"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.
A federal judge on Friday ruled that the Trump administration was again violating a longstanding agreement that compels the government to release migrant children detained at the border within 20 days and ordered the minors be released.
Plaintiffs represented by the Center for Human Rights and Constitutional Law have been challenging the child detention policies of the administration of President Donald Trump in Los Angeles federal court, where they’ve alleged the coronavirus crisis has caused further delays in the mandated release of migrant children.
The challenges are being waged under a 1997 settlement between immigrant advocates and the government known as the Flores agreement. It generally requires children detained at the border and kept in nonlicensed facilities to be released within weeks.
Los Angeles-based U.S. District Court Judge Dolly Gee oversees the settlement and issued a mixed ruling to enforce the Flores agreement and again ordered the government to “expedite the release” of children in its custody.
“This court order could very well prevent hundreds of children from becoming seriously ill with COVID-19 infection, and may even save some children’s lives,” longtime plaintiffs’ attorney Peter Schey said by email. “On behalf of the 5,000 detained children we represent, we are deeply grateful for the court’s humane order.”
The Flores agreement has faced multiple challenges since the Trump administration in 2018 enacted a policy of separating family members at the border as a means of dissuading illegal crossings. The administration backed down but was slow to reunite children when their parents.
Plaintiffs alleged the U.S. Office of Refugee Resettlement stopped releasing children to parents, relatives or potential guardians in New York, California and Washington to avoid becoming entangled in those states’ stay-at-home rules during the pandemic.
They also argued the government was dragging its feet by halting the release process for some children because parents, relatives and potential guardians couldn’t easily be fingerprinted for background checks.
Plaintiffs said delays endangered children as the virus could spread in detention facilities, citing a nonprofit facility in Texas “placed under a 14-day quarantine order,” according to Friday’s ruling.
They also alleged that a teen turned 18 during “quarantine” and was released to ICE rather than going to a family placement program “already secured for him.”
Gee did not agree with all those claims. But she concluded: “ORR and ICE shall continue to make every effort to promptly and safely release” children represented by plaintiffs.
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The solution is obvious: 1) release the kids👍; 2) jail Stephen ☠️🤮Miller👍👍👍.
Here’s a copy of Judge Gee’s latest order in Flores v. Barr:
PANEL: Howard, Chief Judge, Kayatta and Barron, Circuit Judges.
OPINION BY: Judge Kayetta
KEY EXCERPTS (Courtesy of Amer S. Ahmed, Esquire, Gibson Dunn, Pro Bono Counsel for the Round Table of Former Immigration Judges as Amici):
[The BIA] added, however, that “[e]ven if [De Pena] had
suffered harm rising to the level of past persecution,” De Pena’s
proposed particular social groups are analogous to those in Matter
of A-R-C-G, 26 I. & N. Dec. 388 (BIA 2014), which the BIA
understood to have been “overruled” by the Attorney General in
Matter of A-B, 27 I. & N. Dec. 316, 319 (A.G. 2018). The BIA read
A-B as “determin[ing] that the particular social group of ‘married
women in Guatemala who are unable to leave their relationship’ did
not meet the legal standards to qualify as a valid particular
social group.”
…
That conclusion poses two questions to be resolved on
this appeal: First, does A-B categorically reject any social group
defined in material part by its members’ “inability to leave” the
relationships in which they are being persecuted; and, second, if
so, is A-B to that extent consistent with the law?
…
Is it reasonable to read the law as supporting such a categorical
rejection of any group defined by its members’ inability to leave
relationships with their abusers? A-B itself cites only fiat to
support its affirmative answer to this question. It presumes that
the inability to leave is always caused by the persecution from
which the noncitizen seeks haven, and it presumes that no type of
persecution can do double duty, both helping to define the
particular social group and providing the harm blocking the pathway
to that haven. These presumptions strike us as arbitrary on at
least two grounds.
….
First, a woman’s inability to leave a relationship may
be the product of forces other than physical abuse. In
Perez-Rabanales v. Sessions, we distinguished a putative group of
women defined by their attempt “to escape systemic and severe
violence” from a group defined as “married women in Guatemala who
are unable to leave their relationship,” describing only the former
as defined by the persecution of its members. 881 F.3d 61, 67
(1st Cir. 2018). In fact, the combination of several cultural,
societal, religious, economic, or other factors may in some cases
explain why a woman is unable to leave a relationship.
…
We therefore do not see any basis other
than arbitrary and unexamined fiat for categorically decreeing
without examination that there are no women in Guatemala who
reasonably feel unable to leave domestic relationships as a result
of forces other than physical abuse. In such cases, physical abuse
might be visited upon women because they are among those unable to
leave, even though such abuse does not define membership in the group
of women who are unable to leave.
…
Second, threatened physical abuse that precludes
departure from a domestic relationship may not always be the same
in type or quality as the physical abuse visited upon a woman
within the relationship. More importantly, we see no logic or
reason behind the assertion that abuse cannot do double duty, both
helping to define the group, and providing the basis for a finding
of persecution. An unfreed slave in first century Rome might well
have been persecuted precisely because he had been enslaved (making
him all the same unable to leave his master). Yet we see no reason
why such a person could not seek asylum merely because the threat
of abuse maintained his enslaved status. As DHS itself once
observed, the “sustained physical abuse of [a] slave undoubtedly
could constitute persecution independently of the condition of
slavery.” Brief of DHS at 34 n.10, Matter of R-A, 23 I. & N. Dec.
694 (A.G. 2005).
For these reasons, we reject as arbitrary and unexamined
the BIA holding in this case that De Pena’s claim necessarily fails
because the groups to which she claims to belong are necessarily
deficient. Rather, the BIA need consider, at least, whether the
proffered groups exist and in fact satisfy the requirements for
constituting a particular social group to which De Pena belongs.
Amer S. Ahmed
GIBSON DUNN
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Read the full opinion at the link above.
While Judge Kayetta does not specifically cite our Round Table’s brief, a number of our arguments are reflected in the opinion. Undoubtedly, with lots of help from Amer and our other superstar friends over at Gibson Dunn, we’re continuing to make a difference and hopefully save some deserving lives of the refugees intentionally screwed by our dysfunctional Immigration Court system under a politicized DOJ.
Knightess of the Round Table
I’ve heard of the bogus rationale used by the BIA in this case reflected in a number of wrongly decided unpublished asylum denials by both the BIA and Immigration Judges. This should make for plenty of remands, slowing down the “Deportation Railroad,” jacking up the backlog, and once again showing the “substantial downside” of idiotic “haste makes waste shenanigans” at EOIR and allowing biased, unqualified White Nationalist hacks like Sessions and Barr improperly to interfere with what are supposed to be fair and impartial adjudications consistent with Due Process and fundamental fairness.
Great as this decision is, it begs the overriding issue: Why is a non-judicial political official, particularly one with as strong a prosecutorial bias as Sessions or Barr, allowed to intervene in a quasi-judicial decision involving an individual and not only reverse the result of that quasi-judicial tribunal, but also claim to set a “precedent” that is binding in other quasi-judicial proceedings? Clearly, neither Ms. De Pena-Paniagua nor any other respondent subject to a final order of removal under this system received the “fair and impartial decision by an unbiased decision-maker” which is a minimum requirement under the Due Process Clause of the Fifth Amendment.
Let’s put it in terms that an Article III Circuit Court Judge should understand. Suppose Jane Q. Public sues the United States in U.S. District Court in Boston and wins a judgment. Unhappy with the result, Attorney General Billy Barr orders the U.S. District Judge to send the case to him for review. He enters a decision reversing the U.S. District Judge and dismissing Public’s claim against the United States. Then, he orders all U.S. District Judges in the District of Massachusetts to follow his decision and threatens to have them removed from their positions or demoted to non-judicial positions if they refuse.
