"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.
President-Elect Joe Biden Official portrait of Vice President Joe Biden in his West Wing Office at the White House, Jan. 10, 2013. (Official White House Photo by David Lienemann).
Following the “official” beginning of his transition, President-Elect Joe Biden showed why an impressive majority of Americans wisely called on him and his running mate Vice President-Elect Kamala Harris at this pivotal moment in history to preserve and rescue our nation, solve pressing problems, and return us to a positive leadership role in a world that needs and longs for it.
Biden praised the recent sincere cooperation from the outgoing Administration. He vowed to make his top priorities controlling the pandemic and getting the American economy and the now bleak jobs picture back on track to success. He promised to focus on the hardest hit communities — primarily minority communities who have disproportionately borne the brunt of COVID-19 while providing essential services to all Americans. In that respect, he has already been listening to the advice and input of state governors, mayors, and local officials of both parties. Helping hard pressed state and local governments will be high on his “to do” list.
The President-Elect vowed to push forward with sound immigration, environmental, and climate change policies in the early days of his Administration. To assist in the effort, he initially tapped a group of acknowledged Government experts and veteran public servants to help and advise him and Vice President Harris in their Cabinet. Professionalism, demonstrated excellence in public service, and expertise were the common qualities of the nominees.
So far, Biden’s Cabinet choices, apparently also reflecting Vice President-Elect Harris’s influence, look like the nation they will be serving. They come from a variety of backgrounds and embody the gender and racial diversity of America.
While some commentators have expressed concerns of an “Obama IIIl” look to the Cabinet, Biden scotched that idea. He correctly pointed out that America is a much different nation facing a much different world than when he left the Vice Presidency four years ago. We face a new range of problems that must be solved. He promised to provide the type of unifying, empirically based, empathetic, and forward-looking leadership that will allow us to surmount the current challenges and move forward together to greater heights!
Significantly, Biden told Holt he would eschew political vendettas and appeared determined to restore integrity, professionalism, and independence to a broken and dysfunctional Justice Department.
The proof will be in the governing and the actions, although Biden noted the important role played by a President’s rhetoric and universal leadership qualities. Undoubtedly, things will not be perfect. But, so far, Biden appears to be on the right track and setting the correct tone for what is likely to be the most important Presidency since Abraham Lincoln (and arguably, the most important in American history).
Come January 20, 2021, the circus will be pulling up stakes and leaving town. Let the governing begin!
Dumping Asylum Seekers in Honduras Artist: Monte Wolverton Reproduced under license“Sheltering in Cages” by John Darkow Reproduced under licenseJeff Sessions’ Cage by J.D. Crowe, Alabama Media Group/AL.com Republished under license
CRUELTY TO migrant children, a trademark of the Trump administration’s immigration policy, did not cease when officials reversed course in the face of public outrage two years ago and stopped wrenching toddlers, tweens and teens from their parents — with no plan or process to reunite them. It has continued apace under cover of the pandemic, which the White House has used as an all-purpose pretext for ignoring child-protection laws and diplomatic agreements governing asylum, and, without even a nod to due process, expelling unaccompanied children who cross the border seeking refuge.
A federal judge has now halted that practice even as he acknowledged the administration’s far-reaching powers in the midst of a public health emergency. Those powers are broad, U.S. District Judge Emmet G. Sullivan ruled, but do not enable the government to send minors packing without affording them a chance to have their asylum claims heard.
At least 13,000 children have been detained by Border Patrol officers and swiftly thrown out of the country under an emergency decree that has effectively sealed off the southern border to most migrants since the spring. Administration officials justified the measure in the name of protecting the country from a potential influx of migrants carrying the coronavirus — but performed no testing, and provided no data, to substantiate their stance.
Given infection rates in Mexico and Central America, it may be reasonable to assume that some migrants, including unaccompanied minors, might have contracted covid-19. It may also be the case, however, as the ACLU argued in court, that the practice of expelling young migrants actually exposes U.S. border authorities to more risk — in the course of holding them while flights are arranged to their home countries in Central America or elsewhere — than they would otherwise face if the migrants were placed in shelters that have the capacity to adopt social distancing and other precautions. Judge Sullivan, for his part, said the government had asserted its “scientific and technical expertise” to justify its policy of evicting young migrants — but provided none by way of actual evidence.
As it happens, it occurred to at least some administration officials, early on in the pandemic, that migrant children deserved some special consideration. When the policy of suspending asylum was first rolled out, children who crossed the border were exempted. That was quickly reversed, however, with a spokesman saying that minors would be returned to their countries of origin on a “case by case basis.” In the ensuing months, however, virtually all have been expelled.
Anti-trafficking and other laws provide for protections for unaccompanied minors who arrive in this country. The administration has seized on the pandemic to disregard those, along with other long-standing measures and practices that set procedures for migrants seeking refuge here. A more humane approach, in line with American traditions and values, would have established a process for testing and quarantining, at least for migrant children, as they pursued asylum claims. But humane policy is anathema to the Trump administration, and the result is thousands of children who have been subjected to unwarranted hardship and risk.
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Remembers, the victims are largely dead, deported, or still suffering! The “perps” — including the “Perp in Chief,” “Gruppenfuhrer Miller,” Jeff “Gonzo Apocalypto” Sessions, “Wolfman the Illegal,” and “Billy the Bigot” remain at large, even profiting from and bragging about their “crimes against humanity.” This is a “functioning democracy?” No way!
We’ve all been subjected to the disingenuous writings of pundits babbling on about the resilience of American democracy in the face of a fascist president and his corrupt anti-democracy party of cowards and enablers. Hogwash!
Make no mistake about it, American democracy is on the ropes! Basically, we’re watching a corrupt President who lost the election by over 6 million votes and 74 electoral votes engage in systematic frivolous, abusive, baseless litigation intended to destroy our nation, undermine our national security, and disenfranchise voters. It’s a disgusting, overtly racist, dishonest performance that would have any other individual in America and his motley band of unethical lawyers in jail for contempt and conspiracy to obstruct justice! But, Trump and his cronies continue to operate outside the law!
We owe our existence as a nation less to any “structural integrity” and much more to a relatively few courageous, smart, highly motivated members of the resistance: immigration, human rights, and civil rights lawyers; African American women; non-right-wing journalists; Democratic legislators; scientists and medical professionals; a limited number of Federal Judges, mostly at the District Court and Immigration Court levels (and specifically excluding any current BIA Member, EOIR “Manager,” or Supreme Court Justice not named Sotomayor, Kagan, and (sort of) Breyer); courageous DACA kids; and some Federal Career Civil servants not working at ICE or CBP.
The “resilience of American institutions” view is largely that of a privileged minority who haven’t been deported to possible torture or death without any process at all (let alone “due” process), haven’t been illegally separated from beloved family members, aren’t rotting in private prisons (the “New American Gulag”) for the “crime” of seeking justice, aren’t struggling with unemployment or difficulty putting food on the table while Moscow Mitch and his elites focus on confirming unqualified Federal Judges, haven’t had family members shot by the police, haven’t had family members unnecessarily suffer and die because of the worst President in U.S. history’s maliciously incompetent failure to provide leadership and any systematic strategy for controlling a pandemic, and haven’t had to put their lives and professional reputations on the line in a failing Justice system that has enabled grotesque abuses by the likes of Jeff “Gonzo Apocalypto” Sessions, Billy the Bigot Barr, Noel Francisco, and the rest of their band of unethical Government lawyers.
The Biden Administration must do a thorough housecleaning of the corrupt DHS and DOJ bureaucracies that carried out the illegal, immoral, racist, White Nationalist agenda developed by neo-Nazi Stephen Miller and his cowardly gang of brownshirts!
And, as a nation, we need to think carefully about the implications of a life-tenured Supreme Court majority that, since their initial feckless performance on the “Muslim Ban” cases, time and time again failed to forcefully and unanimously stand up for our democracy, human decency, and those defending them in the face of overt, racism and hate driven, Executive tyranny! A Supremes’ majority that has disgracefully and spinelessly embraced the “Dred Scottification” of “the other” (mostly immigrants and those of color). It’s not rocket science! And some of our “elite law schools” seemed to have forgotten to teach “Con Law 101” and “Basic Ethics” to aspiring right wing judges!
It’s less about institutions than it is about the courageous individuals who uphold them! And, our future depends on the Biden-Harris Administration putting these folks “in the game” to insure that an unmitigated disaster like the Trump regime, it’s rampant illegality and inhumanity, and its “malicious incompetence” can never, ever, happen again! And, we must at least start the process of developing a better and more courageous Federal Judiciary for the future!
Due Process Forever! Complicity in the face of tyranny, never!
Trump Administration Ordered To Stop Expelling Children Who Cross Border
At least 8,800 unaccompanied children have been expelled since March.
Nomaan Merchant
HOUSTON (AP) — A federal judge on Wednesday ordered the Trump administration to stop expelling immigrant children who cross the southern border alone, halting a policy that has resulted in thousands of rapid deportations of minors during the coronavirus pandemic.
U.S. District Judge Emmet Sullivan issued a preliminary injunction sought by legal groups suing on behalf of children whom the government sought to expel before they could request asylum or other protections under federal law.
The Trump administration has expelled at least 8,800 unaccompanied children since March, when it issued an emergency declaration citing the coronavirus as grounds for barring most people crossing the border from remaining in the United States.
Border agents have forced many people to return to Mexico right away, while detaining others in holding facilities or hotels, sometimes for days or weeks. Meanwhile, government-funded facilities meant to hold children while they are placed with sponsors have thousands of unused beds.
Sullivan’s order bars only the expulsion of children who cross the border unaccompanied by a parent. The government has expelled nearly 200,000 people since March, including adults, and parents and children traveling together.
“This policy was sending thousands of young children back to danger without any hearing,” said Lee Gelernt, a lawyer for the American Civil Liberties Union. “Like so many other Trump administration policies, it was gratuitously cruel and unlawful.”
The Justice Department did not immediately say whether it would appeal. It has appealed another federal judge’s order barring the use of hotels to detain children.
The incoming administration of President-elect Joe Biden has not directly said whether it will keep trying to expel immigrants under public-health authority. Biden is expected to roll back several Trump administration policies restricting asylum as part of a broader shift on immigration.
Hopefully, the Biden Administration will not only not only withdraw the large body of frivolous immigration and asylum litigation and bogus positions being pursued in bad faith by the regime, but also clean house at the DOJ, DHS,and deal with those at the CDC who have aided and abetted these outrageous illegal actions.
by Jacob Soboroff, Julia Ainsley and Geoff Bennett | NBC NEWS
WASHINGTON — The Trump White House blocked the Justice Department from making a deal in October 2019 to pay for mental health services for migrant families who had been separated by the Trump administration, two current and two former senior administration officials told NBC News.
Three sources involved in the discussions who requested anonymity said the Office of White House Counsel made the decision to reject the settlement of a federal lawsuit after consultation with senior adviser Stephen Miller, the driving force behind many of President Donald Trump’s immigration policies, including family separations.
“DOJ strongly, and unanimously, supported the settlement, but not all agencies involved were on the same page,” an administration official said. “Ultimately, the settlement was declined at the direction of the White House counsel’s office.”
Another administration official said: “Ultimately, it was Stephen who prevailed. He squashed it.”
