"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
It was the first reported death at the Stewart Gulag since the Trump regime’s final killing in December 2020.
With “Caretaker Bureaucrats” in charge @ DHS & DOJ, the deadly migrant killing, harming, and terrorizing policies continue unabated. Indeed, as far as I can tell, seedy DOJ lawyers are pushing forward with defending the very cruel, stupid, inhumane, and illegal policies and bankrupt legal positions that the Trump immigration kakistocracy made infamous. The same policies that Biden and Harris campaigned against! EOIR continues to crank out skewed anti-immigrant, anti-asylum jurisprudence.
The current policies are killers; the bodies continue to pile up, even if they are (quite intentionally) in obscure places like Lumpkin, GA, the “no persons land” near the Mexican border, and in dangerous and corrupt foreign nations where our Government mindlessly “orbits” other human beings without regard to what it will happen to them.
For now, these stories of death, despair, and unnecessary human suffering are largely “out of sight, out of mind.” But, they are being documented and eventually history will highlight those, from the Roberts’ Court on down, who abjured their duties to their fellow humans and abused their positions of public trust.
Due Process Forever! Death ⚰️ in The New American Gulag ☠️, never!
Last week, 9000 Hondurans were beaten and tear-gassed in Guatemala as they tried to make their way to the U.S. border. More will be coming. The Biden administration just introduced the most comprehensive immigration bill since Ronald Reagan and also hopes to embark on a new strategy for the Northern Triangle of El Salvador, Honduras and Guatemala.
This is undisputedly good news for a region ravaged by two Category 5 hurricanes in 2 weeks and an economy devastated by the Covid pandemic. But, unless that aid directly addresses the rampant corruption that has taken hold in the region, it will not stop thousands of desperate people from fleeing countries that give them little hope to survive much less flourish.
Make no mistake, it is corruption that has stolen hope from the region. Elites steal from school and hospital budgets to fund political campaigns and line pockets. Politicians give family members and supporters coveted government positions that should go to those most qualified. Police are bribed and threatened to look away while drug traffickers and gangs shatter communities.
Until this staggering systemic corruption is dismantled and the education, health and security institutions strengthened, Central Americans have little reason to hope for a future in their own countries.
During his presidential campaign, Joe Biden issued just one policy position for the Western Hemisphere and it was on Central America. In it he proposed a number of worthy initiatives, but one merits special consideration– a Central American anti-corruption commission that operates outside the control of the elites who are most threatened by its existence.
To be successful, this commission must learn from past experiences in Guatemala (CICIG), Honduras (MACCIH) and El Salvador (CICIES). While the first two enjoyed significant success, as soon as U.S. and local political pressure waned even a little, the local elites joined together to expel them.
. . . .
Authors! James D. Nealon is a former U.S. Ambassador to Honduras and Assistant Secretary of Homeland Security. Eric L. Olson is a Wilson Center Global Fellow. Kurt Alan Ver Beek is Co-Founder and President of the Association for a More Just Society – Honduras
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Easier said than done. Many of the corrupt governing elites in Central America have close ties to our Government. They aren’t lightly going to let foreign assistance, whether from governments, NGOs, or private agencies go anywhere but their own pockets.
Also, Republicans in Congress have shown no willingness to deal with the overt corruption, grafting, and grafting of the Trump regime.
But the article is spot on about two things. Most Central American migration is driven by political punishment and exploitation of the people by corrupt government elites and those allied with them (gangs, in many instances). Far from being “random violence” or “common crime” as many restrictionists and border bureaucrats claim, it’s simply a variation of classic political, ethnic, and social group persecution. Those fleeing this abuse are refugees. Only by abdicating the law, intentionally skewing it, and too often just overtly violating it (sometimes with the complicity of courts, sometimes in violation of court orders) has our Government been able to avoid granting them the legal protection they deserve.
Second, desperate refugees are going to continue to come as long as they perceive it’s safer here than in their broken home countries or any of the other countries they will have to cross to get there. No walls, prisons, death at the border, violations of domestic and international law, racist rhetoric, illegal deportations, child abuse, misogyny or or other cruel, inhuman, and immoral policies will stop human migration.
We know roughly how many have been illegally returned and imprisoned. We have some “guesstimates” as to how many additional border crossers our failed policies have killed.
But, we have little or no idea how many have taken to heart our message about the falseness of our claim to be a “nation of laws” and the readily apparent bankruptcy of our legal system. Undoubtedly, those who “get it” have or will in the future simply keep crossing the border until they die in process or get to the interior where their chances of melding in and surviving are much better than their chances of getting a asylum or other protections from an EOIR that still appears to be carrying out the Steven Miller White Nationalist agenda.
The “government policies” of actively discouraging and punishing asylum applicants who apply in an orderly way at the border is as insanely stupid as it is cruel and illegal. Actually, allowing individuals to apply for asylum at the border “regardless of status” is a hallmark of the Refugee Act of 1980!
A few thousand desperate refugees who walk here from Central America pose no realistic threat to America or our national security. They merely detract attention from the real threats: armed right wing insurrectionists launching a deadly attack on our Capitol, right wing domestic terrorists energized by Trump, and maskless “magamorons” running around spreading deadly disease.
Process those applying at the border promptly under the appropriate generous legal criteria after giving them access to trained asylum advocates. Admit those who qualify after proper health and security screening. Work with the UNHCR and NGOs on how to handle those who don’t meet refugee criteria. Just aimlessly returning them to danger zones in the middle of a pandemic is obviously a nonstarter. So, we’re going to need smarter people, with real expertise and a humanitarian outlook, working on better solutions. We know lots about what DOESN’T work. Now, we need to come up with what WILL work.
Here’s the “death to children” ☠️⚰️ panel: Katsas, Rao, and Walker, Circuit Judges. As long as it’s not THEIR children . . . .
Bad things happen to countries that make child abuse an “official policy” and reward child abusers with lifetime judicial appointments!
The Biden Administration needs to move quickly to get a handle on what’s happening in their name at the border. Also, might want to take a look at the Government lawyers who defend the indefensible in Federal Court.
Better Judges For a Better America! No more child abusers on the Federal Bench!
🇺🇸⚖️🗽Due Process Forever! Child Abusing Circuit Judges🤮, Never!
PRESIDENT BIDEN has served notice that his ambitious immigration plan is in the first rank of his priorities. Some of his program will be immediately implementable; some may get bogged down in Congress, where many Republicans will regard it as an occasion to brandish the word “amnesty,” red meat for their bases. No matter. Mr. Biden’s plan is in keeping with the United States’ best traditions. It responds to the challenge of population stagnation. It would reverse his predecessor’s extravagantly cruel policies. And it is now clear that when it comes to immigration, Mr. Biden is all in.
That courageous stance was not necessarily expected or politically expedient. Unity was the new president’s campaign theme and inaugural touchstone, yet few issues are as divisive as immigration. His evident readiness to tap his modest reserves of political capital for a slugfest on immigration is a signal that the United States has returned to its roots as a beacon for refugees and a humanitarian role model among nations.
The plan is also smart. The U.S. population growth rate in the just-ended decade was the lowest since the first national census in 1790, according to the Brookings Institution — lower even than during the Great Depression of the 1930s. The number of Americans below the age of 18 actually shrank in the 2010s, by more than 1 million.
That stagnation, the product of an aging population and historically low fertility rates, cannot be reversed by immigration alone. But it will certainly be exacerbated, and has been in the past four years, by a policy hostile to newcomers. In President Donald Trump’s penultimate year in office, annual net immigration fell below 600,000, the lowest level in decades; it was more than 1 million in the final years of the Obama presidency.
What’s more, by proposing an eight-year path to citizenship for most of the nation’s 11 million unauthorized migrants — the centerpiece of his plan — Mr. Biden is attempting to align law and reality. By 2029, when they would be eligible for citizenship, most will have been in the United States for more than a quarter-century. At least 4 million are essential workers in construction, food processing, groceries, restaurants, agriculture and transportation — doing jobs critical to practically every American.
Mr. Biden is moving quickly where he can — fully reinstating the Obama-era program providing work permits and deportation protection for “dreamers,” young migrants brought to this country by their parents; rescinding Mr. Trump’s 2017 travel ban from majority-Muslim countries; halting construction of the southern border wall; and reining in the Trump administration’s aggressive deportation policies. He has also signaled he will increase annual refugee admissions, which Mr. Trump poleaxed, and scrap a Trump administration rule that denies green cards to immigrants deemed likely to use public benefits such as food stamps.
Other measures will require congressional action. Under legislation Mr. Biden is sending to Congress, green cards conferring legal permanent residency would be granted to dreamers as well as to immigrants from strife- and disaster-wracked nations who have been here for years.