The First Circuit or any other Court of Appeals would be outraged by this result and invalidate it as unconstitutional in a heartbeat! They likely would also find Barr in contempt and refer him to state bar authorities with a recommendation that his law license be revoked or suspended.
Yet this is precisely what happened to Ms. A-B-, Ms. De Pena Paniagua, and thousands of other asylum applicants in Immigration Court. It happens every working day in Immigration Courts throughout the nation. It will continue to happen until Article III Appellate Judges live up to their oaths of fealty to the Constitution and stop the outrageous, life-threatening miscarriages of justice and human dignity going on in our unconstitutional, illegal, fundamentally unfair, and dysfunctional Immigration Courts.
Malathi Nayak Reporter Bloomberg NewsHon. A. Ashley Tabaddor President, National Association of Immigration Judges (“NAIJ”)Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Retired Immigration Judges
As President Donald Trump prepares to pause immigration into the U.S., the court system that handles the removal of immigrants is projected to issue nearly 60% more deportation orders than last year.
With the rest of the U.S. legal system grinding to a near halt amid the pandemic, at the nation’s 69 federal immigration courts cleaning crews clad in hazmat suits are regularly used to make sure in-person hearings can continue. The courts are moving at speed to reduce a massive backlog of cases despite outdated technology and criticism from advocacy groups and a union representing most of the nation’s 460 immigration judges, who say the pace is putting people at risk of infection.
“The deportation machine has not stopped,” said Florida immigration lawyer Ira Kurzban. “It’s somewhat outrageous given the current circumstances.”
While the number of people deported from the U.S. fell in March, one research group predicts that the total number of deportation orders will rise for the 2020 fiscal year, despite the pandemic. The Transactional Records Access Clearinghouse, a Syracuse University group that tracks government enforcement actions, estimates there will be 340,500 deportation orders in the year ending Sept. 30, 2020, up from 215,535 for the prior year. A spokeswoman for the Justice Department, which oversees immigration courts, declined to comment on the projection, saying it doesn’t certify third-party statistics.
The National Association of Immigration Judges says the continued operation of the courts is unsafe and has called for them to be closed. The Trump administration in 2018 set a quota for each immigration judge to close 700 cases a year, a requirement that remains in force during the pandemic, said Ashley Tabaddor, president of the union.
‘Hobbesian Choice’
U.S. immigration judges are “being forced into this Hobbesian choice of risking their health and having to keep their jobs,” said Tabaddor. She cites a colleague who is trying to meet his quota while minimizing his health risk as a throat cancer survivor.
Along with the judges, 1,200 support staff work in the nation’s immigration courts. Those courts are taking precautionary steps similar to those elsewhere in the federal system “to reduce the likelihood of exposure to Covid-19,” including holding hearings via phone or video conference whenever possible, according to Kathryn Mattingly, a Justice Department spokeswoman. Hearings involving people not in custody have also been suspended until May 15.
But judges and lawyers said it is harder for the immigration courts to operate remotely than other federal courts. While electronic document filing is routine in other federal courts, the immigration courts have struggled to introduce it, leaving most documents in paper form. Though some filings are now accepted by email, the many court employees without laptops need to come into the office to access them.
“The immigration courts are probably 20 years behind federal courts in terms of technology,” said Jeff Chase, a former immigration judge. Moreover, some immigration courts have rules where opting for a phone hearing means giving up the right to object to documents submitted by ICE, he said.
The current situation has immigration lawyers choosing between their personal well-being and a client’s future, Chase said. “Lawyers should not be put in this position.”
. . . .
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Read the rest of the article at the link.
Nice quotes from Judges Tabaddor and Chase!
Actually, when the “off docket”cases are factored in, the backlog exceeds 1.4 million cases. Even with artificially accelerated production, and if no new cases were filed by DHS (reality check — receipts have been exceeding completions for years) it would take until 2024 to “clear” the existing backlog. But, the reality is that even by speeding up the “Deportation Railroad,” adding new often inadequately trained judges largely from the ranks of prosecutors, eliminating Due Process, demeaning their own employees, and unethically skewing the law against migrants, EOIR has been unable to reduce the backlog by even one case under the Trump regime!
Indeed, when all of the pending and “off docket” cases are considered, the already large backlog left behind by the Obama Administration has more than doubled, and is well on its way to tripling, under the Trump regime’s “malicious incompetence” and pattern of often illegal and irrational behavior. Many of the “final orders of deportation” being cranked out by EOIR are either legally wrong or counterproductive — deporting harmless individuals who actually are productive members of our society, often with U.S. citizen family members. This system, including the mindless abuse of docket space by DHS Enforcement and “Aimless Docket Reshuffling” by EOIR, is broken! Yet, it’s allowed to continue grinding away, putting lives in danger in more ways than one.
And, speaking of incompetence, whether malicious or not, I was on the initial “E-Filing Group” that submitted comprehensive recommendations and a detailed plan for implementing e-filing to ”EOIR management” back in 2001 or 2002. Since then, successive waves of EOIR “management” have squandered time, money, and public trust without producing a usable product. Meanwhile, almost every other court in America has designed and implemented e-filing systems. This catastrophic failure in and of itself would more than justify eliminating EOIR and replacing it with a judicially-managed, independent, professionally administered court system that would guarantee due process, efficiency, and fundamental fairness for all.
But, that’s by no means the only problem at EOIR. It’s unconstitutional, unfair, dysfunctional, unprofessional, and downright dangerous. I have posted recently about how Courts of Appeals continue to find that the BIA has grossly misinterpreted, distorted, and/or misapplied both law and facts in “life or death cases.” Is “good enough for government work” really OK for human lives? That neither Congress nor the Article III Courts have had the guts and decency to put an end to this life-threatening farce staining our justice system is an unforgivable national disgrace.
Those of us who understand exactly what’s happening at EOIR under the Trump kakistocracy might at the moment be powerless to change it. But, we’re continuing to challenge the unacceptable status quo and making a public record of this grotesque malfeasance and of those in all three branches of Government who are “papering over” (and by doing so enabling) EOIR’s abuses. Eventually, positive change will come. The only question is how many lives and futures will unnecessarily be lost before it does?
Due Process Forever! Deadly ☠️ Clown Courts, 🤡 Never!
They arrive 24 hours a day in the Mexican border city of Reynosa, groups of men, women and children deported by the United States. Each time, at the edge of the international bridge, Ricardo Calderón Macias and his team get ready.
They put on masks and gloves. They prepare their thermometers and health forms. They wonder, sometimes aloud: Will anyone in this group test positive?
“We’re worried that eventually, with these deportations, we’re all going to get infected,” said Calderón, the regional director of the Tamaulipas state immigration institute.
Since the coronavirus struck the United States, immigration authorities have deported dozens of infected migrants, leaving governments and nonprofits across Mexico, Central America and the Caribbean struggling to respond.
[[Public health experts: Coronavirus could overwhelm the developing world]]
When some countries resisted continued deportations, U.S. officials said they would screen migrants slated for removal. But they did not commit to administering coronavirus tests. In many instances, the screenings, which consist primarily of taking a person’s temperature, have failed to detect cases. Even though overall deportations declined this month, the United States has returned thousands of people across the Western Hemisphere in April.
President Trump said late Monday he would “suspend immigration” to the United States. Even before that announcement, officials in the region were concerned about the deportations. Guatemala’s health minister spoke this month of the worrying number of infected deportees sent from the United States — the “Wuhan of the Americas,” he said.
[[Sign up for our Coronavirus Updates newsletter to track the outbreak. All stories linked in the newsletter are free to access.]]
