"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.
Blitzer’s villains include “[n]umerous U.S. institutions, bureaucrats, and presidents” who supported and enabled “savage governments responsible for vast numbers of people killed — many of them poor and Indigenous.”
Blitzer has particular contempt for “one of the most ineptly titled American officials ever — the State Department’s assistant secretary for human rights, Elliott Abrams — [who] tried to suppress information about the massacre of 978 people, including 477 children, in the Salvadoran village of Mozote.” Abrams, later was convicted of misdemeanors for withholding information from Congress in connection with the Iran-Contra scandal, but was pardoned by Bush I.
Among Blitzer’s unsung heroes are “relentless US. immigration advocates,” the late Rep. Joe Moakley (D-MA) who “grasped all the nuances of U.S.-manufactured border crises,” and of course, an “array of migrants” who bravely persevered in the face of treacherous, dishonest, ill-informed, and often deadly U.S. immigration policies intended to “break them” and destroy their humanity. That disgraceful process continues today — on steroids!
The review ends on a perhaps unexpectedly optimistic note:
And yet, after reading Blitzer’s book, one can’t help but think that the impossible might be possible — that maybe, just maybe, this could be fixed. He’s not trying to lay out a set of policy solutions. He’s making a more nuanced plea, a rejection of the “selective amnesia” of politics in favor of a deeper understanding of how we — as a nation and as a region — got here.
It is a book with a “mission,” he writes, a nudge for U.S. decision-makers and a platform for voices on the other side of the border, a “kind of go-between: to tell each side’s story to the other; to find a way to bring the Homeland Security officials into the housing-complex basement; and to allow the migrants in the basement to participate, for once, in the privileged backroom conversations that decide their fate.”
Hopefully, those with the power to change things will listen.
Manuel Roig-Franzia is a Washington Post features writer and formerly served as The Post’s bureau chief in Miami and Mexico.
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Following up on the last point — the “seldom-heard and never-heeded by our politicos and media” voices of those whose lives and humanity are threatened by our failed policies, this Thursday, Feb. 15, @ 3 PM EST, Immigration Law & Justice Network & The Hope Border Institute will present a free webinar, “Stop The War On The Border: Migrants Speak:
Stop the War on the Border: Migrants Speak – Detengan la Guerra en la Frontera: Migrantes Hablan
Date & Time
Feb 15, 2024 03:00 PM in
Description
ILJ Network and our partners invite you to participate in this webinar and hear directly from migrants in the northern Mexican border and the U.S. interior on how restrictions to asylum and humanitarian parole impact their lives.
ILJ Network y compañeros de coaliciones los invita a participar en este evento virtual para escuchar directamente de migrantes, ubicados entre la parte Norte de México y el interior de los Estados Unidos, acerca de cómo dichas restricciones al derecho de asilo y de parole humanitario impactan sus vidas.
Information you provide when registering will be shared with the account owner and host and can be used and shared by them in accordance with their Terms and Privacy Policy.
This is very timely! Rarely do we hear from those whose lives, dignity, and safety are being bargained away and devalued as if they were “commodities” at the disposal of disingenuous politicos and interests who have turned their misery and desperation into “profit centers” and political rallying cries.
🏈🏆Finally, on another topic, congrats to Coach Andy Reid, Patrick Mahomes, Travis Kelce, the rest of the Kansas City Chiefs, and “Chiefs’ Superfan” Taylor Swift on their second consecutive Lombardi Trophy and third in five seasons.As almost everyone in sleep-deprived America knows by now, KC outlasted the SF 49ers in yesterday’s Super Bowl ending with a thrilling overtime finish 25-22!
For everyone else, including my Green Bay Packers, it’s “wait till next season!”😎
Reena Diamante reports for the Spectrum News El Paso:
. . . .
“A president doesn’t have the unilateral authority to shut down the border. If a president did, the prior president would have done it,” said Alberto Benitez, director of the Immigration Clinic at George Washington University Law School. “Even the prior president, who had a particular perspective on immigration, never shut down the border. There needs to be buy-in from Congress that a border shutdown is necessary, which there never has been.”
. . . .
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You can read the full article at the link.
Professor Benitez modestly quipped that this was: “My five seconds of fame on Spectrum News!”
You are always in the “NDPA Hall of Fame,” my friend!
Federal law says anyone fleeing persecution may request asylum once they reach U.S. soil, no matter how they got there. Successive administrations have attempted to restrict that simple rule, however, desperate to reduce record numbers of crossings that have overwhelmed the immigration system, leaving many to live for years in the United States without a decision in their cases.
. . . .
One border, two realities
The perceived success of Biden’s approach depends on which side of the border the migrants are on.
Brownsville, an American city of 200,000 on the other side of the Rio Grande from Matamoros, Mexico, is officially under a state of emergency. But that emergency has dissipated in recent months.
The streets are quiet, thanks to a 70 percent drop in illegal border crossers since the new asylum rule and other Biden policy changes took effect. City workers greet the relatively small number of newcomers released from holding facilities and escort them to a curtained-off parking garage and to the first bus out of town.
In Matamoros, however, migrants trying to navigate the new rules are squeezing into shelters, sharing hotel rooms, curling up in a large camp on the dry riverbank or under pop-up tents at a grimy former gas station.
On a pedestrian bridge one hot morning in late June, Mexican authorities shooed away those who did not have an appointment through the app — including some Mexicans, even though the rule change is not supposed to apply to them.
“Let’s go, please,” one officer said to migrants who gathered at the Matamoros edge of the bridge. “Now.”
Advocates for immigrants say it is unlawful for officials to block migrants from crossing borders in search of protection — and unfair to presume they can easily navigate U.S. asylum law and appointments via smartphone apps. The process of requesting asylum is supposed to be simple, they said, because lives are at stake.
But advocates are powerless to navigate around the new rules until the court case is resolved.
In the sweltering heat one recent day, Christina Asencio, a lawyer with Human Rights First, tried to explain to migrants in the Matamoros camps how the system is supposed to work.
. . . .
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Read Maria’s full article, one of the more balanced treatments I have encountered, at the link.
A few thoughts:
Even this fine article misses the biggest point: Most asylum seekers want to “do things the right way.” But there has been no “right way” for years because ofthe unlawful and bogus use of Title 42 by both the Trump and Biden Administrations. It’s still being unlawfully restricted by the arbitrary Biden Administration regulations. Yet, remarkably, asylum seekers are willing to risk their lives waiting in Mexico for an opportunity to apply in an orderly, legal manner under a broken and biased system unfairly “rigged” against them!THAT’S the “real big takeaway” about the reduction in unauthorized border crossings. It’s one that that nobody except experts and advocates are willing to fully acknowledge! Indeed, during the Title 42 charade, an asylum seeker’s only chance of getting into the system was to cross without authorization. Otherwise, they would have been summarily returned without any chance to present their claims.
Some asylum seekers will qualify for protection, some won’t. That’s what the legal, asylum system is supposed to determine — in a fair, expert, and timely manner. That our asylum system has become dysfunctional and ludicrously backlogged lies squarely with poor performance by Congress, the Executive, and the Courts, in many cases “egged on” by right-wing nativists’ myths and distortions. Blaming the victims — asylum seekers — for massive USG failures over decades is totally disingenuous!
Statistically, it’s true that most asylum applicants from the Southern Border do not achieve asylum under our current dysfunctional system. But, the question we should be asking is why aren’t more qualifying, given the horrible conditions in “sending countries” and the generous legal standards — including a presumption of future persecution based on past persecution — that are supposed to apply, but often don’t in practice.
One of the most egregious EOIR-led anti-asylum “scams” is abuse and misuse of the “nexus” requirement for asylum to send legitimate refugees back into harm’s way.See, e.g., immediately preceding reference. “Persecution” must relate to race, religion, nationality, membership in a particular social group, or political opinion. But, the asylum statute does NOT require that that be the sole or even the primary motivation for the persecution. It just has to be “at least one central reason.” And, usually, persecution is carried out by the persecutor for a variety of reasons. It’s called “mixed motive analysis” and EOIR Judges, particularly at the precedent-setting BIA, routinely ignore or mis-apply it to deny grantable claims.