The president is also pushing tougher border security — in recognition that the new administration is not inviting a wave of new migrants, still less amid a pandemic — though not as a precondition for his immigration reforms. His more impactful, long-term strategy to dissuade new waves of illegal immigrants is a concerted aid effort to boost economies and contain crime in Central America.
Mr. Biden has laid out an immigration program that would genuinely put America first.
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The GOP White Nationalists/Nativists/White Supremacists are shaking in their cowardly boots. Why?
Because in a diverse meritocracy with equal justice for all and government in the true national interest they would lose their corrupt advantages and disproportionate power over the lives and the future of the majority of Americans who don’t share their repulsive, racist views and did not support their traitor insurrectionist Fuhrer in his attempt to undermine democracy, disenfranchise voters (targeting disproportionately legitimate voters of color for disenfranchisement, while shrugging off the actions, antics, and influence of “magamoron” Q-Anon crazies, conspiracy theorists, and other fringe haters that he and his party relied upon to maintain power), and take over our government by force!
Four things that the GOP fears above all else: 1) democracy, 2) accountability, 3) equality, 4) truth!
Jan. 20, 2021. President Joe Biden set forth a vision for a better America for all of us today, calling for national unity in the face of crisis and conflict. He promised to work for all Americans whether they supported him or not.
“Democracy has prevailed,” proclaimed our new national leader. He was speaking in front of our Capitol building that had been trashed by anti-democracy insurrectionists just two weeks ago!
Fittingly, Justice Sonia D. Sotomayor administered the oath office to Vice President Kamala D. Harris, the first female and first minority Vice President. Chief Justice John Roberts did the honors for President Joseph R. Biden.
Along with his governing partner Vice President Kamala Harris, President Biden promises truth, sanity, and humanity. Conquering COVID. Ending inequalities in health care, income, and education. Eliminating institutionalized racism and finally realizing the Constitutionally required due process and equal protection for all. Putting Americans back to work.
Working with the rest of the world to address common problems and restoring American leadership. Leading by example, not threat of force. Honoring essential workers and remembering those who have perished in the pandemic.
It was the speech of a humble yet confident and courageous man, a lifetime public servant and believer in “the practice of democracy and decency,”focused on saving his country and helping our world.
It won’t be easy. Turning rhetoric into action never is. But, if Biden and Harris can’t get the job done, nobody can.
It’s the most important, difficult, and challenging Presidency in U.S. history. It’s going to take help and support from all of us to make it work and save our democracy.
Congratulations to President Joe Biden, Vice President Kamala Harris, and the American people!
President-elect Joe Biden will roll out a sweeping overhaul of nation’s immigration laws the day he is inaugurated, including an eight-year pathway to citizenship for immigrants without legal status and an expansion of refugee admissions, along with an enforcement plan that deploys technology to patrol the border.
Biden’s legislative proposal, which will be sent to Congress on Wednesday, also includes a heavy focus on addressing the root causes of migration from Central America, a key part of Biden’s foreign policy portfolio when he served as vice president.
The centerpiece of the plan from Biden and Vice President-elect Kamala D. Harris is the eight-year pathway, which would put millions of qualifying immigrants in a temporary status for five years and then grant them a green card once they meet certain requirements such as a background check and payment of taxes. They would be able to apply for citizenship three years later.
. . . .
The focus on Central America reflects the message that Biden has relayed to senior officials in the region: that he will advocate for policy changes aimed at what drives scores of migrants there to come to the United States illegally to seek safe harbor.
“Ultimately, you cannot solve problems of migration unless you attack the root causes of what causes that migration,” one official said, pointing to the various reasons — from economic to safety — that drive migrants to flee their home countries. “He knows that in particular is the case in Central America.”
Transition officials are aware of recent reports of the increased numbers of migrants at or heading to the border in anticipation of the end of Trump’s presidency, and urged them to stay in their home countries. They emphasized that newly arriving immigrants would not qualify for the legalization program that Biden proposes.
Biden wants to move the refugee and asylum systems “back to a more humane and orderly process,” the official said. But “it’s also been made clear that that isn’t a switch you flip overnight from the 19th to the 20th, especially when you’re working with agencies and processes that have been so gutted by the previous administration.”
Biden hopes to reinstate a program granting minors from Central America temporary legal residence in the United States. The Trump administration terminated the program in August 2017, officials said. The administration also wants to set up a reunification program for Central American relatives of U.S. citizens that would allow those who have been already approved for U.S. residency to be admitted into the country, rather than waiting at home for an opening. The program would be similar to ones that existed for Cubans and Haitians but also were ended by the Trump administration.
The Biden proposal also would put in place a refugee admissions program at multiple processing centers abroad that would better help identify and screen those who would qualify to be admitted as refugees into the United States.
As for border enforcement, the plan calls on the Department of Homeland Security to develop a proposal that uses technology and other similar infrastructure to implement new security measures along the border, both at and between ports of entry. Biden has long vowed not to expand the border wall Trump has marginally extended.
“This is not a wall; this is not taking money from [the Department of Defense],” a transition official said, referring to how Trump helped to finance his wall after pledging Mexico would pay for it. “It’s a very different approach.”
. . . .
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Read the complete article at the link.
This is a welcome change from the poorly conceived, often ill-informed approach to immigration by the Obama Administration. It appears that Biden and Harris have actually “listened to the experts” and acted a accordingly.
The concentration on addressing the reality of Central American migration and dealing honestly and constructively with its root causes in a sensible and humane way is also refreshing. Using intelligence and technology to address real border security issues (as opposed to squandering resources on politically manufactured ones) also shows promise.
Many of the latter wereenergized by the Trump/DHS program of White Nationalist racist fear-mongering and intentionally false anti-immigrant, anti-due-process narratives. That’s what “applied malicious incompetence” looks like — DHS and EOIR are two of the most egregious examples in a regime that raised it to an “art form.” It will take an aggressive and far-reaching “house cleaning” to get these agencies that have abandoned the common good and now operate “on the dark side” back on track.
The immediate “knee-jerk opposition” to rational, practical, fact-based immigration reform by notorious White Nationalist racist Sen. Tom Cotton (R-ARK) shows that Team Biden is on the right track to disavow the toxic institutionalized racism and biased policies of the Trump regime and move America along the path to racial justice and realistic, progressive immigration policies that will further the national interest and lead to a better future for all!
It’s a great, if long overdue, start to getting beyond Jim Crow and “Dred Scottification” and saving and enhancing our democracy! But, the proof will be in the results!
Biden, of course, will also face the formidable challenges of dealing with the human carnage left behind by the Trump regime’s disastrous mis-handling of COVID-19, economic inequality, the environment, racial justice, and foreign policy where American “prestige” has plummeted to levels not seen since the days of the Barbary Pirates.
He also must address a failing Federal Justice System that, particularly at its appellate levels, did not effectively stand up to the Trump regime’s unrelenting assault on human decency and American democracy. Indeed, Justice Sonia Sotomayor, a consistently competent and courageous Justice among our failing Supremes, offered this final harsh but true assessment of her GOP colleagues’ malfeasance in a death penalty case: “This is not justice.”https://www.nbcnews.com/news/latino/not-justice-justice-sonia-sotomayor-offers-fierce-dissent-death-penalty-n1254554
You could say that about almost everything in the departing, defeated White Nationalist regime!
I’ll note for the record that among other things, the Supremes’ tone-deaf majority has been responsible for letting bona fide asylum seekers rot in squalor in camps in Mexico while waiting for non-existent “due process,” and also authorized the imposition of potential death sentences and torture on asylum seekers within our jurisdiction without any whit of due process.
The GOP majority’s disgraceful failure to stand up for voting rights of African Americans, Latinos, and other voters of color has also deepened racial injustice in America and helped usher in a horrible “Jim Crow Revival” pushed, incited, and enabled by the GOP, “The Party of the Failed Insurrection.”
Any competent first-year law student might ask “How could this happen in America?” That’s a question that Roberts and his gang of fellow Trump enablers and apologists will have to answer before the “court of history!”
So, after their failed coup attempt, the “Party of Treason” 🏴☠️☠️is suddenly making bogus calls for “unity” and “healing.” Of course, there is nothing whatsoever stopping any Republican from denouncing Trump and his followers, announcing support for impeachment of the Traitor, and calling for all Americans to unify behind the Biden-Harris Administration. But, that’s not what’s happening.
No, somehow the GOP treasonists outrageously believe it’s Joe Biden’s job to “call off the dogs of justice” and “heal” the country from the unmitigated disaster caused by GOP misrule ending in a failed coup. (Did I mention that due to the totally disgraceful, maliciously incompetent handling of the worst public health emergency in more than a century, one that the GOP consistently downplayed, mocked, and denied, the US has the world’s worst record and is now on the way to over a half a million COVID deaths with millions unemployed!) While admitting no wrongdoing on their part, “traitor twerps” like Graham now think that Biden should absolve them of any wrongdoing and move forward as if the GOP attack on our nation had never happened.