The White House’s refusal to accept the deal ended up costing taxpayers $6 million.
. . . .
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Read the full article at the link.
The cost of the immoral misconduct of Miller in number of human lives, futures, and wasted taxpayer funds is probably incalculable.
My thanks to this dynamic trio at NBC News whose fearless reporting has helped keep Miller’s crimes in the public spotlight!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleMe
FROM THE HEIGHTS OF KASINGA TO THE DEPTHS OF AMERICA’S DEADLY STAR CHAMBERS: Will The Biden Administration Tap The New Due Process Army To Fix EOIR & Save Our Nation?
By Paul Wickham Schmidt
Retired U.S. Immigration Judge
Courtside Exclusive
Nov. 12, 2020
I. INTRODUCTION — ABROGATION OF ASYLUM LAWS IN THE FACE OF EXECUTIVE LAWLESSNESS & RACIAL BIAS IS A NATIONAL DISGRACE
In Matter ofKasinga, I applied the generous well-founded fear standard for asylum established by the Supreme Court in Cardoza-Fonseca to reach a favorable result for a female asylum applicant. It was based on a particular social group of women of the tribe who feared persecution in the form of female genital mutilation, or “FGM.” I sometimes think of this as the “high water mark” of asylum law at the BIA.
Since then, proper, generous application of asylum laws to serve their intended purpose of flexibly, fairly, and consistently extending protection to those facing persecution has been steadily declining. The Trump Administration essentially overruled Cardoza-Fonseca and abolished asylum law without legislative change.
Both Congress and the Court have failed to stand up to this egregious abuse of the law, constitutional due process, and simple human decency that presents a “clear and present danger” to our nation’s continued existence.
Indeed, the performance of the Court in the face of the Administration’s overt assault on asylum has been so woeful as to lead me to wonder whether any of the Justices, other than Justice Sonia Sotomayor, have actually read the Cardoza-Fonseca decision. Certainly, most of them have failed to consistently and courageously carry forth its spirit and to grapple with their legal and moral responsibility for letting a lawless Executive trample the constitutional and human rights, as well as the human dignity, of the most vulnerable among us.
How did we get to this utterly deplorable state of affairs and what can the Biden Administration do to save us? Will they act boldly and courageously or continue the tradition of ignoring abuses directed against asylum seekers and the deleterious effect it has on our society and the rule of law?
I guarantee that racial justice and harmony will continue to elude us as a nation unless and until we come to grips with the ongoing abuses in the Immigration Courts — “courts” that no longer function as such in any manner except the misleading name!
II. BACKGROUND
To understand what has happened since Kasinga, here’s some background. In U.S. asylum law, there generally has been an “inverse relationship” between geography and success. The further your home country is from the U.S., the more generous the treatment is likely to be.
Thus, folks like Kasinga from Togo, or those from Tibet, Ethiopia, China, or Eritrea, with relatively difficult access to our borders, tend to do relatively well. On the other hand, those from Mexico, Haiti, Central America, and South America, who have easier access to our borders, tend to be treated more restrictively.
This reaction has been driven by a hypothesis with limited empirical support, but which has been accepted in some form or another by all Administrations, regardless of party, since the enactment of the Refugee Act of 1980. That is, the belief that human migration patterns are driven primarily by the policies and legal regimes in prosperous so-called “receiving countries” like the U.S.
Thus, generous and humane asylum policies will encourage unwanted flows of asylum seekers across international borders. And, of course, we all know that nothing threatens the national security of the world’s greatest nuclear superpower more than a caravan or flotilla of desperate, unarmed asylum seekers and their families trying to turn themselves in at the border or to the Border Patrol shortly after arrival.
Conversely, restrictive policies including rapid, unfair rejection, border turn-backs, mass detentions, criminal sanctions, family separation, denials of fair hearings, walls, border militarization, and hostile, often racially and religiously charged rhetoric, will cause asylum seekers to “stay put” thus deterring them and reducing the number of applications threatening our national security. In other words, encourage legitimate asylum seekers to “perish in place.” Often, these harsh policies are disingenuously characterized as being, at least partially, “for the benefit of asylum seekers” by discouraging them from undertaking dangerous journeys and paying human smugglers only to be summarily rejected upon arrival.
This “popular hypothesis” largely ignores the effect of conditions in refugee sending countries, including both geopolitical and environmental factors. For example, the current migration flow is affected by the practical difficulties of travel in the time of pandemic and by economic failures and cultural and political changes resulting from unabated climate change, not just by the legal restrictions that might be in place in the U.S. and other far-away countries.
It also factors out the “business narratives” of human smugglers designed to manipulate asylum seekers in ways that maximize profits under a variety of scenarios and to take maximum advantage of mindlessly predictable government “enforcement only” strategies.
Indeed, there is plenty of reason to believe that such policies serve largely to maximize smugglers’ profits, extort more money from desperate asylum seekers, but with little long-term effect on migration patterns. The short-term reduction in traffic, often hastily mischaracterized as “success” by the government, probably reflects in part “market adjustments” as smugglers raise their rates to cover the increased risks and revised planning caused by more of a particular kind of enforcement. That “prices some would-be migrants out of the market,” at least temporarily, and forces others to wait while they accumulate more money to pay smugglers.
It also likely increases the number of asylum seekers who die while attempting the journey. But, there is no real evidence that four decades of various “get tough” and “deterrence policies” — right up until the present — have had or will have a determinative long term effect on extralegal migration to the U.S. It may well, however, encourage more migrants to proceed to the interior of the country and take “do it yourself” refuge in the population, rather than turning themselves in at or near the border to a legal system that has been intentionally rigged against them.
Regardless of its empirically questionable basis, “deterrence theory” has become the primary driving force behind government asylum policies. Thus, the fear of large-scale, out of control “Southern border incursions” by asylum seekers has driven all U.S. Administrations to adopt relatively restrictive interpretations and applications of asylum law with respect to asylum seekers from Central America.
Starting with a so-called “Southern border crisis” in the summer of 2014, the Obama Administration took a number of steps intended to discourage Central American asylum seekers. These included: use of so-called “family detention;” denial of bond; accelerated processing of recently arrived children and adults with children; selecting Immigration Judges largely from the ranks of DHS prosecutors and other Government employees; keeping asylum experts off the BIA; taking outlandish court positions on detention and the right to counsel for unrepresented toddlers in Immigration Court; and dire public warnings as to the dangers of journeying to the U.S. and the likelihood of rejection upon arrival.
These efforts did little to stem the flow of asylum seekers from the Northern Triangle. However, they did result in a wave of “Aimless Docket Reshuffling” (“ADR”) at the Immigration Courts that accelerated the growth of backlogs and the deterioration of morale at EOIR. (Later, Sessions & Barr would “perfect the art of ADR” thereby astronomically increasing backlogs, even with many more judges on the bench, to something approaching 1.5 million known cases, with probably hundreds of thousands more buried in the “maliciously incompetently managed” EOIR (non)system).
Success for Central American asylum applicants thus remained problematic, with more than two of every three applications being rejected. Nevertheless, by 2016, largely through the heroic efforts of pro bono litigation groups, applicants from the so-called “Northern Triangle” – El Salvador, Honduras, and Guatemala – had achieved a respectable approval rate ranging from approximately 20% to 30%.
Many of these successful claims were based on “particular social groups” composed of battered women and/or children or family groups targeted by violent husbands or boyfriends, gangs, cartels, and other so-called “non-governmental actors” that the Northern Triangle governments clearly were “unwilling or unable to control.”
III. CROSSHAIRS
Upon the ascension of the Trump Administration in 2017, refugee and asylum policies became driven not only by “deterrence theory,” but also by racially, religiously, and politically motivated “institutionalized xenophobia.” The initial target was Muslims who were “zapped” by Trump’s so-called “Muslim ban.” Although initially properly blocked as unconstitutional by lower Federal Courts, the Supreme Court eventually “greenlighted” a slightly watered-down version of the “Muslim ban.”
Next on the hit list were refugees and asylees of color. This put Central American asylum seekers, particularly women and children, directly in the crosshairs.
In something akin to “preliminary bombing,” then Attorney General Jeff Sessions launched a series of false and misleading narratives against asylum seekers and their lawyers directed at an audience consisting of Immigration Judges and BIA Members who worked at EOIR and thus were his subordinates.
Without evidence, Sessions characterized most asylum seekers as fraudulent or mala fide and blamed them as a primary cause for the population of 11 million or so undocumented individuals estimated to be residing in the U.S. He also accused “dirty immigration lawyers” of having “gamed” the asylum system, while charging “his” Immigration Judges with the responsibility of “assisting their partners” at DHS enforcement in stopping asylum fraud and discouraging asylum applications.
IV. THE ATTACK
While not directly tampering with the “well-founded fear” standard for asylum, with Sessions leading the way, the Administration launched a three-pronged attack on asylum seekers.
First, using his power to review BIA precedents, Sessions reversed the prior precedent that had facilitated asylum grants for applicants who had suffered persecution in the form of domestic abuse. In doing so, he characterized them as “mere victims of crime” who should not be recognized as a “particular social group.” While not part of the holding, he also commented to Immigration Judges in his opinion that very few claimants should succeed in establishing asylum eligibility based on domestic violence.
He further imposed bogus “production quotas” on judges with an eye toward speeding up the “deportation railroad.” In other words, Immigration Judges who valued their jobs should start cranking out mass denials of such cases without wasting time on legal analysis or the actual facts.
Later, Sessions’s successor, Attorney General Bill Barr, overruled the BIA precedent recognizing “family” as a particular social group for asylum. He found that the vast majority of family units lacked the required “social distinction” to qualify.
For example, a few prominent families like the Rockefellers, Clintons, or Kardashians might be generally recognized by society. However, ordinary families like the Schmidts would be largely unknown beyond their own limited social circles. Therefore, we would lack the necessary “social distinction” within the larger society to be recognized as a particular social group.
Second, Sessions and Barr attacked the “nexus” requirement that persecution be “on account of” a particular social group or other protected ground. They found that most alleged acts of domestic violence or harm inflicted by abusive spouses, gangs and cartels were “mere criminal acts” or acts of “random violence” not motivated by the victim’s membership in any “particular social group” or any of the other so-called “protected grounds” for asylum. They signaled that Immigration Judges who found “no nexus” would find friendly BIA appellate judges anxious to uphold those findings and thereby retain their jobs.
Third, they launched an attack on the long-established “nongovernmental actor” doctrine. They found that normally, qualifying acts of persecution would have to be carried out by the government or its agents. For non-governmental actions to be attributed to that government, that government would basically have to be helpless to respond.
They found that the Northern Triangle governments officially opposed the criminal acts of gangs, cartels, and abusers and made at least some effort to control them. They deemed the fact that those governments are notoriously corrupt and ineffective in controlling violence to be largely beside the point. After all, they observed, no government including ours offers “perfect protection” to its citizens.
Any effort by the government to control the actor, no matter how predictably or intentionally ineffective or nominal, should be considered sufficient to show that the government was willing and able to protect against the harm. In other words, even the most minimal or nominal opposition should be considered “good enough for government work.”