Harm resulting from things like “work, poverty, natural disaster, and bad governments” does not automatically qualify an individual for asylum. But, contrary to what many suggest, neither do these circumstances preclude asylum. For example, while a “natural disaster” might not make an individual a “refugee” under law, if that individual were forced to live in a known danger zone or denied life-saving assistance at least in part because of religious, ethnic, or political identity, that WOULD qualify. Was the infamous “Kristallnacht” in Nazi Germany systemic persecution of Jews for ethic and religious reasons? Or was it “mere vandalism, random violence, and hooliganism?” I would say clearly the former. But, I can imagine today’s BIA attributing it to the latter, to deny protection to a large group of individuals. I adjudicated thousands of asylum cases as both a trial and an appellate judge during 21 years at EOIR. I found that harm where a “protected ground” was “at least one central reason” was the rule, not the exception as EOIR tries so hard to make it.
Other often “trumped up” methods EOIR uses for denying valid asylum claims include bogus “adverse credibility” findings; unreasonable “corroboration” requirements; fabricated “reasonable internal relocation” opportunities; nonsensical, ahistorical “changed circumstances” conclusions; ignoring or misconstruing expert testimony; “selective reading” or mis-reading of country background reports; coercive detention in substandard conditions; and restricting or limiting access to counsel. If you think this sounds like a national disgrace on “Garland’s watch,” you’re absolutely right!
Undoubtedly, under a properly functioning system, with true expert adjudicators and judges — those whose career experiences demonstrated sound scholarship and understanding of the life-threatening circumstances of asylum seekers and the inherent limitations of both the Asylum office and EOIR — many more asylum cases from those applying at the Southern Border and elsewhere would be granted.So, Government policies based largely on “deterrence” or on the self-fulfilling prophecy that “few will qualify” should be viewed as fatally flawed. Without a better EOIR and an asylum adjudication system run by well-qualified experts, we can’t possibly formulate rational and humane border policies or indeed workable immigration policies at all. Tragically, we’re a long way from that right now!
James “Jim” Crow Symbol of American Racism — Why are the Biden Administration and some Dem pols embracing this guy when it comes to asylum seekers — primarily individuals of color, merely seeking to exercise their legal rights and to be treated fairly and with human dignity?
Border Lines has published one of the best analyses of the Title 42 charade and its ongoing impact on our Government’s cruel, lawless, and misguided border policies. Given the cosmic impact of bad border policies, they have made it available “outside the paywall.”
Ultimately, Title 42 has ended, but the asylum restrictionist approach that it was the apex of has clearly not. For now, there’s no return to normal Title 8 processing — which, as regular readers of our historical analyses know, has never been impartial or apolitical, but at least provided some semblance of access and cursory due process. Title 42 is dead. Long live Title 42.
. . . .
This version of the transit ban is also, like its predecessor, under acute legal jeopardy. The ACLU has already sued to stop it, and some legal analysts are predicting that, given the precedents and legalities involved here, the administration’s efforts to make it compliant — including the very limited exceptions — won’t be enough. The CBP One exception is, after all, just another version of metering, another policy that was struck down. If there’s an injunction or even a final ruling and the transit ban goes down, then what? There’s at least some likelihood that word will spread and the surge of arrivals that was expected in the immediate aftermath of Title 42 will actually materialize then. How does the administration respond? Does it rush to enact an overlapping asylum restriction, as the Trump administration so often did? It’s hard to say.
A federal judge in Florida recently issued a restraining order blocking a Biden policy that would have allowed the administration to issue parole to some arriving families and instruct them to check in with ICE instead of placing them directly in removal proceedings, removing another option to control the immigration court backlog and avoid detaining families. It seems relatively unlikely that the administration will be happy to accept a defeat of its asylum restrictions that will then force it back into the uncomfortable position of detaining more families. In the meantime, market analysis site Seeking Alpha has upgraded the stock of private detention conglomerate GEO Group to “strong buy” in anticipation of strong profits from growth in detentions, not to mention GEO’s piece of all sorts of surveillance technologies used in the administration’s alternatives to detention programs.
In the meantime, an eight-year-old girl died yesterday in Border Patrol custody after having what is vaguely described as a “medical episode.” The machine churns on.
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Read the complete article at the link.
There’s lots of of “disturbing stuff” here. But, perhaps the worst and most discouraging is the role of the Biden Administration and some Dem pols in aiding, abetting, and even encouraging this 21st Century version of Jim Crow.
The poor and superficial reporting of the “mainstream media” — which performed like an adjunct Fox News — also has had life-threatening consequences. Inaccurately and cynically treating the Title 42 farce as “the norm,” and the return to applying some semblance of the rule of law (the Refugee Act has been in effect for more than four decades) as some type of radical “change” also has contributed mightily to the human tragedy and carnage at the border. Highly irresponsible!
More than two years have passed since Joe Biden took office on the promise of a more humane approach to immigration and the border. But in many ways, the president has struggled to distinguish himself from his hard-line predecessor: His administration has expanded Title 42, the anti-immigration loophole authorized by Donald Trump; failed to resolve the family separation crisis; and proposed a new spin on Trump’s “transit ban” that would make a large percentage of migrants ineligible for asylum.
What’s more, the Biden administration has also apparently failed to adequately protect thousands of migrant children from labor trafficking inside the US. On Monday, The New York Times reported that the Department of Health and Human Services did not intervene after receiving repeated warnings about underage migrants the agency had sent to sponsors who then forced them to work grueling hours in dangerous conditions. While the department is required by law to vet sponsors to help ensure that children placed in their care will not be trafficked or exploited, those vetting requirements reportedly went by the wayside in 2021 amid a scramble to home those children.
The Times noted that at least five HHS staffers have said they were pushed out of their roles after sounding the alarm about child safety concerns. Jallyn Sualog, a former HHS official tasked with overseeing the agency’s response to unaccompanied migrant children, told the paper that she went to great lengths to warn her superiors that children were being put at risk. “They just didn’t want to hear it,” said Sualog, who said she was moved to a different post in 2021 after filing a complaint with the department’s internal watchdog. (She later accused the department of retaliation before settling with the agency and resigning.)
The paper traced the crisis back to Susan Rice, the president’s domestic-policy adviser. In 2021, as Rice was attempting to move throngs of unaccompanied migrant children from HHS shelters to homes, she and her aides reportedly received a memo detailing accounts of abusive sponsors but did nothing. (White House deputy press secretary Andrew Bates told the Times that Rice “did not see the memo and was not made aware of its contents.”
Since the summer of that year, the number of migrant children being trafficked or exploited has skyrocketed. Monthly calls to the HHS reporting trafficking, neglect, or abuse have more than doubled in the two years since Biden entered office, per the Times.
. . . .
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Read Caleb’s full article at the link.
Two years of ignoring experts, appointing the wrong folks, and NOT FIXING what could and should have been a success in showing how robust, legal, properly generous, refugee and asylum programs, staffed and run by experts, could be a model of good government! Go figure!
The Trumpist GOP “plays” to a right wing extremist base — wedded to un-American and generally unpopular “culture wars” targeting a wide range of groups who basically are America’s future!
By contrast, the Biden Administration “disses, and runs away from” key parts of the Dem Coalition whose humane practical expertise and leadership should be at the core of the message. It’s certainly not that Biden’s misguided “Miller Lite” approach to asylum seekers and children at the border has “peeled off” any Trumpist support or is going to be a “winner” among independent voters!
How bad are the Biden Administration’s proposals? They generated an amazing 51,000+ public comments, the vast majority in opposition, despite a ridiculously short 30-day comment period apparently intended to “squelch” dissent.
