"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
By Matt Zapotosky, Devlin Barrett and Carol D. Leonnig
January 22 at 10:38 PM ET
Then-President Donald Trump in early January entertained a plan to replace the acting attorney general with a different Justice Department lawyer who was more amenable to pursuing his unfounded claims of voter fraud, nearly touching off a crisis at the country’s premier federal law enforcement institution, people familiar with the matter said.
The plan — if enacted — would have pushed out Jeffrey Rosen as the acting attorney general and installed in his place Jeffrey Clark, whom Trump had appointed to lead the Justice Department’s Environment and Natural Resources Division and who later would come to lead the Civil Division. Clark, then, could have taken steps to wield the Justice Department’s power to help keep Trump in office. But the president was ultimately dissuaded from moving forward after a high-stakes meeting with those involved, the people said.
The people spoke on the condition of anonymity to discuss a politically sensitive matter. The move was first reported by the New York Times. Legal analysts said it amounted to a disastrous attack on the Justice Department’s independence, and perhaps something worse.
“Before the insurrectionist assault on the US Capitol, there was an attempted coup at the Justice Dept. — fomented by the President of the United States,” former Justice Department official David Laufman wrote on Twitter.
A Justice Department spokesman declined to comment, as did Rosen.
. . . .
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So, here’s the deal!
“Billy the Bigot” was pushed out because his thorough corruption and well-established toadiness did not extend as far as plotting treason against the nation. He was replaced by misogynist Jeffrey Rosen who used his brief time in office to dump on a courageous abused refugee woman from El Salvador who had already been screwed by racist, White Nationalist, misogynist and notorious child abuser Jeff “Gonzo Apocalypto” Sessions.
But, wait, there was an even more slimy and treasonous scumbag hiding in the halls of “Justice.” A dude named Jeff Clark, who apparently believed in the Q-Anon/Ted Cruz/Josh Hawley/Kevin McCarthy election conspiracy theories and wanted to make a name for himself by sucking up to the Big Orange Traitor, disenfranchising voters of color, and, oh yeah, incidentally, overthrowing the US Government.
Meanwhile, a few folks in the White House were desperately trying to talk the unhinged traitor out of his harebrained scheme for committing treason in public view.But, nobody thought this plot against our Constitution and our Government was important enough to blow the whistle, inform then Vice President Pence or the U.S. Congress, or join the call for invocation of the 25th Amendment!
Oh, and it gets worse! Insurrectionist Traitor and House Leader of the Party of Treason, Kevin McCarthy wants to assure you that YOU, that’s right YOU, caused the insurrection, not just Trump, his supporters, and those GOP crazies who actually planned, encouraged, and carried it out. And, of course, not Kevin the Traitor himself. “Accountability” and “honesty” just aren’t terms within the lexicon of modern day Republicanism! https://www.huffpost.com/entry/kevin-mccarthy-everybody-capitol-attack_n_600b9785c5b6f401aea48948
It’s not like some morning guys like McCarthy, Cruz, Hawley, Graham, et al are going to wake upand find they actually believe in American democracy, equal justice, and our Constitution.
The majority of us are going to have to learn to live with, beware of, and develop strategies to consistently overcome the “Party of Insurrection and Treason” and their followers. Otherwise, there will be no America for future generations!
Ever think it’s strange that the cowardly “Party of Jim Crow” that happily abridges the voting rights, civil rights, and due process rights of people of color and the most vulnerable among us falls all over itself with concerns about “full due process” for the Big Orange Traitor — who of course gets mondo due process — in the incoming impeachment trial?
Yeah, holding a former President accountable for inciting a treasonous, violent insurrection would be “divisive.” I guess lies, insurrection, and treason are the only real “unity” that the GOP will recognize! So far, President Biden’s calls for national unity have been met with more lies, threats of obstruction, and condescending BS from the GOP. We can’t “unify” with those who seek our nation’s destruction and steadfastly refuse to apologize, acknowledge truth, and comport themselves with simple human decency.
“She struggled madly in the torturing Ray” Amazing StoriesArtist Unknown, Public domain, via Wikimedia CommonsBIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
Tal Kopan reports for the SF Chronicle:
Bad conduct, leering ‘jokes’ — immigration judges stay on bench
Chronicle investigation: U.S. Justice Department lacks strong harassment oversight for judges
WASHINGTON — One judge made a joke about genitalia during a court proceeding and was later promoted. Another has been banned for more than seven years from the government building where he worked after management found he harassed female staff, but is still deciding cases.
A third, a supervisor based mostly in San Francisco, commented with colleagues about the attractiveness of female job candidates, an internal investigation concluded. He was demoted and transferred to a courtroom in Sacramento.
The three men, all immigration judges still employed by the Justice Department, work for a court system designed to give immigrants a fair chance to stay in the U.S. Every day, they hear some of the most harrowing stories of trauma in the world, many from women who were victims of gender-based violence and who fear that their lives are at risk if they are deported to their native countries.
These judges’ behavior toward women is not an isolated phenomenon in the immigration courts system. A Chronicle investigation revealed numerous similar instances of harassment or misconduct in the courts, and found a system that allows sexually inappropriate behavior to flourish.
In response to detailed questions before President Biden took office, the Justice Department declined to comment on specific allegations against judges, citing the privacy of personnel matters in some instances and the lack of written complaints in others, but said generally that it follows department procedures on misconduct. The Biden White House did not immediately respond to a request for comment.
Interviews with dozens of attorneys across the country and current and former government officials, as well as internal documents obtained by The Chronicle, show the problems have festered for years. The Justice Department has long lacked a strong system for reporting and responding to sexual harassment and misconduct.
And when such behavior has come to its attention, the department has in some instances simply transferred the offenders elsewhere.
The judges’ behavior appears to violate the department’s conduct policies and raises questions about the immigration courts’ ability to function fairly. Attorneys who have been the victims of harassment say they fear that if they try to hold judges accountable, they risk severe consequences, not only for themselves but for vulnerable clients.
“In the moment, you just know that you have to stay calm,” said Sophia Genovese, who has been an immigration attorney for three years and worked in the field of immigration policy for five. “You know if you do anything to piss him off, that’s going to ruin your reputation in his eyes. In that moment, am I thinking that I might be perpetuating sexism in the system? No, I’m thinking, I just need to get through this.”
She added, “If all you have to do is force a smile so that your client is not deported, the answer is obvious what practitioners are going to do.”
Michelle Mendez of the Catholic Legal Immigration Network, which provides legal representation to immigrants and helps attorneys report allegations of judicial misconduct, said lawyers face tremendous pressure not to call out judges’ bad behavior, even though they know ignoring it means it is likely to continue.
“An immigration judge might retaliate against the advocate by punishing her clients — and these are people fleeing persecution, rape and even death,” Mendez said. “It’s quite literally a Sophie’s choice that should never happen in the American legal system.”
The Trump administration did little to change the pattern, The Chronicle found, and in one case even promoted a judge who many women have said made them feel uncomfortable in open court and behind the scenes for years. Justice Department data shows the administration dismissed more complaints against judges than its predecessor.
It’s a problem that Biden’s administration has inherited. The very structure of the courts creates the conditions that allow bad actors to escape consequences, experts say. But that leaves Biden with a problem, they add: Does he reform the system to be independent of political influence, or does he use his political control over it to clean it up?
Not to “plug too shamelessly” for one of my all-time favorite journalists, but for those of you who aren’t subscribers, “The Chron” is running a “99 Cent Special” on digital subscriptions right now, and having “full access” to Tal and her colleagues would be “cheap at twice the price!”
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Every day that McHenry and his EOIR gang — acolytes of the “Miller-Hamilton-Sessions Branch” of the”Waffen SS” (all notorious child abusers among other “crimes against humanity”) — remain in power and authorized to abuse migrants, asylum seekers, women, and attorneys is an ongoing national disgrace and a cancer upon our nation and our system of justice!
Great article, Tal! Thanks!
Disgusting problem! How would YOU like to be a woman refugee or female attorney appearing before this ongoing, evil EOIR Clown Show🤡🦹🏿♂️? Ties in completely with the continuing gratuitous attacks on Ms. A-B- and her lawyers by outrageously unqualified chauvinists like Jeffrey Rosen!
What an ongoing national disgrace! The arrogance, audacity, and belief that there will be no accountability for abusing “the other” is both stunning and totally in line with four years of the Trump/Miller/Sessions/Barr/Hamilton/McHenry (surprise, all white males whose collective, genuine immigration and judicial “expertise” would fit in a thimble with room left over) kakistocracy and institutionalized abuses of migrants and their attorneys at EOIR and DOJ.
And many thanks to heroes like Michelle Mendez, Sophia Genovese, and other courageous members of the NDPA, and many “Knightesses” of our Round Table of Former Immigration Judges for having the courage to speak out in so many different and effective ways about the ongoing abuses inflicted by EOIR!
We must keep fighting and publicizing until these abuses end, and justice is restored to this ludicrously abusive, biased, openly misogynistic, anti-asylum, anti-due-process, and intentionallydehumanizing system.
The solution to the “problem” posed in Tal’s last sentence is not rocket science!
There is nothing wrong with using Executive authority to get rid of the kakistocracy, putting in experts and widely respected “due-process warriors and warrior-queens” as judges and judicial administrators, and giving them independence to reform and reformulate every aspect of this totally broken system and the disgraceful anti-migrant jurisprudence it has spawned. Get rid of the “deadwood” (or worse), put the right folks in charge, and then trust them to solve judicial problems without political interference. That’s how any “real” independent court system works, for Pete’s sake!
That certainly can and should include a new “merit selection system” for Immigration Judges that values immigration scholarship, human rights expertise, experience representing migrants and asylum seekers in Immigration Court, courage to oppose abuses, diversity, and a demonstrated lifetime commitment to due process and equal justice under our Constitution for all persons in the United States!
Over time, every judge currently in the system should be required to re-compete for their job under the new merit system. That system must be open, transparent, and involve public input in the selection process. (Unlike the current, largely closed, system designed to favor prosecutors and other government attorneys, and which has produced a remarkably, shockingly non-diverse, non-expert, and non-representative “judiciary,” particularly in light of the communities most involved in, and affected by, the Immigration Court process).