This election was over on November 7, when the major networks finally called it.
At that point, Biden had not only in insurmountable lead in the electoral college, but also a significant and growing lead in the popular vote. No candidate has ever overcome margins like that to win a Presidential election. All others similarly situated have conceded. Therefore, Trump should have conceded and the GOP congratulated the President Elect and his running mate.
Instead, the GOP lined behind Traitor Trump’s fascist fabricated election fraud claims! (Was it surprising that a “President” who told thousands of bald-faced lies starting from day one would continue to lie?). “Count all the votes” said the GOP treasonists, while actively trying to prevent state and local officials from doing just that.
Of course all the counts and recounts confirmed all of the Biden wins, some even adding a few votes to his margins. Then, the GOP “battle cry” became “Wait for the courts to rule.” This “process” (actually an outrageous abuse of legal process) resulted in an impressive streak of more than 50 consecutive losses for the Trump frivolous/obstructionist/unethical/conspiracy theory mongering “litigation team” of sleazy lawyers in courts at all levels from judges appointed by both Dems and the GOP, some by Trump himself.
Then it was “Wait for the states to certify” while again trying to interfere with that process. Once the states, including ones firmly controlled by the GOP, certified the results and Biden’s win, the bogus GOP party line became “Wait for the Electoral College.” Of course, that, in turn, voted for Biden exactly as the states had certified, despite Trump’s attempts to interfere.
But, still the GOP treasonists kept on with their knowingly false narratives. This time, it was “Wait for Congress to accept the results” a purely ceremonial process that has never resulted in a change of outcome.
Nevertheless, Trump invited, actually urged, his followers to come to D.C. and stage a violent insurrection at the Capitol in a vain attempt to prevent the Congressional process from being completed. He also urged Vice President Pence (usually a reliable, anti-democracy toady) to violate his constitutional oath by throwing the election to Trump. By this time, it was clear that Biden had won the popular vote by more than 7 million — which would have made a Trump “victory” the biggest anti-democracy “steal” and disenfranchisement in American history.
Nevertheless, Cruz, Hawley, McCarthy and a host of other GOP legislators continued to commit treason by pressing Trump’s baseless insurrectionist theories, and pressing to disenfranchise millions of Biden voters across the nation, even as the debris from their failed coup still littered the Capitol.
Now that their coup has failed, and there is at least a chance, however unlikely, that the Party of Treason 🏴☠️and some of its supporters 🦹🏿♂️ will be held accountable, these traitors have the absolute audacity to basically demand that Biden “bail them out” in the name of “national unity.”
I call BS! As Steve points out, history shows that failing to hold accountable those responsible for a failed coup merely insures that another coup will take place!
America will not be safe for the majority of us until the GOP is forever disempowered as a political force and Graham, Cruz, Hawley, McCarthy, and rest of the of the GOP traitors are held accountable for their treason.
It won’t be quick or easy. But, it will be absolutely necessary if American democracy is to survive!
🇺🇸⚖️Due Process Forever! GOP Treason, 🏴☠️☠️🤮Never!
The Biden administration has said it may need 6 months to reverse Trump administration asylum policies and bring asylum seekers stranded in Mexico to safety. Tragically, some may not survive that long.
In her newest blog post, Legal Fellow Julia Neusner presents a heartbreaking portrait of the violence, discrimination, and trauma asylum seekers have endured under the Trump administration’s policies.
Julia writes about victims of these policies, including Ana and Jorge, an Afro-Cuban couple who were kidnapped after US border officers expelled them to Mexico under MPP. Armed men robbed them and forced them into a room covered in blood. Other kidnapping victims were moaning on the floor, some with severed body parts.
“They told us [a friend] would have to pay $4,000 for both of us, and if he didn’t, they would cut us up, part by part,” Ana recalled. “I lost control and started crying. My boyfriend pleaded with them, and they hit him with a gun. Then they beat me. It was horrible. We spent these days in hell.”
SETTING THE RECORD STRAIGHT ON ASYLUM
On Wednesday, President Trump travelled to the southern border to tout his immigration record. In response, Human Rights First released a fact sheet outlining the Trump administration’s record on asylum: one defined by chaos, cruelty, and illegality.
From separating over 5,500 families to delivering people to life-threatening danger in Mexico to spurring the spread of COVID-19 by refusing the repeated pleas of epidemiologists to release asylum seekers and immigrants from detention, Trump’s real record is deep damage our asylum system.
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A key to “setting the record straight on asylum” is immediate removal of the “EOIR Clown Show” 🤡🦹🏿♂️ in Falls Church, a retraction of the gross lies and misleading anti-asylum, anti-lawyer narratives set forth in their White Nationalist nativist “Bogus Fact Sheets,” immediately cancelling the insane anti-due process, anti-lawyer procedures now in place, and setting the record straight on asylum law, including the toxic, unethical, and unconstitutional role of EOIR in actively undermining the legal rights and humanity of asylum seekers as well as being responsible for gross mismanagement of the Immigration Courts.
There are folks out there in the private/NGO/academic community who can get the job done, starting day one! Yeah, there are many other priorities; that’s a beyond compelling reason for bringing in the experts and empowering them to solve the problems, sooner rather than later! There really is no viable “later” here!
We simply don’t have six months to stop killing people and violating human rights on a daily basis! If we don’t make radical changes and take some calculated risks to end the abuses and mismanagement at EOIR, the SG’s Office, and DHS right off the bat, it will be too late for too many!
Maybe Judge Garland and his Executive Team need to spend a few days with some immigration practitioners and NGOs right now to see what’s happening in the “Star Chambers impersonating courts” that they will “own” in a few weeks. Maybe they should spend some time in the squalid migrant camps in Mexico, seeing what existence is really like for those to whom we have shirked our legal and moral responsibilities.
Ask themselves, would THEY subject THEIR families to such mistreatment? If not, then why hasn’t a plan been announced to end the deadly “EOIR Clown Show” 🤡🦹🏿♀️☠️ immediately and put some legitimate judges and competent managers who understand asylum law and immigration practice in place?
Judge Garland, with all due respect, when the incoming Administration tells lawyers, many working pro bono or low bono, who are risking their lives to save their clients’ lives in the “living Hell” of today’s U.S. Immigration Courtsto “be patient, we’ll get to you soon,” you are giving them a very clear and chilling message: THEIR LIVES, SAFETY, AND SANITY AREN’T YOUR PRIORITY — I/O/W, THEIR LIVES DON’T MATTER!
That’s neither an appropriate nor uplifting message to give to an embattled group whose support, assistance, ideas, creativity, and energy will be absolutely essential to your plans to “restore justice to Justice!”
The sad truth is that time does not, in fact, “heal all wounds,” and failures that kill and damage people for life can’t be “undone,”
🇺🇸⚖️🗽Due Process Forever! Allowing the “killer kakistocracy of scofflaws” to control the agenda while the incoming Administration “ruminates” and “hems and haws,” never!
Check out the lies, false claims, bogus “reasoning,” and mis-statements in McHenry’s attempt to “redefine due process by encouraging judges to deny continuances to respondents.” Meanwhile, the real cause of many, perhaps most, “big time” delays and disorder in Immigration Court — “Aimless Docket Reshuffling” to accommodate improper DHS enforcement initiatives and politically motivated DOJ priorities, is swept under the rug and goes unaddressed.
Here’s an example of some amazing nativist, White Nationalist legal gobbledygook put out by the “Tower Toadies:”
The general standard for a continuance is good cause, 8 C.F.R. § 1003.29. By statute, however, “[i]n the absence of exceptional circumstances, final administrative adjudication of [an] asylum application, not including administrative appeal, shall be completed within 180 days after the date an application is filed.” INA § 208(d)(5)(A)(iii). “Exceptional circumstances” is a higher standard than “good cause.” PM 19-05, Guidance Regarding the Adjudication of Asylum Applications Consistent with INA § 208(d)(5)(A)(iii) (Nov. 19, 2018) at 2-3 (“A continuance does not automatically justify exceeding the 180-day timeline in INA § 208(d)(5)(A)(iii), however, because the statute’s ‘exceptional circumstances’ standard is higher than the ‘good cause’ standard for continuances.”). Thus, “if granting a continuance would result in missing the 180-day deadline, the Immigration Judge may only grant the continuance if the respondent satisfies both the good-cause standard of 8 C.F.R. §1003.29 and also shows the ‘exceptional circumstances’ required by INA § 208(d)(5)(A)(iii).” Id. at 2.