Dems need to stop “running scared” on social justice issues and promote American values including the benefits of immigration and the importance of robust, generous, orderly legal asylum and refugee programs!See, e.g., https://www.washingtonpost.com/opinions/2023/04/18/biden-democracy-fight-republican-extremism/ (Perry Bacon, Jr. gets everything right in his critique of Biden’s failure take on GOP extremism, EXCEPT for his glaring omission of immigrants rights as a primary “driver” of social justice in America and vice versa).
The Biden administration will pause its signature effort to reform asylum processing at the border, Department of Homeland Security officials confirmed Wednesday.
The so-called asylum processing rule, which the administration launched with great fanfare in 2022, allowed asylum officers to grant and deny asylum to migrants at the southern border.
Administration officials say the pause is a temporary measure designed to ensure that the country’s immigration agencies are prepared for a potential increase in border crossings after the end of Title 42, a pandemic-era policy that allows border agents to quickly turn back migrants.
But critics say the pause signals President Biden’s latest move away from reforming the asylum process and back toward Trump-style restrictions at the southern border.
. . . .
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Read Hamed’s complete’s article at the link.
Like the term “temporary,” a “pause” is a bureaucratic “term of art” used to deflect attention from what’s really happening. “Pauses” can last indefinitely. If, after two years to work on it, and touting it as a transformational change, the Biden Administration can’t put this fairly straightforward “no brainer” change into effect, it’s not obvious what the “right time” would be!
Granting much more asylum at the AO level nearer to the time of initial encounter is one way of gaining “leverage” and avoiding the EOIR backlog — without stomping on anyone’s rights!The latter is key!
I think most experts would say that it should have been much easier to implement this positive change than some of the new, tone-deaf, bone-headed “proposed restrictions” on asylum, re-instituting dehumanizing and problematic “family detention,” and removing 30,000 non-Mexicans per month to potential danger, exploitation, and death in Mexico. These moves are guaranteed to provoke strong opposition as well as generating some rather unhappy publicity whenthe situation in Mexico gets out of control, as it inevitably will.🏴☠️
Remember folks, the Biden Administration claimed a year ago that it wanted to terminate Title 42 at the border. After an additional year, they still don’t have a plan for following the law! No wonder some critics perceived that the Biden Administration was actually relieved when a right-wing Federal Judge abused his authority to block the ending of Title 42.
Most experts doubt that the Biden Administration has the “right team” (pictured above) in place to restore fair, competent, due-process-compliant asylum adjudication at the border or anywhere else! PHOTO CREDIT: Ellin Beltz, 07-04-16, Creative Commons License, https://creativecommons.org/licenses/by-sa/4.0/. Creator not responsible for above caption.
Instead of preparing, planning, and “knocking some heads” within the bureaucracy, the Administration has squandered the last year thinking up new anti-asylum gimmicks, rather than making the long-overdue changes at EOIR, the Asylum Office, and the Refugee Program necessary to admit refugees legally, robustly, and timely — in other words to restore the rule of law as they had promised.
Oh, for some competence, backbone, and leadership in the Biden Administration’s immigration policy bureaucracy! Never has America needed the Ambassadorial Level position of Refugee Coordinator more than now! Unfortunately, that important role established by the Refugee Act of 1980 was “swallowed and digested” by a hostile bureaucracy years ago. Alex Aleinikoff, where are you when your country needs you?
Garland whiffs again. His mind appears to be on Ukraine not solving the mess in his courts or the ongoing violations of human rights of asylum seekers on his watch. “Strikeout” Attribution: Creative Commons 2.0“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up” —- Poor little guy might have expected a helping hand from a Dem Administration. But his predicament has actually gotten worse under Gartland!
“Plaintiffs commenced this action on July 31, 2020, alleging violations of the Administrative Procedure Act and the Due Process Clause of the Fifth Amendment, seeking an order enjoining Defendants from compelling attorneys to appear at the Newark Immigration Court for in-person proceedings, and seeking an order compelling Defendants to provide attorneys with an option for hearings at the Newark Immigration Court by remote videoconference … ORDERED that absent emergent circumstances, Webex motions must be filed electronically or postmarked at least fifteen (15) days prior to scheduled hearings. Emergent circumstances include, but are not limited to, contracting COVID-19 or coming into immediate exposure with a person who has contracted COVID-19 within the fifteen (15) day period; and it is further ORDERED that Newark Immigration Judges must issue a decision in deciding a Webex motion and clearly state the case-specific reasons upon which the decision is based, and such decisions must be signed and dated; and it is further ORDERED that if a Newark Immigration Judge does not issue a decision regarding a Webex motion 48 hours prior to the relevant hearing, the motion will be deemed granted by the Newark Immigration Judge, and the hearing will be conducted by WebEx. The 48-hour requirement applies only to motions made at least fifteen (15) days prior to the scheduled hearings and does not apply to emergent motions…”
“Akiva Shapiro, an attorney for the AILA, said in an email to Law360 on Thursday that the order “is a home run for us.” “We are thrilled that New Jersey immigration attorneys and their vulnerable clients are once again assured access to remote immigration hearings, and that the immigration court will no longer be able to force them to choose between risking their lives and staving off deportation and other severe consequences,” Shapiro said. He noted that attorneys with the DHS had taken a different stance than the EOIR. “Even the government’s own immigration enforcement lawyers supported us and testified that the Newark immigration court was risking their health in failing to provide meaningful access to remote hearings. That’s how bad the situation was at the Newark court,” Shapiro said.” – Read more at: https://www.law360.com/immigration/articles/1581757/judge-orders-nj-imm-court-to-decide-remote-requests
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Ever wonder why there are astounding backlogs at EOIR and DOJ won’t take a stand for fair treatment of asylum seekers at the border?
This pathetic, unprofessional, dilatory “defense of the indefensible” says much about the trajectory of DOJ under Garland! Also, it shows how under Garland, DOJ wastes time and money creating problems rather than solving them!
Competence, leadership, standards, professionalism, accountability — all missing at DOJ under Garland!
Is there ANY reason a “real” Federal Judge had to intervene to micromanage EOIR through this ridiculous self-created problem!
Folks, this is the “low hanging fruit” of governing! The Judge found that EOIR violated a stipulated order. Heck, DHS attorneys testified against the DOJ in this case! EOIR’s “expert” reportedly undermined their inane position! Yet, Garland let this nonsense continue to unwind and waste a U.S. District Court’s time.
There were plenty of opportunities for “higher ups” in the DOJ to end this farce. They failed to do so!
Remember, all this stupid resistance was to a program slated to end in May! The Judge basically begged the DOJ to do its job and settle this case! It fell on deaf ears!
Simply incredible! I take that back. “Incredible” understates the case; it’s insane! Totally! 🤯
As Garland wanders around Ukraine, the U.S. continues to violate human rights and international agreements at the Southern border on a daily basis. The DOJ takes anti-human-rights positions in Federal Court. Asylum denying IJs continue to run amok at EOIR. And, a U.S. District Judge has to take over daily administration of the New Jersey Immigration Courts because Garland won’t bring in competent expert leadership who can and will do the job!
Asylum seekers must wait for appointments in U.S. for everyone, or leave some behind.
By Andrea Castillo
WASHINGTON — Inside a tent near the Rio Grande in Matamoros, Mexico, Jeyson woke up before 3 a.m. every day for a month to fill out applications to request asylum for his family of four through a U.S. government mobile app.
The 25-year-old from Venezuela eventually secured appointments for himself and his wife, but the slots filled up so quickly that he couldn’t get two more for their children. They weren’t worried, though — they had heard about families in similar situations being waved through by border officials.
Instead, he said, a U.S. Customs and Border Protection agent told them recently that because each member of the family did not have an appointment, “you two can enter, but not your children.” Jeyson asked The Times to withhold his last name out of fear for his family’s safety.
Now, many families like Jeyson’s have found themselves confronted with a seemingly impossible decision: Wait indefinitely for enough appointments for the whole family, or split up. It is unclear how many migrants have been put in this position.