Mexicans just deported from the United States walk toward a repatriation building in Matamoros. (Veronica Cardenas/Reuters)
Mexico’s Tamaulipas state, across the Rio Grande from the southern tip of Texas, is receiving roughly 100 deportees per day, officials there say. In some cases, repatriation workers have noticed that deportees are visibly sick as they arrive. Those deportations are blamed for at least one new outbreak in a Mexican migrant shelter.
On Monday, the Mexican government asked the U.S. Department of Homeland Security to test deportees for the virus, but DHS has not committed to doing so, according to a Mexican official with knowledge of the conversations who spoke on the condition of anonymity to describe diplomatic talks.
In Guatemala, at least 50 deportees have tested positive, about 17 percent of the country’s total confirmed cases. Three-quarters of passengers on a deportation flight to Guatemala City last month were infected, according to the country’s Health Ministry. Guatemalan officials said last week they would suspend returns from the United States.
[[Coronavirus outbreaks at Mexico’s hospitals raise alarm, protests]]
In Haiti, the poorest country in the Western Hemisphere, three people sent back from the United States in early April have tested positive, officials said. The country has 62 ventilators for 11 million people. The Trump administration reportedly was planning another deportation flight to Haiti this week.
“Rather than be deported where they face serious harm if they fall ill and risk infecting thousands of others, they should be released from detention into the care of their friends and families so that they may safely quarantine,” a coalition of 164 human rights and religious organizations said in an open letter pleading for suspension of deportations.
Health workers carry supplies delivered by family members to a temporary shelter for Guatemalan citizens deported from the United States in Guatemala City. (Moises Castillo/AP)
In Mexico over the past week, two deportees tested positive for the virus. Calderón’s team spotted a deportee in Reynosa who was visibly ill, with a dry cough, red eyes and a fever. They wondered how the man, who arrived from Atlanta, had made it through U.S. health screenings.
A second man was deported to Nuevo Laredo from Houston “without knowing he was a carrier of the virus,” the Tamaulipas state government said in a statement, and was sent to a migrant shelter in the city.
That case apparently prompted an outbreak in the shelter, Casa del Migrante Nazareth; 14 others have since tested positive.
“The risk we face is bringing a massive contagion into our own country,” said Raúl Cardenas, the city manager of Nuevo Laredo. “We’re mortified that these deportations are continuing.”
. . . .
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Read the rest of the article at the link.
Not only are Trump’s immigration diversions racist and inappropriate, they are dangerous and threaten unnecessarily to spread the pandemic. Unwilling and unable to address the real needs of the American people during the pandemic (see, e.g., tests, aid to states, speaking truth, encouraging compliance with “best practices”) Trump diverts our resources on controversial and counterproductive measures while diminishing our national humanity and surrendering our world leadership.
This November, Vote ‘Em Out. End The Deadly ☠️ Trump/GOP Clown Show 🤡!
“A federal judge today ordered Immigration and Customs Enforcement (ICE) to promptly revisit custody determinations, including consideration of release for all persons in ICE detention whose age or health conditions place them at increased risk due to the Covid-19 pandemic. The order comes weeks after the Civil Rights Education and Enforcement Center (CREEC), Disability Rights Advocates (DRA), Southern Poverty Law Center (SPLC), Orrick LLP and Willkie Farr and Gallagher LLP filed for an emergency preliminary injunction on March 25.
In his blistering rebuke of the government’s response to Covid-19 in detention centers, U.S. District Judge Jesus Bernal wrote, “As a result of these deficiencies, many of which persist more than a month into the COVID-19 pandemic, the Court concludes Defendants have likely exhibited callous indifference to the safety and wellbeing of the Subclass members [detained immigrants at risk]. The evidence suggests systemwide inaction that goes beyond a mere ‘difference of medical opinion or negligence.’” “
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Go on over to LexisNexis above for a link to the SPLC report and copy of Judge Bernal’s order.
Thanks and congrats to SPLC and all the pro bono all-stars involved for taking this on. Will there eventually be accountability and liability for what appears to be intentional, life threatening misconduct, or at best criminal negligence, among officials of the Trump regime?
When the virus came here, it found a country with serious underlying conditions, and it exploited them ruthlessly. Chronic ills—a corrupt political class, a sclerotic bureaucracy, a heartless economy, a divided and distracted public—had gone untreated for years. We had learned to live, uncomfortably, with the symptoms. It took the scale and intimacy of a pandemic to expose their severity—to shock Americans with the recognition that we are in the high-risk category.
This article appears in the Special Preview: June 2020 issue.
The crisis demanded a response that was swift, rational, and collective. The United States reacted instead like Pakistan or Belarus—like a country with shoddy infrastructure and a dysfunctional government whose leaders were too corrupt or stupid to head off mass suffering. The administration squandered two irretrievable months to prepare. From the president came willful blindness, scapegoating, boasts, and lies. From his mouthpieces, conspiracy theories and miracle cures. A few senators and corporate executives acted quickly—not to prevent the coming disaster, but to profit from it. When a government doctor tried to warn the public of the danger, the White House took the mic and politicized the message.
Every morning in the endless month of March, Americans woke up to find themselves citizens of a failed state. With no national plan—no coherent instructions at all—families, schools, and offices were left to decide on their own whether to shut down and take shelter. When test kits, masks, gowns, and ventilators were found to be in desperately short supply, governors pleaded for them from the White House, which stalled, then called on private enterprise, which couldn’t deliver. States and cities were forced into bidding wars that left them prey to price gouging and corporate profiteering. Civilians took out their sewing machines to try to keep ill-equipped hospital workers healthy and their patients alive. Russia, Taiwan, and the United Nations sent humanitarian aid to the world’s richest power—a beggar nation in utter chaos.
Donald Trump saw the crisis almost entirely in personal and political terms. Fearing for his reelection, he declared the coronavirus pandemic a war, and himself a wartime president. But the leader he brings to mind is Marshal Philippe Pétain, the French general who, in 1940, signed an armistice with Germany after its rout of French defenses, then formed the pro-Nazi Vichy regime. Like Pétain, Trump collaborated with the invader and abandoned his country to a prolonged disaster. And, like France in 1940, America in 2020 has stunned itself with a collapse that’s larger and deeper than one miserable leader. Some future autopsy of the pandemic might be called Strange Defeat, after the historian and Resistance fighter Marc Bloch’s contemporaneous study of the fall of France. Despite countless examples around the U.S. of individual courage and sacrifice, the failure is national. And it should force a question that most Americans have never had to ask: Do we trust our leaders and one another enough to summon a collective response to a mortal threat? Are we still capable of self-government?
This is the third major crisis of the short 21st century. The first, on September 11, 2001, came when Americans were still living mentally in the previous century, and the memory of depression, world war, and cold war remained strong. On that day, people in the rural heartland did not see New York as an alien stew of immigrants and liberals that deserved its fate, but as a great American city that had taken a hit for the whole country. Firefighters from Indiana drove 800 miles to help the rescue effort at Ground Zero. Our civic reflex was to mourn and mobilize together.
Partisan politics and terrible policies, especially the Iraq War, erased the sense of national unity and fed a bitterness toward the political class that never really faded. The second crisis, in 2008, intensified it. At the top, the financial crash could almost be considered a success. Congress passed a bipartisan bailout bill that saved the financial system. Outgoing Bush-administration officials cooperated with incoming Obama administration officials. The experts at the Federal Reserve and the Treasury Department used monetary and fiscal policy to prevent a second Great Depression. Leading bankers were shamed but not prosecuted; most of them kept their fortunes and some their jobs. Before long they were back in business. A Wall Street trader told me that the financial crisis had been a “speed bump.”
All of the lasting pain was felt in the middle and at the bottom, by Americans who had taken on debt and lost their jobs, homes, and retirement savings. Many of them never recovered, and young people who came of age in the Great Recession are doomed to be poorer than their parents. Inequality—the fundamental, relentless force in American life since the late 1970s—grew worse.