Those incumbent judges who have demonstrated a commitment to guaranteeing fairness and due process for all should have no trouble being retained. But, those who have carried out the departed regime’s “dump on asylum seekers and their lawyers program” should and will be removed and replaced by better-qualified judges. Human lives simply are too important to be at the mercy of bad judges — and, without knowing exactly how many, there are some “bad judges” operatingin the EOIR system!
Remove the Clown Show🤡🦹🏿♂️☠️! Put Michelle, Sophia Genovese, and/or other leading members of the NDPA in charge of EOIR & the BIA and let them solve the problems! Empower them to root out the “bad actors” (including members of the “90% Asylum Denial Club” — some disgracefully ensconced at the BIA) in the judiciary, support reform of the process and the law without interfering with judicial independence, then get 100% behind the legislative push for an Independent Article I Immigration Court with expert, due-process-committed, diverse, courageous judges!
There are hundreds, perhaps thousands, of well-qualified lawyers in the NDPA out there who could solve these pressing problems!
Stay tuned! Courtside will have lots to say about this until somebody in the Biden DOJ takes notice and solves the problem! The Clown Show has got to go!
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
I hear the cries of pain from those subjected to this degrading and entirely unnecessary national disgrace! It’s an affront to our Constitution, human dignity, and our entire justice system!
Thanks, Tal, Michelle, Sophia, and others for all you do, and due process 🇺🇸🗽⚖️ 🧑🏽⚖️ forever!
Tal Kopan Washington Reporter, SF ChronicleMichelle Mendez Defending Vulnerable Populations Director Catholic Legal Immigration Network, Inc. (“CLINIC”)Knightess of the Round Table
BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons“She struggled madly in the torturing Ray” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
A Parting Shot At Women
As the Trump Administration comes to an end, let’s remember how it began. On the day following the inauguration, millions participated in Women’s Marches around the world. There is sadly no need to list the reasons why women in particular would feel the need to respond in such a way to a Trump presidency.
It was therefore no surprise that Trump’s first Attorney General issued a decision intended to strip protection under our asylum laws from women who are victims of domestic violence. That decision, Matter of A-B-, was so soundly rejected by U.S. District Court Judge Emmet Sullivan that the U.S. Court of Appeals for the Sixth Circuit relied on his reasoning to conclude that Sessions’s decision had been abrogated. The First and Ninth Circuits further rejected Sessions’s view that the particular social group relied upon in A-B- was legally unsound. The Eighth Circuit rejected Sessions’s description of the standard for proving a government’s inability or unwillingness to control an abusive spouse, for example, as requiring evidence that the government condones his actions, or is completely helpless to prevent them.
The administration tried to codify the views expressed in A-B- and in another case, Matter of L-E-A-, by issuing proposed regulation designed to completely rewrite our asylum laws, with the purpose of making it virtually impossible for domestic violence and gang violence victims to qualify for asylum protection. Those rules, which were rushed out with very little time for public comment, were blocked on January 8 by a U.S. District Court judge.
There are at least two important cases presently before the U.S. Court of Appeals for the Fourth Circuit involving the issues raised in both A-B- and L-E-A-. Had these decisions been issued by, e.g., U.S. District Court judges, the Department of Justice would be representing the government (in the form of the Attorney General), but not the judge who issued the decision below. But as to A-B-, the government attorneys represent an Attorney General acting as judge, and a judge with extraordinary powers. As a result of those powers, the official presently filling the position on an acting basis (who had come to the job a few weeks earlier from the Department of Transportation with absolutely no background in immigration law) was able to unilaterally issue a new decision in the case, in an attempt to shore up issues of concern before the circuits.
So what does the new decision of the recent Deputy Transportation Secretary say? It addresses two issues: the “condone or complete helplessness” language used by Sessions, and the proper test for when persecution can be said to be “on account of” an asylum seeker’s gender, familial relationship, or other group membership.
As to the first issue, the Acting AG now states that Sessions did not change the preexisting legal standard for determining whether a government is unwilling or unable to provide protection. The Acting AG accomplishes this by explaining that “condone” doesn’t actually mean condone, and that “complete helplessness” doesn’t mean complete helplessness.
I’m not sure of the need for what follows on the topic. Perhaps there is an Attorney General Style Guide which advises to never be succinct when there are so many more exciting options available. Besides from sounding overly defensive in explaining why Sessions chose to use terms that sure sounded like they raised the standard in order to supposedly signal that he was doing no such thing, the decision also feels the need to remind us of what that preexisting standard is, in spite of the fact that no one other than perhaps a Deputy Transportation Secretary pretending to be an asylum law scholar is in need of such a recap. Yes, we understand there are no crime-free societies, and the failure to prevent every single crime from occurring is not “unwilling or unable.” No court has ever said that it was. Let’s move on.
The second part of this new A-B- decision addresses a conflict between the views of the Fourth Circuit and the BIA in regard to when a nexus is established. This issue arises in all asylum claims, but the BIA addressed it in a case, Matter of L-E-A-, in which an asylum applicant was threatened by a violent gang because it wished to sell drugs in a store owned by his father. The question was whether the asylum seeker’s fear of harm from the gang was “on account of” his familial relationship to his father.
Our laws recognize that persecution can arise for multiple reasons. A 2005 statute requires a showing that one of the five specific bases for a grant of asylum (i.e. race, religion, nationality, membership in a particular social group, or political opinion) must form “one central reason” for the harm. The BIA itself has defined this to mean that the reason was more than “incidental, tangential, superficial, or subordinate to another reason.”
In the context of family membership, the Fourth Circuit has repeatedly held that this “one central reason” test is satisfied where the family membership formed the reason why the asylum seeker, and not someone else, was targeted for harm. Using the L-E-A- example, the gang members were obviously motivated most of all by their desire for financial gain from the selling of the drugs in the store. But under the Fourth Circuit’s test, the family relationship would also be “one central reason” for the harm, because had the asylum seeker not been the son of the store owner, he wouldn’t have been the one targeted. This is known as a “but for” test, as in “but for” the familial relationship, the asylum seeker wouldn’t have been the one harmed
In L-E-A-, the BIA recognized the Fourth Circuit’s interpretation in a footnote, but added that the case it was deciding didn’t arise under that court’s jurisdiction. The BIA thus went on to create its own test, requiring evidence of an actual animus towards the family. The BIA provided as an example of its new test the assassination of the Romanov family in 1917 Russia, stating that while there were political reasons for the murders, it would be difficult to say that family membership was not one central reason for their persecution.
I’m going to create my own rule here: when you are proposing a particular legal standard, and the judge asks for an example, and all you can come up with is the Romanov family in 1917 Russia, you’re skating on thin ice. The other thing about legal standards is in order for judges to apply them and appeals courts to review them, they have to be understandable. I’m not a student of Russian history, but it would seem to me that (as the BIA acknowledged), the main motive in assassinating the Romanovs was political. I’m not sure what jumps out in that example as evidence of animus towards the family itself. How would one apply the Romanov test to anyone ever appearing in Immigration Court? By comparison, the Fourth Circuit’s test is a very clear one that is easy to apply and review on appeal.
Of course, this is just my humble opinion. The assistant Transportation czar feels differently. Drawing on his extensive minutes of experience in the complex field of asylum, he concluded: “I believe that the Fourth Circuit’s recent interpretation of ‘one central reason’ is not the best reading of the statutory language.”
I am guessing that by saying this in a precedent decision in the final days of this Administration, Transportation guy is hoping that the Fourth Circuit will feel compelled to accord his opinion Brand X deference. Legal scholar Geoffrey Hoffman has pointed out that no such deference is due, as the requirement that the statute be ambiguous is not satisfied. (Geoffrey’s excellent takedown of this same decision can be found here, and is well worth reading).
But the term in question, “on account of,” is also not one requiring agency expertise, which is of course a main justification for judicial deference. It is instead a legal standard not specific to asylum or immigration law.
For example, last June, the Supreme Court decided Bostock v. Clayton County, a case involving employment discrimination based on sexual orientation or identity. In a 6-3 decision authored by Justice Gorsuch, the Court explained that the statutory term in question, “because of,” carries the same legal meaning as “on account of,” the relevant phrase for asylum purposes. In determining nexus, the Court stated:
It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.
That last sentence – “if changing the employee’s sex would have yielded a different choice by the employer” – is essentially the same “but for” standard applied by the Fourth Circuit in the asylum context. What would give an Acting Attorney General the authority to hold otherwise?
A conservative commentator observed a difference between the discrimination required in Bostock and the persecution required in L-E-A-, stating that discrimination can involve favoring one group without necessarily hating the group being passed over, whereas persecuting someone requires an animus towards them.
However, the BIA recognized nearly 25 years ago that persecution can be found in harm resulting from actions intended to overcome a characteristic of the victim, and that no subjective punitive or malignant intent is required. The BIA acknowledged this in L-E-A-, noting that a punitive intent is not required.
Furthermore, the legislative history of the REAL ID Act (which created the requirement in question) shows that Congress amended the original proposed requirement that the protected ground be “the central motive” for the harm, to the final language requiring that it be “one central reason.”1 While animus would fall under “motive,” “reason” covers the type of causation central to the Fourth Circuit’s “but for” test. The history seems to undermine the former Transportation official’s claim that under the Fourth Circuit’s test, the “one central reason” language would be “mere surplusage.” This is untrue, as that additional language serves to clarify that the reason can be one of many (as opposed to “the” reason), and that the relevant issue is reason and not motive. Perhaps the author required more than three weeks at the Department of Justice to understand this.
I write this on the last full day of the Trump presidency. Let’s hope that all of the decisions issued by this administration will be vacated shortly; that the BIA will soon be comprised of fair and independent immigration law scholars (preferably as part of an independent Article I Immigration Court), and that future posts will document a much more enlightened era of asylum adjudication.