. . . .
“We already risked it all,” he said. “What can we do? We are hopeful that we can get three appointments. Three, in the end, is less than four.”
Advocates said some parents have decided to leave their children with extended family or friends in order to keep their appointments.
Jeyson said a couple from his encampment did just that, leaving their five children at the border bridge and entering the U.S. after managing to get only two appointments.
Children who are unaccompanied by a parent are exempt from Title 42. Those in the care of adults who are not their legal guardians — even if they are extended family — are separated until a guardian can be properly vetted. Jeyson said he watched as the children walked up to a border agent and were taken into custody.
Felicia Rangel-Samponaro, director of the Sidewalk School, a nonprofit that offers education, medical care and other assistance to migrants in Mexican border towns, has organized sessions with parents at various shelters and encampments in Matamoros and Reynosa to explain what will happen if they send their child across the border unaccompanied.
“We don’t want them to think you cross and then your child crosses and will come back to you a day later,” she said. “We were surrounded by parents who were showing us, one after the other, [who] have an appointment but their child does not.”
Rangel-Samponaro recommended to parents that they cancel their appointments and restart their search. But some parents told her they would separate from their kids anyway.
“Family separation has never stopped,” she said, referencing the Trump administration’s “zero tolerance” border policy that led to thousands of migrant children being taken from their parents. “The only difference here is that CBP One is now doing it instead of the other ways it’s been done since 2018.”
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Read Andrea’s complete article at the link.
Let’s start with one undisputed fact: The number of appointments available on CBP One is pathetically, ridiculously inadequate for the KNOWN number of potential applicants waiting in Mexico! Why would this be after the Administration has had over two years to work on this perhaps challenging, yet very solvable problem?
Unnecessary delay is just another form of “bureaucratic deterrence through incompetence” used by the Trump Administration and, inexcusably, continued under Biden.
Just how bonkers is this DHS-created problem? Dependents are included on a primary asylum seeker’s application. Consequently, in most cases one application covers the entire family.
And, dependents don’t have to “prove” independent eligibility for asylum. Therefore, anything beyond biographical information and perhaps proof of relationship is unnecessary.
There is absolutely no reason for requiring a separate “appointment” for each family member. The current system is “pure harassment and deterrence through bureaucratic incompetence.”
In Immigration Court, a family of five required only ONE asylum hearing slot — NOT FIVE!
Most legal asylum seekers at the border want to “do things the right way” — present themselves to DHS and submit an application. It’s neither profound nor “illegal.”
The BEST way of getting applicants to use the ports of entry is to work with experts and NGOs to establish a user-friendly, generous, timely system that prioritizes the many strong claims and grants them promptly at the Asylum Office rather than feeding them into a backlogged and dysfunctional EOIR.
In other words, if you BUILD a fair, credible, user-friendly legal application system at legal ports of entry, applicants will USE it. That the Trump White Nationalists destroyed our legal, statutory refugee and asylum systems was well-known at the time. Indeed, Biden and Harris campaigned on a pledge fix the system and restore legal asylum!
Instead, the Administration failed to utilize the skills and experience of experts to have a planned fix ready on “day one.” Since then, over more than two years, they have inexplicably ignored expert advice, wasted time, squandered resources, and bobbled through a bewilderingseries of mindless “Stephen Miller Lite deterrence gimmicks,” including “dedicated dockets,” prioritizing the wrong cases, “Aimless Docket Reshuffling” on steroids, a“Miller Lite holdover” BIA known for hostility to asylum seekers, ignoring the need for pro bono representation, failing to train and deploy enough Asylum Officers to the border, and not working with advocates, NGOs, and asylum seekers to prescreen cases, start granting asylum and moving qualified refugees (and their families) through the system and into durable legal status prior to the lifting of Title 42.
The CBP One screwup is just the latest in a string of “unforced errors” by the Biden Administration that abuse asylum seekers without any systemic benefits to anyone — “random acts of cruelty and stupidity!” This app was obviously designed by non-users for use by USG “gatekeepers” without any idea of what its like to be an asylum seeker stuck in Mexico.
Indeed, it appears that the app’s developers have little idea of how the legal asylum system works. Talk about “amateur night at the Bijou!”
Perhaps, the Biden Administration should have used a different method for selecting the so-called “developers” of their failed “CBP One App!” PHOTO: Thomas Hawk Creative Commons Amateur Night
“Family separation” has never stopped; now it has been“automated” — by a Dem Administration that has abandoned humanity and betrayed its campaign promises! Inexcusable!
“I’m gone, but my ‘evil spirit’ lives on in the West Wing! They have even ‘one-upped’’ me with a ‘family separation app’ called CBP One! Never has inflicting gratuitous cruelty been so easy!” Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
The Biden proposal has picked up somewhat tepid endorsements from the likes of Trumpsters DHS official Chad Wolf and leading GOP insurrectionist Rep. Jim Jordan (R-OH). Tells you all you really need to know about just how cruel and counterproductive these harebrained proposals are!
These are the folks that the Biden administration is pandering to while ignoring and disrespecting experts and asylum advocates who have centuries of collective experience working on asylum and the border. They also have plenty of good ideas for real asylum/human rights/border reforms that will combat cruelty and promote orderly compliance with the rule of law. The Biden Administration just isn’t interested in, or perhaps capable of, “doing the right thing.”
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Here’s the text of my “custom revision” of the standard comment posted on the website:
I am a retired US DOJ attorneywith more than 35 years ofgovernment experience, all of it in the immigration field, mostly in senior positions. I have been involved in immigration and human rights, in the public and private sectors, for five decades
My last 21 years were spent as an EOIR Judge: eight years as an Appellate Immigration Judge on the BIA (six of those years as BIA Chair), and 13 years as an Immigration Judge at the (now legacy) Arlington Immigration Court. I was involved in the enactment of the Refugee Act of 1980 as well as developing implementing regulations and setting precedents thereunder.
I state unequivocally that these unnecessary proposed regulatory changes are a disavowal of more than four decades of U.S. (and international) asylum law as well as a shocking betrayal of the promise by the Biden Administration to stand up for the rights of legal asylum seekers and end the White Nationalist attempt by the Trump Administration to kill asylum without legislation.
The proposed rule is contrary to well-established United States law regarding the right to seek asylum in our country. There is absolutely no basis in law for the proposed “presumption of denial” for those who seek asylum outside a port of entry or who have transited other countries (as most have) without seeking asylum.
Indeed, the Administration’s approach is in direct contravention of the INA, which establishes rigorous criteria for designating “safe third countries” for asylum seekers. Only Canada has met those rigorous criteria to date, and even then only for a very limited class of applicants.
The idea that Mexico or other countries in Central America that asylum seekers customarily transit on the way to our southern border are “safe havens” for asylum seekers is patently absurd and counterfactual! Indeed, all legitimate experts would say that these are some of the most dangerous countries in the world — none with a fairly functioning asylum system.
Individuals are specifically entitled by the RefugeeAct of 1980, as amended, to access our asylum system regardless of how they enter, as has been the law for decades. They should not be forced to seek asylum in transit to the United States, especially not in countries where they may also face harm. The ending of Title 42—itself an illegal policy—should not be used as an excuse to resurrect Trump-era categorical bans on groups of asylum seekers.
As you must be aware, those policies were designed by xenophobic, White Nationalist, restrictionists in the last Administration motivated by a desire to exclude and discriminate against particular ethnic and racial groups. That the Biden Administration would retain and even enhance some of them, while disingenuously claiming to be “saving asylum,” is beyond astounding.
The rule will also cause confusion at ports of entry and cause chaos and exacerbate backlogs in our immigration courts. Even worse, it will aggravate the already unacceptable situation by making it virtually impossible for most asylum seekers to consult with pro bono counsel before their cases are summarily rejected under these flawed regulations.
