Know-Nothings – Page 11 – immigrationcourtside.com

CIMT: PRACTICAL SCHOLAR “SIR JEFFREY” CHASE ⚔️🛡 EXPLAINS HOW A “SUPREME CONSTITUTIONAL TANK” FROM 71 YEARS AGO CONTINUES TO SCREW 🔩 IMMIGRANTS!

https://www.jeffreyschase.com/blog/2022/3/4/the-elusive-concept-of-moral-turpitude

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The Elusive Concept of Moral Turpitude

I’ve never understood crimes involving moral turpitude. I confess this after reading a recent decision of the U.S. Court of Appeals for the Eleventh Circuit that caused me to realize that I am not alone.

In Zarate v. U.S. Att’y Gen.,1 the court was confronted with the question of whether a federal conviction for “falsely representing a social security number” constitutes a crime involving moral turpitude under our immigration laws. Not surprisingly, the Board of Immigration Appeals held that it was. And yet, one of the most conservative circuit courts in the country chose not to defer to the Board’s judgment.

Reading the decision, it became clear that no one knows what a CIMT is. As the court pointed out, the term was first included in our immigration laws in the late 19th century. That fact immediately brought to mind the character of Lady Bracknell from The Importance of Being Earnest (first performed in 1895), who, upon learning that a character had been found as a baby in a satchel at a train station, responded: “To be born, or at any rate bred, in a handbag, whether it has handles or not, seems to me to display a contempt for the ordinary decencies of family life that reminds one of the worst excesses of the French Revolution. And I presume you know what that unfortunate movement led to?” If that snippet is any indicator, it seems to have been quite the era for the passing of moral judgment.

The Eleventh Circuit went on to explain that by 1914, a legal dictionary defined the term to mean “an act of baseness, vileness or depravity in the private and social duties which one owes to society, and as applied to offenses includes only such crimes as manifest personal depravity or baseness.” This standard becomes all the more elusive when one asks the obvious follow-up question “In whose view?” Lady Bracknell’s? Vladimir Putin’s? Or someone occupying an indeterminate middle point between those extremes?

It seems pretty obvious in reading the Eleventh Circuit’s opinion that the term “crime involving moral turpitude” is unconstitutionally vague. It’s nearly impossible to argue that the term provides sufficient clarity up front of the consequences of committing certain crimes when, as the Eleventh Circuit emphasized, no less an authority than former circuit judge Richard Posner remarked “to the extent that definitions of the term exist, ‘[i]t’s difficult to make sense of . . . [them].’”2

However, there is one huge obstacle preventing courts from simply brushing the term aside: in 1951, the Supreme Court nixed that idea in a case called Jordan v. De George.3 In its decision, the majority of the Court’s justices held that the term “conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” Of course, the Court provided no workable definition (if it had, courts today wouldn’t still be exhibiting so much confusion). But the majority did make one highly consequential pronouncement to support its shaky conclusion, claiming “The phrase ‘crime involving moral turpitude’ has without exception been construed to embrace fraudulent conduct.”

Jordan v. De George also contains a remarkable dissenting opinion written by Justice Robert H. Jackson, and joined by two of his colleagues (Justices Black and Frankfurter).

Interestingly, prior to his appointment to the Supreme Court, Justice Jackson briefly served as Attorney General under Franklin D. Roosevelt. And readers of Prof. Alison Peck’s excellent book on the history of the U.S. Immigration Court will know that as Attorney General, Jackson tried to dissuade Roosevelt from moving the INS to the Department of Justice due to the harsh consequences it would impose on immigrants, a move that Roosevelt nevertheless undertook in May 1940.4

Sitting on the high court 11 years later, Justice Jackson expressed his frustration with a majority opinion that would punish the petitioner (who had resided in the U.S. for 30 years) “with a life sentence of banishment” because he was a noncitizen. Justice Jackson pointed out that Congress had been forewarned by one of its own at a House hearing on the Immigration Act of 1917 that the term would cause great confusion, yet provided no additional clarifying language in enacting the statute.5

In the record of the same House hearing, Jackson found reason to believe that Congress meant the term to apply to “only crimes of violence,” quoting language to that effect from a witness, NYC Police Commissioner Arthur H. Woods, whose testimony (according to Jackson) “appears to have been most influential” on the subject.6

After further demonstrating the futility of finding any clear meaning for the term, Jackson stated in his dissent that the majority “seems no more convinced than are we by the Government’s attempts to reduce these nebulous abstractions to a concrete working rule, but to sustain this particular deportation it improvises another which fails to convince us…”7

In Jackson’s view, the elusiveness of the term left whether a conviction was for a CIMT or not to the view of the particular judge deciding the matter. He added “How many [noncitizens] have been deported who would not have been had some other judge heard their cases, and vice versa, we may only guess. That is not government by law.”8

Turning to the specific crime before him, which involved the failure to pay federal tax on bootlegged liquor, Jackson noted that those who deplore trafficking in liquor “regard it as much an exhibition of moral turpitude for the Government to share its revenues as for respondents to withhold them.” On the flip side, Jackson wryly observed that “Those others who enjoy the traffic are not notable for scruples as to whether liquor has a law-abiding pedigree.”9 Just for good measure, the justice added: “I have never discovered that disregard of the Nation’s liquor taxes excluded a citizen from our best society…”10

Given the term’s requirement of passing moral judgment on criminal acts, Jackson emphasized (perhaps most importantly) that “We should not forget that criminality is one thing— a matter of law—and that morality, ethics and religious teachings are another.”11

In spite of the wisdom (and wit) of Jackson’s dissent, here we are over 70 years later, with the 11th Circuit left to deal with De George in reviewing the case of someone who falsely used a Social Security number. In Zarate, counsel explained at oral argument that the reasons for his client’s action was to work and support his family, and to have medical coverage to pay for his son’s surgery.12 Counsel also argued that the crime lacked the level of immorality required for a CIMT finding, explaining that those using a false number still pay the required amount of Social Security withholding to the government, and yet are not eligible to receive Social Security benefits themselves in return unless they first obtain lawful immigration status.