V. THE UGLY RESULTS
Remarkably, notwithstanding this concerted effort to “zero out” asylum grants, some individuals, even from the Northern Triangle, still succeed. They usually are assisted by experienced pro bono counsel from major human rights NGOs or large law firms — essentially the “New Due Process Army” in action. These are the folks who have saved what is left of American justice and democracy. Often, they must seek review in the independent, Article III Federal Courts to ultimately prevail.
Some Article IIIs are up to the job; many aren’t, lacking both the expertise and the philosophical inclination to actually enforce the constitutional and statutory rights of asylum seekers — “the other,” often people of color. After all, wrongfully deported to death means “out of sight, out of mind.”
However, the Administration’s efforts have had a major impact. Systemwide, the number of asylum cases decided by the Immigration Courts has approximately tripled since 2016 – from approximately 20,000 to over 60,000, multiplying backlogs as other, often older, “ready to try” cases are shuffled off to the end of the dockets, often with little or no notice to the parties.
At the same time, asylum grant rates for the Northern Triangle have fallen to their lowest rate in many years 10% to 15%. Taken together, that means many more asylum denials for Northern Triangle applicants, a major erosion of the generous “well-founded fear” standard for asylum, and a severe deterioration of due process protections in American law. Basically, it’s a collapse of our legal system and an affront to human dignity. The kinds of things you might expect in a “Banana Republic.”
VI. WILL BIDEN FIX EOIR OR REPEAT THE MISTAKES OF THE OBAMA ADMINISTRATION?
The intentional destruction of U.S. asylum law and the weaponization of EOIR in support of the White Nationalist agenda have undermined the entire U.S. justice system. It actively encourages both dehumanization (“Dred Scottification”) and institutionalized racism all the way up to a Supreme Court which has improperly enabled large portions of the unlawful and unconstitutional anti-migrant agenda.
The Biden Administration can reverse the festering due process and human rights disaster at EOIR. Unlike improving and reforming the Article III Judiciary, it doesn’t need Mitch McConnell’s input to do so.
Biden can appoint an Attorney General who will recognize the importance of putting immigration/human rights/due process experts in charge of EOIR. He can replace the current BIA with real appellate judges whose qualifications reflect an unswerving commitment to due process, expert application of asylum laws in the generous manner once envisioned by the Supreme Court in Cardoza-Fonseca, implementing “best” practices, judicial efficiency, and judicial independence.
Biden can return human dignity to an improperly weaponized system designed to “Dred Scottify” the other. He can appoint better qualified Immigration Judges through a merit-based system that would encourage and give fair consideration to the many outstanding candidates who have devoted their professional lives to fighting for due process, fundamental fairness, and immigrants’ rights, courageously, throughout America’s darkest times!
That, in turn, will create the necessary conditions to institutionalize the EOIR reforms through the legislative creation of an independent, Article I Immigration Court that will be the “gemstone” of American justice rather than a national disgrace! One that will eventually fulfill the noble, now abandoned, “EOIR Vision” of “through teamwork and innovation being the world’s best tribunals, guaranteeing fairness and due process for all.”
The Obama Administration shortsightedly choose to “freeze out” the true experts in the private advocacy, NGO, academic, clinical teaching, and pro bono communities. The results have been beyond disastrous.
In addition to killing, maiming, and otherwise harming humans entitled to our legal protection, EOIR’s unseemly demise over the past three Administrations has undermined the credibility of every aspect of our justice system all the way to the Supreme Court as well as destroying our international leadership role as a shining example and beacon of hope for others.
The talent in the private sector is out there! They are ready, willing, and very able to turn EOIR from a disaster zone to a model of due process, innovation, best practices, fair, efficient, and practical judging, and creative judicial administration. One that other parts of the U.S. judicial system could emulate.
Will the Biden Administration heed the call, act boldly, and put the “right team” in place to save EOIR? Or will they continue past Democratic Administrations’ short-sighted undervaluation of the importance of providing constitutionally required due process, equal justice, and fundamental fairness to all persons in the U.S. including asylum applicants and other migrants.
I’ve read a number of papers and proposals on how to “fix” immigration and refugee policies. None of them appears to recognize the overriding importance of making EOIR reform “job one.”
For once, why can’t Democrats “think like Republicans?” When John Ashcroft and Kris Kobach and later Jeff Sessions and Stephen Miller set out to kneecap, politicize, and weaponize the U.S. justice system, what was their “starting point?” EOIR, of course!
The Obama Administration’s abject failure to effectively address and reverse the glaring mess at EOIR left by the “Ashcroft reforms” basically set the table for Sessions’s even more invidious plan to weaponize EOIR into a tool for xenophobia and White Nationalist nativism. The problems engendered by allowing the politicization and weaponization of EOIR have crippled the U.S. justice system far beyond immigration and asylum law.
Without a better EOIR, fully empowered to lead the way legally and insure and enforce compliance, all reforms, from DACA, to detention reform, to restoration of refugee and asylum systems will be less effective, more difficult, and less enduring than they should be. Equal justice for all and an end to institutionalized racism cannot be achieved without bold EOIR reform!
It would also take some of the pressure off the Article III Courts. Time and again they are called upon, with disturbingly varying degrees of both willingness and competence in the results, to correct the endless stream of basic legal errors, abuses of due process, and inane, obviously biased and counterproductive policies regularly flowing from EOIR and DOJ. Indeed, unnecessary litigation and frivolous, ethically questionable, often factually inaccurate or intentionally misleading positions advanced by the DOJ in immigration matters now clog virtually all levels of the Article III Federal Courts right up to the docket of the Supreme Court!
So far, what I haven’t seen is a recognition by anyone on the “Biden Team” that the experts in the private bar who have been the primary fighters in the trenches, almost singlehandedly responsible for preserving American justice and saving our democracy from the Trump onslaught, must be placed where they belong: in charge of the effort to rebuild EOIR and those who will be chosen to staff it!
Continue to ignore the New Due Process Army and their ability to right the listing American ship of state at peril! It’s long past time to unleash the “problem solvers” on government and give them the resources and support necessary to use practical scholarship, technology, best practices, and “Con Law/Human Rights 101” to solve the problems!
No “magic list,” stakeholders committees, or consensus-building groups can take the place of putting expert, empowered, practical problem solvers in charge of the machinery. We can’t win the game with the best, most talented, most knowledgeable, most courageous players forever sitting on the bench!
The future of our republic might well depend on whether the Biden-Harris Administration can get beyond the past and take the courageous, far-sighted actions necessary to let EOIR lead the way to a better future of all Americans! We can only hope that they finally see the light. Before it’s too late for all of us!
Due Process Forever! Complicity & Complacency, Never!
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify information on the relevant government websites and with colleagues on listservs as best you can.
EOIR Status Overview & EOIR Court Status Map/List: EOIR has not yet provided an updated general postponement date for non-detained cases at courts that remain closed. The website still reflects last week’s Nov. 13, 2020 date, but EOIR may still plan to update it later than usual.
Bloomberg: The rule violates the Administrative Procedure Act and the statute requires vacatur, the opinion by Judge Gary Feinerman of the U.S. District Court for the Northern District of Illinois said.
TRAC: Despite the partial court shutdown during the COVID-19 pandemic, this year immigration judges managed to decide the second highest number of asylum decisions in the last two decades. The rate of denial continued to climb to a record high of 71.6 percent, up from 54.6 percent during the last year of the Obama Administration in FY 2016.
Guardian: The hardline adviser is said to be ready to unleash executive orders deemed too extreme for a president seeking re-election…Those items are expected to include attempting to eliminate birthright citizenship, making the US citizenship test more difficult to pass, ending the program which protects people from deportation when there is a crisis is their country (Temporary Protected Status) and slashing refugee admissions even further, to zero. See also Election day preview: Trump v. Biden on immigration.
Bloomberg: The Trump administration is expected to announce a 180-day ban on a range of asylum requests citing the threat posed by the coronavirus, according to two people familiar with the matter, in its latest effort to restrict immigration ahead of the Nov. 3 election.
BuzzFeed: The Department of Homeland Security has expelled unaccompanied immigrant children from the US border more than 13,000 times since March, when the Trump administration gave the agency unprecedented powers to close off access at the border during the coronavirus pandemic, according to an internal document obtained by BuzzFeed News.
Intercept: Immigration authorities under President Donald Trump’s administration have pursued a widespread campaign of official retaliation against immigrant rights advocates around the country, according to a newly released database and searchable map assembled by the Immigrant Rights Clinic at New York University Law School. See also Black Immigrants in the United States Have Been Targeted by Trump.
Military Times: A Belize-born Marine Corps veteran won his battle for U.S. citizenship on Tuesday, completing a naturalization interview that had been on hold for more than a year, according to a release from his attorneys.
Prospect: Four years into this migration crisis, there’s a parallel migration under way—of immigration lawyers out of the profession. Survey data and interviews the Prospect conducted with more than a dozen lawyers around the country reveal the physical, mental, and financial toll endured by members of the bar. Given the extreme violence, trauma, and inhumanity their clients often endure, immigration attorneys don’t like to talk about how it affects them. But secondary trauma also leaves a mark, making it impossible to continue for some attorneys.
SCOTUSblog: In the past three years, much of the shadow docket has been populated by emergency requests from the Trump administration asking the Supreme Court to intervene before the lower courts have reached a final outcome or to override the actions of lower courts without a meaningful review process — or both.
IRAP: According to Saturday’s order, the “credible fear” lesson plans are vacated in their entirety and the government must bring back at government expense the two named plaintiffs who had been deported before the case was filed so that they can be rescreened under lawful standards.