Note:
1. See Deborah Anker, The Law of Asylum in the United States (Thomson Reuters) at § 5:12.See also Ndayshimiye v. Att’y Gen. of U.S., 557 F.3d 124 (3d Cir. 2009) (recounting the legislative history and rejecting a dominance test for determining “one central reason”).
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Copyright 2021 Jeffrey S. Chase. All rights reserved.
Republished by permission.
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Judge Garland and his team must address systemic failures at the dysfunctional DOJ well beyond the festering, unconstitutional mess @ EOIR (“The Clown Show” 🤡) that requires an immediate “remove and replace.” The ethical failings, bad lawyering, dilatory litigating tactics, anti-American attitudes, racism, misogyny, intellectual dishonesty, coddling of authoritarianism, and complicity in the face of tyranny are in every corner of the disgraced Department.
Withdrawal of every bogus, biased, unconstitutional, racist- motivated “precedent” issued during the Trump regime and turning the proper development and fair interpretation of immigration and asylum laws over to a “new BIA” — consisting of real judges who are widely recognized and respected experts in immigration, human rights, and due process — must be a “day one” priority for Judge Garland and his team.
The Clown Show🤡🦹🏿♂️ that has made mincemeat out of American justice — not to mention legal ethics and human morality — must go! And, the problem goes far beyond the “Falls Church Circus!”🎪🤹
🇺🇸⚖️🗽Due Process Forever! Institutionalized misogyny, 🤮☠️never! No more Jeffrey Rosens @ DOJ —ever!
And, firms like Kirkland & Ellis need to think twice about re-employing a sleazy “empty suit” like Rosen who represents everything that is wrong with American law in the 21st century! Public disgrace should not be mistaken for “public service.”
“Normalizing” political toadies, “senior executives,” government “lawyers,” and other “public officials” who carried the water and willingly (often, as in Rosen’s case, enthusiastically, gratuitously, and totally unnecessarily) advanced the objectives of a White Nationalist, anti-American regime whose disgraceful and toxic rule ended in a violent, unhinged, failed insurrection against our democracy encouraged by a Traitor-President, his supporters, and members of the GOP would be a HUGE, perhaps fatal, mistake!
Make no mistake about it! Brave, determined refugee women like Ms. A-B- and her lawyers (superstars like Professor Karen Musalo and Blaine Bookey of the Center for Gender and Refugee Studies) are the true American heroes 🦸🏻 of the resistance to White Nationalist, racist, xenophobic policies of cruelty, hate, and disparaging of the rule of law. Toadies and traitors like Rosen are the eternal villains!🦹🏿♂️ Picking on refugees on the way out the door is an act of supreme cowardice that will live in infamy!🐓🤮
Fear the turtle! Fight treason! Reject racism and White Nationalism! Hold the GOP accountable for attacking democracy!
Never forget the GOP cruelty, racism, corruption, lies, dehumanization, anti-Americanism, and treachery of the last four years and who supported and enabledthe Traitor 🦹🏿♂️🤮 in his attack🥷🏻 on American Democracy and human decency, not to mention truth, science, and our world’s environment!
Don’t be fooled by “fake Kumbiya moments,” bogus calls for “unity” and “healing,” and pleas for “due process” for traitors who illegally denied it to those most vulnerable. They are really just pathetic attempts to escape accountability for their treason and the horrors they have inflicted on our nation and humanity!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”Trump Regime“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
CLINIC v. EOIR, USDC D DC, 01-18-21 (Judge Amit P. Mehta)
KEY QUOTE:
The court holds that EOIR acted arbitrarily and capriciously by disregarding the Final Rule’s impact on legal service providers and their capacity to provide legal services to persons subject to removal proceedings. EOIR was obligated to address these concerns as part of the notice-and-comment process but it failed to do so. In short, EOIR “entirely failed to consider an important aspect of the problem.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. (State Farm), 463 U.S. 29, 43 (1983). The court also finds that, absent equitable relief, Plaintiffs will suffer irreparable harm, and that the balance of the equities and the public interest favor staying the effective date of a portion of the Final Rule.
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Kind of says it all!
Congrats to the heroes at CLINIC and their NDPA colleagues!
Michelle Mendez Defending Vulnerable Populations Director Catholic Legal Immigration Network, Inc. (“CLINIC”)
And, while you’re at it, Judge Garland, you must examine the role of the sleazy DOJ lawyers who mounted an essentially frivolous defense for this nonsense in Federal Court. Sadly, you’re looking at systemic failure here, as well as a totally disrespectful and unwarranted effort to “beat the clock” in implementing the Miller/Hamilton White Nationalist, racist, anti-due-process, xenophobic agenda!
Obviously, EOIR cut corners and tried to rush these bogus changes into effect before the well-established “end date” of the Trump kakistocracy on Jan. 20, 2020. EOIR also of acted in full knowledge that the incoming Biden Administration would go a “different direction” on immigration matters.
In plain terms, this was an illegal bad-faith effort to undermine the incoming Biden Administration and illegally punish legal service providers by making them use time and resources in undoing the illegal mischief EOIR intentionally inflicted. This is neither “normal” nor”acceptable.” It must be forcibly and swiftly addressed by “Team Garland.”
CLINIC and their allies should be devoting resources to representing individuals in Immigration Court, not to fending off a bad-faith racist agenda sponsored by no less than a Department of “Justice” that has completely lost its way and impedes the public good.
This is a very serious ongoing national disgrace and abuse of the legal process by the DOJ. It needs to stop! Now! And those responsible for this outrage must face accountability for their unwarranted and illegal actions!
🇺🇸⚖️🗽Due Process Forever! The EOIR Clown Show 🤡🦹🏿♂️☠️ Never!
President-elect Joe Biden will roll out a sweeping overhaul of nation’s immigration laws the day he is inaugurated, including an eight-year pathway to citizenship for immigrants without legal status and an expansion of refugee admissions, along with an enforcement plan that deploys technology to patrol the border.
Biden’s legislative proposal, which will be sent to Congress on Wednesday, also includes a heavy focus on addressing the root causes of migration from Central America, a key part of Biden’s foreign policy portfolio when he served as vice president.
The centerpiece of the plan from Biden and Vice President-elect Kamala D. Harris is the eight-year pathway, which would put millions of qualifying immigrants in a temporary status for five years and then grant them a green card once they meet certain requirements such as a background check and payment of taxes. They would be able to apply for citizenship three years later.
. . . .
The focus on Central America reflects the message that Biden has relayed to senior officials in the region: that he will advocate for policy changes aimed at what drives scores of migrants there to come to the United States illegally to seek safe harbor.
“Ultimately, you cannot solve problems of migration unless you attack the root causes of what causes that migration,” one official said, pointing to the various reasons — from economic to safety — that drive migrants to flee their home countries. “He knows that in particular is the case in Central America.”
Transition officials are aware of recent reports of the increased numbers of migrants at or heading to the border in anticipation of the end of Trump’s presidency, and urged them to stay in their home countries. They emphasized that newly arriving immigrants would not qualify for the legalization program that Biden proposes.
Biden wants to move the refugee and asylum systems “back to a more humane and orderly process,” the official said. But “it’s also been made clear that that isn’t a switch you flip overnight from the 19th to the 20th, especially when you’re working with agencies and processes that have been so gutted by the previous administration.”
Biden hopes to reinstate a program granting minors from Central America temporary legal residence in the United States. The Trump administration terminated the program in August 2017, officials said. The administration also wants to set up a reunification program for Central American relatives of U.S. citizens that would allow those who have been already approved for U.S. residency to be admitted into the country, rather than waiting at home for an opening. The program would be similar to ones that existed for Cubans and Haitians but also were ended by the Trump administration.
The Biden proposal also would put in place a refugee admissions program at multiple processing centers abroad that would better help identify and screen those who would qualify to be admitted as refugees into the United States.
As for border enforcement, the plan calls on the Department of Homeland Security to develop a proposal that uses technology and other similar infrastructure to implement new security measures along the border, both at and between ports of entry. Biden has long vowed not to expand the border wall Trump has marginally extended.
“This is not a wall; this is not taking money from [the Department of Defense],” a transition official said, referring to how Trump helped to finance his wall after pledging Mexico would pay for it. “It’s a very different approach.”
. . . .
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Read the complete article at the link.
This is a welcome change from the poorly conceived, often ill-informed approach to immigration by the Obama Administration. It appears that Biden and Harris have actually “listened to the experts” and acted a accordingly.
The concentration on addressing the reality of Central American migration and dealing honestly and constructively with its root causes in a sensible and humane way is also refreshing. Using intelligence and technology to address real border security issues (as opposed to squandering resources on politically manufactured ones) also shows promise.
Julia Edwards Ainsley NBC Correspondent Justice & DHS Outside Justice Dep’t Photo: Victoria Pickering https://www.flickr.com/photos/vpickering/
Many of the latter wereenergized by the Trump/DHS program of White Nationalist racist fear-mongering and intentionally false anti-immigrant, anti-due-process narratives. That’s what “applied malicious incompetence” looks like — DHS and EOIR are two of the most egregious examples in a regime that raised it to an “art form.” It will take an aggressive and far-reaching “house cleaning” to get these agencies that have abandoned the common good and now operate “on the dark side” back on track.
The immediate “knee-jerk opposition” to rational, practical, fact-based immigration reform by notorious White Nationalist racist Sen. Tom Cotton (R-ARK) shows that Team Biden is on the right track to disavow the toxic institutionalized racism and biased policies of the Trump regime and move America along the path to racial justice and realistic, progressive immigration policies that will further the national interest and lead to a better future for all!
It’s a great, if long overdue, start to getting beyond Jim Crow and “Dred Scottification” and saving and enhancing our democracy! But, the proof will be in the results!
Biden, of course, will also face the formidable challenges of dealing with the human carnage left behind by the Trump regime’s disastrous mis-handling of COVID-19, economic inequality, the environment, racial justice, and foreign policy where American “prestige” has plummeted to levels not seen since the days of the Barbary Pirates.