The Eleventh Circuit issued a thoughtful opinion. The court understood that it was bound by De George’s view that fraud always involves moral turpitude, a stance repeatedly reinforced by courts since. But the court noted that “under the categorical approach the crime Mr. Zarate committed does not include fraud as an element or ingredient.”

Surveying BIA decisions on the topic all the way back to 1943, it found that over the years, the Board has concluded that not all false statements or deception constitute fraud. The court cited a Second Circuit unpublished opinion distinguishing between deception and fraud, as the latter generally requires “an intent to obtain some benefit or cause a detriment.”13 And the court referenced the Seventh Circuit’s observation that the statute in question covers false use of a Social Security number not only to obtain a benefit, but also “for any other purpose.” That court added “It is not difficult to imagine some purposes for which falsely using a social security number would not be “inherently base, vile, or depraved.”14

In the end, the Eleventh Circuit sent the matter back to the BIA to consider whether under the categorical approach, any and all conduct covered by the statute would involve behavior that is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” The court’s decision certainly provided the Board a path to conclude otherwise.

I of course have no insight into how the Board will rule on remand. However, it seems worth adding some observations on the BIA’s problematic approach to CIMT determinations in recent years.

First, the Eleventh Circuit focused on the importance of the categorical approach in reaching the proper outcome.15 However, Kansas attorney Matthew Hoppock obtained through FOIA the PowerPoint of a presentation from the 2018 EOIR Immigration Judges training conference titled “Avoiding the Use or Mitigating the Effect of the Categorical Approach,” which was presented by a (since retired) Board Member, Roger Pauley.16 By virtue of binding Supreme Court case law, judges are required to apply the categorical approach. So why is the BIA, a supposedly neutral tribunal, training EOIR’s judges to find ways around employing this approach, or to try to reduce its impact?

This concern was further confirmed in an excellent 2019 article by Prof. Jennifer Lee Koh detailing how the BIA has repeatedly fudged its application of the categorical approach in CIMT cases.17 Prof. Koh concluded that the BIA’s approach has involved “The Board’s designation of itself as an arbiter of moral standards in the U.S., its unwritten imposition of a “maximum conduct” test that is at odds with the categorical approach’s “minimum conduct” requirement, and its treatment of criminalization as evidence of moral turpitude” which, not surprisingly, has resulted in BIA precedents expanding the number of offenses judged to be CIMTs.18

Even where the rule is applied correctly, another major problem remains. As Justice Jackson correctly stated, criminality is one thing, moral judgment quite another. And while immigration judges are expected to be experts in the law, they are not the standard bearers for what society views as base or vile.

This returns us to a question asked earlier: if not the judge, then who should be arbiter of moral standards? At the conclusion of its opinion, the Eleventh Circuit cited to a law review article by Prof. Julia Simon-Kerr which criticized how courts have “ ignored community moral sentiments when applying the standard.”19 The article’s author observed that instead of keeping the standard “up to date with the ever-evolving and often-contested morals of a pluralistic society,” courts have to the contrary “preserved, but not transformed, the set of morally framed norms of the early nineteenth century that first shaped its application.”20 In other words, it seems present-day judges too often continue to channel Lady Bracknell, rather than trying to gauge the moral sensibilities of their particular time and place.

If courts were to truly adapt to evolving societal standards, should decisions such as De George remain binding? Or should they be deemed to have provided guidance based on the morals of their time, subject to current reassessment?

Copyright 2022 Jeffrey S. Chase. All rights reserved.

Notes:

No. 20-11654 (11th Cir. Feb. 18, 2022) (Published).

Quoting Arias v. Lynch, 834 F.3d 823, 831 (7th Cir. 2016) (Posner, J., concurring).

341 U.S. 223 (1951).

Alison Peck, The Accidental History of the U.S. Immigration Courts: War, Fear, and the Roots of Dysfunction (University of California Press, 2021) at p. 97.

The warning was provided by Adolph J. Sabath, who served in the House from 1907 to 1952, was an immigrant himself, and is described in his Wikipedia page as “a leading opponent of immigration restrictions and prohibition.”

Jordan v. De George, supra at 235.

Id. at 238.

Id. at 239-40.

Id. at 241.

Id.

Id.

Petitioner was represented by Fairfax, VA attorney Arnedo Silvano Valera.

Ahmed v. Holder, 324 F.App’x 82, 84 (2d Cir. 2009).

Arias v. Lynch, supra at 826.

Judge Gerald Tjoflat even authored a concurring opinion tutoring the BIA to properly conclude that the statute is not divisible, ensuring the application of the categorical approach on remand.

The materials can be found at: https://www.aila.org/infonet/eoir-crimes-bond.

Jennifer Lee Koh, “Crimmigration Beyond the Headlines,” 71 Stan. L. Rev. Online 267, 272 (2019).

Id. at 273.

Julia Simon-Kerr, “Moral Turpitude,” 2012 Utah L. Rev. 1001, 1007-08 (2012).

Id.

MARCH 4, 2022

Reprinted by permission.

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“Brilliant,” as our friend and colleague Dan Kowalski says!

There is another way in which the Supremes’ prior constitutional abdication continues to pervert the constitutional guarantee of due process today.

As Jeffrey cogently points out NOBODY — Congress, the Article IIIs, the BIA, Immigration Judges, certainly not respondents — REALLY understands what “moral turpitude” means. Consequently, the only way to properly adjudicate cases involving that issue is through an exhaustive search and parsing of Circuit law, BIA precedents, and often state court decisions.

The problem: No unrepresented immigrant — particularly one in detention where a disproportionate share of these cases are heard — has any realistic chance of performing such intricate, arcane research into all too often conflicting and confusing sources.

Therefore, in addition to the problem that originated in DeGeorge when the Supremes’ majority failed to strike down a clearly unconstitutional statute, the failure to provide a right to appointed counsel in such cases — many involving long-time lawful permanent residents of the U.S. — is a gross violation of due process. It basically adds insult to injury!