Translation: “Good cause” which is a constitutionally-based standard, actually means “exceptional circumstances” not “good cause” when dealing with asylum seekers, the most vulnerable among us, whose lives are in your hands. Therefore, the Constitution be damned, go ahead and deny the asylum applicant a legitimate continuance but claim that you had “good cause” for not finding “exceptional circumstances.” Oh, and while you’re at it, don’t bother to factor in the ongoing public health crisis and the lives of the individuals, attorneys, staff, and certainly not your own worthless life in reaching your pre-determined decision to deny a continuance. Denying asylum to refugees, for any reason, no matter how specious or disingenuous, outweighs human life and your meaningless oath to uphold the Constitution.
Sort of reminds me of “Gruppenfuhrer Rudy’s” famous “Truth isn’t truth” declaration to Chuck Todd on “Meet the Press!” Only in the kakistocracy is this type of absurdist “logic” considered normal and acceptable.
What a real judge might say: “Good cause” for a continuance exists where failure to grant one would make the proceedings fundamentally unfair or unduly impinge on a full and fair consideration of the respondent’s case. The need to grant a continuance to avoid a denial of constitutionally required due process is obviously an “exceptional circumstance.” This is especially true in dealing with applicants for asylum and others seeking protections from persecution and torture. Additionally, the ongoing public health crisis and the overriding need to protect the health and safety of those coming before you and your dedicated professional court staff should always be paramount in considering continuance requests.
No legitimate court system in America is mismanaged in this grotesque, nonsensical manner without considering the input, or indeed the health, safety, and lives, of either the parties appearing before the court or the judges themselves!
To be frank, Judge Garland, the EOIR Tower Kakistocracy is delivering you “the big middle finger”🖕 in advance. They are acolytes of the racist, White Nationalist, “myth based” xenophobic immigration agenda set forth by Stephen Miller and Gene Hamilton. As far as they are concerned, you and your “return justice and professionalism to Justice” agenda can “go pound sand.”
While the EOIR kakistocracy might be openly contemptuous of your incoming leadership, your supporters our here in the New Due Process Army(“NDPA”) are also aware of what’s happening. For better or worse, your commitment to and effectiveness in restoring justice will be judged initially on the number of hours, minutes, and seconds it takes you to oust the current Clown Show 🤡🦹🏿♂️☠️in Falls Church, including the failed and compromised BIA; replace them with professional, independent judicial administrators and real judges with expertise in immigration, asylum, and human rights and a nationally-recognized, unswerving commitment to due process, best practices, and practical scholarship in support of social justice.
EOIR might not be the most “sexy” item on your incoming agenda, Your Honor. But, the fate of one of the largest, perhaps most important “Federal Court Systems” is probably the most important and consequential item on which your tenure ultimately will be judged. As all of us who have served the public know, many of our “achievements” that occupied so much of our time and attention in office are forgotten or disappear before the door closes behind us at the end of of our tenure. But, being the “Father of the Independent Immigration Court” 👨🏻⚖️⚖️🗽🇺🇸👍🏼😇— bringing in a group of experts to fix the current ungodly mess and then advocating tirelessly for Article I legislation — is the kind of lasting legacy of which you could be proud!
Judge Garland, you don’t want to “own” this national disgrace and mockery of our Constitution, rational, professional court administration, honest, competent civil service, and simple human decency — the obligations that we owe to our fellow humans. Please get some real judges and professional administrators over to Falls Church immediately, put the EOIR Clown Show 🤡🦹🏿♂️out of its misery, 🧹🪠 and end the crimes against humanity☠️⚰️ they are visiting on the most vulnerable among us and their attorneys! History (as well as the NDPA) is watching!
Best wishes for a due process⚖️ and best practices 👍🏼filled tenure! Be remembered for the justice you have promoted and the evil ☠️🦹🏿♂️⚰️👎🏻you have resisted and eradicated!
The idea that Germany lost the First World War in 1918 because of a Jewish “stab in the back” was 15 years old when Hitler came to power. How will Trump’s myth of victimhood function in American life 15 years from now? And to whose benefit?
On Jan. 7, Trump called for a peaceful transition of power, implicitly conceding that his putsch had failed. Even then, though, he repeated and even amplified his electoral fiction: It was now a sacred cause for which people had sacrificed. Trump’s imagined stab in the back will live on chiefly thanks to its endorsement by members of Congress. In November and December 2020, Republicans repeated it, giving it a life it would not otherwise have had. In retrospect, it now seems as though the last shaky compromise between the gamers and the breakers was the idea that Trump should have every chance to prove that wrong had been done to him. That position implicitly endorsed the big lie for Trump supporters who were inclined to believe it. It failed to restrain Trump, whose big lie only grew bigger.
The breakers and the gamers then saw a different world ahead, where the big lie was either a treasure to be had or a danger to be avoided. The breakers had no choice but to rush to be first to claim to believe in it. Because the breakers Josh Hawley and Ted Cruz must compete to claim the brimstone and bile, the gamers were forced to reveal their own hand, and the division within the Republican coalition became visible on Jan. 6. The invasion of the Capitol only reinforced this division. To be sure, a few senators withdrew their objections, but Cruz and Hawley moved forward anyway, along with six other senators. More than 100 representatives doubled down on the big lie. Some, like Matt Gaetz, even added their own flourishes, such as the claim that the mob was led not by Trump’s supporters but by his opponents.
Trump is, for now, the martyr in chief, the high priest of the big lie. He is the leader of the breakers, at least in the minds of his supporters. By now, the gamers do not want Trump around. Discredited in his last weeks, he is useless; shorn of the obligations of the presidency, he will become embarrassing again, much as he was in 2015. Unable to provide cover for their gamesmanship, he will be irrelevant to their daily purposes. But the breakers have an even stronger reason to see Trump disappear: It is impossible to inherit from someone who is still around. Seizing Trump’s big lie might appear to be a gesture of support. In fact it expresses a wish for his political death. Transforming the myth from one about Trump to one about the nation will be easier when he is out of the way.
As Cruz and Hawley may learn, to tell the big lie is to be owned by it. Just because you have sold your soul does not mean that you have driven a hard bargain. Hawley shies from no level of hypocrisy; the son of a banker, educated at Stanford University and Yale Law School, he denounces elites. Insofar as Cruz was thought to have a principle, it was that of states’ rights, which Trump’s calls to action brazenly violated. A joint statement Cruz issued about the senators’ challenge to the vote nicely captured the post-truth aspect of the whole: It never alleged that there was fraud, only that there were allegations of fraud. Allegations of allegations, allegations all the way down.
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The big lie requires commitment. When Republican gamers do not exhibit enough of that, Republican breakers call them “RINOs”: Republicans in name only. This term once suggested a lack of ideological commitment. It now means an unwillingness to throw away an election. The gamers, in response, close ranks around the Constitution and speak of principles and traditions. The breakers must all know (with the possible exception of the Alabama senator Tommy Tuberville) that they are participating in a sham, but they will have an audience of tens of millions who do not.
If Trump remains present in American political life, he will surely repeat his big lie incessantly. Hawley and Cruz and the other breakers share responsibility for where this leads. Cruz and Hawley seem to be running for president. Yet what does it mean to be a candidate for office and denounce voting? If you claim that the other side has cheated, and your supporters believe you, they will expect you to cheat yourself. By defending Trump’s big lie on Jan. 6, they set a precedent: A Republican presidential candidate who loses an election should be appointed anyway by Congress. Republicans in the future, at least breaker candidates for president, will presumably have a Plan A, to win and win, and a Plan B, to lose and win. No fraud is necessary; only allegations that there are allegations of fraud. Truth is to be replaced by spectacle, facts by faith.
Trump’s coup attempt of 2020-21, like other failed coup attempts, is a warning for those who care about the rule of law and a lesson for those who do not. His pre-fascism revealed a possibility for American politics. For a coup to work in 2024, the breakers will require something that Trump never quite had: an angry minority, organized for nationwide violence, ready to add intimidation to an election. Four years of amplifying a big lie just might get them this. To claim that the other side stole an election is to promise to steal one yourself. It is also to claim that the other side deserves to be punished.
Informed observers inside and outside government agree that right-wing white supremacism is the greatest terrorist threat to the United States. Gun sales in 2020 hit an astonishing high. History shows that political violence follows when prominent leaders of major political parties openly embrace paranoia.
Our big lie is typically American, wrapped in our odd electoral system, depending upon our particular traditions of racism. Yet our big lie is also structurally fascist, with its extreme mendacity, its conspiratorial thinking, its reversal of perpetrators and victims and its implication that the world is divided into us and them. To keep it going for four years courts terrorism and assassination.