A district court vacated the DHS final rule on public charge as well as DHS’s request to stay the judgment. This ruling is to take effect immediately thus DHS may not apply the public charge after the date of the order. (Cook County, et al. v. Wolf, et al., 11/2/20) AILA Doc. No. 20110231
The District Court for the Western District of Washington has scheduled a hearing for 11/4/20 for consideration of a proposed settlement in Mendez Rojas v. Wolf, a suit involving individuals who have filed, or will be filing, an asylum application more than one year after arriving in the U.S. AILA Doc. No. 20082430
AILA joined the American Immigration Council and the National Immigrant Justice Center in litigation against EOIR and GSA. The lawsuit requests information on the expansion and creation of immigration adjudication centers, which were established as part of EOIR’s Strategic Caseload Reduction plan. AILA Doc. No. 20103038
Denying the petition for review, the court held that the petitioner’s conviction in New Jersey for criminal sexual contact constituted an aggravated felony under INA §237(a)(2)(A)(iii) that rendered him removable. (Grijalva Martinez v. Att’y Gen., 10/21/20) AILA Doc. No. 20103036
Granting the petition for review, the court held that, under the modified categorical approach, the petitioner’s conviction under New Jersey’s terroristic-threats statute was not a crime involving moral turpitude (CIMT). (Larios v. Att’y Gen., 10/14/20) AILA Doc. No. 20102731
The court held that the IJ and the BIA had failed to adequately address unrebutted evidence in the record that compelled the conclusion that the petitioner’s membership in her family was at least one central reason for her persecution. (Hernandez-Cartagena v. Barr, 10/14/20) AILA Doc. No. 20102733
Where the petitioner had told the IJ that he feared persecution at the hands of gangs in Honduras because of his relationship to his mother, the court held that the IJ should have advised him that he might be eligible for asylum or withholding of removal. (Jimenez-Aguilar v. Barr, 10/6/20) AILA Doc. No. 20102736
The court held that a noncitizen who entered without inspection or admission but later received Temporary Protected Status (TPS) is deemed “inspected and admitted” under INA §245A and thus may adjust to lawful permanent resident (LPR) status. (Velasquez, et al. v. Barr, et al., 10/27/20) AILA Doc. No. 20103037
Where there were inconsistencies, an omission, and implausibilities in the record, the court held that substantial evidence supported the denial of asylum to the petitioner, a native of the Democratic Republic of Congo (DRC), on adverse credibility grounds. (Mukulumbutu v. Barr, 10/13/20) AILA Doc. No. 20102741
The court held that Oregon’s former marijuana delivery statute, Or. Rev. Stat. §475.860, was not an “illicit trafficking of a controlled substance” offense, and thus found that the petitioner’s conviction did not make him removable as an aggravated felon. (Cortes-Maldonado v. Barr, 10/15/20) AILA Doc. No. 20102832
The court held that its precedent established that no duress exception exists to the material support bar, and that the statutory text showed that any provision of funds to a terrorist organization categorically qualifies as material support. (Hincapie-Zapata v. Att’y Gen., 10/13/20) AILA Doc. No. 20102834
Unpublished BIA decision holds that INA §212(a)(7)(A)(i) is only applicable to respondents who seek admission at a port of entry, as distinct from those who enter without inspection. Special thanks to IRAC. (Matter of Ortiz Orellana, 5/26/20) AILA Doc. No. 20102701
The BIA ruled that when there is probative evidence that a beneficiary’s prior marriage was fraudulent and entered into to evade immigration laws, a subsequent visa petition filed on beneficiary’s behalf is properly denied under §204(c) of the INA. Matter of Pak, 28 I&N Dec. 113 (BIA 2020) AILA Doc. No. 20103034
Unpublished BIA decision reopens proceedings sua sponte upon finding theft under Fla. Stat. 812.014 is no longer a CIMT under Descamps v. U.S., 133 S. Ct. 2276 (2013), and Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016). Special thanks to IRAC. (Matter of Persad, 5/14/20) AILA Doc. No. 20102603
Unpublished BIA decision remands for new bond hearing because the IJ conducted all the questioning and did not give either attorney a chance to ask questions. Special thanks to IRAC. (Matter of L-R-B-, 5/12/20) AILA Doc. No. 20102602
Unpublished BIA decision finds respondent did not fail to appear for hearing where he arrived 25 minutes late due to unexpectedly heavy traffic and was in communication with his attorney who was in the courtroom. Special thanks to IRAC. (Matter of Hernandez-Yanez, 5/8/20) AILA Doc. No. 20102601
Unpublished BIA decision holds that receipt of remuneration under 42 U.S.C. 1320a-7b(b)(1) is not a CIMT because it does not require any loss or harm to a person. Special thanks to IRAC. (Matter of Tejeda, 5/28/20) AILA Doc. No. 20103001
Unpublished BIA decision rescinds in absentia order where EOIR hotline did not reflect the existence of a hearing and the DHS attorney confirmed that the respondent was not on DHS’s docket on the date she was ordered removed. Special thanks to IRAC. (Matter of Opondo, 5/21/20) AILA Doc. No. 20102700
Unpublished BIA decision holds that Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017), represents fundamental change of law justifying sua sponte reopening for TPS holders to apply for adjustment of status. Special thanks to IRAC. (Matter of Larios Andrade, 5/27/20) AILA Doc. No. 20103000
DHS OIG released a report saying that, during an inspection of the Howard County Detention Center, it identified violations of ICE detention standards that threatened the health, safety, and rights of detainees, including excessive strip searches and failure to provide two hot meals a day. AILA Doc. No. 20103031
USCIS determined that for November 2020, F2A applicants may file using the Final Action Dates chart. Applicants in all other family-sponsored preference and employment-based preference categories must use the Dates for Filing chart. AILA Doc. No. 20102991
USCIS notice of proposed rulemaking (NPRM) which would change the H-1B registration selection process from a random process to a wage-based selection process. Comments on the proposed rule are due 12/2/20, with comments on associated form revisions due 1/4/21. (85 FR 69236, 11/2/20) AILA Doc. No. 20102930
USCIS determined that for November 2020, F2A applicants may file using the Final Action Dates chart. Applicants in all other family-sponsored preference and employment-based preference categories must use the Dates for Filing chart. AILA Doc. No. 20102991
USCIS notice extending the designation of South Sudan for Temporary Protected Status (TPS) for 18 months, from 11/3/20 through 5/2/22. The re-registration period runs from 11/2/20 through 1/4/21. (85 FR 69344, 11/2/20) AILA Doc. No. 20110230
The last item on Elizabeth’s list from John Oliver is a great (if enraging) explanation of how Trump & Miller, aided by complicit Supremes and a corrupt do-nothing GOP Senate, have rewritten American asylum laws by Executive fiat to enact a deadly, immoral, illegal, racist, White Nationalist, restrictionist agenda that tortures, maims, kills, and otherwise punishes refugees, including many women and children, without any due process and in violation of our international obligations (not to mention human decency). The stain on America will long outlast the Trump regime. Much of the harm is irreversible.
How do you know when you have entered the “Twilight Zone of American Democracy?” When the biggest threat to free and fair democratic elections in the United States of America is the President! Today’s national news reports were largely dedicated to state election officials assuring Americans that the President was lying, and that their votes cast in accordance with the rules would be counted, no matter how long it takes.
Vote ‘em out, vote ‘em out! For the good of America and the world, get out the vote and vote ‘em out!
Every vote for a Democratic candidate is a vote to save our nation, our world, our souls, and the lives of our fellow humans of all races and creeds, and to finally achieve Constitutionally required Equal Justice Under Law!🇺🇸
WASHINGTON — President Donald Trump‘s senior adviser Stephen Miller has fleshed out plans to rev up Trump’s restrictive immigration agenda if he wins re-election next week, offering a stark contrast to the platform of Democratic nominee Joe Biden.
In a 30-minute phone interview Thursday with NBC News, Miller outlined four major priorities: limiting asylum grants, punishing and outlawing so-called sanctuary cities, expanding the so-called travel ban with tougher screening for visa applicants and slapping new limits on work visas.
The objective, he said, is “raising and enhancing the standard for entry” to the United States.
Some of the plans would require legislation. Others could be achieved through executive action, which the Trump administration has relied on heavily in the absence of a major immigration bill.
AUG. 25, 202005:51Some of the plans would require legislation. Others could be achieved through executive action, which the Trump administration has relied on heavily in the absence of a major immigration bill.
“In many cases, fixing these problems and restoring some semblance of sanity to our immigration programs does involve regulatory reform,” Miller said. “Congress has delegated a lot of authority. … And that underscores the depth of the choice facing the American people.”
Miller, who serves in a dual role as an adviser in the White House and to Trump’s re-election campaign, stressed that he was speaking about second-term priorities only in his capacity as campaign adviser.
Immigration has been overshadowed by surging coronavirus case numbers and an economy shattered by a nearly yearlong pandemic, but it was central to Trump’s rise to power in the Republican Party, and Miller has been a driving force for the administration’s often controversial policies to crack down on illegal migration and erect hurdles for aspiring legal immigrants.
Miller has spearheaded an immigration policy that critics describe as cruel, racist and antithetical to American values as a nation of immigrants. He scoffs at those claims, insisting that his only priority is to protect the safety and wages of Americans.
And he said he intends to stay on to see the agenda through in a second term if Trump is re-elected.
In the near term, Miller wouldn’t commit to lifting the freeze on new green cardsand visas that’s set to expire at the end of the year, saying it would be “entirely contingent” on governmental analysis that factors in the state of the job market.
Asked whether he would support reinstating the controversial “zero tolerance” policy that led to families’ being separated, Miller said the Trump administration is “100 percent committed to a policy of family unity,” but he described the policy as one that would keep families together in immigration detention by changing what is known as the Flores settlement agreement.
Over the past year, the administration has sought to amend the Flores agreement, which says children can’t be held over 20 days in Immigration and Customs Enforcement detention. If it succeeds, immigrant families could be detained indefinitely as they await their day in immigration court.
On Trump’s watch, asylum grants have plummeted. Miller wants to keep it that way. He said a second-term Trump administration would seek to expand “burden-sharing” deals with Honduras, Guatemala and El Salvador that cut off pathways to the U.S. for asylum-seekers.
“The president would like to expand that to include the rest of the world,” Miller said. “And so if you create safe third partners in other continents and other countries and regions, then you have the ability to share the burden of asylum-seekers on a global basis.”
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Read the complete report at the link.
Kids in cages, refugees returned to torture and death, ethnic communities terrorized, lives destroyed, an economy and a society (make no mistake about it, immigrants will be essential to America’s recovery, future prosperity, and competitiveness) in tatters, tens of millions wasted on unnecessary and counterproductive Gulags, walls, and cruel enforcement while the Gruppenfuherer and his fellow human rights criminals remain at large and and an existential threat to our nation and our world!
To state the obvious, this has little or nothing to do with protecting American workers. Trump has shown that he couldn’t care less about the health, safety, and welfare of American workers (or frankly anybody except himself) except at election time. Immigration and immigrants create jobs and economic prosperity for America.
Also, even Miller couldn’t possibly believe that the Democratic House will pass any part of this racist manifesto. Truth is, Trump failed to pass any meaningful immigration legislation in four years, even when the GOP controlled all the political branches! In fact, Miller’s nativist legislative game-plan “poisoned the well” and was soundly defeated in both Houses of Congress! So, he intends to use Executive misrule, bureaucratic corruption, and a fascism-enabling, racially tone-deaf GOP Supremes’ majority to rule without Congress (as has been the case for the last four years.)
But make no mistake: the real “Reichsplan” here is directed at further institutionalizing racism, spreading hate, and targeting Americans of color. That’s what the regime’s “Dred Scottification” is really about. Reducing or eliminating YOUR Constitutional rights! Immigrants are the “usual suspects.” But, by no means will they be the only victims of Gruppenfuhrer Miller’s White Nationalist, racist, hate extravaganza.
As reported at the link above, The Biden-Harris campaign immediately and forcefully condemned the Gruppenfuhrer’s plans for “ethnic cleansing:”
“We are going to win this election so that people like Stephen Miller don’t get the chance to write more xenophobic policies that dishonor our American values,” Molina said. “Unlike Trump, Vice President Biden knows that immigrants make America stronger and helped build this country.”
America is immigration! It’s our past, present, and future! When we deny those truths, we deny ourselves and betray our own humanity!
Get out the vote for Joe, Kamala, and the Dems! Top to bottom of the ballot! Our lives and the future of American Democracy depend on it! Don’t let Gruppenfuhrer Miller and his neo-Nazi agenda, the GOP’s dark vision of the future, destroy our democracy! Vote the party of corruption, hate, and neo-fascism out!
Susan Church, an immigration attorney in Boston, ended the first week of the Trump administration arm in arm with protesters at Logan Airport, resisting an executive order banning travel from several predominantly Muslim countries. But what happened the next day, away from the public chants of “Let them stay!” was more typical of what the life of the former chair of the New England chapter of the American Immigration Lawyers Association (AILA) was to become under the Trump administration.