As long as migrants continue to be intentionally wrongly treated as “lesser persons” or “not persons at all” by the Supremes and other authorities under the Due Process Clause — a process known as “Dred Scottification” — there will be no equal justice under law in America!

Better, more courageous, practical, and scholarly, Federal Judges — from the Supremes down to the Immigration Courts — won’t solve all of America’s problems. But, it certainly would be an essential start!

For more on the 5th Circuit’s decision in Zarate, see https://immigrationcourtside.com/2022/02/19/😎👍🏼⚖%EF%B8%8Farlington-practitioner-arnedo-s-velera-beats-eoir-oil-11th-cir-outs-another-sloppy-analysis-by-garlands-bi/

🇺🇸 Due Process Forever!

PWS

03-04-22

📖 BOOK OF REVELATION: AFTER CARRYING TRUMP’S WATER @ DOJ, BILLY BARR COMES TO A NOT SO STUNNING CONCLUSION: TRUMP’S A COMPLETE SCHMUCK! 🤮

https://www.wsj.com/articles/ex-attorney-general-william-barr-urges-gop-to-move-on-from-trump-11645959600

Sadie Gurman describes Billy’s new 600-page “tome of discovery” in the WSJ:

. . . .

After the election, Mr. Barr said that Mr. Trump “lost his grip” and that his false claims of voter fraud led to the Jan. 6, 2021, attack on the U.S. Capitol by supporters trying to thwart the certification of Mr. Biden’s November 2020 victory.

“The absurd lengths to which he took his ‘stolen election’ claim led to the rioting on Capitol Hill,” Mr. Barr writes.

***************************

Duh!

Trump Clown — Donald J. Trump
Famous American Clown
(Officially titled “Ass Clown”)
Artist: Scott Scheidly
Orlando, FL
Reproduced by permission

🇺🇸 Due Process Forever!

PWS

02-27-22

⚖️PROFESSOR DAVID A. MARTIN: “IMPERIAL 5TH” WRONG ON LAW — I Say They Are Also Biased, Immoral, Cowardly, & Corrupt — But, It’s Time For The Biden Administration To “Read The Tea Leaves” & Work With Advocates To Pump Some Due Process, Humanity, & Best Practices Into “Let ‘Em Die In Mexico!”☠️

“Floaters” — Some GOP judges and super-sleazy state AGs have a very clear vision of the future for refugees of color. Most days, the Biden Administration can’t decide whether they share it or not.
EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)

David Martin — Professor (Emeritus) David A. Martin
UVA Law
PHOTO: UVA Law

https://www.lawfareblog.com/judicial-imperialism-and-remain-mexico-ruling

David writes in Lawfare:

. . . .

The court’s opinion carries the reader along on what purports to be textual analysis and implacable logic. On closer examination, however, it is a startling exercise in judicial imperialism. The opinion seizes on fragments of statutory text, taken out of context, to construct a presumed congressional intent that would be more to the judges’ liking. It ignores contrary indicators in the wording and the historical development of the key provisions. It makes no attempt to reconcile the supposed strict mandate with the historical fact that Congress went 20 years without really noticing—much less objecting to—the absence of implementation. The court also shows an arrogant disregard for the operational realities of border enforcement, including the sensitivity of diplomatic relations with Mexico that sustain cross-border cooperation—on migration issues as well as other policy priorities.

I can bring some special perspective in analyzing the appeals court’s decision. I have been a scholar and teacher of immigration law for 40 years, and I also was fortunate to hold policy-level positions dealing with immigration in three different departments, under three different Presidents. My years in government gave me close exposure to the operational realities at a level most law professors—and judges—don’t experience. One of those stints consisted of 30 months during the mid-nineties as General Counsel of the Immigration and Naturalization Service (INS) the period when the key reform bills on which the Fifth Circuit relies were introduced, debated, amended, enacted and implemented.

. . . .

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Read David’s complete article at the above link. As usual, my “practical scholar” friend gives you the real legal analysis that should have been applied by the court. Now, here’s my “less nuanced” take on this atrocious and cowardly piece of extreme White Nationalist judicial misfeasance!

Remarkably, in their 117 pages of snarky, wooden legalese, demeaning of humanity, and willfully misrepresenting reality, these life-tenured righty judges (surprise, two Trumpists, one Bush I) give no serious consideration whatsoever to the well-documented, daily, ongoing abuses of the human and legal rights of those fleeing oppression who are subjected to this heinous White Nationalist program! See, e.g., https://www.humanrightsfirst.org/resource/shameful-record-biden-administration-s-use-trump-policies-endangers-people-seeking-asylum

Just how do asylum applicants exercise their statutory “right” to apply for asylum and other protection under U.S. and international law if they are dead, kidnapped, beaten, extorted, raped, threatened, given inadequate notice of hearing, denied their right to legal assistance, prevented from preparing and documenting their cases, and if they are fortunate enough to finally get a hearing, subjected to an anti-asylum, anti-due-process, non-asylum-expert “faux judiciary” run by a prosecutor with a majority of his “holdover judges” appointed or co-opted by his White Nationalist, asylum-hating predecessors? The Fifth Circuit doesn’t bother to explain. That’s probably because historically their failure to stand up for human rights and racial justice for those in need of protection has been part of the problem.

Also, it’s remarkable how righty judges who couldn’t find any reasons to stop the Trump regime from rewriting asylum law out of existence in unprecedented ways, without legislation, and usually without regard to the APA, suddenly take a much different position when it comes to the Biden Administration’s modest efforts to vindicate human rights and restore some semblance of the rule of law. But, that’s actually less surprising than the Biden Administration’s failure to “see the handwriting on the wall” and have a “Plan B” in operation.