When that violence comes, the breakers will have to react. If they embrace it, they become the fascist faction. The Republican Party will be divided, at least for a time. One can of course imagine a dismal reunification: A breaker candidate loses a narrow presidential election in November 2024 and cries fraud, the Republicans win both houses of Congress and rioters in the street, educated by four years of the big lie, demand what they see as justice. Would the gamers stand on principle if those were the circumstances of Jan. 6, 2025?
To be sure, this moment is also a chance. It is possible that a divided Republican Party might better serve American democracy; that the gamers, separated from the breakers, might start to think of policy as a way to win elections. It is very likely that the Biden-Harris administration will have an easier first few months than expected; perhaps obstructionism will give way, at least among a few Republicans and for a short time, to a moment of self-questioning. Politicians who want Trumpism to end have a simple way forward: Tell the truth about the election.
America will not survive the big lie just because a liar is separated from power. It will need a thoughtful repluralization of media and a commitment to facts as a public good. The racism structured into every aspect of the coup attempt is a call to heed our own history. Serious attention to the past helps us to see risks but also suggests future possibility. We cannot be a democratic republic if we tell lies about race, big or small. We cannot be a democratic republic if we tell lies about race, big or small. Democracy is not about minimizing the vote nor ignoring it, neither a matter of gaming nor of breaking a system, but of accepting the equality of others, heeding their voices and counting their votes.
Timothy Snyder is the Levin professor of history at Yale University and the author of histories of political atrocity including “Bloodlands” and “Black Earth,” as well as the book “On Tyranny,” on America’s turn toward authoritarianism. His most recent book is “Our Malady,” a memoir of his own near-fatal illness reflecting on the relationship between health and freedom. Ashley Gilbertson is an Australian photojournalist with the VII Photo Agency living in New York. Gilbertson has covered migration and conflict internationally for over 20 years.
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Read Professor Snyder’s entire, rather lengthy, analysis at the link.
Democracy is under attack from one of our two major parties. It will take a concerted effort, determination, and courage by the majority of us to preserve our nation in the face of GOP led and enabled treason and insurrection that is fueled by their web of lies, racism, selfishness, and false narratives,
Tour the Holocaust Museum for a glimpse of the future of our nation if the GOP prevails!
Also, remember that as all the GOP-induced distracting disorder of this week roil Washington, 4,000 plus Americans a day, disproportionately African Americans and Latinos, continue to die, many unnecessarily, as a result of the “malicious incompetence,” false narratives, and anti-science, anti-American lies actively promoted and endorsed by Trump and his GOP party of treason!
Professor Snyder’s last sentence encapsulates my own view of what 21st Century American Democracy should look and act like:
We cannot be a democratic republic if we tell lies about race, big or small. Democracy is not about minimizing the vote nor ignoring it, neither a matter of gaming nor of breaking a system, but of accepting the equality of others, heeding their voices and counting their votes.
I still hear GOP politicos falsely claim that “nobody could see this coming.” What total unadulterated BS! 💩 Trump planned and instigated this insurrection of thugs in public, even while his goons Cruz, Hawley, and McCarthy were actively promoting it in Congress and Moscow Mitch was more or less “in his shell” looking the other way. Many of us have been “calling out” GOP fascism for the last four years. A party that thrives on lies can’t survive truth!
The Next-Level Shamelessness of the COVID Security Regs
On December 23, EOIR and USCIS published final rules designed to brand most people a “security risk,” and thus ineligible for asylum. The rules won’t become effective until January 22 (i.e. after the Biden Administration is in office), so will presumably be pulled back before they hurt anyone other than the reputations and careers of those responsible for their publication. Nevertheless, it seems worthwhile to refute the present administration’s claimed justification for such a rule. First, there will certainly be other bad administrations in our future, and as we’ve seen with the present one, they might look to the past for inspiration.
Furthermore, even without the rule going into effect, individual immigration judges will still be faced with interpreting the clause it invokes on a case-by-case basis. I’m hoping the following analysis will prove useful, as I’m pretty sure it wasn’t covered in the judges’ training.
But most importantly, the assaults of the past four years on facts and reason have taught us the need to constantly reinforce what those presently in charge hope to make us forget: that there are laws passed by Congress; that the Judiciary has created strict rules governing their interpretation, and that executive agencies are not free to simply ignore or reinvent the meaning of those laws to their own liking.
The regulations in question seek to take advantage of the present pandemic to render any asylum seeker who either exhibits symptoms of the virus, has come in contact with it, or has traveled from or through a country or region where the disease is prevalent ineligible for asylum. The administration seeks to justify this by claiming that there are reasonable grounds for regarding the above a danger to the security of the United States.
The “danger to the security of the United States” bar to asylum1 which the new regulations reference derives from Article 33(2) of the 1951 Convention Relating to the Status of Refugees, which serves as the international law basis for our asylum laws. That treaty (which is binding on the U.S.) states that the prohibition against returning refugees shall not apply to those “whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
However, Article 33(2) applies to those who have already been recognized as refugees, and have then committed crimes in the country of refuge, which is not the class to whom the new regulations would apply. The bases for excluding those seeking refugee status for reasons arising prior to their arrival are found under Article 1D through 1F of the 1951 Convention. The prohibitions found there cover three groups: those who are already receiving protection or assistance (Article 1D); those who are not considered to be in need of protection (Article 1E); and those “categories of persons who are not considered to be deserving of international protection (Article 1F).2 Individuals posing a danger to the community fall into the final category.
No ground contained in the 1951 Convention excludes those in need of protection for health-related purposes. To understand why, let’s look closer at the Convention’s use of the word “deserving” as it relates to refugee protection. In 1997, UNHCR published a note providing additional insight into the Article 1F “exclusion grounds.” Explaining that “the idea of an individual ‘not deserving’ protection as a refugee is related to the intrinsic links between ideas of humanity, equity, and the concept of refuge,” the note explains that the primary purpose of the clauses “are to deprive the perpetrators of heinous acts and serious common crimes, of such protection.” The note explains that to do otherwise “would be in direct conflict with national and international law, and would contradict the humanitarian and peaceful nature of the concept of asylum.”
The European Council on Refugees and Exiles covered this same issue in its 2004 position paper on Exclusion from Refugee Status. At page 8, the ECRE stated that the “main aim” of Article 1F was not “to protect the host community from serious criminals,” but rather to preserve the integrity of the international refugee system by preventing it from being used to “shelter serious criminals from justice.” These sources make it extremely clear that the intent was certainly not to exclude someone who might have been exposed to a virus.
In including six exceptions to eligibility in our asylum statute,3 Congress followed the lead of the 1951 Convention, as all six domestic clauses fall within the three categories listed in paragraph 140 of the UNHCR Handbook as listed above. Of the six grounds listed under U.S. law, the last one, regarding persons firmly resettled in another country prior to arrival in the U.S., is covered by the Convention categories of those already receiving assistance or not in need of assistance.
The remaining five exceptions under U.S. law fall within the category of those not considered to be deserving of protection (Article 1F). The statute lists those categories as: (i) persecutors of others; (ii) persons posing a danger to the community of the U.S. by virtue of having been convicted of a particularly serious crime; (iii) persons whom there are serious reasons to believe committed serious nonpolitical crimes prior to their arrival in the U.S.; (iv) persons whom “there are reasonable grounds for regarding…as a danger to the security of the United States,” and (v) persons engaged in terrorist activity.
Agencies may only apply their own interpretation to the term “as a danger to the security of the United States” to the extent such term is ambiguous. But the courts have instructed that in determining whether a statute is in fact ambiguous, traditional tools of construction must be employed, including canons.4 The Supreme Court has recently applied one such canon, ejusdem generis, for this purpose.5 In its decision, the Court explained that “where, as here, a more general term follows more specific terms in a list, the general term is usually understood to ‘ “embrace only objects similar in nature to those objects enumerated by the preceding specific words.”’”6
Former Attorney General Barr himself recently applied the ejusdem generis canon to the term “particular social group,” stating that pursuant to the canon, the term “must be read in conjunction with the terms preceding it, which cabin its reach…rather than as an “omnibus catch-all” for everyone who does not qualify under one of the other grounds for asylum.”7
A very similar canon to ejusdem generis is noscitur a sociis (the “associated words” canon). Whereas ejusdem generis requires a term to be interpreted similarly to more specific terms surrounding it in a list, noscitur a sociis applies the same concept to more specific terms across the same statute.8
In 8 U.S.C. § 1158(b)(2)(A), the more general term “danger to the security of the United States” is surrounded by the more specific terminology describing the accompanying grounds of asylum ineligibility. When thus “cabined” by the more specific classes of persecutors of others, those convicted of serious crimes, and those engaged in terrorist activities, it is clear that Congress intended a “risk to security” to relate to similar types of criminal activity, and not to health grounds. As the intent of Congress is clear, the term “threat to the security of the United States” is not open to any interpretation the agencies might wish to apply to it. Yet in its published rule, EOIR and USCIS here create the type of “omnibus catch-all” that the Attorney General himself has elsewhere declared to be impermissible.