He also must address a failing Federal Justice System that, particularly at its appellate levels, did not effectively stand up to the Trump regime’s unrelenting assault on human decency and American democracy. Indeed, Justice Sonia Sotomayor, a consistently competent and courageous Justice among our failing Supremes, offered this final harsh but true assessment of her GOP colleagues’ malfeasance in a death penalty case: “This is not justice.”https://www.nbcnews.com/news/latino/not-justice-justice-sonia-sotomayor-offers-fierce-dissent-death-penalty-n1254554
You could say that about almost everything in the departing, defeated White Nationalist regime!
I’ll note for the record that among other things, the Supremes’ tone-deaf majority has been responsible for letting bona fide asylum seekers rot in squalor in camps in Mexico while waiting for non-existent “due process,” and also authorized the imposition of potential death sentences and torture on asylum seekers within our jurisdiction without any whit of due process.
The GOP majority’s disgraceful failure to stand up for voting rights of African Americans, Latinos, and other voters of color has also deepened racial injustice in America and helped usher in a horrible “Jim Crow Revival” pushed, incited, and enabled by the GOP, “The Party of the Failed Insurrection.”
Any competent first-year law student might ask “How could this happen in America?” That’s a question that Roberts and his gang of fellow Trump enablers and apologists will have to answer before the “court of history!”
So, after their failed coup attempt, the “Party of Treason” 🏴☠️☠️is suddenly making bogus calls for “unity” and “healing.” Of course, there is nothing whatsoever stopping any Republican from denouncing Trump and his followers, announcing support for impeachment of the Traitor, and calling for all Americans to unify behind the Biden-Harris Administration. But, that’s not what’s happening.
Trump Regime
No, somehow the GOP treasonists outrageously believe it’s Joe Biden’s job to “call off the dogs of justice” and “heal” the country from the unmitigated disaster caused by GOP misrule ending in a failed coup. (Did I mention that due to the totally disgraceful, maliciously incompetent handling of the worst public health emergency in more than a century, one that the GOP consistently downplayed, mocked, and denied, the US has the world’s worst record and is now on the way to over a half a million COVID deaths with millions unemployed!) While admitting no wrongdoing on their part, “traitor twerps” like Graham now think that Biden should absolve them of any wrongdoing and move forward as if the GOP attack on our nation had never happened.
This election was over on November 7, when the major networks finally called it.
At that point, Biden had not only in insurmountable lead in the electoral college, but also a significant and growing lead in the popular vote. No candidate has ever overcome margins like that to win a Presidential election. All others similarly situated have conceded. Therefore, Trump should have conceded and the GOP congratulated the President Elect and his running mate.
Instead, the GOP lined behind Traitor Trump’s fascist fabricated election fraud claims! (Was it surprising that a “President” who told thousands of bald-faced lies starting from day one would continue to lie?). “Count all the votes” said the GOP treasonists, while actively trying to prevent state and local officials from doing just that.
Of course all the counts and recounts confirmed all of the Biden wins, some even adding a few votes to his margins. Then, the GOP “battle cry” became “Wait for the courts to rule.” This “process” (actually an outrageous abuse of legal process) resulted in an impressive streak of more than 50 consecutive losses for the Trump frivolous/obstructionist/unethical/conspiracy theory mongering “litigation team” of sleazy lawyers in courts at all levels from judges appointed by both Dems and the GOP, some by Trump himself.
Then it was “Wait for the states to certify” while again trying to interfere with that process. Once the states, including ones firmly controlled by the GOP, certified the results and Biden’s win, the bogus GOP party line became “Wait for the Electoral College.” Of course, that, in turn, voted for Biden exactly as the states had certified, despite Trump’s attempts to interfere.
But, still the GOP treasonists kept on with their knowingly false narratives. This time, it was “Wait for Congress to accept the results” a purely ceremonial process that has never resulted in a change of outcome.
Nevertheless, Trump invited, actually urged, his followers to come to D.C. and stage a violent insurrection at the Capitol in a vain attempt to prevent the Congressional process from being completed. He also urged Vice President Pence (usually a reliable, anti-democracy toady) to violate his constitutional oath by throwing the election to Trump. By this time, it was clear that Biden had won the popular vote by more than 7 million — which would have made a Trump “victory” the biggest anti-democracy “steal” and disenfranchisement in American history.
Nevertheless, Cruz, Hawley, McCarthy and a host of other GOP legislators continued to commit treason by pressing Trump’s baseless insurrectionist theories, and pressing to disenfranchise millions of Biden voters across the nation, even as the debris from their failed coup still littered the Capitol.
Now that their coup has failed, and there is at least a chance, however unlikely, that the Party of Treason 🏴☠️and some of its supporters 🦹🏿♂️ will be held accountable, these traitors have the absolute audacity to basically demand that Biden “bail them out” in the name of “national unity.”
I call BS! As Steve points out, history shows that failing to hold accountable those responsible for a failed coup merely insures that another coup will take place!
America will not be safe for the majority of us until the GOP is forever disempowered as a political force and Graham, Cruz, Hawley, McCarthy, and rest of the of the GOP traitors are held accountable for their treason.
It won’t be quick or easy. But, it will be absolutely necessary if American democracy is to survive!
🇺🇸⚖️Due Process Forever! GOP Treason, 🏴☠️☠️🤮Never!
fl-undocumented-minors 2 – Judge Denise Slavin, former executive vice president of the National Association of Immigration Judges in an immigration courtrrom in Miami. Mike Stocker, Sun Sentinel — Judge Slavin is a member of the Round Table of Former Immigration JudgesGW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Paulina VeraDan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)MeYilun Cheng Writer PHOTO: Twitter
From “For Undocumented Immigrants, a Shot at Lawful Residency Requires Risking It All” by Yilun Cheng in Borderless Magazine:
. . . .
The risk has become even higher in recent years as the Trump administration filled the immigration court system with hardline judges, according to Paul Schmidt, a former judge at the U.S. Immigration Court in Arlington, Virginia. For years, legal groups have urged the government to hire judges from diverse backgrounds to guarantee fairness in the courts, but the situation has only deteriorated in recent years, Schmidt said.
. . . .
“The Obama administration was just negligent,” Schmidt said, suspecting that former president Barack Obama left dozens of vacant immigration judgeships when he left the White House. “The new administration got a chance to fill those positions with a far-right judiciary.”
. . . .
“It’s very much a law enforcement-oriented and not a due process-oriented judiciary,” Schmidt said. “It’s just a bad time to be an individual with a case in the immigration court right now, with a bunch of unsympathetic judges, political hacks pulling the strings, and inconsistent COVID policies.”
. . . .
*******************
Read Yilun’s full article at the link.
In the article, my friend and Round Table 🛡⚔️ colleague Judge Denise Slavin gives an excellent description of how “Aimless Docket Reshuffling” operates in a bogus “court” system run by political hacks with enforcement (and in the defeated “regime” racist) motivations.
“Ready to try” cases, many of which could be granted or should be closed, are shuffled off to the end of the docket, some without any notice on the day of trial when the respondent, his or her lawyer, and often witnesses who have taken the day from work arrive only to find out that their case has been “orbited” into the “outer space” of the EOIR backlog.
Meanwhile, cases of individuals who haven’t had time to get lawyers or been granted the preparation time required by due process are put at the front of the docket to make denial of their cases easier for “judges” who have been told that they are basically functionaries of DHS enforcement. Sometimes, the very same lawyers who have had their years-old prepared cases arbitrarily reset to oblivion are then improperly pressured and required to go forward with cases they haven’t had a chance to properly prepare or document.
Often, individuals whose cases are improperly “accelerated” recieve inadequate notice, resulting in carelessly issued, illegal “in absentia” orders that could result in improper removal or at least require heroic efforts by lawyers to get the case reopened and restored to the docket. Meanwhile, the bogus “no-show” statistics caused by the Government’s improper actions are used to build an intentionally false narrative that asylum seekers don’t show at their hearings.
The truth, of course, is the exact opposite: When given a chance to get competent representation and when the system is explained to them in understandable terms, asylum seekers show up for the overwhelming majority of their hearings, regardless of the ultimate result of their cases.
As cogently studied and stated by highly-respected “practical scholar” Professor Ingrid Eagly of UCLA Law and her colleague UCLA empirical researcher Steven Shafer, in a recent published study:
Contrary to claims that all immigrants abscond, our data-driven analysis reveals that 88% of all immigrants in immigration court with completed or pending removal cases over the past eleven years attended all of their court hearings. If we limit our analysis to only nondetained cases, we still find a high compliance rate: 83% of all respondents in completed or pending removal cases attended all of their hearings since 2008. Moreover, we reveal that 15% of those who were ordered deported in absentia since 2008 successfully reopened their cases and had their in absentia orders rescinded. Digging deeper, we identify three factors associated with in absentia removal: having a lawyer, applying for relief from removal (such as asylum), and court jurisdiction.
I’d be willing to bet that at least an equal number of individuals with in absentia orders are illegally deported because they aren’t knowledgeable enough to reopen their cases, or their reopening motions are wrongfully denied but they lack to resources to pursue appeals, which often involve prolonged periods of dangerous and abusive detention.
Obviously, an Administration actually interested in solving problems (presumably “Team Garland”) would “can the false narratives and bogus enforcement gimmicks” and concentrate on getting asylum seekers represented and increasing and raising the quality of judicial review of detention decisions. The regime’s immigration kakistocracy, of course, has moved in exactly the opposite direction.
Cooperation and coordination with the private, often pro bono, bar, essential to any well-functioning court system, has become non-existent. In fact, it is actively discouraged by DOJ politicos and their “management toadies” at EOIR, who often have mischaracterized the private bar as “the enemy” or out to “game” the system. Perversely, of course, the exact opposite is true. The regime’s immigration kakistocracy has tried over and over to use illegal methods and bogus narratives to illegally and unconstitutionally “game” the system against legitimate asylum seekers and their hard-working attorneys (actually, the only “players” in this sorry game trying to uphold “good government” and the rule of law.)
As a result, the only way for the private bar to be heard is by suing in the “real” Article III Federal Courts. This has resulted in a string of injunctions and TROs against EOIR and DHS misconduct, illegal regulations, and unlawful policies throughout the country, further adding to the chaos and inconsistencies. It also has clogged the Federal Courts with unnecessary litigation and frivolous, often disingenuous or unethical, “defenses to the indefensible” by DOJ lawyers.