People who cannot access the CBP One app are at serious risk of being turned away by CBP, even if the rule says otherwise. Additionally, every observer has noted that the number of “available appointments” is woefully inadequate. In many cases, observers have noted that this leads to “automated family separation.” Rather than fixing these problems, these proposed regulations will make things infinitely worse.
Additionally, as was demonstrated by the previous Trump Transit Ban, the rule is likely to create confusion and additional backlogs at the immigration courts as individual judges attempt to apply a complicated, convoluted rule.
Under the law, the U.S. Government has a very straightforward obligation: To provide asylum seekers at the border and elsewhere, regardless of nationality, status, or manner of coming to the U.S., with a fair, timely, opportunity to apply for asylum and other legal protections before an impartial, expert, adjudicator.
The current system clearly does not do that. Indeed,EOIR suffers from an “anti-asylum,” often misogynist “culture,” lacks precedents recognizing recurring asylum situations at the border (particularly those relating to gender-based persecution), and tolerates judges at both levels who lack asylum expertise, are not committed to due process and fundamental fairness for all, and, far from being experts, often make mistakes in applying basic legal standards and properly evaluating evidence of record, as noted in a constant flow of “reversals and rebukes” from Circuit Courts.
We don’t need moremindless“deterrence” gimmicks. Rather, it’s pasttime for the Administration to reestablish a functioning asylum system.
🇺🇸Due Process Forever! The treachery of an Administration that abandons humane values, and fears bold humanitarian actions, never!
Heidi Altman Director of Policy National Immigrant Justice Center PHOTO: fcnl.orgRev. Craig Mousin Ombudsperson Refugee and Forced Migration Studies, Grace School of Applied Diplomacy DePaul University PHOTO: DePaul Website
FEBRUARY 23, 2023 CRAIG B. MOUSIN SEASON 1 EPISODE 34
Lawful Assembly Podcast
Episode 34: Support Humanitarian Asylum Welcome
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LAWFUL ASSEMBLY PODCAST
Episode 34: Support Humanitarian Asylum Welcome
FEB 23, 2023 SEASON 1 EPISODE 34
Craig B. Mousin
In this interview, Rev. Craig B. Mousin, an Adjunct Faculty member of DePaul University’s College of Law, Refugee and Forced Migration Studies Program, and the Grace School of Applied Diplomacy interviews Heidi Altman, the Policy Director of the National Immigrant Justice Center (www.immigrantjustice.org). Ms. Altman discusses a proposed rule that will effectively preclude most asylum-seekers from safely and effectively applying for asylum in the United States. She advocates for humanitarian asylum welcome. She previously served as the legal director for the Capital Area Immigrants’ Rights Coalition and was a Teaching Fellow in the immigration clinic at Georgetown University Law School.
ACTION STEPS
1. Invite friends and family to learn how the proposed rule will undermine refugee protection and encourage them to respond to their elected representatives and the Biden administration urging withdrawal of the proposed rule.
2. The Sanctuary Working Group of the Chicago Religious Leadership Network currently serves and advocates alongside newly arrived asylum seekers in the Chicagoland area. There are many impactful ways you can help asylum seekers, from providing sponsorship and temporary housing to covering legal fees and advocating for policy change. Interested individuals, faith communities, or organizations may contact CRLN staff/consultant David Fraccaro at davidfraccaro99@gmail.com to talk about ways to partner together in supporting and protecting our newest neighbors.
Craig Mousin volunteers with the National Immigrant Justice Center. We welcome your inquiries or suggestions for future podcasts. If you would like to ask more questions about our podcasts or comment, email us at: mission.depaul@gmail.com
Thanks, Craig and Heidi for a very interesting and informative session!
T. Swift. Loss of chance to attend her latest concert due to Ticketmaster SNAFU caused immediate bipartisan Congressional outrage and hearings! Loss of chance to plead for life because of DHS CBP One App SNAFU, not so much! Dehumanization of our fellow humans degrades our society. LOS ANGELES – Swift at 2019 iHeartRadio Music Awards on March 14, 2019 in Los Angeles, California. (Photo by Glenn Francis/Pacific Pro Digital Photography) Creative Commons License.
Here are “my takeaways:”
Asylum seekers have a legal right, established by the Refugee Act of 1980 and international conventions, to seek asylum at our border or in the U.S., regardless of status and/or nationality;
The Trump and Biden Administrations have abrogated this right without legislation;
The Trump Administration’s anti-asylum actions and intentional dehumanization of asylum seekers was rooted in White Nationalist nativism;
Despite recognition during the 2020 campaign of the invidious motivation for Trump’s anti-asylum policies, the Biden Administration has retained, or even enhanced, the dehumanization and denial of rights to asylum seekers at the border;
Over the past two Administrations, acceptance of the basic rights and obligations of the U.S. toward asylum seekers, incorporated in the Refugee Act of 1980, has been eliminated or reduced to a superficial “shell” (“asylum in name only,” as some advocates have termed Biden’s latest proposed anti-asylum border policies);
By abandoning the framework set forth in the Refugee Act of 1980, the Trump and Biden Administrations have re-injected the ad hoc approach,disorder, nationality bias, and ideological preferences at the border that the Refugee Act of 1980 was specifically enacted to eliminate;
There is much under-appreciated support for welcoming, fairly treating, and helping refugees and asylum seekers among Americans in communities throughout our nation;
NGOs and experts have dozens of great ideas for restoring and improving the legal right to seek asylum in fair, humane, non-discriminatory ways which they have shared or are happy to share with the Biden Administration;
The Biden Administration to date has shown little if any interest in adopting and implementing better humanitarian solutions for asylum seekers at the border;
Both parties lack leaders with the integrity and courage to stand up for the legal and human rights of asylum seekers;
We must continue to discuss ways to break the cycle of dehumanization, cruelty, and scofflaw treatment of asylum seekers and replace it with enhanced humanitarian procedures and a welcoming culture, in accordance with the Refugee Act of 1980, the U.N. Convention and Protocol, and the very best traditions of our nation of immigrants.
Legal asylum seekers from Central America might have thought that cruelty, illegality, and stupidity went out with the Trump Administration. They were wrong! Now Biden proposes to lawlessly “presume denial” of asylum — with no legal basis — and dump legal asylum seekers of color from his “disfavored nations” back into Mexico, whose asylum system is dysfunctional and where abusive treatment of asylum seekers has been well documented and recognized by a Federal Court! Women suffering from gender-based persecution are particular targets of this Administration’s campaign against humanity! Artist: Monte Wolverton Reproduced under license
Many groups issued immediate statements of outrage and protest at this cruel, lawless, and intellectually dishonest betrayal! I set forth two of them here:
From the American Immigration Council:
PRESS RELEASE
Department of Justice and Department of Homeland Security Release Details of Dangerous New Asylum Transit Ban
WASHINGTON, Feb. 21, 2023—Today, the U.S. Department of Justice and the U.S. Department of Homeland Security released a Notice of Proposed Rulemaking (NPRM) that will implement a new asylum transit ban—one of the most restrictive border control measures to date under any president. The policy will penalize asylum seekers who cross the border irregularly or fail to apply for protection in other nations they transit through on their way to the United States.
As described in the NPRM, the proposed asylum transit ban rule would all but bar asylum for any non-Mexican who crosses the U.S.-Mexico border between ports of entry, unless they had previously applied for—and been denied—asylum in another country before arrival.
Specifically:
The rule would apply to all non-Mexican migrants (except unaccompanied minors) who had not been pre-approved under one of the Biden administration’s parole programs, which are currently open only to certain nationals of 5 countries; pre-register at a port of entry via CBP One or a similar scheduling system (or arrive at a port of entry and demonstrate they could not access the system); or get rejected for asylum in a transit country.
During an asylum seeker’s initial screening interview with an asylum officer, the officer will determine whether the new rule applies to them. If so, they will fail their credible fear screening unless they can demonstrate they were subject to an exception such as a medical emergency, severe human trafficking, or imminent danger—which would “rebut the presumption” of ineligibility.