The rule is further at odds with circuit case law in its application to those who simply “may” pose a risk. The Third Circuit has found the statutory language of the clause in question to unambiguously require that the asylum-seeker pose an actual, rather than merely a possible, threat to national security.9 Even if it were assumed that COVID could somehow fit into the category of security risk, simply having traveled from or through an area where the virus is prevalent doesn’t establish that the individual presents an actual risk.
There is also the issue of the transient nature of the risk. In the same decision referenced above, the Third Circuit relied on the Refugee Act’s legislative history to conclude “that Congress intended to protect refugees to the fullest extent of our Nation’s international obligations,” allowing for exceptions “only in a narrow set of circumstances.”10 This is obviously a correct reading where exclusion can lead to death, rape, or indefinite imprisonment. The other classes deemed undeserving of asylum are defined by more permanent characteristics. In other words, the attribute of being a terrorist, a persecutor, or a serious criminal will not wear off in two weeks time. To the contrary, any risk posed by one exposed to COVID-19 is likely to pass within that same time frame. Wouldn’t the “fullest extent” of our obligations call for simple quarantining for the brief period in question?
These issues were all raised in comments to the proposed regs. And of course, dubious reasons were employed to dismiss these arguments. For example, the agencies acknowledged the need for the danger posed be an actual rather than a merely possible one. But somehow, that requirement was dismissed by the inadequate excuse that the danger posed by a pandemic is “unique.”
The rule stands as one of the final examples of the extremes this administration will go to in order to circumvent our asylum laws and turn away those entitled to avail themselves of our immigration courts in order to determine if they are entitled to protection. As demonstrated here, the degree to which this administration veered from the actual intent of the statute in interpreting the security bar wouldn’t have been much greater if it attempted to deny asylum to those wearing white after Labor Day.11 The law must not be twisted or ignored by executive branch agencies when it conflicts with an administration’s policy objectives.
Notes:
8 U.S.C. § 1158(b)(2)(A).
UNHCR Handbook at ❡ 140.
8 U.S.C. § 1158(b)(2)(A).
See, e.g., Arangure Jasso v. Whitaker, 911 F.3d 333, 338-39 (6th Cir. 2018).
See Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1625 (2018).
Ibid (citing Circuit City Stores, Inc. v. Adams, 121 S.Ct. 1302, 149 (2001); National Assn. of Mfrs. v. Department of Defense,138 S.Ct. 617, 628–629 (2018)).
Matter of L-E-A-, 27 I&N Dec. 581, 592 (A.G. 2019).
Thanks to Prof. Jaclyn Kelley-Widmer for sharing her expertise on these terms. See Jaclyn Kelley-Widmer and Hillary Rich, “A Step Too Far: Matter of A-B-, Particular Social Group, and Chevron,” 29 Cornell J. of Law and Public Policy 345, 373 (2019).
Yusupov v. Att’y Gen. of U.S., 518 F.3d 185, 201 (3d Cir. 2008).
Id. at 203-204.
If it had done so, EOIR would undoubtedly have defended the move through the traditional, completely acceptable, totally normal method of issuing a “Myths vs. Facts” sheet. The document might contain the following entry: “Myth: EOIR issued a rule banning asylum to anyone wearing any color at any time. Fact: That’s completely absurd! Only those wearing white (which technically might not even be a color) are banned, and even then, only after Labor Day. As Pantone lists 1,867 colors, white consists of .05 percent of all colors one could wear. And that’s only if white is in fact a color. And, again, only after Labor Day.”
Copyright 2021 Jeffrey S. Chase. All rights reserved.
Republished by permission.
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Jeffrey’s article points out how deeply the corruption and racism of the regime have penetrated into the Federal Bureaucracy, even infecting supposedly “professional and apolitical” agencies like CDC. Fixing this will be a formidable task for the Biden-Harris Administration.
But, there is a larger issue here: Why has the Supremes’ GOP majority “lapped up” the transparent pretexts for unconstitutional actions presented by the regime’s ethics-challenged DOJ lawyers?While an impressive array of U.S. District Court Judges, from both parties, have generally courageously stood tall for the rule of law against White Nationalist abuses, not so the GOP majority of the Supremes!
Let’s go back to the beginning of the regime. After a string of lower Federal Court defeats, “ethics-free” DOJ lawyers massaged and slightly watered down Trump’s “Muslim Ban” and repackaged it as a bogus “national security” measure. But, even as these disingenuous lawyers were advancing this bogus pretext in court, Trump was reassuring his White Nationalist base that this was indeed the “Muslim Ban” he had promised to his supporters.
Nevertheless, the Supremes’ GOP majority “bought into” the patently (and demonstrably) bogus “national security” pretext, hook, line, and sinker:
Of the Supreme Court’s decision on Muslim ban 3.0, Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, said, “This ruling will go down in history as one of the Supreme Court’s great failures. It repeats the mistakes of the Korematsu decision upholding Japanese-American imprisonment and swallows wholesale government lawyers’ flimsy national security excuse for the ban instead of taking seriously the president’s own explanation for his action.”
“It is ultimately the people of this country who will determine its character and future. The court failed today, and so the public is needed more than ever. We must make it crystal clear to our elected representatives: If you are not taking actions to rescind and dismantle Trump’s Muslim ban, you are not upholding this country’s most basic principles of freedom and equality.”
In doing so, the GOP Supremes’ associated themselves with a long line of racially biased pretexts used by courts to uphold invidious discrimination that violated our Constitution
Internment of Japanese-Americans (but not German-Americans) is about national security.
Truth: Dehumanize, punish, and dispossess Japanese Americans on the West Coast;
Poll taxes are about raising revenue.
Truth: Preventing African-Americans from voting;
Literacy tests (“grandfathering” ignorant White guys) are about insuring an informed electorate.
Truth: Excluding African-American voters;
Separate is equal.
Truth: Insuring that African-Americans will be educationally disadvantaged;
Voter ID laws are about election integrity.
Truth: Designed by a primarily White GOP ruling class to suppress African American, Latino, and other minority voters who tend to support Democrats;
Gerrymandering to favor the GOP can be solved through the political process.
Truth: Gerrymandering is intended by the GOP to rig the political process so that voters of color will never achieve political representation proportional to their numbers.
These are just a few of the obvious examples of how the “legal power structure” has often been on the “wrong side of history.” Sadly, it continues with today’s GOP Supremes’ majority which often embraces obvious pretexts and bogus “right wing legal gobbledygook” to systematically dump on vulnerable minorities and others whose political power and humanity they refuse to recognize.
Finally, to reinforce what Jeffrey and others have said, we have a legal obligation to protect refugees.Article 33 of the Convention to which we are party, now incorporated into the INA, is mandatory, not “optional” or “discretionary.”
As I pointed out before, refugees more often than not arrive in times of international crisis and turmoil. “Tough times” or internal problems (in this case aggravated and magnified by a maliciously incompetent regime) are NOT a legal (not to mention moral) basis for us to jettison our legal obligation to offer them protection.
Had the Supremes courageously and unanimously stood up for the Constitution, rule of law, and simple human decency against the regime’s obvious lies, false narratives, overt racism, religious bigotry, and general disregard for the rule of law (now in full, foul bloom every day), the last four years might have been very different. Lives lost forever could have been saved.
Folks, here we are, two decades into the 21st Century. Yet, we have a highly “un-representative” Supremes’ GOP majority that has willingly promoted the anti-democracy antics of, and carried water for, a patently corrupt White Nationalist regime seeking to “Dred Scottify” tens of millions of persons of color, religious minorities, and those “suspected” of not supporting the GOP.
Even if many would like to, this is not something that can simply be swept under the table (again). Failure of the Supremes majority to stand up for the individual rights and human dignity of all persons in America is something that will haunt us until it is fixed or we disappear as a nation!
Lousy judging has a huge cost for humanity and democracy. We need and deserve better from the highest levels of our privileged, yet too often ineffective andfeckless in the face of tyranny, life-tenured judges!
Better Judges for a Better, Fairer America.🇺🇸 Make Equal Justice Under Law ⚖️ A Reality Rather Than an Ongoing, Judicially-Enabled, Charade!
Amanda Holpuch reports from the Gulag for HuffPost:
. . . .
The Centers for Disease Control and Prevention (CDC) bars asylum seekers and refugees from the US under an order called Title 42. People who attempt to cross the border are returned, or expelled, back to Mexico, without an opportunity to test their asylum claims. More than 250,000 migrants processed at the US-Mexico border between March and October were expelled, according to US Customs and Border Protection data.