This is how a dysfunctional “court system” that actually is a veneer for out of control enforcement and institutionalized racist xenophobia builds backlog. The corrupt “leaders” of this dysfunctional and unconstitutional mess then blame their victims for the delays caused by gross Government mismanagement. In turn, they use this “bogus scenario” to justify further unconstitutional restrictions of immigrants’ rights, due process, and judicial independence.
It’s a “scam” of the highest order! One that actually harms ☠️ and kills ⚰️ people, harasses lawyers, undermines the rule of law, and wastes taxpayer resources. One that has brought disgrace upon the DOJ and undermines the entire U.S. Justice system🏴☠️. One that Judge Garland and his incoming team at the DOJ must immediately end and totally reform, while holding accountable those responsible for this gross miscarriage of justice, fraud, waste, and abuse.
This is not “normal Government” or a question of “differing philosophies.” It’s outright fraud, intentional illegality, abuse of Government resources, and instititutionalized racism. It must be treated as such by the Biden Administration.
Two distinguished Members of the Round Table of Former Immigration Judges serve on the Commission:
Hon. Ilyce Shugall U.S. Immigraton Judge (Retired) Member, Round Table of Former Immigration JudgesHonorable Lisa Dornell U.S. Immigration Judge (Retired) Member, Round Table of Former Immigration Judges, PHOTO: CNNKnightess of the Round Table
KEY QUOTE FROM REPORT:
The Executive Branch should work with Congress to establish, through legislation, an immigration court system independent of any federal agency, both at the trial and appellate level. In the ABA’s view, any major court system restructure should have the following goals:
2
American Bar Association • Achieving America’s Immigration Promise
(1) Independence – Immigration judges at both the trial and appellate level must be sufficiently independent and adequately resourced to make high-quality, impartial decisions without improper influence, particularly influence that makes judges fear for their job security;
(2) Fairness and perception of fairness – The system must actually be fair, and it must appear fair to all participants;
(3) Professionalism of the immigration judiciary – Immigration judges should be talented and experienced lawyers representing diverse backgrounds; and
(4) Increased efficiency – An immigration system must process immigration cases efficiently without sacrificing quality, particularly in cases where noncitizens are detained.
As the calls for immediate EOIR reform grow, so does the sense of urgency for those vulnerable individuals (and their courageous, badly abused lawyers) caught up in the current unfair, biased, dysfunctional, and disgracefully misdirected and mal-administered Immigration Courts.
Notably, EOIR “management” has continued its unseemly race to implement a racist, White Nationalist, anti-asylum, anti-lawyer agenda right up until the end! Their latest unlawful regulations were immediately and emphatically enjoined by several Federal Courts.
EOIR has totally screwed up the Immigration Courts by piling up an avoidablebacklog that greatly exceeds 1.1 million cases, largely by scheming to deny cases that could be granted, retaining cases that should be closed on their artificially bloated docket, selecting unqualified judges without expertise in immigration, human rights, and due process, and arbitrarily changing priorities and “churning” cases (“Aimless Docket Reshuffling”). They have then had the gutless audacity and intellectual dishonesty to attempt to shift the blame for their gross management and squandering of public resources to their victims: the individuals denied due process and fair hearings and their lawyers!
Additionally, EOIR’s continuing efforts to abuse asylum seekers and their lawyers through illegal and immoral regulations, and DOJ attorneys’ equally unethical “defense of the indefensible,” has continued to waste the time of the Article III Courts. It was obvious that these latest regulations would undermine the incoming Biden Administration’s pledge to reinstate due process and that they were illegal from the “git go!”
This type of arrogantly “in your face Biden, Garland, democracy, and humanity” approach deserves immediate reputation, revocation, and removal of these responsible for the last, disgusting gasps of the “EOIR Clown Show!”🤡 It also demands that some action be taken to deal with the unethical DOJ lawyers 🦹🏿♂️🤮who have continued to “press this mess” before the Federal Courts.
A Federal paycheck does NOT exempt lawyers from ethical codes nor is it a license to clog the courts with a frivolous, invidiously intended civil litigation “strategy” designed to “wear down and exhaust” those private, largely pro bono or low bono, lawyers defending due process and the rights of the most vulnerable among us. In civil litigation, the USG does NOT have either a right or an obligation to defend an illegal racist agenda of invidious actions.
The disgraceful performance of all too many parts of the DOJ over the past four years must never, ever be repeated! This is a real, festering problem that “Team Garland” can’t afford to ignore as it takes the helm at the broken and dysfunctional DOJ that has become an actual threat to our democracy and our system of justice and an overt mockery of legal ethics.
Judge Garland, please end the “EOIR Clown Show!” 🤡🦹🏿♂️☠️🤮👎🏻🧹🪠 NOW!
⚖️🗽🇺🇸👍🏼Due Process Forever. The “EOIR Clown Show,” 🤡🦹🏿♂️🏴☠️Never!
PWS
01-17-21
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
Trump RegimeTrump’s Legacy Kiddie GulagJeff Sessions’ Cage by J.D. Crowe, Alabama Media Group/AL.com Republished under licenseJeff “Gonzo Apocalypto” Sessions “Police Brutality? What Police Brutality?”Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com, Republished under licenseStephen Miller & Count Olaf Evil Twins, Notorious Child Abusers“Gauleiter Muller & Eva Braun” Yuck it Up In The Comfort Of “Public Welfare Dole” While Looking Forward to Planning Together for More “Crimes Against Humanity,” Abusing Children, Dehumanizing Persons of Color, Spreading Lies & False Narratives, & Targeting World’s Most Vulnerable Refugees 🤮☠️⚰️🦹🏿♂️ — Sure Looks Like “Welfare Fraud” to Me!
WASHINGTON, D.C. – Senator Jeff Merkley of Oregon has called for the investigation and prosecution of current and former Trump administration officials afterthe Department of Justice Office of the Inspector Generalreleased “a disturbing report confirming that the Trump administration knew their zero tolerance policy would lead to family separations,” the Oregon Democrat said in a statement.
“We finally have more answers about how this diabolical plan came to be,” Merkley said. “It is crystal clear that Jeff Sessions, Stephen Miller, Chad Wolf, Kirstjen Nielsen and other senior Trump administration officials were not only fully aware that their policy would have traumatizing impacts on families, but also that their intention was to inflict that trauma as a means to deter people from coming to America in search of a better life.”
The senator added “it’s now confirmed that they committed perjury by lying to Congress about their intentions and actions in order to avoid accountability for their monstrous initiative.”
“The intentional infliction of harm on innocent children is unforgivable and has no place on our soil,” Merkley said Thursday. “The architects should be investigated and prosecuted to the full extent of the law for any crimes connected with both the atrocities and the cover-up.”
Merkleyreturned to the border 6 more timesand advocated for families to be reunited – and for people seeking refuge “from gang violence, murder, rape, and extortion in their home countries” be allowed to make their case – something the senator alleges the Trump adminitration has not allowed in keeping with the law.
“America is at its strongest when we embrace our historic role as a beacon of hope for persecuted people from around the world,” Merkley said. “I am determined to work with the Biden administration to ensure that we turn that vision into a reality, and to hold the perpetrators of the Trump administration’s cruelty fully accountable.”
********************
Couldn’t have said it better myself, Senator! Right on! Remarkable how all it takes is an armed insurrection against our Capitol and our democracy generated by the Traitor Prez and supported by far, far too many cowardly, anti-American members of his “Party of Treason” to get folks “thinking like Courtside.”
Even if the criminals described by the IG escape prosecution for their crimes, the new IG Report and the additional documents that certainly will come to light once the Trump kakistocracy is removed should provide enough evidence to keep these wretched fascist creatures and their families tied up in civil litigation for the rest of their miserable and worthless lives!
To date, only Senator James Langford (R-OK) has had the decency to apologize for his role in supporting Trump’s beyond bogus, treasonous, insurrectionist claims of “election fraud” or a stolen election. Where are the apologies from the rest of the cowardly GOP traitors and toadies who supported and/or enabled Trump and his band of racist thugs over the past four years? Why is scumbag Rep. Jim Jordan walking around with a bogus “Medal of Freedom” for spreading lies and encouraging sedition, rather than sitting in a jail cell awaiting trial?
WHERE ARE THEY NOW?
“Gonzo Apocalypto” Sessions. Child abuser and racist plotter remains at large, after having the shameless audacity to run for the U.S. Senate again, being defeated by Magamoron “Coach TubbyTraitorville” (a blithering idiot who obviously got hit by one too many flying tackling dummy).
“Gauleiter Stepan Muller.” Hiding out on the public dole in the seat of corruption and insurrection (formerly and soon again to be known as the “White House”) with his repulsive “Eva Braun substitute” and carrying out more “crimes against humanity” to the end.
Rod Rosenstein. Hiding out, hanging his head in (belated, fake)shame and making the big bucks at King & Spaulding. Will need them after he is dismissed from his law firm, disbarred, and has to pay legal fees and damages to the families he traumatized.
Gene (No Relation to Alex) Hamilton. Still grifting on public welfare at the DOJ until next Wednesday. First cowardly “Waffern SS Member” to publicly take the “Nuremberg defense:” “I was only following Der Fuhrer’s orders.”But, he won’t be the last.
Donald J. “Big Loser/Traitor” Trump. Hiding out in White House basement and planning flightfrom DC after initiating botched coup attempt against his own Government.
Victims of Failed Regime’s “Crimes Against Humanity.” Already sentenced to a lifetime of pain, suffering, and trauma by Large Banana Republic that shirked its legal and moral duties.
Accountability for this “gang of White Nationalist thugs” is important!
Also, Judge Garland needs to look into the conduct of the DOJ lawyers who defended the regime’s transparent lies and false claims that there was “no child separation policy.” These turkeys 🦃 took no responsibility for their clients’ ongoing crimes and cover ups. Indeed, outrageously, they got away with making it the burden of the plaintiffs’ lawyers to reunite families the Government intentionally and illegally separated without any plans for reunification.