Obviously, these three life-tenured right-wing human rights abusers in robes need to spend a few months “detained” in Mexico or in the “New American Gulag!” But, that’s wishful thinking. Not going to happen! These are ivory tower guys with life tenure, fat salaries, and robes who use their positions to pick on the most vulnerable in the world and deprive them of their legal and human rights based on intentional misconstructions of the law, ignorance of reality, and pandering to a rather overly political racist appeal from GOP AGs who are from “the bottom of humanity’s — and our legal profession’s — apple barrel!” Doesn’t get much worse than that!

Nevertheless, it should be clear to both advocates and the Biden Administration that “Remain in Mexico” likely is here to stay! Despite the lack of merits to the Fifth Circuit’s decision, and the Supreme’s granting of the Biden Administration’s cert petition, I wouldn’t hold my breath for relief from either the right-wing Supremes or the feckless Dems in Congress.

Given that the program is likely to be judicially imposed, the Administration and advocates can still get together to make it work in compliance with due process. It’s well within their power and not rocket science:

Appoint a new BIA with appellate judges who are practical scholars in asylum and will establish coherent, correct legal guidance on domestic violence claims, gender based asylum, gang-based claims, nexus, “failure of state protection,” credibility, corroboration, the operation of the presumption of future persecution, the DHS’s burden of rebutting the presumption, “rise to the level,” right to counsel, fair hearings, and other critical areas where the current “Trump holdover” BIA’s guidance has been lacking, inadequate, and/or defective. They can also insure consistency in asylum adjudications, something that has long escaped EOIR.
Get a corps of Immigration Judges with established records and reputations for scholarly expertise, commitment to due-process, practicality, and fairness to asylum seekers to handle these cases.
Work with pro bono and advocacy groups and the UNHCR to insure that every person applying under this program has access to competent representation and adequate opportunities to prepare and document cases. Nolan Rappaport and I have recently written about the “largely untapped potential” of a better “qualified representative” program. Professor Michele Pistone at Villanova Law has done some ground-breaking innovative work on training accredited representatives for asylum cases in Immigration Court. But, like most other long overdue reforms, it appears to have gone over Garland’s distracted head! https://immigrationcourtside.com/2022/02/02/⚖%EF%B8%8F🗽there-will-be-no-supreme-intervention-to-stop-mpp-☹%EF%B8%8F-rappaport-pistone-schmidt-tell-how-the-administration-advocates-c/
Work with the Government of Mexico and the UNHCR to guarantee the health, security, safety, and welfare of those waiting in camps in Mexico.

Then, we’ll finally find out how many of those who have already passed credible fear actually qualify for a grant of asylum under a fair, competent, timely system run by experts with individuals who are well-represented! I’ll bet it’s the majority, not the measly 2% who have received grants under EOIR’s “Stephen Miller Lite” approach!

For example, during 13 years on the trial bench, I found that the majority of those referred to Immigration Court after a positive “credible fear” finding (all of the “Remain in Mexico” applicants fall in that category) qualified for asylum or some other type of protection from removal. And, like my friend and long time-colleague Professor Martin, I’ve been working on asylum issues from enforcement, advocacy, academic, and judicial standpoints, in and out of government, since before there was a Refugee Act of 1980!

So, to me, the “2% asylum grant rate” in Immigration Court for these cases,” particularly in light of some revised intentionally overly restrictive “credible fear” criteria imposed by the Trump regime, appears clearly bogus. Why hasn’t Garland looked into the systemic defects in the EOIR system, as applied to “Remain in Mexico,” that have artificially suppressed the grant rate?

Lack of lawyers, undue hinderances on gathering evidence and presenting cases, poor notice, lack of expertise, inadequate training, and anti-asylum performance by IJs and the BIA, and in some cases kidnapping, assault, rape, extortion, and other well-documented physical harm knowingly inflicted on applicants by placing them in clearly dangerous and unacceptable conditions in Mexico are just the start!

There are lots of creative ways of making our current immigration system work better! You just need the knowledge, motivation, expertise, and guts to make it happen! So, far that’s been lacking at all levels of the Biden Administration, but particularly at Garland’s “brain-dead” DOJ. Gosh, these guys make Stephen Miller look like a “creative genius,” albeit an evil and pathological one! 🤯🤮🏴‍☠️ Come on, man!

As many of us have pointed out, Garland, Mayorkas, Biden, and Harris could and should have had such a system up and operating by now! Outrageous and disgusting as the conduct of the 5th Circuit has been, it’s hardly unpredictable given past performance. Every day that the Administration continues to waste by not making the necessary changes at EOIR, a court system totally within their control, adds to the human misery and injustice!

So, bottom line: White Nationalist judges get life tenure from the GOP. Meanwhile, back at the ranch of the “Gang That Couldn’t Shoot Straight,” Biden and Garland retain Trump’s White Nationalist appointees and enablers at EOIR and eschew the chance to create a diverse, progressive, expert, practical, due-process-oriented, fundamental-fairness-insistent, racial-justice-committed judiciary to decide life-or-death cases that affect and influence the operation of our entire justice system and our democracy in ways that no other court system in America does! The Administration’s alarming “tone deafness” is blowing perhaps the “last clear chance” to create a “model judiciary!” Sounds like something only a Dem Administration could do. Go figure!

🇺🇸Due Process Forever!

PWS

01-22-22

PROFESSOR JENNIFER CHACON’S BRENNAN ESSAY — RULE OF LAW RUSE — The Gratuitous Cruelty, Dehumanization, & Demonization Is The Point! — “Courts have played an essential role in shoring up the dehumanizing narratives that enable our nation’s harsh enforcement practices.”

Professor Jennifer M. Chacon
UC Berkley Law

https://lawprofessors.typepad.com/immigration/2022/02/immigration-article-of-the-day-the-dehumanizing-work-of-immigration-law-by-jennifer-m-chac%C3%B3n.html

Professor and ImmigrationProf Blog Principal Kit Johnson reports:

Tuesday, February 22, 2022

Immigration Article of the Day: The Dehumanizing Work of Immigration Law by Jennifer M. Chacón

By Immigration Prof

Share

The Dehumanizing Work of Immigration Law is an analysis piece authored by immprof Jennifer M. Chacón (Berkeley) for the Brennan Center for Justice. It was part of a series of articles examining the “punitive excess that has come to define America’s criminal legal system.”