The situation is dire. Thousands of asylum-seekers are stuck at the border, uncertain when they will be able to file their claims. The camps they wait in are an even greater public health risk that before.
Outside the border, Al Otro Lado has fought for detained migrants to get PPE and medical releases. Prisons are one of the worst possible places to be when there is a contagious disease and deaths in the custody of US immigration authorities have increased dramatically this year. They have also provided supplies to homeless migrants in southern California who have been shut out of public hygiene facilities.
Pinheiro said there will be improvements with Trump out of office, but some of the Biden campaign promises to address asylum issues at the border will be toothless until the CDC order is revoked. It’s a point she plans to make in conversations with the transition team.
A prime concern for advocates about the Biden administration is that it will include some of the same people from Barack Obama’s administration, which had more deportations than any other president and laid the groundwork for some controversial Trump policies.
While it is a worry for Pinheiro, she has hope that the new administration will build something better. “I would hope a lot of those people, and I know for some of them, have been able to reflect on how the systems they built were weaponized by Trump to do things like family separation or detaining children,” she said.
Family separation, which has left 545 children still waiting to be reunited with their parents, was a crucial issue for many voters and Pinheiro hopes that energy translates to other immigration policies.
“How did you feel when your government committed the atrocity of family separation in your name?” Pinheiro said. “The next step is really understanding that similar and sometimes worse atrocities are still being committed in the name of border security and limiting migration.”
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Read the complete article at the link.
I totally agree with Erika Pinheiro that there is no excuse for the continuing violations of our Constitution, statutes, international obligations, and simple human decency. The regime’s policies are nothing more than “crimes against humanity” thinly disguised as “law enforcement,” “national security,” and “public health” (from a regime whose “malicious incompetence,” cruelty, and callous intentional undermining of medical advice during the pandemic have contributed to the unnecessary deaths of tens of thousands of Americans).
Even more disgracefully, the Supremes and other Federal Courts have failed in their Constitutional duty to stand up to the abusers and hold the regime’s scofflaw “leaders” (to where, one might ask?) accountable. What’s the purpose of life-tenured judges who lack the training, wisdom, ethics, and most of all courage to enforce the legal and human rights of the most vulnerable against lawless, dishonest, and fundamentally cowardly “Executive bullies” hiding behind their official positions? Not much, in my view! There are deep problems in all three branches of our badly compromised and ailing Government!
I have also spoken out on Courtsideagainst the dangers of putting the same failed Dem politicos who thoroughly screwed up immigration policy, and particularly the Immigration Courts, back in charge again. I agree with Erika’s hope that some of them have gained wisdom and perspective in the last four years. But, why rely on the hope that those who failed in the past have suddenly gotten smarter, when there are “better alternatives” out there ready to step in and solve the problems?
Why not put in place some talented new faces from the NDPA with better, more progressive ideas, tons of dynamic energy, and the demonstrated willingness and courage to stand tall against bureaucratic tyranny? Give them a chance to solve the problems! Erika looks like one of those who should be solving problems and implementing better immigration policies “from the inside” in the Biden-Harris Administration!
The “deterrence only paradigm” that has driven our border enforcement policies over the past half century has been a demonstrable failure, both in terms of law enforcement and the unnecessary and unjustifiable human carnage that it has caused. Why keep doing variations on discredited policies and expecting better results?
We know that ugly, racist rhetoric, jailing families and kids in punitive conditions, weaponizing courts as enforcement tools, suspending the rule of law, denying hearings, and even summarily, illegally, and immorally returning asylum seekers to death won’t stop folks from fleeing unbearable conditions in their native countries! They will continue to seek protection in America, even in the face of predictable abuses, life-threatening dangers, and little chance of success in a system intentionally “gamed” to mistreat and reject them while denying their humanity.
Desperate people do desperate things. They will continue to do them even in the face of inhuman abuses inflicted by those whose better fortunes in life have not been accompanied by any particular compassion, understanding of the predicament of others, or recognition of an obligation to abjure the power to bully and torment those less fortunate in favor of addressing their situations in a fair, reasonable, and humane manner.
Human migration is far older than nation states, zero tolerance, baby jails, family incarceration, biased judging, national selfishness disguised as “patriotism,” and border walls. It has outlasted and outflanked all of the vain attempts to artificially suppress it by force and gimmicks. It’s time for some policies that recognize reality, see its benefits, and work with the flow rather than futilely in opposition to it.
It’s past time to look beyond the failures of yesterday to progressive solutions and new leadership committed to solving problems while enhancing justice, respecting human dignity, and enhancing human rights (which, in the end, are all of our rights)!
Due Process Forever!⚖️🗽🇺🇸 Same old, same old never!
President-elect Biden has promised a broad array of reforms that would impact refugees, asylum seekers, and other forced migrants. He has indicated he will restore Temporary Protected Status, place a moratorium on deportations, and end prolonged detention and for-profit detention centers. These are all crucially important to the safety and security of migrants and their families in the United States and other countries, especially in the Western Hemisphere. President-elect Biden has also promised to end the Trump administration’s policy of making asylum seekers “remain in Mexico” while awaiting hearings in U.S. immigration court.
However, in recent weeks, a flawed and fatalistic view of migration to the U.S. southern border has taken hold in some media accounts and reports. It goes like this: President Trump’s Remain in Mexico (or MPP) policy has created a logistical and humanitarian crisis at the southern U.S. border that, despite President-elect Biden’s promises, will be very difficult to undo. Further, a combination of pull and push factors (especially in the wake of hurricanes in Central America) will lead to increased migration to the southern U.S. border this spring such that President-elect Biden will have little choice but to keep the border sealed under an order from the Centers for Disease Control and Prevention (CDC), as he attempts to deal with COVID-19 in border states and fulfill other immigration policy promises—including uniting families the Trump administration ripped apart two years ago.
There are several problems with this line of argument, many of which are addressed in this report. Most fundamentally, keeping the border sealed and migrants waiting in Mexico will perpetuate serious abuses. Family separations and other violations of human rights, as well as violations of U.S. law, will continue to occur under a Biden administration that does not implement new policies at the border. Recently, MPP and the CDC border closure have exacerbated smuggling and trafficking at the border, as well as other forms of abuse against migrants. For example, the CDC order has led to the repatriation of Nicaraguan dissidents as well as the return of a sexually abused Guatemalan child. It has also led asylum seekers to try to cross undetected in remote desert areas. Further, unwinding MPP and allowing asylum seekers to ask for protection at the border is not only the right thing to do, but also feasible with the proper planning. Indeed, it presents the incoming administration with an opportunity to rethink migration management, especially for those seeking asylum, and to implement a new screening process that is both more humane and more efficient.
President-elect Biden has invoked President Franklin Delano Roosevelt—healer, rebuilder, and practical problem solver—as a model. During World War II, Roosevelt planned and devoted significant resources to resolving the largest displacement crisis the world had ever known. This planning was part of an effort to ensure that what happened in 1939 to the S.S. St. Louis—a ship of asylum-seeking Jews turned away by the United States and other countries—would not occur again.
During his first week in office, President-elect Biden should issue an executive order on border asylum policy that departs dramatically from that which President Trump put forth during his first week. President Biden’s executive order should give asylum seekers access to the border and provide for cooperation with border states and shelters to safely and humanely receive asylum seekers. It should allocate resources to alternatives to detention, including case management, and to improved adjudication of asylum claims in immigration courts, especially through provision of legal services. It should also commit to ending practices associated with expedited removal of asylum seekers that have resulted in abuses, and to the use of parole to unwind MPP. Finally, through revocation of Trump administration decisions, regulations, and policies, as well as through settlement of lawsuits and the withdrawal of appeals to federal courts regarding these policies, the executive order should commit to restoring asylum eligibility to those who have fled persecution but have been denied or prevented from obtaining protection.
In taking such action, President-elect Biden would be fulfilling not only his campaign promises but the commitment he made when he voted for Senate passage of the Refugee Act of 1980. That law, supported by large majorities of both parties, promised to ensure fair access to asylum at the border.
This report shows why it is imperative that the Biden administration do this rather than keep us mired in a policy framework that does not work and that has led to a cycle of crises. It does so by looking back to a momentous time of transition about thirty years ago. With the Cold War ending, the United States had to rethink its assumptions about who merited refugee status. Only a handful of refugee resettlement slots in the U.S. Refugee Program were allotted to Central Americans, and the United States had not yet developed clear procedures for effectively handling asylum seekers at the southwestern border. Rather than acknowledge the forces pushing people northward, U.S. policymakers adopted a paradigm that was focused primarily, if not exclusively, on deterrence. This is a paradigm that we are still in today.