This second crisis drove a profound wedge between Americans: between the upper and lower classes, Republicans and Democrats, metropolitan and rural people, the native-born and immigrants, ordinary Americans and their leaders. Social bonds had been under growing strain for several decades, and now they began to tear. The reforms of the Obama years, important as they were—in health care, financial regulation, green energy—had only palliative effects. The long recovery over the past decade enriched corporations and investors, lulled professionals, and left the working class further behind. The lasting effect of the slump was to increase polarization and to discredit authority, especially government’s.
Both parties were slow to grasp how much credibility they’d lost. The coming politics was populist. Its harbinger wasn’t Barack Obama but Sarah Palin, the absurdly unready vice-presidential candidate who scorned expertise and reveled in celebrity. She was Donald Trump’s John the Baptist.
Trump came to power as the repudiation of the Republican establishment. But the conservative political class and the new leader soon reached an understanding. Whatever their differences on issues like trade and immigration, they shared a basic goal: to strip-mine public assets for the benefit of private interests. Republican politicians and donors who wanted government to do as little as possible for the common good could live happily with a regime that barely knew how to govern at all, and they made themselves Trump’s footmen.
Like a wanton boy throwing matches in a parched field, Trump began to immolate what was left of national civic life. He never even pretended to be president of the whole country, but pitted us against one another along lines of race, sex, religion, citizenship, education, region, and—every day of his presidency—political party. His main tool of governance was to lie. A third of the country locked itself in a hall of mirrors that it believed to be reality; a third drove itself mad with the effort to hold on to the idea of knowable truth; and a third gave up even trying.
Trump acquired a federal government crippled by years of right-wing ideological assault, politicization by both parties, and steady defunding. He set about finishing off the job and destroying the professional civil service. He drove out some of the most talented and experienced career officials, left essential positions unfilled, and installed loyalists as commissars over the cowed survivors, with one purpose: to serve his own interests. His major legislative accomplishment, one of the largest tax cuts in history, sent hundreds of billions of dollars to corporations and the rich. The beneficiaries flocked to patronize his resorts and line his reelection pockets. If lying was his means for using power, corruption was his end.
This was the American landscape that lay open to the virus: in prosperous cities, a class of globally connected desk workers dependent on a class of precarious and invisible service workers; in the countryside, decaying communities in revolt against the modern world; on social media, mutual hatred and endless vituperation among different camps; in the economy, even with full employment, a large and growing gap between triumphant capital and beleaguered labor; in Washington, an empty government led by a con man and his intellectually bankrupt party; around the country, a mood of cynical exhaustion, with no vision of a shared identity or future.
. . . .
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Read the rest of Packer’s article at the link.
Very discouraging. But, it’s not too late, yet. We have a chance in November to throw out the Trump/GOP Kakistocracy and start rebuilding America with a vision of the common good, common sense, and human dignity! Be the best, rather than running a “race to the bottom.”
Let’s consign Trump and his toadies to the same “dustbin of history” as Pétain and his collaborators!
This November, vote like your life depends on it. Because it does!
Immigration judges and employees at the Executive Office of Immigration Review said the agency’s informal policy to keep offices and courts open puts deportations over workers’ safety.
APRIL 20, 2020 05:31 PM ET
For weeks, employees at the Executive Office of Immigration Review’s immigration courts and offices have noticed a trend: whenever someone exhibits coronavirus symptoms, the agency quietly shuts the facility down for a day or two, cleans the office, and then reopens.
The frequency of these incidents, combined with the apparent refusal by management to take more proactive steps, like temporarily closing immigration courts altogether or instituting telework for EOIR support staff, have employees and judges fearing that the Trump administration is more concerned with keeping up the volume of immigration case decisions than the health of its own workforce.
Since Government Executive first reported on an instance of an employee with COVID-19 symptoms at a Falls Church, Virginia, EOIR office last week, there have been three additional incidents at that facility, including one where the person eventually tested positive for coronavirus. An office in the Dallas-Fort Worth area also was closed for two days in March after someone exhibited symptoms of the virus.
Additionally, the agency has announced on its official Twitter account more than 30 immigration court closures, most only for one or two days, across the country. Although in most instances officials do not explain the closures, National Association of Immigration Judges President Ashley Tabaddor said that if there is no reason listed, “you can be sure” it is a result of coronavirus exposure.
“Everything is reactive,” Tabbador said. “They put everyone at risk, and then when there’s an incident reported, they shut down the court for a day and then force people to come back to work. At Otay Mesa [in San Diego] there’s a huge outbreak, but they still haven’t shared that information . . . Sometimes we get the info and sometimes we don’t, so we don’t know how accurate or complete it is. There’s no faith that everyone who needs to be notified has been notified.”
Nancy Sykes, president of the American Federation of Government Employees Local 2525, which represents staff at EOIR’s office in Falls Church said the amount of information provided to employees about coronavirus-related incidents has actually decreased in recent weeks. Although after the first incident, EOIR Director James McHenry emailed staff and provided information about when the employee was symptomatic and in the office, subsequent notifications were sent out by Acting Board of Immigration Appeals Chairman Garry Malphrus and omitted key information about when symptomatic individuals were in the building.
“Employees are scared, they’re concerned,” Sykes said. “They don’t really trust what’s coming from management just because of the lack of details being shared. There’s a lag in information: by the time something is revealed, so much time has passed, so nobody’s clear how that process works and why it takes so long to get notice out to employees.”
In a statement, EOIR spokeswoman Kathryn Mattingly said that the agency “takes the safety, health and well-being of employees very seriously,” but that the workforce is critical to ensuring the due process of detained suspected undocumented immigrants.
“Accordingly, EOIR’s current operational status is largely in line with that of most courts across the country, which have continued to receive and process filings and to hold critical hearings, while deferring others as appropriate,” Mattingly wrote. “Recognizing that cases of detained individuals may implicate unique constitutional concerns and raise particular issues of public safety, personal liberty, and due process, few courts have closed completely.”
A Series of Half Measures
Agency management has taken some steps to mitigate employees’ exposure to COVID-19. On March 30, the agency postponed all hearings related to individuals who are not being detained while they await adjudication. The agency is also encouraging the use of teleconferencing, video-teleconferencing and the filing of documents by mail or electronically, and some attorneys, paralegals and judges have been able to make use of telework to reduce the amount of time they spend in the office.
But thus far, the agency has refused to postpone hearings for detained individuals, a matter that is now the subject of a federal lawsuit brought by immigration advocates and attorney groups. And the agency has denied telework opportunities to support staff in EOIR offices and immigration courts across the country.
Sykes said the lack of telework is in part a capacity issue—the agency does not have the amount of laptops on hand to distribute to employees. But she suggested that local management may be prohibited from encouraging workplace flexibilities by agency or department leadership.
“We’ve asked management about doing something where you could have employees come in shifts every other day, or over a week’s time in rotation to pick up and drop off work materials, so that there’s less exposure when coming into the office,” she said. “But they said they have not been authorized to make those types of changes to our business. When my board management says they don’t have the authority, that means it’s over their heads.”
Tabaddor said she has heard similar stories that everything judges and supervisors authorize regarding coronavirus response must be “cleared” by someone up the chain of command.
“Supervisory judges, our first line of supervisory contact, they were told that they cannot put anything in writing about the pandemic or COVID,” she said. “Anything they want to do related to that has to be cleared by HQ and, essentially, the White House. So, to date, they haven’t been told what standards and protocols are to be used. The only thing they’ve been told is if there’s a report of any incident, they are to kick it up to HQ and wait for instructions.”
On Monday, McHenry sent an email to EOIR employees announcing that the agency has ordered face masks for employees to wear when they report to the office, and said they would be available “next week.”