In her article, Chacón acknowledges that “our immigration laws are exceptionally harsh in ways that frequently defy common sense.” She notes that for many migrants “the notion that there is a ‘right way’ to immigrate is just not true.” Moreover, “our country has not always honored its own legal processes when immigrants are doing things ‘the right way.’” And, for those “long-time lawful permanent residents who have contact with the criminal legal system are often denied the chance to do things ‘the right way.’”

“Again and again,” Chacón writes, “notions of the rule of law are invoked to justify the sundering of families and communities that would, in other circumstances, seem unthinkable.”

-KitJ

February 22, 2022 in Data and Research, Law Review Articles & Essays | Permalink | Comments (0)

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Jennifer elegantly articulates a theme that echoes what “Sir Jeffrey” Chase and I often say on our respective blogs: It’s all about gratuitous cruelty and intentional dehumanization of “the other” — primarily vulnerable individuals of color!

But, it need not be that way! Undoubtedly, the current legislative framework is outdated, unrealistic, and often self-contradictory. Congress’s failure to address it with bipartisan, humane, common sense, practical reforms that would strengthen and expand our legal immigration system is disgraceful.

But, there are plenty of opportunities even under the current flawed framework for much better interpretations of law; more expansive, uniform, and reasonable exercises of discretion; creation and implementation of best practices; advancements in due process and fundamental fairness; drastic improvements in representation; improved expert judging; rational, targeted, “results-focused” enforcement; promoting accountability; and teamwork and cooperation among the judiciary, DHS, and the private/NGO/academic sectors to improve the delivery of justice and make the “rule of law” something more than the cruel parody it is today.

Historically, as Jennifer points out, courts have often aided, abetted, and sometimes even disgracefully and cowardly encouraged lawless behavior and clear violations of both constitutional and human rights. But, it doesn’t have to be that way in the future!

Folks like Trump, Miller, Sessions, Barr, Wolf, “Cooch,” Hamilton, McHenry, et al spent four years laser-focused on banishing every last ounce of humanity, fairness, truth, enlightenment, kindness, compassion, reasonableness, efficiency, rationality, equity, public service, racial justice, consistently positive use of discretion, practicality, and common sense from our immigration and refugee systems.

Biden and Harris promised dynamic change, improvement, and a return to a values-based approach to immigration. Once in office, however, they have basically “gone Miller Lite” — preferring to blame and criticize the Trump regime without having a ready plan or taking much positive action to bring about dynamic systemic improvements. In fact, as pointed out by Jennifer, Garland and Mayorkas have continued to apply, defend, and to some extent rely on the very vile policies they supposedly disavowed. Talk about disingenuous!

Drastic improvements in the current system are “out there for the taking,” with or without Congressional assistance. But, the will, skill, and guts to make the “rule of law” something other than an intentionally cruel, failed “throw away slogan” appears to be sorely missing from Biden Administration ldeadership!

Maybe, the beginning of Jennifer’s essay “says it all” about the abject failure of Garland and others to “get the job done:”

During his confirmation hearing to be attorney general, when asked about the Trump administration’s policy of separating children from their parents at the U.S.–Mexico border, Merrick Garland repudiated the policy, stating “I can’t imagine anything worse.”

Yet, now that he is confirmed, Attorney General Garland presides over an agency that represents the U.S. government in court arguing every day that parents should be separated from their children, brothers from sisters, grandchildren from grandparents.

Obviously, that’s the problem! Garland actually “can’t imagine” the human impact of government-imposed family separation! Nor can he “imagine” what it’s like to be caught up in his unfair, biased, and broken Immigration “Courts” as a party or a lawyer. The “retail level” of our justice system “passed him by” on his way to his judicial “comfort zone.”

Star Chamber Justice — “Justice”
Star Chamber
Style — “AG Garland ‘can’t imagine’ what it’s like to be caught up in the dysfunctional, abusive, and unfair ‘court system’ that he runs!”

Unless and until we finally get an Attorney General who has either experienced or has the actual imagination necessary to feel the daily horrors and indignity that our unnecessarily broken immigration justice system inflicts on real human beings, American justice and human values will continue to spiral downward! ☠️🤮

And, there will be no true racial justice in America without justice for immigrants!

🇺🇸 Due Process Forever!

PWS

02-23-22

☠️👎🏽 UNMITIGATED DUE PROCESS DISASTER! 🤮 — GARLAND’S TOTALLY OUT OF CONTROL “COURTS” DAMAGE HUMANITY, DEGRADE AMERICAN JUSTICE!🏴‍☠️

Alexandra Villarreal reports for The Guardian:

https://www.theguardian.com/us-news/2022/feb/21/us-immigration-courts-cases-backlog-understaffing?CMP=Share_iOSApp_Other

. . . .

On the line are millions of futures. Undocumented immigrants who fear being split from their American children and spouses, people facing persecution and death in their countries of origin, or those being sent to countries they haven’t seen in decades are all fighting for fair play and often literally their lives in courts ill-equipped to do them justice.

“Let’s make it absolutely clear: due process is suffering,” said Muzaffar Chishti, a senior fellow at the Migration Policy Institute. “There’s just no way around that.”

Chishti said he sees all the hallmarks of a strong administrative law system suffering in the nation’s immigration courts, which are housed under the Department of Justice in the executive branch of the federal government, not within the judicial branch.

“It is a system in crisis,” he said.

After Trump made hardline anti-immigration policies pivotal to his 2016 presidential campaign, he flooded courts with judges more inclined to order deportations, Reuters reported.

His administration hired so many new immigration judges so hastily that the American Bar Association warned of “under-qualified or potentially biased judges”, many of whom had no immigration experience.

And as officials such as then-attorney general Jeff Sessions made sweeping proclamations that “the vast majority of asylum claims are not valid”, judges simultaneously confronted performance metrics demanding they each race through at least 700 cases a year.