Church and an associate filed an emergency lawsuit to secure the release of immigrants from Customs and Border Protection (CBP) custody. “I got a federal judge on the phone, you know, on a Saturday night at eight o’clock.” The judge told Church to go to court immediately. An hour later, the attorneys were in court defending their clients.
“For me, that was the canary in the coal mine about what the rest of my four years under the Trump administration was going to be like,” Church said. “It’s just a nonstop series of emergency litigation filed to try to rescue one or 10 or 100 or 1,000 people, depending on which issue it is.” Eventually, the speed of the work, and the physical and mental exhaustion it triggered, landed Church in the hospital. “I thought I was having a heart attack,” she said.
Church stayed with the fight to reunite parents with their children. She described the process of taking affidavits from clients, which require she learn every harrowing detail of a client’s trauma. In one instance, CBP ripped away one woman’s eight-year-old daughter at the border. “She had to comb her daughter’s hair and change her daughter’s clothes and put her on a bus and say goodbye to her,” Church said through tears. The two were separated for nearly two months, even after the mother was released from detention.
Church was able to reunite her client with her child, but the episode—like many, many other cases—weighs heavy on her shoulders. “I don’t think I’ll ever be quite the same person that I was beforehand,” she said.
Four years into this migration crisis, there’s a parallel migration under way—of immigration lawyers out of the profession. Survey data and interviews the Prospect conducted with more than a dozen lawyers around the country reveal the physical, mental, and financial toll endured by members of the bar. Given the extreme violence, trauma, and inhumanity their clients often endure, immigration attorneys don’t like to talk about how it affects them. But secondary trauma also leaves a mark, making it impossible to continue for some attorneys. Although numerical data is limited, there is evidence that some attorneys are cutting back on some types of cases, such as deportation defense work, or even leaving immigration law altogether. Removal defense casework is one of the most time-intensive, emotional, and exigent parts of lawyers’ loads. It’s also where the administration has aimed much of its cruelest policymaking, severely limiting lawyers’ efficacy.
Under the Trump administration, immigration law has changed not only profoundly, but also so rapidly that it’s hard for immigration attorneys to keep up. Susan Church—and several other attorneys interviewed for this article—described combating Trump’s policies as a game of whack-a-mole.
. . . .
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Read Marcia’s full article at the link.
Forget all the right wing BS and the “originalist hoax!” This is about “democracy (or the destruction thereof) in action.”
Remember, all of these cosmic “immigration law changes” have taken place without a single piece of major legislation enacted by Congress! Indeed, the Trump regime’s ham-handed attempt to force it’s nativist agenda down the throats of the Congress as part of the “Dreamer fiasco” fell flat on its face in both Houses!But, the Supremes have both encouraged and enabled Trump (actually notorious white supremacist Stephen Miller) to rewrite the law through. “Executive fiat.” Totally inappropriate, not to mention glaringly unconstitutional.
The Supremes’ majority has time and again improperly sided with the unethical, immoral, and Constitutionally bankrupt “Dred Scottification” of migrants, particularly asylum seekers. It’s not much different from what has happened to African Americans, Latinos, and other minorities following the Civil War. But, this is supposed to be the 21st Century where we have put “Jim Crow” behind us. Obviously, we haven’t!
Failing to protect “officers of the court” (lawyers) and their clients from a scheme of abuses heaped upon them by a corrupt, biased, out of control, overtly racist Executive and his sycophants is a gross dereliction of duty by the Supremes. It’s basically like allowing, and even encouraging, the badgering of a witness during trial!
It’s painfully obvious that we have many of the wrong folks on the bench — from the Immigration Courts to the Supremes. Indeed, the nation and the world would be much better served if many more of those courageous lawyers who serve the immigrant community and human rights experts were on the Federal Bench at all levels.
Trump, Roberts, and the GOP judicial misfits have also shown us first-hand the profiles of individuals who should not be serving in judicial positions. Let them litigate their “originalist,” “unitary Executive,” and other “far out” righty philosophies as lawyers appearing before real judges —“practical scholars” who live in the 21st Century and are committed to problem solving rather than problem creating. As Joe Biden has noted, the entire judicial selection system and particularly the Supremes need a thoughtful re-examination and reform.
Never again should we have Justices like Amy Coney Barrett and Clarence Thomas performing highly inappropriate and unethical televised “campaign stunts” for an incumbent President during an ongoing election. Geez! What kind of “impartial jurists” are they?
Most first year law students could tell you that’s a “no-go!” Why have we “normalized” and “accepted” such obvious bias, misbehavior, and lack of sound judgment at the highest levels of our (not Trump’s or Mitch’s personal) Judiciary?
It’s not “Rocket Science!” The fundamental building blocks of our society are immigration, human rights, and equal justice! Any lawyer who who doesn’t embody those virtues and doesn’t publicly embrace them should not in the future be given a lifetime appointment as a Federal Judge — at any level!
We need better judges for a better America! We will never achieve constitutionally-required “equal justice for all” for African Americans, Latinos, or anyone else, nor can we reach our diverse nation’s full potential, if we don’t start “pushing back” against Roberts and the GOP’s right wing judicial oligarchy, their obtuse legal gibberish, and their anti-democratic “jurisprudence.”
It starts with voting to take back our country from the far right. But, that’s just the beginning of the changes needed if equal justice for all is to become a reality, rather than an ever unfulfilled promise, limited to certain privileged (predominantly White) groups within our society!
And, all of society owes a debt of gratitude to Ms. Church and other brave lawyers like her who represent the best our country has to offer and have actually suffered for standing up for the rule of law and the legal and human rights of the most vulnerable among us. In other words, standing up for all of our rights against a tyranny!
Compare that with the utterly dismal composition of the “Trump kakistocracy” and its “Dred Scottification” of “the other.”
“They are so well taken care of. … They’re in facilities that were so clean,” President Donald Trump said during last week’s presidential debate, of the children his administration ordered separated from their parents at the southern border. As my colleague Jeremy Stahl points out, this isn’t the first time that an administration official has argued that because the separated children—over 500 of whom are still being kept from their parents—have (supposedly!) been physically taken care of, they should be “just fine.” But if the life histories of children forced to be parted from parents for years of their childhoods are any indication, these periods of separation will have long-lasting, devastating, and unpredictable effects.
I’ve been reading historian Rebecca Clifford’s new book, Survivors: Children’s Lives After the Holocaust, which is a painful history of Jewish kids who somehow made it through World War II when they were very small, and had to figure out how to forge a life afterward. Combining analysis of survivors’ testimonies recorded over the years, documents from the archives of organizations that came into contact with these children, and oral histories Clifford herself collected, the book shows how many of these survivors struggled with the act of making sense of their lives—even the lucky ones, who didn’t witness violence, and whose material needs were well met during the period of conflict and persecution. Clifford calls the work “fundamentally a book about the history of living after, and living with, a childhood marked by chaos.”
Survivors is, of course, about a group of children whose lives were marked by the Nazi regime, not about children fleeing violence in Central America, who were then separated from their families by Border Patrol agents. But it’s also fundamentally concerned with the human consequences of children’s separations from parents. In the group of survivors in Clifford’s history, there are kids who were sent to live with host families, who hid them until the war was over; kids incarcerated in different labor camps from their parents; kids who wandered the forests alone, tended only by older siblings.
Asking the historical record, and the grown-up survivors she interviewed, how this period of separation had affected the children’s lives in the long term, Clifford found things that she described as “not only unexpected, but shocking.” One such finding was the fact that for many of the kids, the war years were fine; it was liberation that was traumatic. “Children are adept at treating the exceptional as normal, and because they had no other life to compare it with, the years of persecution did not necessarily feel dangerous, fraught, or chaotic to young survivors,” Clifford writes. But after liberation, as well-meaning adults did everything they could to bring the kids back together with their surviving family members, or to find them places in Jewish homes, many of the separated survivors were profoundly destabilized. “My war began in 1945, not in 1940,” one such survivor said.
The German Jewish parents of Felice Z., who was born in October 1939, put their 1½-year-old daughter in the hands of aid workers in early 1941, and the girl spent the war years hidden by farmers in France. Felice Z. remembered in later interviews that she loved her host parents, and in particular her host mother, Madame Patoux: “All they were interested in was taking care of me. She basically saved my life. She was always ready to run. … I took it for granted that she was my mother, I called her meme (nana) and it was really the first close relationship that I had with another human being. I became very attached to them. Very.” At the end of the war, Felice got no joy out of being reunited with her sister, who had become a stranger. Soon after that reunion, she was removed from the family where she had grown up; as she remembered it, nobody bothered to explain why.
“Family reunions could be among the most difficult and distressing experiences that children went through after the war,” Clifford writes. “The youngest children might have no memory of their parents or relatives at all, and were effectively returned to strangers. … Not one child in this study who was returned to his or her family found this process easy or joyful.” The reunions brought up feelings of anger and terror—even if, as Clifford points out, the kids could rationally understand the reasons their parents had put them in safer places for the duration of the war. They had spent years suppressing childish impulses—“they had had to be obedient, quiet, and good to stay safe during the war, whether they were in hiding, in ghettos or in camps”—and often became explosive and “difficult to manage” after the separation was over.
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Read the rest of Rebecca’s article at the link.
So much wanton cruelty; such gross illegality; so little accountability; such glaring lack of integrity in our justice system! What has our country become? How is this “normal” or within the proper scope of “Executive authority.” What is impeachment for if not for “crimes against humanity?”
Vote ‘Em out, vote ‘Em out! Then start re-examining the failed and continuously failing institutions that couldn’t or wouldn’t effectively stand up to Trump, Miller, Sessions, Barr, Wolf, and the rest of their gang of thugs and scofflaws!
That starts, but by no means ends, with the highly politicized Supremes and their systemic failure to uphold our Constitution, the rule of law, and human dignity against an onslaught of White Nationalist, racist-inspired abuses by Trump, Miller, and their GOP cronies. This is a Court that disgracefully has been more interested in carrying out GOP shenanigans overtly intended to suppress votes, remove minority voting rights guaranteed by statute and Constitution, and throw the election to Trump than it has been in enforcing the Constitution and the rule of law to save the lives of refugees and asylum seekers, including women and children!
Better, more courageous, more humane judges for a better America!
PWS
10-29-20
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UPDATE: HOUSE REPORT LAYS BARE “CRIMES AGAINST HUMANITY” COMMITTED BY REGIME OFFICIALS!
Here’s the just-released Report (courtesy of Dan Kowalski @ LexisNexis):
VI. Conclusion
While we may never know the full extent of the damage inflicted by the Trump Administration’s family separation policy, it is evident—as a result of this investigation and public reporting—that it was driven by an Administration that was willfully blind to its cruelty and determined to go to unthinkable extremes to deliver on political promises and stop migrants fleeingviolencefromseekingprotectionintheUnitedStates. Asillustratedinthisreport:
• Within weeks of President Trump’s inauguration, the Administration began formulating a plan to separate parents from their children as a means to deter migration.
• Before a formal policy had even been developed, the Administration was accelerating familyseparations. ByMarch2017,thenumberofseparatedchildrentransferredtoORR custody had increased by nearly 900 percent, as compared to November 2016.
• In July 2017, without warning, the Administration implemented a family separation pilot programintheElPasoBorderPatrolSector. Thepilotprogramlastedfivemonthsand resulted in hundreds of additional children being taken from their parents and placed in ORR custody.