The invidious racist, unconstitutional motives of criminals like Trump, Miller, Sessions, Hamilton, and Rosenstein was no secret. Except for the degree of Rosenstein’s involvement, it was widely reported at the time. Trump was a well-established liar whose public statements and rationales should have been assumed false until proven true. (Ask yourself what would happen to a corporate lawyer who took at face value and presented to a court as “facts” or a “defense” in a civil suit false statements by a corrupt CEO with a long-standing record of fraud, racism, and dishonesty.)
Also, what was the a racist hack like Sessions (the report also reveals that he was as totally incompetent as a lawyer as he was devoid of human decency) doing running border enforcement programs that had intentionally been removed from the AG’s portfolio by Congress when DHS was created? How does that fit with “Gonzo’s” transparently unethical and unconstitutional actions as a “quasi-judicial officer” in interfering with due process at the EOIR Clown Show🤡/Star Chamber🦹🏿♂️?
This IG report is just the “tip of the iceberg” of the institutionalized racism and systemic misconduct that polluted the immigration kakistocracy at DOJ and DHS during the Trump regime. The failings of the U.S. Justice system from top to bottom, starting with the Supremes’ consistent failure to critically examine the regime’s transparent pattern of unconstitutional, racist, biased behavior culminating in an insurrection can’t be “swept under the carpet.”
Nor can their enabling of the White Nationalist immigration agenda of “Dred Scottification” pushed by unethical SG Noel Francisco! In a well-functioning democracy, the Trumpist thugs’ child abuse should have been stopped in its tracks. Thanks to the failure of legal, ethical, and moral leadership by Roberts and his righty GOP buddies, it wasn’t!
The entire beyond disgraceful and patently illegal “zero tolerance program” instituted by Gonzo was a grotesque misuse of public funds and abuse of prosecutorial discretion. Real crimes (the Trump regime has been an absolute boon to serious criminals from the Oval Office on down) went un-prosecuted and un-investigated. The conduct of U.S. Attorneys, Federal Judges, and U.S. Magistrate Judges along the border who shirked their duties and participated in the legal farce taking place in our criminal justice system also needs to be examined.
Those of us who lived through Watergate can see that this time around, under extraordinarily poor leadership generated by an anti-American GOP, the response of all three branches of our Federal Government to the overt threats to our Constitution and democracy posed by a dishonest Executive fell disturbingly below the bipartisan levels that saved our nation from Nixon.
That’s why the critical democratic standard of a “peaceful and orderly transfer of power” has fallen by the wayside and the Biden-Harris Inauguration will take place in an armed camp. Ironically, the man administering the oath to President Biden, Chief Justice John Roberts and his GOP colleagues on the Supremes bear a major responsibility for democracy’s peril and the pain and suffering of those like separated families whom they failed to protect from Executive abuses!
As I’ve said before, although it won’t happen, the resignations of Roberts and his fellow GOP Justices should be on President Biden’s desk on the morning of January 21. That would be a real start on healing, restoring democracy, and reinstituting human decency and respect for human lives and the rule of law in America.
(Let’s not forget that ethics-challenged Justices Thomas and Coney Barrett showed up at what essentially was a “MAGA campaign rally” at the White House on the eve of the election that eventually resulted in impeachable acts of insurrection and sedition by a patently dishonest and dangerous Chief Executive whose unfitness to govern was more than clear by that time. Honestly, it’s going to take more than a black robe to cover the shame of these dudes who stand for protecting and enabling tyranny and against justice for the people. If nothing else, it’s high time for a Democrat-led Congress to impose at least some minimal ethical standards on the Supremes, since they appear to have none to mention. That’s, of course, after they come to grips with the treason of GOP guys like Cruz and Hawley who should be expelled and barred from public “service” (treason?) for life.)
🇺🇸⚖️🗽👎🏻Due Process Forever! Cowardly thugs, 🥷🏻magamorons, 🦹🏿♂️ and their enablers, never!
*Roto-Rooter is the registered trademark of Roto Rooter Co.🪠🚽🧻
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons“Justice” Star Chamber StyleHon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
“Sir Jeffrey” Chase reports more good news for the NDPA, bad news for the EOIR kakistocracy🤡 🦹🏿♂️and the seedy DOJ lawyers 🦹🏿♂️clogging the Federal Courts with frivolous litigation engendered by the White Nationalist, nativist immigration agenda ☠️⚰️🏴☠️ at failed DOJ:
Hi all: The lesser asylum regs that were scheduled to take effect tomorrow were just blocked by a TRO and preliminary injunction granted in D.C. District Court (order to follow). These regs would have required certain respondents to file their I-589s within 15 days of the first Master Calendar hearing, and would have required EOIR to reject any I-589 which left even a single space blank, among other things.
Best, Jeff
*************
There needs to be a “day of reckoning” for DOJ lawyers who have “carried the water” for the racist kakistocracy @ the regime’s “Ministry of Nativist Propaganda & Crimes Against Humanity” (the Federal agency formerly known as the “Department of Justice”).
Illegal regulations, clogging the Federal Courts with frivolous positions, defending the actions of imposters impersonating Cabinet officers and other officials, inventing pretexts to cover invidious intent, targeting the most vulnerable among us have “real life” consequences.
There will be no “rebirth” at Justice unless “Team Garland”👨🏻⚖️⚖️🗽🇺🇸 deals with the xenophobia, racism, institutionalized cowardice, and criminal misuse of office and Government resources at the failed DOJ over the past four years.
That’s in addition to the “maliciously incompetent” mismanagement aspect of the unmitigated disaster @ EOIR which has (mis)used various illegal “gimmicks” to pour more mismanaged resources into creating astronomical, mostly unnecessary backlogs in our failed and beyond dysfunctional Immigration “Courts” (actually Star Chambers, masquerading as “courts”), in “partnership” with the out of control, White Nationalist enforcement kakistocracy @ ICE/DHS and violating the Constitution and human decency to boot! Really, could it be any worse?
The Trump/GOP insurrection🥷🏻 @ our Capitol is directly related to lack of accountability that let the Trump kakistocracy “get away with murder.” That’s why the Inauguration is being held in a city under military lockdown next week.
You can bet that the lies, “back-pedaling,” cover-ups, finger pointing, and avoidance of responsibility for the disintegration of democracy will be in full swing by the end of next week! Judge Garland will have to deal with it up front; he can’t “wait for Godot” as has been the problem with past Dem Administrations!
Today’s “DOJ” looks and “(mal)functions” like a Clown Show 🤡 repertory company playing “Theater of The Absurd” in a bad imitation of a Franz Kafka novel! If Judge Garland doesn’t want to become the “star” of this revolting exhibition, he’d better start cleaning 🧹 up and cleaning out 🪠on “Day 1.” And the EOIR “Tower of Babble” would be a great starting point for “Operation Clean Sweep”🧹!
There will be no real justice in America without a a “day of reckoning” @ Justice. It’s long, long, long, long overdue!
The Acting Attorney General has issued a decision in Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021).
(1) Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), did not alter the existing standard for determining whether a government is “unwilling or unable” to prevent persecution by non-governmental actors. The “complete helplessness” language used in Matter of A-B- is consistent with the longstanding “unable or unwilling” standard, as the two are interchangeable formulations.
(2) The concept of “persecution” under the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(a), (b)(i), is premised on a breach of a home country’s duty to protect its citizens. In cases where an asylum applicant is the victim of violence or threats by non-governmental actors, and the applicant’s home government has made efforts to prevent such violence or threats, failures in particular cases or high levels of crime do not establish a breach of the government’s duty to protect its citizenry.
(3) The two-pronged test articulated by the Board of Immigration Appeals in Matter of L-E-A-, 27 I&N Dec. 40, 43–44 (BIA 2017), is the proper approach for determining whether a protected ground is “at least one central reason” for an asylum applicant’s persecution, 8 U.S.C. § 1158(b)(1)(B)(i). Under this test, the protected ground: (1) must be a but-for cause of the wrongdoer’s act; and (2) must play more than a minor role—in other words, it cannot be incidental or tangential to another reason for the act.
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We need a complete housecleaning at EOIR HQ and the corrupt, racist, failed DOJ. There is no way that a defeated scofflaw regime should be issuing bogus nativist “litigating positions” in the guise of “quasi-judicial decisions” on its way out the door. And the idea that “completely helpless” is interchangeable with “unwilling or unable” is absurd on its face.
The Biden administration has said it may need 6 months to reverse Trump administration asylum policies and bring asylum seekers stranded in Mexico to safety. Tragically, some may not survive that long.
In her newest blog post, Legal Fellow Julia Neusner presents a heartbreaking portrait of the violence, discrimination, and trauma asylum seekers have endured under the Trump administration’s policies.
Julia writes about victims of these policies, including Ana and Jorge, an Afro-Cuban couple who were kidnapped after US border officers expelled them to Mexico under MPP. Armed men robbed them and forced them into a room covered in blood. Other kidnapping victims were moaning on the floor, some with severed body parts.
“They told us [a friend] would have to pay $4,000 for both of us, and if he didn’t, they would cut us up, part by part,” Ana recalled. “I lost control and started crying. My boyfriend pleaded with them, and they hit him with a gun. Then they beat me. It was horrible. We spent these days in hell.”
SETTING THE RECORD STRAIGHT ON ASYLUM
On Wednesday, President Trump travelled to the southern border to tout his immigration record. In response, Human Rights First released a fact sheet outlining the Trump administration’s record on asylum: one defined by chaos, cruelty, and illegality.
From separating over 5,500 families to delivering people to life-threatening danger in Mexico to spurring the spread of COVID-19 by refusing the repeated pleas of epidemiologists to release asylum seekers and immigrants from detention, Trump’s real record is deep damage our asylum system.
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A key to “setting the record straight on asylum” is immediate removal of the “EOIR Clown Show” 🤡🦹🏿♂️ in Falls Church, a retraction of the gross lies and misleading anti-asylum, anti-lawyer narratives set forth in their White Nationalist nativist “Bogus Fact Sheets,” immediately cancelling the insane anti-due process, anti-lawyer procedures now in place, and setting the record straight on asylum law, including the toxic, unethical, and unconstitutional role of EOIR in actively undermining the legal rights and humanity of asylum seekers as well as being responsible for gross mismanagement of the Immigration Courts.