Yet in the roughly 70 US immigration courts across the country, judges are deciding complex cases with potentially lethal consequences.

People ranging from asylum seekers forced to wait in Mexico to unaccompanied children crossing the border on foot, to longtime undocumented residents with families stateside end up appearing in court, often without attorneys to help them parse the country’s byzantine laws.

In a process smacking of a zip code lottery, one judge in New York may grant nearly 95% of asylum petitions while colleagues in Atlanta almost universally deny similar requests, creating a patchwork of standards.

. . . .

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Read Alexandra’s full report at the link.

Alfred E. Neumann — Garland’s stubbornly indolent approach to racial justice and due process at “Justice” endangers the lives of millions of vulnerable humans! PHOTO: Wikipedia Commons

Not news to Courtside readers or the millions whose lives and futures are caught up in Garland’s totally dysfunctional morass! And, that doesn’t even include hundreds of thousands of migrants orbited to danger under bogus “border closure” gimmicks that Garland and his ethically-challenged DOJ continue to defend!

While Garland and his top lieutenants might be too willfully tone deaf to “get it,” many legislators are “connecting the dots” between the systemic racial injustice and indifference to human life exhibited in Garland’s failed immigration justice system and the endemic problem of racial justice in America. See, e.g., https://www.menendez.senate.gov/newsroom/press/menendez-booker-lead-100-congressional-colleagues-in-urging-president-biden-to-reverse-inhumane-immigration-policies-impacting-black-migrants

There will be no racial justice in America without immigrant justice!

🇺🇸 Due Process Forever!

PWS

02-21-22

LIVES OF AFGHAN REFUGEES ILLUSTRATE RECURRENT COURTSIDE THEME: “We Can Degrade Ourselves As A Nation, But It Won’t Stop Human Migration!”

https://www.nytimes.com/2022/02/14/opinion/refugees-migrants-afghanistan.html?referringSource=articleShare

From “We’ve Never Been Smuggled Before” by Matthew Aikins in the NYT:

. . . .

But the plight of Afghan refugees can be an opportunity to rework migration and asylum policies for a future that will increasingly blur the distinction between traditional refugees and migrants fleeing economic and social disasters, including those that are the result of climate change.

It’s not just former translators and journalists who need help. Afghans migrating out of hunger and desperation are also the victims of the West’s failed war. Even if mass starvation is averted, Afghans will continue to leave their country, out of a combination of fear and because they want a better life. The Afghan middle class, which has seen its savings and livelihoods evaporate, will use the resources they have to emigrate. The outflow of Afghan migrants will not end in the short term; nor should it. Indeed, Afghan migration should be seen for what it is, a rational strategy undertaken by people who find agency in the midst of great adversity. Afghans are capable of helping their own communities, if we allow them. Remittances, or money sent home by migrants, contribute three times more to the developing world than international aid.

Whether we meet them with compassion and reason, or prejudice and violence, people will never stop trying to cross borders.

. . . .

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Read the complete article at the link.

The future will belong to countries that figure out how to harness the power of human migration and deal with its inevitability.

🇺🇸Due Process Forever!

PWS

O2-14-22

🏴‍☠️☠️⚰️GARLAND’S FAILURES LOOM LARGE AS EOIR’S ABUSES OF BLACK REFUGEES EMERGE! 🤮 — Biased, Thinly Qualified “Judges” Fingered In HRF Report On Wrongful Returns To Cameroon Remain On Bench Under Garland — Anti-Asylum BIA & Ineffective Leadership From Trump Era Retained By Garland In EOIR Fiasco!

Kangaroos — What fun, sending Black Cameroonian refugees back to rape, torture, and possible death! We don’t need to know much asylum law or real country conditions here at EOIR. We make it up as we go along. And, Judge Garland just lets us keep on playing “refugee roulette,” our favorite game!
https://www.flickr.com/photos/rasputin243/
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https://lawprofessors.typepad.com/immigration/2022/02/deported-cameroonian-asylum-seekers-suffer-serious-harm.html

From HRF:

. . . .

Nearly all of the deported people interviewed had fled Cameroon between 2017 and 2020 for reasons linked to the crisis in the Anglophone regions. Human Rights Watch research indicates that many had credible asylum claims, but due process concerns, fact-finding inaccuracies, and other issues contributed to unfair asylum decisions. Lack of impartiality by US immigration judges – who are part of the executive branch, not the independent judiciary – appeared to play a role. Nearly all of the deported Cameroonians interviewed – 35 of 41 – were assigned to judges with asylum denial rates 10 to 30 percentage points higher than the national average.

. . . .

*****************

The complete report gives a totally damning account of EOIR’s incompetence, ignorance of asylum law, poor decision making, “rigged” assignment of bad judges, and systemic bias directed against asylum seekers, primarily people of color. Although human rights conditions have continued to deteriorate in Cameroon, asylum grant rates have fluctuated dramatically depending on how the political winds at DOJ are blowing.

For example, judges denying asylum because of imaginary “improved conditions” in Cameroon falls within the realm of the absurd. No asylum expert would say that conditions have improved.

Yet, in a catastrophic ethical and legal failure, there is no BIA precedent “calling out” such grotesque errors and serving notice to the judges that it is unacceptable judicial conduct! There are hardly any recent BIA published precedents on granting asylum at all — prima facie evidence of the anti-asylum culture and institutional bias in favor of DHS Enforcement that Sessions and Barr actively cultivated and encouraged!

How bad were things at EOIR? Judges who denied the most asylum cases were actually promoted to the BIA so they could spread their jaundiced views and anti-asylum bias nationwide. See, e.g., https://immigrationcourtside.com/2019/11/01/corrupted-courts-no-stranger-to-improper-politicized-hiring-directed-against-migrants-seeking-justice-the-doj-under-barr-doubles-down-on-biased-ideological-hiring-promot/

Even more outrageously, these same members of the “asylum deniers club” remain in their influential appellate positions under Garland! As inexplicable as it is inexcusable!