• During the pilot program, the Administration discovered that it was unable to track separated family members in a way that would facilitate eventual reunification.
• Knowing this, and without doing anything to address the tracking systems employed by deferral agencies, the Administration chose to expand the policy nationwide in May 2018.
• To make matters worse, the Administration failed to provide advance notice of the policy to front line agents and officers, which caused unnecessary chaos and inconsistent implementation of the policy across border sectors.
121 Dan Diamond, HHS Reviews Refugee Operations as Trump Calls for Border Crackdown, POLITICO (Oct. 23, 2018), https://www.politico.com/story/2018/10/23/trump-caravan-border-hhs-873152.
122 Email from Scott Lloyd to Evelyn Stauffer, Press Secretary, Dep’t of Health and Human Services (Nov. 19, 2018), at Appendix AY.
21
• When judicial intervention and political pressure eventually resulted in the end of the policy, the lack of interagency cooperation and preparedness was laid bare by the inability of the Administration to quickly reunite separated parents and children.
As a result of this dark chapter in our nation’s history, hundreds of migrant children may never be reunited with their parents.
Despite considerable stonewalling by Administration officials, Judiciary Committee Members and staff have pushed relentlessly to obtain data and conduct much needed oversight of the agencies responsible for the family separation policy. This report details the Committee’s findings thus far. We remain committed to holding the Trump Administration accountable and continuing to shed light on this dark moment in our country’s history.
As my friend, “Immigration Guru” Ira J. Kurzban would say: “Folks, this is NOT NORMAL!”
As we both say: “This is unacceptable conduct for which there must be accountability if we are to remain a nation under law.”
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify information on the relevant government websites and with colleagues on listservs as best you can.
EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, November 13, 2020. [Note: Despite the standing order about practices upon reopening, an opening date has not been announced for NYC non-detained at this time.]
CBS: U.S. Immigration and Customs Enforcement (ICE) is implementing new rules unveiled in July 2019 that allow agents to expand their use of “expedited removal,” a fast-tracked deportation process created by a 1996 law that bars certain immigrants from seeking relief before an immigration judge.
USNWR: Under the regulation, having fake identification documents, including a fake ID, will render an immigrant ineligible for asylum in most cases. Unlawfully receiving public benefits will similarly bar someone from being granted asylum, as will a conviction for drug possession or possession of drug paraphernalia, with the single exception of having 30 grams or less of marijuana. An immigrant with two DUI convictions, or a single DUI conviction that resulted in the harm of another person, will be ineligible for asylum protections. The rule also bars immigrants convicted of domestic violence, stalking, child abuse and similar crimes, no matter the severity, from asylum. It also notably deems ineligible for asylum any immigrant whom an asylum officer “knows or has reason to believe” engaged in acts of battery or extreme cruelty – regardless of if the immigrant was arrested for such a crime.
Gov Exec: Positions in the new Schedule F would effectively constitute at-will employment, without any of the protections against adverse personnel actions that most federal workers currently enjoy, although individual agencies are tasked with establishing “rules to prohibit the same personnel practices prohibited” by Title 5 of the U.S. Code. The order also instructs the Federal Labor Relations Authority to examine whether Schedule F employees should be removed from their bargaining units, a move that would bar them from being represented by federal employee unions. [It is unclear at this stage how/if this would affect the BIA, IJs, and other immigration officials.]
Politico: The Trump administration is considering declaring that several prominent international NGOs — including Amnesty International, Human Rights Watch and Oxfam — are anti-Semitic and that governments should not support them, two people familiar with the issue said.
NBC: Lawyers appointed by a federal judge to identify migrant families who were separated by the Trump administration say that they have yet to track down the parents of 545 children and that about two-thirds of those parents were deported to Central America without their children, according to a filing Tuesday from the American Civil Liberties Union.
Slate: In the video above, Oliver breaks down three other policies the Trump administration has used to deter asylum-seekers that don’t have the same notoriety that family separation does but are nonetheless important to know about: migrant protection protocols, safe third country agreements, and Title 42.
NYT: The members of this displaced community requested refuge in the United States but were sent back into Mexico, and told to wait. They came there after unique tragedies: violent assaults, oppressive extortions, murdered loved ones. They are bound together by the one thing they share in common — having nowhere else to go.
WaPo: When people use any one of a broad assortment of weather, gaming and other apps, their location data is bundled and resold by companies such as Venntel to advertisers, commercial buyers — and, in recent months, federal agencies such as CBP, which have argued the data is a powerful tool for investigating crime.
Chron Higher Ed: The U.S. Department of Homeland Security today announced the arrest of 15 international students as part of an investigation into fraud in optional practical training, or OPT, the work program for international graduates. Another 1,100 will lose their work authorizations.
WaPo: Cities that have adopted “sanctuary” policies did not record an increase in crime as a result of their decision to limit cooperation with federal immigration authorities, according to a new Stanford University report. The findings appear to rebut the Trump administration’s rhetoric about the policies’ dire effects on public safety.
LA Times: The medical experts found an “alarming pattern” in which Amin allegedly subjected the women to unwarranted gynecological surgeries, in most cases performed without consent, according to the five-page report, which was submitted Thursday to members of Congress.
TRAC: In September 2020, the Immigration Court recorded 1,133 new MPP cases, up from a low of 136 in May, and the highest since the start of the pandemic in March when 2,282 MPP cases were filed. A total of 24,540 MPP cases are currently pending before the Immigration Court.
TRAC: Average weekday detainer usage, already trending downward this year, began to show some reduction starting in mid-March when it fell below 400 per weekday, and by the first of April had fallen below 300. By the second week of April the daily weekday average fell to around 240. However, after mid-April usage started climbing back up. By the end of the first week in May it was back up to a weekday average of around 300, and by mid-May usage had recovered completely.
Witness at the Border: We believe #ICEAir ramp up over the last 4 weeks reflects more CDC/Title 42 order expulsions. 27 deportations to 7 different countries in LA & Caribbean (high possibility of deportation to India, not yet confirmed). 106 total flights – 4th week in a row over 100.
ICE announced that due to an order issued by the DC Circuit Court, ICE can now expedite the removal of certain individuals pursuant to the 7/23/19 Designation of Aliens for Expedited Removal. The announcement provides information on which individuals, except for UACs, can now be subjected to ER. AILA Doc. No. 20102230
USCIS and EOIR final rule that adds seven additional mandatory bars to eligibility for asylum, among other changes. The final rule is effective 11/20/20. (85 FR 67202, 10/21/20) AILA Doc. No. 20102031
CLINIC: even Temporary Protected Status (TPS) beneficiaries — who live in the District of Columbia, Maryland, Virginia, and Miami, Florida — and the Central American Resource Center (CARECEN) filed a motion for a preliminary injunction in their suit against the Trump administration for unlawfully blocking TPS beneficiaries’ path to permanent U.S. residence.
Law 360: A Canadian appellate judge indicated at a Friday hearing that he may delay the effect of a lower court ruling striking down the country’s asylum-sharing agreement with the U.S. while the government appeals, but stressed he had a “difficult decision to make.”
DHS & DOJ need comprehensive leadership changes, major reorganizations, re-examination of missions, effective ethical reforms, and thorough housecleanings to restore American democracy and achieve social justice and racial equality.
The key, to borrow from “Moscow Mitch,” is political power! “Moscow” and his GOP Senate buddies have just demonstrated in “real time” how they can turn the Supremes into an anti-democracy adjunct of the RNC. Because they can! And “tough noogies” for the majority of Americans they don’t represent!
Conversely, by voting the Trump regime and the GOP out, we can regain control of our Government and get broken, incompetent, and biased institutions like DHS and EOIR working for the people, rather than a White Nationalist minority with an anti-American, anti-democracy, anti-social-justice, anti-equality agenda!
Vote like your life and America’s future depend on it. Because they most certainly do!
Turn out the vote for Joe, Kamala, and all Dem candidates! Restore due process, compassion, and human decency! Take our nation back from the forces of darkness, bias, and failure that are destroying it and needlessly endangering the lives and livelihoods of hundreds of thousands of our fellow Americans with no plan whatsoever for addressing the current public health, social, and economic disasters crushing our nation!
Rounding the ‘coroner’ by John Darkow, Columbia Missourian
Put racism, intolerance, hate, and institutionalized inequality “in the rear view mirror!” Move forward as a nation of justice, peace, innovation, rationality, compassion, prosperity, strength, and the courage to look beyond our own lives to the best interests of humanity! Make the “American Dream” a reality for all Americans rather than an unfulfilled promise available to some but “off limits” to others!
Here’s an array of reports on how America under the Trump regime has joined the ranks of dictatorships, torturers, child abusers, persecutors, and human rights criminals!
Eugene Robinson Opinion Columnist Washington Post Source: WashPost Website
Eugene Robinson @ WashPost:
What kind of people are we? As a society, are we so decadent and insecure that we show “toughness” by deliberately being cruel to innocent children? Is this what our nation has come to? Or are we better than that?
This election demands we answer those questions. The choice between President Trump and Joe Biden is not just political. It is also moral. And perhaps nothing more starkly illustrates the moral dimension of that decision than the Trump administration’s policy of kidnapping children at the southern U.S. border, ripping them away from their families — and doing so for no reason other than to demonstrate Trump’s warped vision of American strength.
We learned this week that some of those separations will probably be permanent. As NBC News first reported, 545 boys and girls taken as many as three years ago — the children of would-be immigrants and asylum seekers, mostly from Central America — have not been reunited with their parents and may never see their families again.
These are not among the nearly 3,000 families separated at the border in 2018, when children were kept in cages like animals or shipped away to facilities across the country, hundreds or thousands of miles from the border. We now know, thanks to the American Civil Liberties Union and other pro bono lawyers, that an additional 1,500 children were torn away from their families beginning in 2017, when the Trump administration conducted a trial run of the separation policy.
Please think about that. The shocking scenes we saw two years ago did not result from a sudden spasm of presidential anger. They didn’t stem from a Fox News segment Trump might have seen one evening. Rather, the administration rehearsed this form of cruelty.
What the administration did not plan for was how to reunite the children taken in 2017 with their families. Many of the parents were deported, and their children were placed in shelters around the country, then ostensibly released to parents or guardians, placements that the ACLU is still trying to confirm.
[Our Democracy in Peril: A series on the damage Trump has caused — and the danger he would pose in a second term]
The ACLU and other organizations have sent investigators to towns and villages in Central America in an attempt to find the kidnapped children’s families — an effort complicated not just by time and distance, but also by the covid-19 pandemic. Parents of 545 children have not been found, the ACLU reported this week.
Disturbingly, the Department of Homeland Security suggested that some of the parents declined to get their children back so they could remain in the United States. Keep in mind that most of these families were seeking asylum from deadly violence in their home countries. The Trump administration changed immigration guidelines to make it unlikely that the families would ultimately be allowed to stay in the United States, but federal law gives them the right to apply for asylum and to have their cases heard. They did nothing wrong. They should never have been asked to choose between parenting their children and getting them to safety — not by their home countries, and not by the United States.
Trump’s racism and xenophobia have been hallmarks of his presidency from the beginning, so perhaps it should be no surprise that he would preside over such an outrage. But he didn’t do this by himself. He had plenty of help.