There are folks out there in the private/NGO/academic community who can get the job done, starting day one! Yeah, there are many other priorities; that’s a beyond compelling reason for bringing in the experts and empowering them to solve the problems, sooner rather than later! There really is no viable “later” here!
We simply don’t have six months to stop killing people and violating human rights on a daily basis! If we don’t make radical changes and take some calculated risks to end the abuses and mismanagement at EOIR, the SG’s Office, and DHS right off the bat, it will be too late for too many!
Maybe Judge Garland and his Executive Team need to spend a few days with some immigration practitioners and NGOs right now to see what’s happening in the “Star Chambers impersonating courts” that they will “own” in a few weeks. Maybe they should spend some time in the squalid migrant camps in Mexico, seeing what existence is really like for those to whom we have shirked our legal and moral responsibilities.
Ask themselves, would THEY subject THEIR families to such mistreatment? If not, then why hasn’t a plan been announced to end the deadly “EOIR Clown Show” 🤡🦹🏿♀️☠️ immediately and put some legitimate judges and competent managers who understand asylum law and immigration practice in place?
Judge Garland, with all due respect, when the incoming Administration tells lawyers, many working pro bono or low bono, who are risking their lives to save their clients’ lives in the “living Hell” of today’s U.S. Immigration Courtsto “be patient, we’ll get to you soon,” you are giving them a very clear and chilling message: THEIR LIVES, SAFETY, AND SANITY AREN’T YOUR PRIORITY — I/O/W, THEIR LIVES DON’T MATTER!
That’s neither an appropriate nor uplifting message to give to an embattled group whose support, assistance, ideas, creativity, and energy will be absolutely essential to your plans to “restore justice to Justice!”
The sad truth is that time does not, in fact, “heal all wounds,” and failures that kill and damage people for life can’t be “undone,”
🇺🇸⚖️🗽Due Process Forever! Allowing the “killer kakistocracy of scofflaws” to control the agenda while the incoming Administration “ruminates” and “hems and haws,” never!
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 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, February 5, 2021. NYC non-detained remains closed for hearings.
CBS: Another federal judge on Friday ruled that Chad Wolf was likely unlawfully appointed to his position at the helm of the Department of Homeland Security (DHS), issuing a decision that blocked a set of broad asylum limits slated to take effect Monday.
WaPo: The U.S. Court of Appeals for the 4th Circuit said the administration’s policy undermines the national resettlement program created four decades ago by Congress.
WaPo: President-elect Joe Biden plans to nominate federal judge Merrick B. Garland, a Democratic casualty of the bitter partisan divide in Washington, to be the next attorney general, tasked with restoring the Justice Department’s independence and credibility, according to people familiar with the decision.
Law360: Democratic victories in Georgia’s heated Senate runoffs gave the party a slim majority in Congress, but without enough votes to end a filibuster.
WaPo: More than 2,500 detainees, most with no serious criminal history, have given up their cases since March, according to records from the Transactional Records Access Clearinghouse, a research group at Syracuse University. Those records also show that detainees put in deportation proceedings in July 2020 were twice as likely to opt for voluntary departure than those from a year before.
WaPo: Over 170 new applicants have become the first individuals in several years to win approval to the Obama-era Deferred Action for Childhood Arrivals program for immigrants brought to the U.S. as young people, the U.S. government revealed in a court filing Monday.
Guardian: US federal prosecutors have filed motions saying the Honduran president, Juan Orlando Hernández, took bribes from drug traffickers and had the country’s armed forces protect a cocaine laboratory and shipments to the US.
NY: This year, Governor Cuomo will continue to support the Liberty Defense Project to keep fighting for immigrants seeking a better life for themselves and their families. New York’s strength, character, and pride are found in the diversity and rich culture that makes us the Empire State.
A federal district court in California preliminarily enjoined the government from implementing, enforcing, or applying the 12/11/20 final rule, “Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review.” (Pangea Legal Services, et al. v. DHS, et al., 1/8/21) AILA Doc. No. 21011107
EOIR issued a memo (PM 21-13) updating and replacing OPPM 17-01, Continuances, to account for legal and policy developments subsequent to its issuance. The memo provides a non-exhaustive list of legal and policy principles as an aid to adjudicators considering common types of continuance requests. AILA Doc. No. 21011101
Law360: The U.S. Supreme Court on Monday threw out a Ninth Circuit ruling that detained asylum seekers who clear an initial fear screening must be given a prompt bond hearing, sending the case back to the appeals court for reconsideration.
SCOTUSblog: The case asks whether a grant of Temporary Protected Status authorizes eligible noncitizens to obtain lawful-permanent-resident status if those noncitizens originally entered the United States without being “inspected and admitted” – a term of art referring to lawful entry and authorization by an immigration officer.
ImmProf: There are four immigration related cases set to be considered, with three being petitions by the government (more SG petitions on distinct immigration issues than one would usually expect in the course of an entire year), and the other involving a case in which the SG is agreeing that certiorari is appropriate (also a rare position for the SG). The SG’s position in each of these cases shows an unusual aggressiveness towards the role of the Supreme Court.
The BIA found that IJs may find a document to be fraudulent without forensic analysis if it contains obvious defects or readily identifiable hallmarks of fraud, and the party submitting the document is given an opportunity to explain the defects. Matter of O-M-O-, 28 I&N Dec. 191 (BIA 2021) AILA Doc. No. 21010801
The court held that a conspiracy or attempt to commit fraud or deceit involving over $10,000 in intended losses is an aggravated felony, and remanded to determine whether petitioner’s convictions under 18 USC §1037(a) reflected over $10,000 in intended losses. (Rad v. Att’y Gen., 12/21/20) AILA Doc. No. 21010500
The court reversed the district court opinion and disagreed with CA6 and CA9 interpretations of the statute, by holding that a grant of TPS does not constitute an “admission” into the United States under INA §1255. (Sanchez v. Wolf, 7/22/20) AILA Doc. No. 21011100
The court upheld the BIA’s denial of petitioner’s motion to reopen based on changed country conditions in Somalia, finding that the BIA did not fail to consider al-Shabaab’s increase in power or ISIS-Somalia’s emergence and growing violence from 2011 to 2018. (Mohamed v. Barr, 12/23/20) AILA Doc. No. 21010502
The court held that the Vietnamese petitioner had waived review of the BIA’s discretionary denial of asylum relief, and that his proposed social group comprised of “known drug users” was not legally cognizable because it lacked particularity. (Nguyen v. Barr, 12/21/20) AILA Doc. No. 21010503
The court reversed an injunction of PP 9945, which requires IV applicants to demonstrate acquisition of health insurance or ability to pay for future healthcare costs. The court found the proclamation within the president’s executive authority. (Doe, et al., v. Trump, et al., 12/31/20) AILA Doc. No. 21010436
President Trump issued a memorandum directing the Secretary of State to assess whether to classify Antifa as a terrorist organization under 8 USC §1182(a)(3)(B)(vi), and to take steps to consider listing Antifa in 9 FAM 302.5-4(B)(2)(U), Aliens Who Are Members of an Identified Criminal Organization. AILA Doc. No. 21010635
USCIS provided additional updates about lockbox operations, noting that applicants may face delays of four to six weeks in receiving receipt notices for some applications and petitions filed at a USCIS lockbox facility. Delays may vary among form types and lockbox locations. AILA Doc. No. 20121534
I sure hope that Judge Garland and Secretary-Designate Mayorkas are paying close attention!
Because unless they take some immediate forceful action to disable the “regime’s immigration kakistocracy” and make the radical bureaucratic changes necessary to regain control, their “dream jobs” are going to turn into “Nightmare on Elm Street” overnight!
Human rights are being violated and taxpayer funds (in an already “over budget” USG) are being poured down thetoilet 🚽by the minute by the out of control, maliciously incompetent kakistocrats at EOIR, DHS, and in the SG’s Office to name just a few of the most obvious “national disgraces” that need an immediate fix!
The defeated anti-American, neo-Nazi regime was “not normal” and neither Garland nor Mayorkas can afford to treat the wreckage of democracy and human decency and those who did the regime’s bidding at DOJ and DHS as “acceptable” for another minute!
“[W]e conclude that the BIA abused its discretion by denying E.A.’s motion to reopen. E.A.’s mother’s recent childbirth is a serious medical event, which coupled with E.A.’s minor age, her difficulty obtaining transportation, and her difficulty navigating the immigration system without assistance, constitute “exceptional circumstances” necessitating rescission of the in absentia removal order. … The BIA’s decision was also contrary to law, and therefore an abuse of discretion. … First, the BIA improperly considered E.A.’s age separately, rather than considering age alongside other factors, when determining that she had not shown that exceptional circumstances justified her failure to appear. Second, the BIA erred when it dismissed without adequate explanation E.A.’s evidence that she is eligible for SIJS. Finally, the BIA improperly stated that E.A. was required to present prima facie evidence that she was eligible for immigration relief as part of her motion to reopen. … For the foregoing reasons, we GRANT the petition for review, VACATE the removal order, and REMAND for further proceedings consistent with this opinion.”
[Hats way off to Rachel Naggar! Here is a link to the audio of the oral argument.]
“Salim Al Amiri, an Iraqi citizen, seeks relief from removal on the grounds of asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”). He premises his requests for such relief on the harm that he fears that he would be subjected to in Iraq at the hands of members of Iraq’s military or civilian insurgents operating in that country. Al Amiri contends that he has reason to fear he would be subjected to that harm on account of his work as a paid contractor for the United States Army during the war in Iraq, as in that role he educated U.S. soldiers about Iraqi customs and practices as they prepared for their deployment. We vacate and remand the ruling of the Board of Immigration Appeals (“BIA”) denying his claims for asylum and withholding of removal, but we deny his petition insofar as it challenges the BIA’s ruling rejecting his CAT claim.”