The HRF report details the wide range of dishonest devices used by EOIR to cut off valid asylum claims: bogus adverse credibility determinations; unreasonable corroboration requirements; claiming “no nexus” when the causal connection is obvious; failing to put the burden on the DHS in countrywide persecution involving the government or past persecution; bogus findings that the presence of relatives in the country negates persecution; ridiculous findings that severe harm doesn’t “rise to the level of persecution,” failure to listen to favorable evidence or rebuttal; ignoring the limitations on representation and inherent coercion involved in intentionally substandard and health threatening ICE detention, to name just some. While these corrupt methods of denying protection might be “business as usual” at EOIR “denial factories,” they have been condemned by human rights experts and many appellate courts. Yet Garland continues to act as if nothing were amiss in his “star chambers.”

This bench needs to be cleared of incompetence and anti-asylum bias and replaced with experts committed to due process and fair, impartial, and ethical applications of asylum principles. There was nothing stopping Sessions and Barr from “packing” the BIA and the trial courts with unqualified selections perceived to be willing and able to carry out their White Nationalist agenda! Likewise, there is nothing stopping Garland from “unpacking:” “cleaning house,” restoring competence, scholarly excellence, and “due process first” judging to his shattered system!

“It’s not rocket science, but ‘unpacking’ the Immigration Courts appears beyond Garland’s skill set!”
“Unpacking”
Photo by John Keogh
Creative Commons License

All that’s missing are the will and the guts to get the job done! Perhaps that’s not unusual for yet another Dem Administration bumbling its way through immigration policy with no guiding principles, failing to connect the dots to racial justice, betraying promises to supporters, and leaving a trail of broken human lives and bodies of the innocent in its wake. But, it’s unacceptable! Totally!

🇺🇸Due Process Forever!

PWS

02-11-22

⚖️👎🏽🤮☠️HUMAN RIGHTS GROUPS BLAST BIDEN, HARRIS, GARLAND, MAYORKAS FOR ILLEGAL RETURNS TO COLOMBIA, CONTINUATION OF MILLER’S XENOPHOBIC, DEADLY & CORRUPT TITLE 42 ABUSES OF HUMANITY!

https://bit.ly/3upncgP

Letter to Biden/Harris on Expulsions of Venezuelan Asylum Seekers to Colombia

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Dear President Biden and Vice President Harris:

We, the undersigned organizations committed to the rights of asylum seekers and refugees, write to express our serious concerns over reports that the U.S. Department of Homeland Security (DHS) has begun a new practice of using Title 42 to expel Venezuelan migrants to Colombia. We understand that the first two Venezuelan individuals to be expelled under this policy were flown to Colombia on January 27, 2022 and that additional Title 42 expulsion flights to the country are expected to take place on “a regular basis” for Venezuelans who “previously resided” in Colombia. This practice represents a concerning and unacceptable escalation to your administration’s misguided approach to border and migration policy that flouts domestic and international refugee and human rights law. We urge you to cease these and other Title 42 expulsions immediately, to prioritize protection and access to asylum in your regional and domestic migration policies, and to engage asylum and human rights experts as you pursue new policies.

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One year into your administration, you have continued the misuse of a xenophobic Trump-era policy that weaponized an obscure provision of Title 42 of the U.S. code to summarily block and expel individuals, often repeatedly, from the U.S. southern border, without providing them the opportunity to seek asylum or the ability to access any protection screening required by law. These new flights to Colombia come amidst troubling reports that your administration placed on hold plans to restart asylum processing at U.S. ports of entry and that high-level officials have resisted ending Trump-era asylum restrictions, including Title 42 expulsions.

Title 42 expulsions have nothing to do with protecting public health and are not necessary to protect the public from the spread of COVID-19. Since the start of the COVID-19 pandemic, public health experts, the UN Refugee Agency, and other humanitarian advocates have demonstrated that it is possible to protect public health and ensure access to asylum simultaneously. In fact, the Centers for Disease Control and Prevention (CDC) objected to the use of Title 42 for mass expulsions of migrants and confirmed such expulsions lacked a valid public health basis. Your Chief Medical Advisor Dr. Anthony Fauci has himself stated that immigrants are “absolutely not” driving a COVID-19 outbreak and that expelling migrants is not a solution to an outbreak.

Over the past twelve months, your administration expelled people—often expelling the same person repeatedly—from the U.S. southern border more than one million times. In just the first seven months of your administration, U.S. border officials carried out 704,000 expulsions, a significant increase from the Trump administration’s 400,000 expulsions conducted over ten months. In addition to the new expulsion flights to Colombia, DHS also carries out land expulsions to Mexico and expulsion flights to send individuals and families back to their countries of origin, including Haiti, Guatemala, Honduras, and Brazil. Even though your administration has acknowledged that “Haiti is grappling with a deteriorating political crisis, violence, and a staggering increase in human rights abuses…” – the U.S. has since September 2021, inexplicably chartered nearly 150 flights of almost 16,000 Haitians, including families with infants, back to a country that is unquestionably unsafe without offering them any opportunity to seek protection before expulsion. These expulsions under Title 42 violate the law and risk sending people back to dangerous conditions – sometimes the very ones that caused them to seek safety in the first place.

As you are aware, Venezuela is currently facing a severe economic, political, and humanitarian crisis. Millions of Venezuelans have left the country due to political persecution, a collapse of basic services, food insecurity, and rampant violence. Over 1.7 million Venezuelans are being hosted in Colombia and many have been granted temporary status there and only a small percentage of Venezuelans have sought asylum in the United States; however, Colombia is not safe for all Venezuelan migrants and refugees. Venezuelans, and all other individuals fleeing persecution have the right to seek asylum under U.S. law and to have their claims for protection assessed on a case-by-case basis. Your administration is blatantly violating the law by expelling these people to other countries in the region, such as Colombia, and we are deeply troubled by the informal and opaque arrangements with third countries that facilitate these expulsions. Your administration terminated several such agreements with Central American countries when you came into office, making these new flights especially concerning.