Migrants subject to the rule, who do not meet the exceptions above, would be held to a higher standard of screening than is typically used for asylum (“reasonable fear”). If a migrant meets that standard, they will be allowed to apply for asylum before an immigration judge—although the text of the proposed regulation is unclear on whether they would actually be eligible to be granted asylum.
Migrants who do not meet the credible or reasonable fear standard can request review of the fear screening process in front of an immigration judge.
Once the regulation is formally published in the Federal Register, the public will have 30 days to comment on the proposal. The administration is legally required to consider and respond to all comments submitted during this period before publishing the final rule, which itself must precede implementing the policy. Given the Biden administration’s expectation that the new rule will be in place for the expiration of the national COVID-19 emergency on May 11, and the potential end of the Title 42 border expulsion policy at that time, the timeline raises substantial concerns that the administration will not fulfill its obligation to seriously consider all comments submitted by the public before the rule is finalized.
Furthermore, the sunset date for the new rule, two years after it becomes effective, is after the end of the current presidential term—making it impossible to guarantee it will not be extended indefinitely.
In 2020, a Ninth Circuit Court of Appeals panel blocked the Trump administration’s asylum transit ban from being applied to thousands of asylum seekers who were unlawfully prevented from accessing the U.S. asylum process. The ban was later vacated by the D.C. District Court.
The American Immigration Council was a part of the Al Otro Lado v. Wolf class action lawsuit on behalf of individual asylum seekers and the legal services organization Al Otro Lado (AOL), which challenged the legality of the previous asylum transit ban as applied to asylum seekers who had been turned back at the U.S.-Mexico border.
Jeremy Robbins Executive Director American Immigration Council PHOTO: AIC websitel
The following statement is from Jeremy Robbins, Executive Director, The American Immigration Council:
“President Biden committed to restoring access to asylum while on the campaign trail, but today’s proposal is a clear embrace of Trump-style crackdowns on asylum seekers, many of whom are fleeing from globally recognized oppressive regimes. For over four decades, U.S. law has allowed any person in the United States to apply for asylum no matter how they got here. The new proposed rule would all but destroy that promise, by largely reinstating prior asylum bans that were found to be illegal.
“Not only is the new asylum transit ban illegal and immoral, if put into place as proposed, it would create unnecessary barriers to protection that will put the lives of asylum seekers at risk. While the rule purports to be temporary, the precedent it sets—for this president or future presidents—could easily become permanent.
“For generations, the United States has offered a promise that any person fleeing persecution and harm in their home countries could seek asylum, regardless of how they enter the United States. Today’s actions break from his prior promises and threaten a return to some of the most harmful asylum policies of his predecessor—possibly forever.”
###
For more information, contact:
Brianna Dimas 202-507-7557 bdimas@immcouncil.org
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From the Lutheran Immigration & Refugee Services:
FOR IMMEDIATE RELEASE
February 21, 2022
Contact: Tim Young | tyoung@lirs.org
Washington, D.C. – In preparation for the end of Title 42 asylum restrictions, the Biden administration announced a new proposed rule severely limiting asylum eligibility for those who did not first seek protection in a country they transited through to reach the United States, or who entered without notifying a border agent. The proposed rule will be subject to a 30-day period of public comment before it can take effect.
The new rule mirrors a transit asylum ban first implemented under the Trump administration, which was ultimately struck down by federal judges in multiplecourts. The Immigration and Nationality Act (INA) provides that people seeking protection may apply for asylum regardless of manner of entry, and does not require them to have first applied for protection in another country.
Krish O’Mara Vignarajah CEO Lutheran Immigrantion & Refugee Service
In response to the proposed asylum eligibility rule, Krish O’Mara Vignarajah, President and CEO of Lutheran Immigration and Refugee Service, said:
“This rule reaches into the dustbin of history to resurrect one of the most harmful and illegal anti-asylum policies of the Trump administration. This transit ban defies decades of humanitarian protections enshrined in U.S. law and international agreements, and flagrantly violates President Biden’s own campaign promises to restore asylum. Requiring persecuted people to first seek protection in countries with no functioning asylum systems themselves is a ludicrous and life-threatening proposal.
While the Biden administration has launched a smartphone app for asylum appointments and expanded a temporary parole option for an extremely limited subset of four nationalities, these measures are no substitute for the legal right to seek asylum, regardless of manner of entry. It is generally the most vulnerable asylum seekers who are least likely to be able to navigate a complex app plagued by technical issues, language barriers, and overwhelming demand. Many families face immediate danger and cannot afford to wait for months on end in their country of persecution. To penalize them for making the lifesaving decision to seek safety at our border flies in the face of core American values.
We urge the Biden administration to reverse course before this misguided rule denies protection to those most in need of it. Officials must recognize that decades of deterrence-based policies have had little to no impact in suppressing migration. Instead, they should focus on managing migration humanely through expanded parole programs, efficient refugee processing in the hemisphere, and an equitably accessible asylum system.”
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Lest anyone believe the absolute BS coming from the Biden Administration that they “had no choice” and that this “wasn’t the choice they wanted,” here’s an article setting forth the many southern border solutions that the Administration ignored or was too incompetent to carry out in their dishonest, immoral pursuit of the anti-asylum “vision” of Stephen Miller and other White Nationalists.
💡💡”There’s many things Biden could do. We published a resource called “Forty-Two Border Solutions That Are Not Title 42.” We could have done 142,” says immigration expert Danilo Zak in The Border Chronicle! The Biden Administration has ignored, failed, or is prepared to shrug off most of them!🤯
Danilo Zak Associate Director of Policy and Advocacy Church World Service PHOTO: The Border Chronicle
Zak was interviewed by Melissa Del Bosque of The Border Chronicle:
There are many changes that the Biden administration and Congress could make to alleviate suffering at the southern border. Immigration policy expert Danilo Zak recently published a report that offers several solutions, from rebuilding the refugee resettlement program to expanding nonimmigrant work visas to more countries in the Western Hemisphere.
Zak, formerly of the National Immigration Forum, is Associate Director of Policy and Advocacy for the nonprofit Church World Service. He spoke with The Border Chronicle about the increase of forcibly displaced people in the Western Hemisphere and the current situation at the border. “For many, there is no line to get into—no ‘right way’ to come to the U.S.,” Zak says.
Melissa Del Bosque Border Reporter PHOTO: Melissadelbosque.com
Notably, better, more robust, use of Refugee Programs established by the Refugee Act of 1980 is among Zak’s “top three.” This is something that I have been “touting” since Biden was elected, but where the Administration has failed to meet the challenge.
And, contrary to what the Administration and others might say, there is nothing unachievable about using refugee programs to deal with emergency humanitarian situations. Also, with respect to cases taking forever to process, no need for that nonsense. It’s a matter of poor bureaucratic execution rather than a defect in the legal authority.
The Refugee Act of 1980 (“RA 80”) is basically a modified version of the “emergency parole, resettle with NGOs, and petition Congress to adjust status” that was used on an ad hoc basis to resettle Indochinese refugees and others on an emergency basis prior to the RA 80. Except, that the criteria, resettlement mechanisms, and adjustment process were all “built in” to the statute. Consequently, although Congress was to be consulted in advance, that process was designed to run smoothly, efficiently, and on an emergency basis if necessary.
While “Congress bashing” is now a favorite pastime of the Executive, Judiciary, and media, in 1980 Congress actually provided a mechanism to regularize the processing of type of refugee flows now facing the U.S. The statutory flexibility and the legal tools to deal with these situations are in RA 80.
A subsequent Congress even added the “expedited removal” and “credible fear” process so that initial asylum screening could be conducted by expert Asylum Officers at or near the border and those “screened out” would be subject to expeditedremoval without full hearings in Immigration Court. Clearly, there was never a need for the Title 42 nonsense for any competent Administration.
Basically, if an Administration can run a large-scale parole program, which the Biden Administration did for Afghanistan and is doing now for Cuba, Nicaragua, Venezuela, and Haiti, it can run a legal refugee program beyond our borders, even in a “country in crisis” if necessary.