“Once delivered, supervisors will provide their staff with information regarding distribution to employees who are not telework eligible and are working in the office,” McHenry wrote. “Even while using face coverings, however, please continue to be vigilant in maintaining social distancing measures to the maximum extent practicable and in following CDC guidance.”
Production Over People
Agency employees said what they have seen over the last month suggests that the agency is prioritizing working on its more than 1 million case backlog, and enabling the Homeland Security Department to continue to apprehend suspected undocumented immigrants, at the expense of the wellbeing of its workforce.
“Everything is designed under the rubric that the show must go on,” Tabbador said. “While we’ve been focused on public health first . . . the department says, ‘Nope, we need to make sure that the machinery continues. To the extent that we can acknowledge social distancing as long as business continues, we can do it. But between business and health considerations, business as usual supersedes health.”
Sykes said the agency’s resistance to making basic changes to protect its employees is troubling.
“To me, the only other explanation is the immense backlog that we have of immigration appellate cases building up, and the need to continue working on that backlog even in light of the current pandemic,” she said. “It’s very unnerving, because I believe this will continue, and I don’t have any other indication that we’re not going to just continue operations as is. We now finally have a confirmed case [in the building] and there’s still no change.”
In an affidavit filed in response to the lawsuit seeking to postpone immigration court hearings for detained individuals, McHenry said he has given individual immigration courts leeway to respond as needed to the COVID-19 outbreak in their communities.
“Because COVID-19 has not affected all communities nationwide in the same manner and because EOIR’s dockets vary considerably from court to court, the challenges presented by COVID-19 are not the same for every immigration court,” McHenry wrote. “In recognition of these variances and of the fact that local immigration judges and court staff are often in the best position to address challenges tailored to the specifics of their court’s practices, EOIR has not adopted a ‘one size fits all’ policy for every immigration court, though it has issued generally-applicable guidance regarding access to EOIR space, the promotion of practices that reduce the need for hearings, and the maximization of the use of telephonic and means through which to hold hearings.”
But he also suggested it could hamper the work of Immigration and Customs Enforcement and the ability of the Border Patrol to keep arresting suspected undocumented immigrants.
“The blanket postponement of all detained cases in removal proceedings, including initial master calendar hearings for aliens recently detained by DHS, would make it extremely difficult for DHS to arrest and detain aliens prospectively, even aliens with significant criminal histories or national security concerns, because of the uncertainty of how long an alien would have to remain in custody before being able to obtain a hearing in front of an [immigration judge] that may lead to the alien’s release,” he wrote.
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Thanks, Laura, for “packaging” this so neatly for further distribution! And many thanks to Erich Wagner over at Government Executive for “keeping on” this story he originally reported and that I also posted @ Courtside. https://wp.me/p8eeJm-5mO
Nice to know that someone is looking out for the public interest here, even if EOIR isn’t.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Wow, these self-serving “GrimGrams” ☠️⚰️ from McHenry must be very comforting to the EOIR employees 😰🧫 whose health 🤮 and safety ☠️ is on the line, not to mention the possibility that they will eventually infect their own families.😰
Deportations over safety, sanity and public health at EOIR. It’s just “business as usual” in the Clown Courts! 🤡
“We must now decide three issues: (1) whether persons who publicly provide assistance to law enforcement against major Salvadoran gangs constitute a cognizable particular social group for purposes of asylum and withholding of removal under the INA, (2) whether Guzman has established that he suffered past persecution on account of anti-gang political opinion imputed to him, and (3) whether the BIA correctly applied the framework we enunciated in Myrie v. Attorney General1 in denying Guzman relief under the CAT. For the reasons that follow, we hold that persons who publicly provide assistance against major Salvadoran gangs do constitute a particular social group, that Guzman has failed to meet his burden to show that imputed anti-gang political opinion was a central reason for the treatment he received, and that the BIA erred in its application of Myrie to Guzman’s application. Accordingly, we will vacate the BIA’s decision and remand this case for further proceedings on Guzman’s petition for relief from removal.”
[Hats off to J. Wesley Earnhardt Troy C. Homesley, III Brian Maida (ARGUED) Cravath, Swaine & Moore!]
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*** I believe that the Third Circuit uses “Attorney General” rather than the name of the particular Attorney General in their immigration citation.
Before: RESTREPO, ROTH and FISHER, Circuit Judges. Opinion by Judge Roth.
Distortion of evidence and law happens all the time in this dysfunctional system now operated to deny basic due process and fundamental fairness to endangered individuals. Frankly, the Judges of the Third Circuit and other Courts of Appeals should be more than just “troubled” by the BIA’s legal incompetence and anti-immigrant decision-making. This isn’t just some “academic exercise.” The lives of innocent individuals are being put at risk by the ongoing fraud at EOIR under Barr!
This one-sided politically and prosecutorially-dominated charade of a “court system” is clearly unconstitutional under the Due Process Clause of the Fifth Amendment to our Constitution. Not everyone has the ability to appeal to the Circuit Courts and be fortunate enough to get a panel that actually looks critically at the case, rather than just “rubber stamping” the BIA’s decisions or giving them “undue deference” like all too many Article III Judges do. Most asylum seekers aren’t represented by Cravath, Swaine & Moore, one of America’s top law firms.
Indeed, many asylum applicants are forced by the Government to proceed without any counsel and don’t have the foggiest notion of what’s happening in Immigration Court. How would an unrepresented individual or a child challenge the Immigration Judge’s or the BIA’s misapplication of the “three-part test” for “particular social group?” How would they go about raising failure to apply the applicable Circuit precedent in Myrie v. Attorney General?
Even with the best representation, as was present in this case, under pressure from political bosses like Sessions, Whitaker, and Barr, Immigration Judges and BIA Appellate Judges constantly look for “reasons to deny” relief even where the case clearly has merit, as this one does! If against these odds, the respondent “wins,” or achieves something other than an outright “loss,” Barr can merely reach in and change the result to favor DHS Enforcement.
More outrageously, he can make that improper and unethical decision a so-called “precedent” for other cases. How totally unfair can a system get? Is there any other “court system” in America where the prosecutor or the opposing party gets to select the judges, evaluate their performance under criteria that allow for no public input whatsoever, and then change results at both the trial and appellate level? How is this consistent with Due Process or basic judicial ethics, both of which require a “fair, impartial, and unbiased decision-maker.” In the “real world,” the mere “appearance” of impropriety or bias is enough to disqualify a judge from acting. Here “actual (not apparent) bias” is institutionalized and actively promoted!
The ongoing legal, ethical, and Constitutional problems at EOIR are quite obvious. For the Article III Courts to merely “tisk tisk” without requiring that immigration adjudications comply with basic Constitutional, statutory, and ethical requirements is a disservice to the public that continues to demean and undermine the role of the Article III Courts as an independent judiciary.
Due Process Forever! Captive Courts & Complicit Judges, Never!
“Hector Daniel Lopez Ordonez was conscripted into the Guatemalan military when he was 15 years old. As part of the G-2 intelligence unit, Lopez Ordonez was ordered— and repeatedly refused—to torture and kill people. After a particularly horrific incident in which Lopez Ordonez refused to murder a five-month-old baby and threatened to report the G-2’s abuses to human rights organizations, the G-2 confined him to a hole in the ground for ten months. Upon his release, he fled to the United States. Lopez Ordonez now petitions this Court to review an order from the Board of Immigration Appeals (“BIA”) denying his asylum application and ordering his removal to Guatemala. The BIA determined that Lopez Ordonez did not meet the nexus requirement to establish his eligibility for asylum—that is, he did not show past persecution on account of a statutorily protected ground. The record in this case, however, compels us to conclude that Lopez Ordonez has demonstrated that one central reason for his persecution by the Guatemalan military was his political opinion, a protected ground under the Immigration and Nationality Act (“INA”). Accordingly, we vacate the BIA’s nexus determination and remand for further proceedings.”