Former attorney general Jeff Sessions seized an opportunity to make his rabid antipathy toward Hispanic immigration into policy. White House senior adviser Stephen Miller, a former Sessions aide in the Senate, was the architect of Trump’s “zero tolerance” immigration policy. Then-White House Chief of Staff John F. Kelly said in 2018 that the children taken would be “taken care of — put into foster care or whatever.” Former homeland security secretary Kirstjen Nielsen said last year that she regretted that “information flow and coordination to quickly reunite the families was clearly not in place” — but not the separations themselves.
President Donald Trump’s administration started and carried out a policy that took more than 4,000 children from their parents, at least 545 of whom are still split apart years later. But at Thursday’s debate, the president insisted that he did nothing wrong at all ― blaming his Democratic predecessors and even insisting the kids are doing fine.
“They are so well taken care of,” Trump said of the children taken from their parents by his administration. “They’re in facilities that were so clean.”
Trump’s first term was marked by a full-out assault on immigration, both legal and unauthorized. The most dramatic was his “zero tolerance” policy on unauthorized border-crossing, used in a 2017 pilot program and expanded more broadly in 2018, that led to criminal prosecution of parents and locking up their kids separately. Splitting up families was intentional and calculated, according to multiple reports.
Thanks to mass public outrage and a court order, Trump was forced to stop his family separation policy. Most families were reunited, but the American Civil Liberties Union, which was part of the lawsuit against the government that stopped the policy, said this week that at least 545 kids are still away from their parents.
“Their kids were ripped from their arms and separated,” Democratic nominee Joe Biden said during the debate. “And now they cannot find over 500 sets of those parents and those kids are alone. Nowhere to go. Nowhere to go. It’s criminal.”
Washington Post Columnist Ruth Marcus, moderates a panel discussion about chronic poverty with Education Secretary John B. King and Agriculture Secretary Tom Vilsack, during the National Association of Counties at the Washington Marriott Wardman Park, in Washington, DC, on Tuesday, Feb. 23, 2016. U.S. Department of Agriculture photo by Lance Cheung.
Ruth Marcus @ WashPost:
545.
That is the number of children still separated from their families by the Trump administration — separated deliberately, cruelly and recklessly. They might never be reunited with their parents again. Even if they are, the damage is unimaginable and irreparable.
545.
Even one would be too many. Each one represents a unique tragedy. Imagine being ripped from your parents, or having your child taken from you. Imagine the desperation that the parents feel, the trauma inflicted on their children.
545.
That number represents an indelible stain on President Trump and every individual in his administration who implemented this policy, flawed at the conception and typically, gruesomely incompetent in the execution. It is, perhaps in the technical sense but surely in the broader one, a crime against humanity. It is torture.
545.
That number — I will stop repeating it, yet it cannot be repeated enough — represents a moral challenge and responsibility for the next administration. If Joe Biden is elected president, he must devote the maximum resources of the federal government to fixing this disaster. The United States broke these families; it must do whatever it takes to help them heal.
Nothing like that would happen in a second Trump term, because Trump himself doesn’t care. He doesn’t grasp the horror that he oversaw. He doesn’t comprehend the policy, and he is incapable of feeling the pain it inflicted.
Those truths could not have been clearer cut than during Thursday night’s debate.
Moderator Kristen Welker of NBC News asked the president a simple question: “How will these families ever be reunited?”
First, Trump misstated the situation: “Their children are brought here by coyotes and lots of bad people, cartels, and they’re brought here, and they used to use them to get into our country.”
No. These are children separated from their families, not separated from smugglers. They are children brought by their parents in desperate search of a better life, desperate enough that they would take the risk of the dangerous journey.
Then Trump pivoted to the irrelevant: “We now have as strong a border as we’ve ever had. We’re over 400 miles of brand new wall. You see the numbers. And we let people in, but they have to come in legally.”
Welker persisted: “But how will you reunite these kids with their families, Mr. President?”
Trump responded by pointing his finger at his predecessor: “Let me just tell you, they built cages. You know, they used to say I built the cages, and then they had a picture in a certain newspaper and it was a picture of these horrible cages and they said look at these cages, President Trump built them, and then it was determined they were built in 2014. That was him.”
This is typical Trumpian deflection, bluster undergirded by ignorance. The “cages” are ugly but irrelevant to the topic at hand: the deliberately cruel plan to deter border-crossing by separating children from parents. That was a Trump administration special, implemented with callous sloppiness and so extreme that even the Trump administration abandoned it.
Welker, for the third time: “Do you have a plan to reunite the kids with their families?”
At which point Trump made clear that he did not: “We’re trying very hard, but a lot of these kids come out without the parents, they come over through cartels and through coyotes and through gangs.” The children, he added later, “are so well taken care of, they’re in facilities that were so clean.”
The third and final presidential debate gave Donald Trump and Joe Biden the opportunity to make their final pitch to the American people before the 2020 election. For the Democratic nominee, that meant driving home the point that he believes in science, that he’ll take the COVID-19 pandemic seriously, that climate change is real, and that systemic racism must be dealt with. For Trump, it meant making it clear that in addition to being a science-denying, QAnon-promoting dimwit, he’s also an actual monster who thinks separating small children from their parents, in some cases permanently, is absolutely fine.
Asked by moderated Kristen Welker about the news that parents of 545 children separated at the border—60 of whom are under the age of five—cannot be located, Trump defended the policy and gave no explanation for how the government plans to find these people and reunite their families. “Children are brought here by coyotes and lots of bad people, cartels, and they’re brought here and they used to use them to get into our country,” Trump said, which is objectively false, as they are brought here by their parents, which is why it’s called the family separation policy. “We now have as strong a border as we’ve ever had. We’re over 400 miles of brand new wall. You see the numbers and we let people in but they have to come in legally.”
Noting that Trump hadn’t answered the question, Welker pressed: “But how will you unite these kids with their families?”
“They built cages, they used to say I built cages…that was him,” Trump said, pointing to Biden and referring to the fact that the Obama administration did build temporary enclosures but failing, naturally, to mention that his predecessor did not separate families.
“Do you have a plan to reunite the kids with their parents?” Welker asked a third time. Again, Trump responded by claiming that the children “come without the parents, they come over through cartels and through coyotes and through gangs.”
At this point, Joe Biden was given a chance to weigh in and used his time to describe the policy implemented by Trump as the horror show all non-sociopaths know it to be. “Parents, their kids were ripped from their arms and they were separated and now they cannot find over 500 sets of those parents and those kids are alone, nowhere to go. It’s criminal.”
Then Trump interjected with what he apparently believed was an important point that would cast his administration in a much more favorable light and perhaps might even win it some awards or sainthood by the Catholic church. “Kristen, I will say this,” he told the moderator, of the children stolen from their parents. “They’re so well taken care of. They’re in facilities that are so clean.
With regard to that claim, NBC News reporter Jacob Soboroff weighed in on that after the debate, telling Rachel Maddow: “I was one of the reporters I guess the president mentioned, they invited me to go to the epicenter of this policy…what I saw was little children sitting on concrete floors, covered by mylar blankets, supervised by security contractors in a watchtower, it makes me sick every time I recall it. And Physicians for Human Rights…called this torture…the American Academy of Pediatrics called this state-sanctioned child abuse, and the president of the United States I guess interprets that as children being well taken care of.”
Jacob Soboroff NBC Correspondent Jacob Soboroff at the ABC News Democratic Debate National Constitution Center. Philadelphia, PA. Creative Commons License
Here’s a video from NBC New’sJacob Soboroff, who has actually been inside “Trump’s Kiddie Gulag.” Surprise spoiler: It’s not “nice.” More like “torture” and “child abuse.”
There is neither moral nor legal justification for what the Trump regime has done to asylum seekers and other migrants over the past four years as part of their racist, White Nationalist, nativist agenda. But, we can show that we’re a better country than his horrible vision by voting him and all of his enablers out of office! Vote ‘Em out, vote ‘Em out!
Jeffrey Goldberg Interviewing John Kerry Official USG Photo Public RealmDonald J. Trump Famous American Clown (Officially titled “Ass Clown”) Artist: Scott Scheidly Orlando, FL Reproduced by permissionTrump Regime
In 1973, a United States Air Force officer, Major Harold Hering, asked a question that the Air Force did not want asked. Hering, a decorated Vietnam War veteran, was then in training to become a Minuteman-missile crewman. The question he asked one of his instructors was this: “How can I know that an order I receive to launch my missiles came from a sane president?”
The writer Ron Rosenbaum would later call this the “forbidden question.” Missile officers are allowed to ask certain sorts of questions—about the various fail-safe systems built to prevent the accidental launching of nuclear weapons, for instance. But the Air Force would not answer Hering’s question, and it moved to discharge him after determining that officers responsible for launching nuclear weapons did not “need to know” the answer. “I have to say I feel I do have a need to know because I am a human being,” Hering said in response.
Hering’s question was taboo because the national defense strategy of the United States is built on the unstated assumption that the American people will not allow a lunatic to become president. If that assumption is wrong, then no procedural, legal, or technological mechanisms exist that are able to fully protect the human race from such a lunatic. Hering discovered a catastrophic flaw in U.S. nuclear doctrine, and for this he was driven from the Air Force.
In most matters related to the governance and defense of the United States, the president is constrained by competing branches of government and by an intricate web of laws and customs. Only in one crucial area does the president resemble, in the words of the former missile officer and scholar Bruce Blair, an absolute monarch—his control of nuclear weapons. Richard Nixon, who was president when Major Hering asked his question, was reported to have told members of Congress at a White House dinner party, “I could leave this room and in 25 minutes, 70 million people would be dead.” This was an alarming but accurate statement.
When contemplating their ballots, Americans should ask which candidate in a presidential contest is better equipped to guide the United States through a national-security crisis without triggering a nuclear exchange, and which candidate is better equipped to interpret—within five or seven minutes—the ambiguous, complicated, and contradictory signals that could suggest an imminent nuclear attack. These are certainly not questions that large numbers of voters asked themselves in 2016, when a transparently unqualified candidate for president won the support of 63 million Americans.
At the time, Donald Trump had not yet served in public office, so concerns about his ability to protect the United States from harm were hypothetical, though grounded in his long and terrible record as a human being. As The Atlantic stated in its October 2016 endorsement of his opponent, Hillary Clinton, Trump “traffics in conspiracy theories and racist invective; he is appallingly sexist; he is erratic, secretive, and xenophobic; he expresses admiration for authoritarian rulers, and evinces authoritarian tendencies himself … He is an enemy of fact-based discourse; he is ignorant of, and indifferent to, the Constitution; he appears not to read.”
What we have learned since we published that editorial is that we understated our case. Donald Trump is the worst president this country has seen since Andrew Johnson, or perhaps James Buchanan, or perhaps ever. Trump has brought our country low; he has divided our people; he has pitted race against race; he has corrupted our democracy; he has shown contempt for American ideals; he has made cruelty a sacrament; he has provided comfort to propagators of hate; he has abandoned America’s allies; he has aligned himself with dictators; he has encouraged terrorism and mob violence; he has undermined the agencies and departments of government; he has despoiled the environment; he has opposed free speech; he has lied frenetically and evangelized for conspiracism; he has stolen children from their parents; he has made himself an advocate of a hostile foreign power; and he has failed to protect America from a ravaging virus. Trump is not responsible for all of the 220,000 COVID-19-related deaths in America. But through his avarice and ignorance and negligence and titanic incompetence, he has allowed tens of thousands of Americans to suffer and die, many alone, all needlessly. With each passing day, his presidency reaps more death.