The idea that a statutory scheme specifically designed to have the flexibility deal with future mass refugee situations couldn’t be used to deal with the current humanitarian situation in the Western Hemisphere is pure poppycock!
Also unadulterated BS: The Biden Administration’s proposal to make the “end of asylum” at the southern border “temporary,” for two years! In 2025, the Biden Administration might not even be in office. If there is a GOP Administration, you can be sure that the demise of asylum at the border will become permanent, with or without legislation.
Also, what would be an Administration’s rationale for resuming asylum processing at the southern border in two years. Surely, there will be some other “bogus border crisis” cooked up to extend the bars. And, if there is no such crisis, the claim will be that the bars are “working as intended” so what’s the rationale for terminating them.
The argument that complying with the law by fairly processing asylum seekers regardless of race, ethnicity, religion, or manner of arrival, as the law requires, might actually encourage people to apply for protection will always be there — hanging over cowardly politicos afraid of the consequences of granting protection. Fact is, the current Administration has so little belief in our legal system and their own ability to operate within in, and so little concern for the human lives involved, that they are scared to death of failure. That’s not likely to change in two years — or ever!
Hello friends,
As we move deeper into 2023, you may be, like we are, still
processing 2022 (or 2019, let’s be honest). For immigration, the
new year comes with its own challenges as a divided Congress
makes policy decisions difficult and a shift to the 2024 presidential
race takes hold. Nevertheless, we have to remain hopeful that
progress can still be made. And you can be part of that! To remind
yourself of what happened last year and learn what issues our
government can focus on, check out our special edition of Téa’s
Coffee where she goes to the Senate to meet New York Senator
Kirsten Gillibrand.
We hope you enjoy this issue as much as we do,
-The Immigrant Food Team
Check out the full issue
Several “quick takes” from Tea’s interview with Senator Gillibrand:
She has introduced an “Article I Immigration Court Bill” in the Senate and believes it’s the type of bipartisan initiative that might interest enough GOP legislators to form a “working bipartisan majority.” A similar bill introduced by Rep. Zoe Lofgren (D-CA) in the last House received a hearing and was favorably voted out of Committee, but was never taken up by the full House, see, e.g., https://lofgren.house.gov/media/press-releases/house-judiciary-committee-passes-lofgren-s-legislation-reform-us-immigration;
Sen. Gillibrand’s biggest fear for American democracy is “demonization and racism” of which immigrants and asylum seekers are prime targets;
She thinks the “biggest danger” comes from “White supremacist groups” — basically right-wing domestic terrorists.
Both Tea’s 2022 summary and the interview with Sen. Gillibrnd are well worth the watch and can be accessed at links above.
“Social Justice/Business/Courageous Leadership Dynamo”🌪 Tea Ivanovic was recently recognized as one of “Forbes 30 Under 30” by Forbes Magazine and a “Woman Who Means Business” by Washington Business Journal! She is an “NDPA New Generation Super-Star” 🌟 to watch, for sure! And, from a “DMV standpoint,” Tea is a proud Virginia Tech Hokie alum and a former varsity tennis player. Certainly, a person of unlimited talents who has chosen to use them for the public good! You can check out my previous “Courtside profile” of Tea here: https://immigrationcourtside.com/2022/09/10/🇺🇸🗽👍🏼-immigrant-nation-teas-truth-wisdom-americans-views-on-immigrants-and-immigration-are-overwhelmingly-positive/
“DOJ/EOIR litigation team arriving at U.S. Courthouse.” PHOTO CREDIT: Ellin Beltz, 07-04-16, Creative Commons License, https://creativecommons.org/licenses/by-sa/4.0/. Creator not responsible for above caption.“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Round Table “Fighting Knightess” and NJ Bar honoree Hon. Sue Roy reports from the Garden State:
Hi Everyone and Happy Friday!
Regarding the lawsuit AILA-NJ v. EOIR—WE WON!!! We received an oral ruling from Judge Vazquez today—EOIR lost; it violated the terms of our stipulated agreement by failing to grant (or even rule on) Webex motions. We are preparing another proposed order to submit to the Judge early next week. He stated that if EOIR fails to comply moving forward, he will hold them in contempt.
Sue
PS Please feel free to share, publicize, etc.
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Hon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration Judges
Those seeking more information on this case should contact Judge Roy directly.
The caption “AILA-NJ v. EOIR”basically “says it all” about what it’s like to try to practice before Merrick Garland’s (and Biden’s) dystopian Immigration Courts these days. Such unnecessary trauma; such a waste of resources; such an abuse of public trust! All from a Dem Administration that back in 2020 ran on a platform of returning competency, professionalism, and public service to Government! Most infuriating and disappointing!🤬
Heard on “E-Street:”
“EOIR’s handling of this and the DOJ position are honestly ridiculous!”
“To quote Judy Collins & Stephen Sondheim:
‘Send in the clowns Don’t bother, they’re here.’”
“Great work Sue! But, the problem really is treating a court system like an administrative agency instead of a court system. Problem is baked into the institution.”
“Amazing! Great work, and thanks on behalf of all who will benefit from this.”
“And, maybe it will help with the Article 1 Court position.”
“Great work!”
“Thanks for outing Garland and his scofflaw EOIR again. Seems Garland should be held in contempt if EOIR ignores court order again.”
“All parties acknowledge the case will be moot when the pandemic declaration ends–which Biden said earlier this week will be sometime in May.”
“Thanks to our attorneys, to DHS attorneys, especially Ginnine Fried, and to everyone here who helped!”
“If there’s one thing that can bring ICE and the private/pro bono bar together, it’s EOIR’s incompetence and intransigence. My understanding is that their OWN WITNESS tanked EOIR’s case! Is ANYBODY “supervising” EOIR litigation at DOJ these days?”
“What if EOIR provided public service and acted rationally without Federal Court orders? Isn’t that something that Dems on the Hill should be ‘all over Garland’ to fix? Now!”
🇺🇸 Thanks to Sue and all involved, and Due Process Forever!
All of these particularities matter, because once all available options have been exhausted, cases generally end up inside an immigration court before an immigration judge. The administrative snarls that predate a case before it arrives in immigration court are thus a result of policy from the top, for better or worse.
On paper, courts are supposed to be independent bodies. They are supposed to be immune from the political agendas of other government operatives or serve as independent mediators that can rectify previous errors.
But immigration courts are not. As a part of the Justice Department, at the end of the day, they work under the attorney general. While other courts function under a de jure practice of independence, immigration courts are held to the same standard despite not possessing the same protections that allow other judges to carry out their basic job functions. This creates an impossible work environment for immigration judges to fairly adjudicate every case with the attention it deserves. Instead, their measurements of success are based on accomplishing the president’s goals, which are translated into quotas for immigration courts. For example, Biden administration officials touted removing 1.3 million migrants last year.
As the Prospect has previously reported, immigration judges have long pointed out the tenuous environment they must work in.
But later this month, the Federal Labor Relations Authority (FLRA) will be hearing from the National Association of Immigration Judges (NAIJ) over whether or not their union will be reinstated. The FLRA will now have a majority of Biden appointees.
A dysfunctional immigration system can only start to work with independent courts. But that change can only happen through congressional action. In the meantime, a never-ending crisis at the border can be exploited by one party, as the other expands the needlessly punitive immigration practices of the previous administration.
*******************
Many thanks to prodigious immigration commentator Nolan Rappaport for passing this along to me.
There is consensus among experts that an independent Article I Immigration Court is urgently needed and long overdue. There is also a consensus that the chance of achieving this critical legislative change with a GOP-controlled House is zero. At the same time, we must remember that Dems didn’t exactly give any priority to this essential and far-reaching reform when they had “unified control” over the political branches.
There is also consensus that in the absence of Article I there are things that Garland and the Biden Administration could and should have done administratively that would have drastically improved the due process, expertise, quality, efficiency, “customer service,” and professionalism of EOIR.