“Chief Judge Gregory wrote the opinion, in which Judge Wilkinson and Judge Wynn joined.”
Beneath the smokescreens of the uncontrolled backlog and gross mismanagement at EOIR lies an uglier truth. The BIA is a politically motivated tool of the Trump regime that puts reaching preconceived denials of protection ahead of Due Process and the fair application of asylum law.
This case should have been an easy grant, probably a precedent. By requiring the DHS, the Asylum Office, and Immigration Judges to follow a properly fair and generous interpretation of asylum law that would achieve its overriding purpose of protection, an intellectually honest BIA with actual legal expertise in applying asylum laws would force an end to the racially-driven intentional perversion of asylum laws and Due Process by the Trump regime.
More cases granted at a lower level would discourage the largely frivolous attempts to deny asylum engaged in by the DHS here. It would reduce the backlog by returning asylum and other protection grants to the more appropriate 60%+ levels they were at before first the Obama Administration and now the Trump regime twisted the laws and employed various coercive methods to encourage improper denials to “deter” legitimate refugees from Central America and elsewhere from seeking protection.
With fair access to legal counsel, many more asylum cases could be well-documented and granted either by the USCIS Asylum Office (without going to Immigration Court) or in “short hearings” using party stipulations. The ability to project with consistency favorable outcomes allows and encourages ICE Assistant Chief Counsel to be more selective in the cases that they choose to fully litigate. That encourages the use of stipulations, pre-trial agreements, and prosecutorial discretion that allows almost all other courts in America, save for Immigration Courts, to control dockets without stomping on individual rights.
It would also force all Administrations to establish robust, realistic refugee programs for screening individuals nearer to the Northern Triangle to obviate the need for the journey to the Southern border. Additionally, compliance with the law would pressure our Government to work with the international community to solve the issues causing the refugee flow at their roots, in the refugee-sending countries, rather than misusing the U.S. legal system and abusing civil detention as “deterrents.”
Jacqueline Thomsen Courts Reporter National Law Journal
DOJ Said Judges Can’t Stop Immigration Hearings Over COVID-19. Cleary Gottlieb Called That a ‘Death Trap.’
Immigration lawyers and detained immigrants want U.S. District Judge Carl Nichols to temporarily stop all in-person immigration proceedings during the COVID-19 pandemic.
Justice Department attorneys told a federal judge in Washington, D.C., on Wednesday that he lacks the authority to temporarily halt in-person court proceedings for detained immigrants during the COVID-19 pandemic.
. . . .
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Those will full access can go over to the NLJ for Jacqueline’s complete article.
With DOJ lawyers arguing that folks have to “exhaust their administrative remedies” (basically by risking death or serious illness) you get the general tenor of the argument before U.S. District Judge Carl Nichols in D.C.
I’d be tempted to say that during the pandemic ethical rules have been suspended for DOJ attorneys. But, in my view, that was true even before the pandemic.
And, in their defense, some of their misleading narratives and insane arguments actually WIN in Federal Court, as some Federal Judges are used to deferring to the DOJ and giving their lawyers a pass on both ethical rules and acceptable arguments that generally wouldn’t be extended to private attorneys acting in the same irresponsible manner.
What would be an acceptable response in a better functioning, ethics-biased DOJ: for the lawyers to go back to their “agency clients,” tell them that they won’t defend the indefensible, and advise them to start working immediately with the plaintiffs to develop methods for hearing only the most pressing cases under appropriate health safeguards.
Interestingly, the positions argued by DOJ lawyers are actually putting the lives of their colleagues at EOIR and their fellow Government attorneys at ICE at risk! Perhaps if they “win,” they should be given a chance to risk their lives to represent ICE in Immigration Court! Wonder how their nifty little “exhaustion arguments” would help them ward off the virus.
With 1.4 million cases already in the backlog, it’s not like any one removal more or less during the pandemic is going to make much of a difference. Unlike, perhaps, some other courts built with sufficient space and electronic support, the poorly designed “brandbox” Immigration Courts with marginal, at best, technology, are unhealthy in the best of times. Certainly, it’s difficult to imagine that there are very many cases other than perhaps bonds or stipulated “grant and release” cases that need to go forward right now.
How many lawyers (on both sides) and Immigration Judges are going to have to die before the Article IIIs finally take notice and put the brakes on the nonsense going on at EOIR?☠️⚰️☠️⚰️☠️⚰️
Patrick J. McDonnell, Molly O’Toole and Cindy Carcamo report for the LA Times:
MEXICO CITY — More than half the deportees flown back to Guatemala by U.S. immigration authorities have tested positive for coronavirus, the top Guatemalan health official said Tuesday.
Speaking to reporters in Guatemala City, Hugo Monroy, the minister of health, did not specify a time frame or the total number of deportees who had arrived home with infections.
But hundreds of Guatemalans have been returned in recent weeks, including 182 who arrived Monday on two flights from Texas.
Monroy said that on one flight — which he declined to identify — more than 75% of the deportees tested positive.
But he made clear this was not an isolated incident and said many deportees arrived with fevers and coughs and were immediately tested.
“We’re not just talking about one flight,” he said. “We’re talking about all the flights.”
In video later released by the government, Monroy contradicted his earlier statements and said he was referring to just one flight.
The Guatemalan Foreign Ministry said through a spokesman Tuesday that the “official” number of deportees diagnosed with COVID-19 is four, including one who arrived on one of the flights Monday.
A high number of infections among deportees would cast doubt on the official tally of how many of the more than 33,000 migrants in U.S. detention are infected. U.S. immigration officials have said that 77 have tested positive, noting that some of those may no longer be in custody.
The U.S. Department of Homeland Security did not respond to requests for comment.
. . . .
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Read the rest of the article at the link.
For four decades, the U.S. has been deporting its problems to the poorest and most unstable countries in Central America. Gangs such as MS-13 and the 18th Street Gang actually originated in Los Angeles and were “exported” to Central America. Once there, they flourished, grew more powerful, became “de facto governments” in some areas, and instituted a reign of terror and persecution that sent hundreds of thousands of new refugees fleeing north to the United States over the years.
Now, Trump and his cronies once again believe that often illegal and irresponsible deportations to the Northern Triangle countries will allow us to escape accountability. But, it won’t.
Irresponsibly spreading disease in poor countries where public health services are dismal at best will eventually have consequences throughout the Americas. And, we will not be immune from the long-term effects of empowering theTrump kakistocracy and its White Nationalist cronies. What goes around come around. Neither wealth nor arrogant ignorance will save us from paying a price for our lack of concern for humanity.
Due Process Forever! Malicious Incompetence Never!
The Trump administration’s novel COVID-19 border ban invokes public health authority to erect a shadow immigration enforcement power in violation of the Refugee Act, legal safeguards for unaccompanied minors, and fundamental procedural rights. Relying on an obscure 1944 provision that provides no authority for immigration removals, the Centers for Disease Control purports to authorize summary Border Patrol expulsions of asylum seekers.
On March 20, the Centers for Disease Control (“CDC”) issued a largely unnoticed but sweeping order authorizing the summary expulsion of noncitizens arriving at the border without valid documents. The Order operates wholly outside the normal immigration removal process and provides no opportunity for hearings or assertion of asylum claims. It deploys a medical quarantine authorization to override the protections of the immigration and refugee laws through the use of an unreviewable Border Patrol health “expulsion” mechanism unrelated to any finding of disease or contagion.