But let us lay all of this aside for the moment. Let us even lay aside the extraordinary fact that Donald Trump has been credibly accused of rape. Compelling evidence suggests that his countless sins and defects are rooted in mental instability, pathological narcissism, and profound moral and cognitive impairment. Which returns us to the subject of Major Hering.
Trump’s opponent, Joe Biden, is in many ways a typically imperfect candidate, but if we judge these men on two questions alone—Who is a more trustworthy steward of America’s nuclear arsenal? Which man poses less of a threat to our collective existence?—the answer is spectacularly obvious.
The Atlantic has endorsed only three candidates in its 163-year history: Abraham Lincoln, Lyndon B. Johnson, and Hillary Clinton. The latter two endorsements had more to do with the qualities of Barry Goldwater and Donald Trump than with those of Johnson and Clinton. The same holds true in the case of Joe Biden. Biden is a man of experience, maturity, and obvious humanity, but had the Republican Party put forward a credible candidate for president, we would have felt no compulsion to state a preference. Donald Trump, however, is a clear and continuing danger to the United States, and it does not seem likely that our country would be able to emerge whole from four more years of his misrule. Two men are running for president. One is a terrible man; the other is a decent man. Vote for the decent man.
— Jeffrey Goldberg, on behalf of the editors of The Atlantic
******************
Sadly, this is sort of the “Duh” article of the week. It’s not like Courtside (and others) haven’t been sounding the alarm for the past several years. The only questions are 1) why has it taken others so long to figure it out; and 2) why anyone outside Trump’s immediate family would vote for this Anti-American maniac?
Vote like your life depends on it! Because it does!
Kangaroos https://www.flickr.com/photos/rasputin243/ Creative Commons License“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
City Bar Report Highlights Threats to Independence of Immigration Court System — Calls for Creation of Independent Article I Court
October 21, 2020
The New York City Bar Association has released a report on recent immigration policy changes “to highlight its concerns about their impact on the independence of the immigration court system as well as the due process rights of those who pass through the immigration system.”
The “Report on the Independence of the Immigration Courts” responds to an “inherent conflict of interest” in housing a judicial adjudicatory body such as the Executive Office for Immigration Review within the Department of Justice, “a federal agency primarily charged with law enforcement,” which the City Bar says has been exacerbated by various actions that DOJ has taken that “prioritize the administration’s political agenda over fairness in the immigration court system.”
According to the report, the DOJ “has taken several steps to reorganize immigration courts and the [Board of Immigration Appeals] in a way that aligns them more closely with the [current] administration’s goals of enforcing harsher and more restrictive immigration policies.” These steps include hiring practices that place judges “with records of much higher than average asylum denial rates” on the BIA; implementation of restrictive performance metrics for immigration judges, made in the name of efficiency but that in actuality “ignores the underlying reasons for the backlog;” a practice of reassigning cases “on a large scale in a manner that undermines judicial independence;” and a campaign to stifle immigration judges who speak up, including “efforts to decertify the union of IJs in a manner that further undermines the independence of the immigration courts.”
The report describes how Attorneys General in recent years have made use of “a previously rarely-used procedural tool, self-certification…to rewrite immigration court policies through changes in substantive case law, rather than following more traditional pathways of issuing regulations and legislative recommendations, both of which, notably, are more lengthy and transparent processes.” Moreover, the report details the ways in which “basic procedural mechanisms and immigration court scheduling functions are being limited or curtailed in a manner that promotes political objectives over due process,” by pushing judges to rush decisions or by restricting access to the courts and to appellate review with administrative barriers.
As detailed in the report, these legal and structural changes in the immigration judicial system have “turn[ed] its corridors into a maze. Without transparency and accountability, due process is inevitably eroded. The lack of transparency also impedes meaningful attempts at reform.” New policies have restricted public access to information, forced asylum seekers to mount their applications from outside the U.S., and prevented meaningful oversight from independent observers. All of these measures, according to the report, “tip the scales towards more and faster deportations, at the expense of due process.”
The report concludes that “moving the immigration court system out of the DOJ and making it into an independent Article I court would safeguard immigration law from being rewritten by each administration, and would thus ensure due process for the immigrants appearing before the courts.” This step is now more crucial than ever, as “the many steps that the current administration has taken to politicize the court…have frayed the bare threads of justice that existed before to the point of a complete rupture, leaving not even the appearance of justice or due process of law.”
Many thanks to my friend and NDPA stalwart Elizabeth Gibson of the NY Legal Assistance Group for distributing this.
“[N]ot even the appearance of justice or due process of law.” Yup! “Courtside” has been saying it for a long time!
There is a dual problem here. The failure of the Immigration Courts is a national disgrace. But, an even bigger disgrace is the failure of the GOPSenate and the Article III Judiciary to end this farce that kills people and is destroying the integrity of the entire U.S. Justice system while promoting racism and unequal justice.
Vote ‘Em out, vote ‘Em out. We need to get a start on saving democracy and getting better judges for a better America — from the Immigration Courts to the Supremes!
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify information on the relevant government websites and with colleagues on listservs as best you can.
EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, November 6, 2020. [Note: Despite the standing order about practices upon reopening, an opening date has not been announced for NYC non-detained at this time.]
SCOTUSblog: The Supreme Court announced on Monday morning that it would take up two cases arising out of the Trump administration’s effort to stem immigration through the United States’ border with Mexico. The justices granted review to weigh in on the long-running dispute over the funding for President Donald Trump’s border wall, as well as the legality of the Trump administration’s “remain in Mexico” policy, which allows the Department of Homeland Security to return immigrants seeking asylum to Mexico while they wait for an asylum hearing in U.S. immigration court. See also Endless Waits At An Immigrant Camp On The Mexico Border Are Pushing Desperate People To Make Tough Choices.
WaPo: ICE officers made the arrests in Denver, Seattle, New York, Baltimore, Washington and in Philadelphia, where authorities chose to announce the results and where officials said 26 immigrants were taken into custody. The agency has averaged about 40,000 “at-large” arrests per year, so the numbers announced Friday did not appear to be a significant increase in enforcement activity. See also Mayor de Blasio calls on ICE agents to stop suggesting they are NYPD.
WBUR: On Tuesday, the Boston immigration court will resume what are known as “master calendar hearings.” Even though the court has remained open throughout the pandemic, these proceedings, which bring large crowds of people to court, have been on hold — until now.
WaPo: The five-member Board of Supervisors voted unanimously Tuesday to authorize the payment, mostly to undocumented immigrants arrested on criminal charges and then held after a judge ordered them released so that federal agents could attempt to deport them. The settlement still must be approved by the judge overseeing the case, lawyers for the plaintiffs said.
WaPo: After someone painted a slogan on the sidewalk outside the home of Virginia Attorney General Mark R. Herring during a September protest, Leesburg police launched a criminal investigation into the immigrant rights coalition that organized it, court records state…Authorities asked for virtually all of the Facebook page’s content over a five-day period, a move the group says would give law enforcement access to sensitive information about undocumented immigrants and their families, confidential health reports, and complaints by name about specific law enforcement and immigration officers.
NYT: President Trump has reduced the flow of refugees into the country to a trickle, and even Iraqis and Afghans who risked their lives for American service members have been cut off.
LA Times: California’s immigrant population of 10.3 million in 2019 fell by 642,200, or 6.2%, during the first five months of the pandemic, the analysis found. That figure eclipses both the number of residents in Sacramento and the combined decrease in the nation’s other states, which saw immigrant populations decline by 531,000, or 1.5%, during the same March-through-July period.
SD Union Trib: Not all of the more than 200 Cameroonians and Congolese that detainees said were transferred to a detention facility in Texas to be deported were on the flight. Some of the group remained at Prairieland Detention Center, according to Rebekah Entralgo of Freedom For Immigrants, and a few were pulled from the flight due to individual legal actions taken on their behalf. See also Cameroonian asylum seekers pulled off deportation plane amid allegations of ICE abuse.
DHS and DOJ released the FY2019 Alien Incarceration Report, providing data on the immigration status of known or suspected immigrants incarcerated under the custody of the Federal Bureau of Prisons, the U.S. Marshals Service, and in state prisons and local detention centers throughout the U.S. AILA Doc. No. 20101607
CBP provided data on Migrant Protection Protocols from 2020, including southwest border enrollments, cases referred to USCIS, data from EOIR related to the outcome of MPP cases, and individuals apprehended entering the U.S. without inspection subsequent to being returned to Mexico through MPP. AILA Doc. No. 20081231
CBP provided custody and transfer statistics from 2020, including data on in-custody information by location, dispositions for apprehended individuals and those considered inadmissible, and transfer destinations for individuals leaving CBP custody. AILA Doc. No. 20081232
DHS and ICE announced the arrests of more than 170 individuals from 10/3 to 10/9 as part of an immigration enforcement action in sanctuary jurisdictions, including Seattle, Denver, New York, Philadelphia, Baltimore, and Washington, D.C.
Notice of a CDC order suspending the introduction of certain persons traveling from Canada and Mexico through land ports of entry and Border Patrol stations due to COVID-19. This order is substantially the same as the order issued on 3/20/20. AILA Doc. No. 20101402
In a nonprecedent decision, the AAO sustained an appeal of a Form I-212, finding that the denial did not fully consider evidence of significant positive equities in the record, including that the applicant had lived in the U.S. for 30 years. Courtesy of Alan Lee. In Re: 9072079 (AAO 9/24/20) AILA Doc. No. 20101330
Wow, talk about fraud, waste, and abuse! Not only do DHS’s illegal, misdirected, politically-motivated “enforcement” efforts cost taxpayers big bucks, their racism-driven suppression of legal immigration actually reduces job opportunities for Americans!
While the particular illegal detentions on behalf of ICE resulting in the $14 million payout by LA County occurred under the Obama Administration, it’s no secret that Trump’s ICE has “doubled down” on efforts to coerce localities into complying with such “illegal detainers” NOT issued by “neutral and detached magistrates.” Obviously, an independent Article I Immigration Court with “neutral and detached” judges could be authorized to issue detainers where legally appropriate and justified, thus solving the problems in a way that actually complies with the Constitution and common sense.
DHS, a morass of seedy political corruption and gross mismanagement, is now engaged in a full-bore effort to aid Trump’s re-election in derogation of law and of real duties that might protect us all. In particular, they have done a poor job of messaging on the coronavirus threat. They have also separated families and endangered the lives of non-criminal “prisoners” unnecessarily jailed in unsafe conditions in their “New American Gulag.”
It’s a “rogue agency” that needs to be “reorganized, reformed, and repurposed” by a future Administration. In it’s current form, DHS is actually a threat to our national security and welfare, as it continues, under “illegal leadership” to operate as essentially “Trump’s Internal Security Police.”
Here’s an article by Maria Sacchetti from today’s Post that highlights the misdirection of DHS under Wolf’s illegal, and often immoral and unethical “leadership.”