At different points over the past thirty years, humanitarian and constructive policies have tempered the harshness of this paradigm, and such policies have also brought benefits in terms of cost and efficiency. These policies need to be adapted and scaled up. But they also need to be placed within a welcoming framework that does not presume asylum seekers are a threat. Instead of devoting tremendous resources to a futile and rights-violating attempt to block those already on the move, we have to try to better understand the drivers of migration, which, for Central Americans, include corruption, poverty, insecurity, and violence.We must devote resources instead to humanely receiving asylum seekers and adjudicating their claims fairly. We also have to stop assuming that the best place to manage admissions of all Central Americans seeking protection is at the border.
The Deterrence Paradigm
The deterrence paradigm has been implemented repeatedly using the same counterproductive strategies.
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Read the rear of Yael’s article at the link.
👍🏼👍🏼👍🏼👍🏼👍🏼⚖️🗽🇺🇸
Folks like my Round Table 🛡⚔️ colleague Judge Paul Grussendorf and I have been “preaching” for an abandonment of the unlawful, inhumane, incredibly wasteful, and demonstrably ineffective “deterrence paradigm.”
The skill set to establish a lawful, better, humane, efficient asylum system, consistent with our Constitutional, statutory, and international obligations is out there, mainly in the private/NGO/academic communities. I/O/W the “practical scholars, litigators, and advocates” in the NDPA.
It’s a just a question of the incoming Biden/Harris Administration getting beyond the “enforcement only” mentality, personnel, and White Nationalist nativist thinking that currently infects the entire USG immigration bureaucracy, at all levels. Replace the current failed leadership with experts from the NDPA and empower them to work with other experts in the private sector to institute a better system that would be no more costly, likely less, than the current “built to fail” abominations that not only waste resources but destroy human lives and are an ugly stain on our national conscience!
I also appreciate Yael’s recognition of the pressing and compelling need to “end the Clown Show 🤡🦹🏿♂️☠️@ EOIR:”
Immigration Court Reform
EOIR policies during the Trump administration have been at odds with principles of due process and judicial independence. These include the imposition of numeric case completion quotas and docket management policies that deprive asylum seekers of procedural protections; appointment of judges who almost exclusively come from prosecutorial backgrounds (especially working at DHS and in law enforcement); promotion to permanent positions on an expanded BIA of judges with asylum denial rates much higher than the national average; and procedures that limit the ability of claimants to effectively appeal their cases. The Biden administration should conduct an urgent review of EOIR hiring practices and immigration court procedures and develop recommendations for regulatory or structural changes consistent with the protection needs of asylum seekers.
The critical “urgent review” should be done by a “Team of Experts from the NDPA” brought in on an immediate temporary basis, if necessary, in accordance with Federal Personnel Rules, to replace the current Senior “Management” @ EOIR as well as the entire BIA. There’s no better way to fix the system than to take over management, restore fairness and order, and get inside the current disastrous mess @ the Clown Show 🤡🦹🏿♂️! Importantly, the “Team of Experts” with effective operational control could immediately begin fixing (and conversely stop aggravating and creating) the glaring problems while putting the structure and personnel in place for long-term reforms.
Lives ☠️⚰️ are at stake here! We need ACTION, not merely study and evaluation. “Fixing the system on the fly” may be challenging, but it’s perfectly within the capabilities of the right team of NDPA experts! Dems often prefer study and dialogue to effective actions. As Toby Keith would say: We need “a little less talk and a lot more action.”
Groups Challenge Trump Administration Rule Gutting Asylum
Thursday, December 24, 2020
Four immigrant rights organizations – Pangea Legal Services, Dolores Street Community Services, Inc., Catholic Legal Immigration Network, Inc. (CLINIC), and Capital Area Immigrants’ Rights Coalition – have requested a temporary restraining order in a lawsuit challenging a sweeping new rule that will eviscerate access to protection for people seeking refuge in the United States. Set to take effect on January 11, 2021, the rule completely transforms the asylum process, severely limiting the availability of asylum and related protections to individuals fleeing persecution or torture. The plaintiff organizations are represented by the Center for Gender & Refugee Studies, the Harvard Immigration and Refugee Clinical Program, and the law firm of Sidley Austin LLP.
“Published in the waning hours of the Trump administration, this rule marks its most far-reaching attempt to end asylum yet, and a death knell to our country’s longstanding commitment to offer safe haven for the persecuted,” said Jamie Crook, Director of Litigation at the Center for Gender & Refugee Studies. “The rule violates our laws, flouts our treaty obligations, and upends decades of legal precedent. If the mammoth rule is permitted to take effect, it will result in people being deported to face persecution, torture, and even death in their home countries.”
The rule deprives asylum seekers of any semblance of due process, imposing many barriers to relief before they even have the opportunity to present their case in immigration court. Among its numerous harmful provisions, the rule allows judges to deny an asylum application without holding a hearing. The rule also establishes 12 new “discretionary” factors that will bar many asylum seekers from life-saving protection. These include a de facto bar to asylum for applicants who pass through another country en route to the United States, effectively codifying and expanding the Trump administration’s third country transit bar, which the courts have already struck down as unlawful.
For those who are able to get their case before a judge, the new rule radically redefines who qualifies as a “refugee,” distorting the law so thoroughly that adjudicators can deny relief to virtually all applicants. The rule explicitly excludes from protection survivors of gender-based violence, children and families targeted by gangs, and people fleeing other abhorrent abuses. It also redefines “persecution” in such a way that judges will be directed to deny asylum even to individuals who have been detained and threatened with death due to their beliefs.
“Despite its enormous scope, the administration rushed this rule through the regulatory process without regard for its life-or-death implications for asylum seekers,” said Sabrineh Ardalan, Director of the Harvard Immigration and Refugee Clinical Program. “The administration chose to brush aside nearly 90,000 public comments raising serious concerns with the proposed rule.”
The plaintiffs in this lawsuit are nonprofit organizations that provide immigration legal services and have previously come together to stop other Trump administration attempts to erect unlawful barriers to asylum. They contend that the new rule will make it far more difficult to assist asylum-seeking clients and cause serious harm to the immigrant communities they serve.
The plaintiffs have asked the U.S. District Court for the Northern District of California to issue a permanent nationwide injunction to prevent the rule from taking effect, arguing that the rule violates the Immigration and Nationality Act, the Administrative Procedures Act, the Due Process Clause of the U.S. Constitution, and the United States’ duty under international law not to return people to persecution or torture. On Wednesday the plaintiffs requested a temporary restraining order to immediately halt implementation of the rule while the court considers the case.
The plaintiffs also argue that the rule is procedurally invalid, as it was co-issued by Acting Department of Homeland Security Secretary Chad Wolf, whom multiplecourts have declared was unlawfully appointed to his position and lacks the authority to promulgate such a rule.
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Speeding up executions, killing and torturing the most vulnerable humans, denying COVID relief to desperate Americans, issuing corrupt pardons to murderers, fraudsters, cronies, and dishonest politicos, plotting treason against the USG — that’s how the regime and its sycophants have spent their waning days.
Despite the obvious desire to move on and avoid dealing with the crimes and overt corruption of the defeated regime, it will be difficult for the Biden-Harris Administration to avoid questions of accountability for the worst President, worst regime, and worst major party in U.S. history. Honestly coming to grips with the past is often a prerequisite for a better future.
The bipartisan compromise was considered a done deal and won sweeping approval in the House and Senate after the White House assured GOP leaders that Trump supported it.
If he refuses to sign the deal, which is attached to a $1.4-trillion government funding bill, it will force a federal government shutdown, in addition to delaying aid checks and halting unemployment benefits and eviction protections in the most dire stretch of the pandemic.
“Made many calls and had meetings at Trump International in Palm Beach, Florida. Why would politicians not want to give people $2000, rather than only $600?” he tweeted after leaving the golf course Friday afternoon. “It wasn’t their fault, it was China. Give our people the money!”
Trump’s attack on the bill has been seen, at least in part, as punishment for what he considers insufficient backing by congressional Republicans for his push to overturn the Nov. 3 election results with unfounded claims of fraud.
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Read the full article at the link.
Of course it’s not about China; it’s about the worst President in history and his totally worthless party of sycophants, bigots, and anti-American “situational skinflints.”
Plenty of public funding for tax breaks, unneeded walls, environmental destruction, and abusive “law enforcement.” Not so much for American workers, small businesses, essential workers, teachers, civil servants, and others struggling to survive during the crisis unnecessarily deepened by the “malicious incompetence” of the “Evil Clown Prez”🤡🦹🏿♂️ and his anti-democracy party.
BTW, is Lindsay “Scumbag” Graham 🤮going for the title of “third worst human on the public dole” — right behind the “ECP”🤡🦹🏿♂️ & the Grauleiter☠️?
26 days and counting to the end of the kakistocracy🏴☠️!