Think how much better this system would function with expertjudges who treated asylum applicants fairly from the “git go,” granted protection wherever possible in accordance with the the Refugee Act of 1980 and the (more “woke”) Supremes’ precedent in Cardoza-Fonseca, provided clear, positive guidance on how valid claims could be documented and granted, and promoted and consistently applied best practices to achieve efficiency with maximum due process.
At first glance, although the issue is reopening rather than a continuance, E.A.C.A. undercuts McHenry’s nativist, insanely wasteful, and totally dishonest attempt to “raise the bar” for routine continuances for asylum applicants who need time to properly document and prepare their cases.
The “Deny – Deny Program” — deny due process, deny relief — that infects EOIR’s “Star Chambers” (impersonating “courts”) is a huge backlog builder that kills people and screws up Court of Appeals dockets in the process.
Reopening cases that should be reopened, getting to the merits, and getting the many properly grantable asylum cases represented, documented, and prioritized would be a huge step in reducing EOIR’s largely self-created and unnecessary “bogus backlog.”
Ultimately, many of the clearly grantable asylum cases being mishandled and wrongly denied at EOIR, at great waste of time and resources, not to mention unnecessary human trauma, could, with real expert judges at EOIR setting and consistently enforcing the precedents, be granted more efficiently and expeditiously at the Asylum Office and ultimately shifted to a more robust and properly run Refugee Program.
In the longer run, once EOIR is redesigned and rebuilt as a proper court with real, independent, expert judges, it might be appropriate to place the Asylum Offices under judicial supervision, given the grotesque abuses and corrupt, perhaps criminal, mismanagement of the Asylum Offices by USCIS toadies carrying out the regime’s racist, White Nationalist, unconstitutional agenda of hate and waste.
NOTE TO JUDGE GARLAND👨🏻⚖️:Please fix the EOIR mess, Your Honor, before it brings you and the entire US justice system crashing down with it! This is a national emergency, and a damaging national disgrace, NOT a “back burner” issue!
Here’s some additional E.A.C.A. analysis by my good friend and NDPA “warrior queen” 👸🏽Michelle Mendez @ CLINIC!
Michelle Mendez Defending Vulnerable Populations Director Catholic Legal Immigration Network, Inc. (“CLINIC”)
Subject: CLINIC MTR In Absentia Win at the CA6 on behalf of SIJS-Seeking UC (E. A. C. A. v. Jeffrey Rosen)
Greetings,
Sharing this win, E. A. C. A. v. Jeffrey Rosen, out of the CA6 by my amazing colleague Rachel Naggar who manages our BIA Pro Bono Project. This was an appeal of an IJ (Memphis) denial of an in absentia motion to reopen for a 13-year old unaccompanied child.
Interestingly, after oral argument, OIL filed a motion to remand the case (which Rachel opposed) and the CA6 denied that motion. Seems the CA6 really wanted to issue a decision on the merits and we are grateful for the decision. Here are some highlights from the decision:
SIJS
· “Notably, the IJ’s decision does not mention E.A.’s claims that she was eligible for SIJS.”
· FN 1: “As of the December 2020 Visa Bulletin, visas are available for special immigrants (category EB4) from El Salvador to adjust their status if their priority date is prior to February 2018. If DHS removes E.A. prior to approving her visa, she will be unable to apply for adjustment of status. See 8 U.S.C. § 1101(a)(27)(J).”
Totality of the Circumstances
· “Based on the totality of the circumstances, including E.A. mother’s recent childbirth, E.A.’s young age, E.A.’s mother’s failed attempts to obtain counsel to help change the address of E.A.’s hearing, and E.A.’s inability to travel from New York to Memphis for the hearing, we hold that E.A. established exceptional circumstances.”
· “Under the totality of the circumstances, E.A.’s young age is an important factor in determining whether exceptional circumstances exist.”
Exceptional Circumstances
· “E.A.’s mother’s recent childbirth is a serious medical condition that supports reopening. The statute defining ‘exceptional circumstances’ that justify reopening an immigration proceeding lists the ‘serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien’ as an example. 8 U.S.C. § 1229a(e)(1). Childbirth is a serious medical event that necessitates a recovery period.”
· “Instead of recognizing that childbirth is a serious medical condition, the BIA minimized the seriousness of childbirth and its impact on E.A.’s mother’s ability to bring E.A. to Memphis. […] Recovery from childbirth is exactly the type of circumstance that § 1229a(e)(1) was intended to cover.”
Prima Facie Eligibility
· “Finally, the BIA erred by stating that E.A. was required to prove prima facie eligibility for immigration relief. The BIA’s decision improperly states that E.A. is required to show at this stage prima facie eligibility for relief. The statute governing motions to reopen removal orders entered in absentia provides that the petitioner must ‘demonstrate[] that the failure to appear was because of exceptional circumstances.’ 8 U.S.C. § 1229a(b)(5)(C). In general, we have stated that ‘[a] prima facie showing of eligibility for relief is required in motions to reopen.’ Alizoti, 477 F.3d at 451–52. In the case of a motion to rescind a removal order entered in absentia, however, the BIA has held that ‘an alien is not required to show prejudice in order to rescind an order of deportation” or removal. In re Grijalva-Barrera, 21 I. & N. Dec. 472, 473 n.2 (BIA 1996); see also In re Rivera-Claros, 21 I. & N. Dec. 599, 603 n.1 (BIA 1996). This is consistent with the statute governing motions to rescind removal orders entered in absentia, 8 U.S.C. § 1229a(b)(5)(C), which does not list a showing of prima facie eligibility for relief from removal as a requirement to rescind in absentia removal orders. Rivera-Claros, 21 I. & N. Dec. at 603 n.1; see also Galvez-Vergara v. Gonzales, 484 F.3d 798, 803 n.6 (5th Cir. 2007) (declining ‘to affirm the IJ’s decision on the grounds that [the petitioner] has not shown that he was prejudiced by his counsel’s performance’ because ‘In re Grijalva-Barrera, 21 I. & N. Dec. at 473 n.2, provides that an alien need not demonstrate prejudice for his counsel’s erroneous advice to constitute an ‘exceptional circumstance’ justifying rescission of an in absentia removal order’); Lo v. Ashcroft, 341 F.3d 934, 939 n.6 (9th Cir. 2003) (‘follow[ing] the BIA’s usual practice of not requiring a showing of prejudice’ to rescind an in absentia order of removal). We now join our sister circuits and hold that E.A. is not required to make a prima facie showing of eligibility for relief in order to obtain rescission under 8 U.S.C. § 1229a(b)(5) of the in absentia order of removal.”
Thanks to our entire Defending Vulnerable Populations team for supporting Rachel on the briefing, oral argument, and negotiations with OIL.
Gratefully,
Michelle N. Mendez | she/her/ella/elle
Director, Defending Vulnerable Populations Program
Catholic Legal Immigration Network, Inc. (CLINIC)
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In addition to the “normal” overall White Nationalist, racist agenda that EOIR “management” has carried out under the defeated regime, there was a good deal of misogyny 🤮 involved in the BIA’s gross mishandling of the “pregnancy issue,” as described by the Sixth Circuit. This misogynistic trend can be traced back directly to the unconstitutional and unethical actions of mysogynist White Nationalist AG Jeff Sessions 🤮 🦹🏿♂️🤡in the “Matter of A-B- Abomination.” ☠️⚰️🏴☠️👎🏻
Biased, anti-migrant decision-making in support of bogus enforcement gimmicks and White Nationalist anti-democracy agendas builds backlogs and kills, maims, and tortures “real” people! Migrants are people and persons, not “threats” and “bogus statistics.”
The “dehumanization” and “de-personification” of migrants, with the connivance of the tone-deaf and spineless GOP Supremes’ majority, is a serious, continuing threat to American democracy! It must stop! Justices who won’t treat migrants physically present in the U.S. or at our borders as “persons” under our Constitution — which they clearly are — do not belong on the Supremes! ⚖️🗽🇺🇸
I can also draw the lines connecting George Floyd, institutionalized racial injustice, voter suppression, riots at the Capitol, and the “Dred Scottification” of asylum seekers and other migrants by EOIR!
HINT TO JUDGE GARLAND:Michelle Mendez would be an outstanding choice to lead the “clean up and rebuild” program at EOIR and the BIA once the “Clown Show” 🤡🦹🏿♂️ is removed!🪠🧹 Put experts with practical experience like Rachel Nagger and Christopher Linas onto the bench, on the BIA, the Immigration Courts, and the Article III Judiciary to get the American Justice system functioning again!
The “judicial selection system” for the Immigration Courts and the Article III Judiciary has failed American democracy — big time — over the past four years. Fixing it must be part of your legacy!
The folks who preserved due process and our Constitution in the face of tyranny are mostly “on the outside looking in.” You need to get them “inside Government” — on the bench and in other key policy positions — and empower them to start cleaning up the ungodly mess left by four years of regime kakistocracy🤮☠️🤡⚰️👎🏻. “Same old, same old” (sadly, a tradition of Dem Administrations) won’t get the job done, now any more than it has in the past! New faces for a new start!
And, it starts with better judges @ EOIR, which is entirely under YOUR control!An EOIR that actually fulfills its noble, one-time vision of “Through teamwork and innovation being the world’s best tribunals guaranteeing fairness and due process for all” will be a model for fixing our failing Federal Courts — all the way up to the leaderless and complicit Supremes who failed, particularly in immigration, human rights, voting rights, and racial justice, to effectively and courageously stand up to the Trump-Miller White Nationalist agenda of hate and tyranny!
We are where we are today as a nation, to a large extent, because of the Supremes’ majority’s gross mishandling of the “Muslim Ban” cases which set a sorry standard for complicity and total lack of accountability for unconstitutional actions, racism, dishonesty, cowardly official bullying, and abandonment of ethics by the Executive that has brought our nation to the precipice! Life tenure was actually supposed to protect us from judges who wouldn’t protect our individual rights. In this case, it hasn’t gotten the job done! Better judges for a better America!
🇺🇸⚖️🗽👍🏼Due Process Forever! The EOIR Clown Show🤡🦹🏿♂️ ☠️⚰️Never!