How the COVID-19 Expulsion Policy Works
The CDC Order is based on an emergency Department of Health and Human Services (HHS) Interim Final Rule issued simultaneously with the Order under the authority of an obscure provision of the 1944 Public Health Service Act. Section 362 of that Act authorizes the Surgeon General to suspend “introduction of persons or goods” into the United States on public health grounds. Based on an unprecedented interpretation of the 1944 Act, the CDC regulation invokes the COVID-19 pandemic to redefine what constitutes “introduction of persons” and “introduction of communicable diseases” into the United States. It establishes a summary immigration expulsion process that ignores the statutory regime governing border arrivals and disregards the protections and procedures mandated by the 1980 Refugee Act and Refugee Convention as well as the special safeguards for unaccompanied minors under the Trafficking Victims Protection Reauthorization Act (“TVPRA”).
The CDC Order “suspending introduction of certain persons” applies to land travel from two countries, Mexico and Canada, and only to those noncitizens defined as “covered aliens.” That definition is unrelated to infection or disease. It includes only those who arrive by land without valid travel documents and immediately “suspends” their “introduction” for a renewable period of 30 days. In actuality the Order singles out those who seek asylum – and children – to order them removed to the country from which they entered or their home country “as rapidly as possible.” A recently leaked Customs and Border Protection directive makes clear that expulsion is the goal and that no process is provided.
The Order’s stated rationale is the risk alleged from “covered aliens” being crowded in “congregate settings.” The apparent justification for bypassing all legal protections and procedures is the CBP’s assertion that Border Patrol officers are “not operating pursuant to” their authority under the immigration laws.
This shadow immigration expulsion regime is not part of some coherent public health or safety plan to seal our borders or to diminish the risk of COVID-19’s introduction into the U.S. A web of other proclamations and restrictions leave open many avenues for other travelers to enter the United States. The risk of processing in congregate settings is a function of DHS’s own practices and policies; it is also not unique to landborders.
The CDC order is designed to accomplish under the guise of public health a dismantling of legal protections governing border arrivals that the Trump administration has been unable to achieve under the immigration laws. For more than a year, the administration has sought unsuccessfully to undo the asylum system at the southern border claiming that exigencies and limited government resources compel abrogating rights and protections for refugees and other noncitizens. The courts have rebuffed those attempts in critical respects. Now the administration has seized on a public health crisis to impose all it has been seeking – and more.
Unquestionably, the United States faces a pandemic of unknown scope and duration that has led to the greatest social and economic disruption and restrictions on personal movement in our lifetime. The hospital and healthcare system is under siege and threatened with collapse in some areas. Infected persons can be asymptomatic and may not be detected. The addition of contagious individuals can exacerbate spread of the virus, place additional strains on hospitals, pose dangers to healthcare workers and law enforcement officers, and increase the risk of infection for others.
But the COVID-19 ban is an act of medical gerrymandering. It is crafted to override critical legal rights and safeguards in singling out only those arriving at the border without authorization and deeming that class of people a unique and unmitigable public health threat. It tries to justify an end-run around congressionally mandated procedural rights and protections essential for refugees and unaccompanied minors and it does so to achieve an impermissible goal. What’s additionally shocking here: the statutory provision does not actually give the executive branch expulsion authority.
. . . .
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Read the rest of Lucas’s “mini treatise” at the above link.
The law is clearly against Trump here, as Lucas so eloquently and cogently sets forth. But, that doesn’t necessarily mean much in an era of a feckless GOP-stymied Congress and an authoritarian-coddling righty Supremes’ majority led by Roberts and his four sidekicks.
The Supremes have delivered a strong message to the lower Federal Courts that Trump can do just about anything he wants to migrants. He just has to invoke some transparently bogus “national security” or “emergency” rationale for ignoring the Constitution and statutes.
It’s “Dred Scottification” in full force. Largely the same way the courts buried the rights and humanity of African Americans to enable a century plus of “Jim Crow” following the end of the Civil War. The “law of the land” just became meaningless for certain people and in certain jurisdictions. “Any ol’ justification” — states’ rights, separate but equal, no jurisdiction, etc. — was more than enough to read Africans-American citizens out of their Constitutional and other legal protections.
Don’t kid yourself. That’s exactly what Trump, the GOP, and the Supremes’ majority are up to here.
And, the amazing thing, here in 21st Century America, they are getting alway with it! In plain sight!
This November, Vote Like Your Life Depends On It! Because It Does!
Andrea Castillo and Brittny Mejia report for the LA Times:
For weeks, as the coronavirus spread, Jose Hernandez Velasquez worried about the dangers of being detained inside the Adelanto ICE Processing Center 80 miles east of Los Angeles.
The 19-year-old Guatemalan immigrant listened uneasily as other men called their families, begging them to do everything possible to get them released so as to reduce their odds of contracting the deadly illness.
Ultimately, in light of the pandemic, a federal judge ordered immigration authorities to release Hernandez, an asylum seeker with hypertension who had spent nearly 21/2 years at the facility. When a guard came to tell him the news, Hernandez was speechless. Other detainees burst into applause.
“I was really worried,” he said in a phone call after his release. “It was so difficult to be inside.”
As an increasing number of Immigration and Customs Enforcement detainees across the country test positive for COVID-19, California lawyers are working to free as many clients as they can by invoking constitutional rights and arguing on humanitarian grounds. In the last two weeks, U.S. District Judge Terry Hatter Jr. ordered at least 10 people released from Adelanto, one of the country’s largest detention centers, holding nearly 2,000 people.
It’s unclear how many detainees have been released nationwide because of coronavirus concerns. In recent weeks, federal judges across the country have ordered the release of more than 40 detainees.
Like Hernandez, most have been released after lawyers petitioned federal courts on their behalf. Others have been released on bond or through humanitarian parole, which is free to people with a compelling emergency.
In response to the pandemic, ICE has instructed field offices to assess and consider for release those deemed to be at greater risk of exposure, reviewing cases of individuals age 60 and older, as well as those who are pregnant.
In court filings, ICE has argued that concern about detainees contracting COVID-19 is “based on mere speculation” and that releasing large numbers of them would set a precedent that would persist even after the virus subsides.
Until ICE agrees to release more detainees, “you’re going to keep seeing petitions like this,” said Jessica Bansal, senior staff attorney at the American Civil Liberties Union of Southern California, which got Hernandez and others released from Adelanto. “Because people need to get out.”
The ACLU has sued ICE facilities in multiple states over coronavirus concerns.
. . . .
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Read the rest of the article at the above link.
Empowering a regime that functions in such a contemptuous, cruel, and incompetent manner is insane and wasteful to boot. Everyone, including the legitimate needs of DHS enforcement (not much resemblance to the current racially-driven scofflaw mess) would benefit from a professionalized, accountable, and properly focused DHS and an independent, due process with efficiency-oriented U.S. Immigration Court.
Immigration enforcement could focus on priorities that actually relate to the safety and security of our nation, the private and NGO immigration bar could expand individual case representation before the Immigration Courts thus promoting efficiency with due process, and the U.S. District Courts could return to other cases. It would be a win-win-win, notwithstanding the bogus blather of the White Nationalist restrictionists who seek to use the pandemic as a weapon to “zero out” legal immigration and force all migration into the “black market” where it can more easily be exploited and abused by them and their cronies.
Due Process Forever! Malicious Incompetence Never!
ENSHRINED IN law for four decades, the system that allows persecuted migrants to seek refuge in the United States has survived sustained assaults since the Trump administration took office. Now Mr. Trump, having weaponized a public health crisis to ignore long-established statutes, rules and procedures, has finally managed to crush it.
For the past three weeks, virtually every category of migrant without papers has been turned back at legal ports of entry along the southern border or expelled immediately upon apprehension by border agents; 10,000 have been thrown out so far in the crisis. They include minors who may have been trafficked and asylum seekers, individually or in families, who may face persecution in their home countries. Immigration courts are suspended, deportation procedures have been ditched, and due process is a thing of the past.