Gee whiz, a Harvard Law student figured it out! They haveconstructive suggestions for administrative reforms to change culture, improve training, place docket control in the hands of judges not politicos and bureaucrats, increase independence, improve quality, and insulate IJs from the political whims and enforcement agendas of each Administration. Seehttps://wp.me/p8eeJm-8hE?
But, a Harvard Law grad, long-time Federal Judge, and Supremes’ nominee, and his band of supposedly smart and high-powered political lieutenants couldn’t or wouldn’t get it done for a Dem Administration? Gimmie a break!
A Dem Administration that was supposed to get us beyond the cruelty, White Nationalism, xenophobia, and “malicious incompetence” of the Trump Administration falls flat on its face on a critical and achievable part of immigration reform and racial justice in America! Go figure!
Meanwhile, the cries of pain keep coming from those subjected to Garland’s dystopian “courts!”
Had an “interesting” IH today with this IJ. [IJ] denied my motion to continue the case by email the evening before the 8:30 am hearing, even though I had four IHs scheduled in the same time slot and had filed a motion to continue a month before the hearing. [IJ] refused to grant me a few minutes to speak with OPLA counsel before the hearing to narrow issues, saying that discussion should have already taken place. [IJ] spent an inordinate amount of time on housekeeping issues. [IJ] read a list of “rules.” [IJ] would insist that counsel stand when they spoke. [IJ] would routinely deny motions for webex hearings. [IJ] went through the biographical information excruciatingly slowly, including having the respondent spell the names of all the riders, provide their birth dates, etc.
It was a case where DHS had stipulated to 42b and the only issue would’ve been discretion but the IJ didn’t care. [IJ] told me to let everyone know that [IJ] reads each and every single document submitted in . . . court from back to front and . . . has a lot of questions . . . . [IJ] went on to conduct a full hearing, chastised DHS for stipulating, made a big deal of every little thing, asked irrelevant questions about medicaid forms that [client] may have filled for her children (not included as part of evidence), insinuated that she committed medicaid fraud, and made the ACC change position on each and every issue.
[The IJ] denied the asylum application of a young gay man from El Salvador. This is a first for me, in my 20+ years of asylum practice. We’ve never lost such a case that I can recall.
The facts are pretty typical – the kid lived a life of humiliation and abuse in El Salvador due to his sexual orientation; tried to commit suicide several times; and ultimately left the country when the Mara 18 tried to get him to deliver marijuana for them. Arguably, not a strong case for past persecution, but such cases typically prevail where a judge fairly evaluates a claim of well-founded fear of future persecution and considers the country condition reports and articles about the horrendous human rights abuses against the LGBT community in El Salvador. This didn’t fly with IJ. [IJ] simply said “there is no meaningful evidence in the record to demonstrate that the Respondent would experience harm amounting to persecution in El Salvador” and then went on to say that the client would likely experience more bullying and discrimination, but that doesn’t mean it would be persecution. [IJ] did not mention any country conditions report or article from the record to support his ruling.
[T]he DHS attorney called me directly after the hearing to empathize and tell me that it’s well-known even on their side that this judge is a piece of work and it’s always a good idea to take PD if offered.
[T]his judge is a menace. I don’t know what to do to protect my clients from [IJ] other than prepare strong BIA appeals.
This is the third email I have received to schedule MORE cases. No one will tell me what the goal is. I’ve put them on notice of the health issues this is/has been causing me.
Please tell the higher ups that this practice of overscheduling the private bar is taking a serious toll on practitioners’ health. Medical documentation is below and attached. I’m really not sure why the court has felt the need to overschedule practitioners to this level, but it is really taking a serious toll on everyone. Can someone please shed light on this urgent need to overwhelm the limited number of defense attorneys we have in the area?
Another outstanding Immigration Court practitioner told me that they had left courtroom practice and taken a “research and writing” position because the EOIR courtroom “experience” under Garland was so dehumanizing, demoralizing, stressful, and life consuming!
A different attorney called me with concerns that an IJ’s “over the top” abuse of pro bono counsel would discourage others from taking cases in Immigration Court.
IJ’s wasting time; discouraging negation and stipulation by parties; taking over hearings; abusing continuance discretion; failing to abide by Cardoza & Mogharrabi; showing bias; producing wildly inconsistent anti-immigrant results; showing thin knowledge of law; rudely treating counsel and clients; over-scheduling; abusing power; endangering the health of those appearing before them; driving practitioners to leave the EOIR courtrooms; discouraging pro bono!
Everything that is NOT what a fair, independent, court of law should be is present and allowed, perhaps even encouraged, in Garland’s broken EOIR! Why is this type of grotesque mismanagement, bad judging, unprofessional conduct, and disregard of fundamental due process “business as usual” under a Dem Administration?
This “star chamber” system needs new, expert, progressive, due-process-focused, free from political hackery and inane gimmicks, “kick-ass” management! Garland isn’t getting the job done!
These younger progressives are exactly the “core support” that Dems will need to win future elections! How does “dissing” them with inept leadership and ineffective nativist-derived immigration policies help the cause?
Honestly, what a mess! Garland’s dystopian EOIR is the Democratic Party’s shame!
This is an interview with Rev. Craig B. Mousin, an Adjunct Faculty member of DePaul University’s College of Law, Refugee and Forced Migration Studies Program, and the Grace School of Applied Diplomacy. The podcast critiques Department of Homeland Security Secretary Mayorkas’ recent NPR interview for what the interview omits in explaining 2023 asylum policies.
ACTION STEP
Imagine you are an asylum-seeker who has left your homeland. Listen to the interview with Secretary Mayorkas and consider its impact as you. Then write to the White House and Secretary Mayorkas and urge the Biden administration to follow the procedures and procedural protections of the Refugee Act of 1980: https://www.npr.org/people/4080709/steve-inskeep
We welcome your inquiries or suggestions for future podcasts. If you would like to ask more questions about our podcasts or comment, email us at: mission.depaul@gmail.com
This is an interview with Rev. Craig B. Mousin, an Adjunct Faculty member of DePaul University’s College of Law, Refugee and Forced Migration Studies Program, and the Grace School of Applied Diplomacy. The podcast critiques Department of Homeland Security Secretary Mayorkas’ recent NPR interview for what the interview omits in explaining 2023 asylum policies.
ACTION STEP
Imagine you are an asylum-seeker who has left your homeland. Listen to the interview with Secretary Mayorkas and consider its impact as you. Then write to the White House and Secretary Mayorkas and urge the Biden administration to follow the procedures and procedural protections of the Refugee Act of 1980: https://www.npr.org/people/4080709/steve-inskeep
We welcome your inquiries or suggestions for future podcasts. If you would like to ask more questions about our podcasts or comment, email us at: mission.depaul@gmail.com
Thanks for speaking out, Craig! Mayorkas’s interview was a shocking mix of intellectual dishonesty, insincerity, and misdirection worthy of a Trump Administration official. And, as Craig points out several times, the interviewer didn’t ask the right questions either.
Let’s understand what the Biden Administration’s arbitrary, ad hoc “parole program” that has been substituted for the Refugee Act of 1980 (“the law”), as amended, really does: 1) favors those who don’t necessarily meet the “refugee” definition (even if properly interpreted), but who have individual sponsors, over refugees; or 2) forces those who do meet the refugee definition into an inferior “parole status” that denies them the statutory path to a green card and eventual citizenship and other benefits that legal “refugee” or “asylum” status entails, or 3) a combination of 1) and 2).
Sound like a good idea? Of course not! It’s a prescription for a legal, humanitarian, and moral disaster!
Getting the USG to follow the law shouldn’t be this difficult. But, it is, because of the refusal of the Biden Administration to heed the advice of experts who not only know the law, but understand the border and the corrosive effect and real human consequences of unlawfully abandoning the statutory framework established by the Refugee Act of 1980.
