandemic rule to deny entry to many others crystallized the Biden administration’s balancing act in both helping refugees and tightening border restrictions in the face of Republican attacks on President Biden’s immigration policy and record numbers of illegal border crossings. And there is no guarantee that just 27 days before the midterm elections, it will have the desired effect.
Until now, the majority of Venezuelans who crossed into the United States have not been expelled under the public health authority, known as Title 42. Instead, they were screened and released into the country temporarily to face removal proceedings in immigration court, where they have the option to apply for asylum.
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In addition to being cruel and illegal, the new policy won’t please anyone on the immigration issue. Biden is selling his erstwhile supporters “down the river,” while neither mollifying critics on the right nor winning over independents.
Expect refugees to suffer and die. I also predict that extralegal entries aiming for “do it yourself” refuge in the interior will increase. And, our immigration and asylum systems will remain a dysfunctional mess.