For years, President Trump has disparaged unauthorized migrants as disease carriers, with paltry evidence. Now he justifies the brutal measures, imposed March 21, by insisting that in the midst of a pandemic, migrants could ignite a “perfect storm” of contagion that would endanger border agents, the health-care system and the public. “Left unchecked,” he warned, they could even “cripple our immigration system” — the very immigration system he has tried by every means to dismantle since taking office.
[[Full coverage of the coronavirus pandemic]]
The evidence for that is, so far, scant; a hundred times more people have tested positive for the coronavirus in the United States than in Mexico, El Salvador, Honduras and Guatemala combined — the countries of the overwhelming majority of migrants at the southern border. That adds weight to the suspicion that Mr. Trump, contemptuous of what he calls “the worst immigration laws ever,” is obliterating them through the legally dubious means of a health emergency measure enacted in 1944.
It is reasonable in the face of this pandemic to exercise extreme caution in screening those who are admitted to the United States, and even barring most foreign travelers from Western Europe and China, some of the world’s most ravaged regions. It’s a different thing to impose a systematic, draconian, extralegal regime, one never contemplated by Congress, whose effect is to ignore and override 40 years of asylum and immigration law.
Mr. Trump had severely tightened asylum procedures before the pandemic but had not, and could not, expunge the possibility that migrants with reasonable asylum claims could apply and be heard in court. Respecting those asylum procedures, like respecting civil liberties, presents few challenges during prosperity and peacetime. It is more difficult, and requires political courage, when the country is reeling economically, and on what amounts to a war footing, as it is today.
Yet it is precisely in times of emergency that any country faces its most severe tests — ones that call into question the nation’s essential character and values. It shames itself when it fails to live up to those qualities and values, as the United States did when it forcibly imprisoned more than 100,000 Japanese Americans in internment camps during World War II. That is what Mr. Trump is doing now by betraying this country’s long tradition as a beacon to those fleeing oppression.
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Four decades of progress, uneven and imperfect as it was, in implementing the Refugee Act of 1980 undone in less than four years. Notably, Trump obliterated the Act without Congressional participation. Also, he took advantage of the Supremes failure to force the Executive to comply with the letter and spirit of its landmark 1987 decision in INS v. Cardoza-Fonseca establishing a generous, humanitarian reading of the “well-founded fear” standard for asylum seekers under the Refugee Act of 1980. When the Executive can simply eliminate laws he doesn’t like without Congress and without effective resistance from the Supremes, democracy is definitely on the ropes.
The “mainstream media” is finally picking up on what the “New Due Process Army” and Courtside have been saying for the better part of three years. And, the dissolution of American democracy started with the assault on immigration and refugee laws. But, it won’t end there unless we vote the regime out in November and start rebuilding an America that honors Due Process, the rule of law,competency, and the dignity and rights of all humans.
Due Process Forever! Vote Like Your Life Depends on It! Because, It Does!
They are children who were caught crossing the southwest border without papers and sent to migrant shelters in New York when the coronavirus was silently spreading. Now the city is a pandemic epicenter in lockdown, but the Trump administration is pressing ahead with their deportation cases, forcing the children to fight in immigration court to stay.
In two courthouses in the center of the besieged city, hearings for unaccompanied children—migrants who were apprehended without a parent—are speeding forward. The U.S. Department of Justice, which controls the immigration courts, has said it has no plan to suspend them.
This week an 8-year-old, a 5-year-old, and a teenage single mother with an infant were preparing for imminent court dates and deadlines in New York, lawyers representing them said. With children trapped indoors in shelters and foster-care homes, many young migrants who don’t have lawyers may not even be aware of ongoing court cases that could quickly end with orders for them to be deported.
Hearings for unaccompanied children are also proceeding in courts in other COVID-19 hotspots, including Los Angeles, San Francisco, Seattle, Chicago and Boston.
The Executive Office for Immigration Review, the Justice Department agency in charge of the immigration courts, has rejected calls from judges, prosecutors and immigration lawyers to shut down courts nationwide. Although hearings for immigrants who are not detained have been suspended through May 1, cases of people in detention are going forward at the same accelerated pace as before the pandemic.
That includes many unaccompanied children. Since last year, Trump administration officials have instructed the courts to treat those children as detained if they are in shelters or foster care under the custody of the Office of Refugee Resettlement, or ORR, a federal agency. Immigration judges are under pressure to complete detained cases within 60 days—warp speed in immigration court—with no exception for children.
Across the country, about 3,100 unaccompanied children are currently in the custody of the refugee agency. Many have run from deadly violence and abuse at home and hope to find safety with family members in the United States. The demands for them to meet fast-moving court requirements are causing alarm among lawyers, caregivers and families.
“It is inexplicable and dangerous that the Trump administration has insisted that detained unaccompanied children are still required to go to court,” said Wendy Young, president of Kids in Need of Defense, or KIND, which helps provide lawyers for unaccompanied children. Unlike in criminal courts, in immigration court children have no right to a lawyer paid by the government if they cannot afford one.
On April 8, the American Immigration Lawyers Association, the immigration bar, and other legal groups asked a federal court for a temporary restraining order to force the Justice Department to suspend in-person hearings of detained immigrants during the pandemic.
Justice Department officials say they are holding hearings for immigrants in detention, including for children, so they can get their cases decided and perhaps be freed quickly.
. . . .
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Read the rest of Julia’s report at the link.
The idea, as DOJ claims, that this is being done to facilitate the “freeing” of kids is preposterous on its face.
First, there is nothing stopping them from arranging placements for children without the Immigration Court hearings being completed. It used to be done all the time.
Second, the DOJ has intentionally and unethically rewritten asylum laws through “precedents” aimed primarily at making it harder to qualify for asylum. This abuse of process particularly targets those fleeing persecution resulting from various types of systematic government and societal violence in Central America. The approval rates for these types of cases have fallen to minuscule levels under Trump.
Third, no child has any chance of succeeding in Immigration Court without a lawyer. Almost all lawyers who represent children in Immigration Court serve “pro bono” — or work for NGOs who can only provide minimal salaries.
Yet, the Administration is making these lawyers risk their health and safety, while artificially accelerating the process, all of which actively and aggressively discourages representation.
Added to that is the constant “Aimless Docket Reshuffling,” with Immigration Courts closing, reopening, and re-closing on a moment’s notice and dockets constantly being rearranged as judges, court support staff, interpreters, and DHS lawyers fall ill.
The Administration could work with groups like KIND and other NGOs to arrange placements, and schedule hearings in a manner that promotes health and safety for everyone while maximizing due process. But, the Administration refuses to do this.
Instead, those seeking to inject sanity, common sense, best practices, and human decency into the process are forced to sue the Administration in Federal Court. This further dissipates and diverts already scarce legal resources that could have been used to actually represent children in Immigration Court and arrange safe placements for them.
Finally, as I have noted previously, the Administration has simply suspended the operation of the Constitution and the rule of law at the borders. This means that thousands, including unaccompanied children, are “orbited into the void” without any process whatsoever or any effort to ascertain their situations or best interests.
All of this gives lie to the Administration’s bogus claim that this is about looking out for the best interests of these kids. No, it’s about maximizing cruelty, destroying lives (considered an effective and acceptable “deterrent” in nativist circles), and carrying out a noxious racist White Nationalist restrictionist immigration agenda.
And, to date, Congress and the Federal Courts, both of which have the power to put an end to this disgraceful, unlawful, and unconstitutional conduct have been largely “MIA.”
Nevertheless, thanks to courageous and dedicated journalists like Julia and organizations like KIND, a public record is being made. While those responsible for implementing and enabling these abuses directed at the “most vulnerable of the vulnerable” among us are likely to escape legal accountability, they will eventually be tried and found wanting in the “court of history.”