During its first year in office, your administration committed to a comprehensive regional approach to migration, aiming to strengthen asylum systems and refugee resettlement programs in the region and promote “safe, orderly, and humane migration.” Despite this pledge, your administration’s actions suggest that the United States seeks out negotiations with countries throughout Latin America that externalize its borders further south, shifts responsibility to countries already hosting millions of refugees, and impedes people’s ability to seek protection in the United States. Earlier this month, under pressure from your administration, the Mexican government implemented new requirements that Venezuelans obtain a visa to travel to Mexico. According to reports, your administration has also requested that Mexico sign a safe third country agreement, which could effectively block most individuals (except Mexicans) from seeking asylum in the United States.

We urge your administration to abandon efforts to prevent people from seeking asylum through externalized migration controls in the region and to undermine the right of people to seek protection in the United States. As you pursue other regional efforts, it is imperative that your administration operate with increased transparency and engage with asylum and human rights experts about potential efforts such as anticipated regional compacts on migration with other countries in the Americas. While regional protections must be strengthened, these efforts must not and need not come at the expense of existing protection mechanisms and access to asylum at the U.S.-Mexico border, including at ports of entry.

Your administration has the responsibility to uphold U.S. refugee law and treaty obligations. We call on your administration to cease further expulsions of Venezuelan migrants to Colombia, and to immediately end its use of all expulsions under Title 42. Our organizations continue to welcome the opportunity to engage on and inform how to promote a protection centered approach to “safe, orderly, and humane migration,” including restoring access to asylum at the border, including at ports of entry.

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Let’s be clear about the equation:

immigrants’ rights = human rights = civil rights = racial justice = economic stability = common good

By failing miserably on the first, the Administration has found itself flailing and failing on the rest.

Nowhere is this more apparent than at DOJ! Garland has squandered the precious first year in office by NOT cleaning house at EOIR and bringing in practical experts in immigration/human rights/due process to remake and reform the system so that it can deal fairly, timely, and justly with asylum applicants applying at the border and and elsewhere in the U.S., as they are legally entitled to do.

Instead of expertly culling the vast majority of backlogged pending cases which are neither priorities nor viable removal cases at this point, Garland has built the unnecessary, largely self-created backlog at a record pace to more than 1.6 million with no end in sight! Add that to his disgraceful failure to stand up against illegal and immoral policies and clear violations of human rights at the border by his own Administration and you get today’s catastrophic situation.

“Standing tall” for the rule of law (and human decency) is supposed to be the Attorney General’s job. Why are these NGOs being forced to do it for him?

How bad have things gotten at Garland’s DOJ? This has already been a tough week that saw his DOJ attorneys “blow” a plea bargain in a major civil rights case, be excoriated by the 4th Circuit in a published case for a miserably botched performance in what should have been a routine “reasonable fear” case, and have Chairwoman Lofgren introduce her Article 1 bill with a broadside against DOJ’s horrible stewardship over EOIR.

As if to punctuate Chairwoman Lofgren’s critique, Garland topped it off with this gem: a beatdown in a pro se Salvadoran asylum case, which OIL basically failed to “pull” although the BIA decision conflicted with Garland’s own more recent precedent, from a Fourth Circuit panel that included two recent Trump appointees not heretofore known for vigorously defending asylum seekers’ rights! https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/pro-se-ca4-psg-remand-luna-deportillo-v-garland

Folks, this is NOT “good government.” Not by a long shot!

There is no more important task — NONE — facing DOJ than pumping some due process and quality back into immigration law and making the long overdue management, personnel, procedural, and legal quality reforms at EOIR.

Yes, that apparently would require Garland to take on some folks at the White House who obviously consider human rights to be a “political strategy,” integrity and courage optional, and live in mortal fear of Stephen Miller and far-right nativists. It would mean taking decisive actions to treat asylum seekers and other migrants (including many individuals of color) as “persons” under our Constitution. It would end the intentional “Dred Scottification of the other.” It would send some Sessions/Barr “plants and holdovers” packing from their current jobs!

Unquestionably, these moves would incite predictable, tiresome, apoplectic reactions by Miller and the GOP White Nationalist cabal on the Hill. They would put Garland “in the spotlight” and interrupt the serenity of his inner sanctum on the 5th floor of the DOJ where he apparently likes to contemplate the world and “things other than due process for immigrants.”

But, taking on folks like that is what good lawyers are supposed to do. As a public lawyer, it’s not just about being somebody’s “mouthpiece” — it’s standing up for the rule of law!

I among many others have said from the outset that Garland won’t be able to sweep the total meltdown at EOIR and in immigration legal positions under the table, much as he obviously would like them to go away! Yes, he inherited an awful mess from his Trump predecessors. But, almost a full year in, that doesn’t absolve him of responsibility for failing to initiate the common sense steps to fix it and to bring in experts who actually know what they are doing and have the guts and backbone to follow through — even when the going gets tough, as it undoubtedly will. The problems at DOJ go far beyond EOIR; but, EOIR must be the starting place for fixing them. There is no more time to lose!

Garland’s failure to institute widely recommended common sense legal reforms — government for the common good — at EOIR undermines our democracy while endangering “real” human lives every day! That’s a toxic legacy that he won’t be able to avoid!

🇺🇸Due Process Forever!

PWS

02-04-22

🗽⚖️HON. JEFFREY CHASE: GARLAND BIA’S “DOUBLE STANDARD” — “STRICT COMPLIANCE” FOR RESPONDENTS, “GOOD ENOUGH FOR GOVERNMENT WORK” FOR DHS & DOJ — MORE “MILLER LITE” THAN DUE PROCESS! — “Somehow, the Board chose to ignore this clear and obvious reading twice affirmed by the highest court in the land.” — Matter of LAPARRA Analyzed & Excoriated! — As Garland’s Failures @ DOJ Mount, Why Aren’t More Folks Demanding Change?

https://www.jeffreyschase.com/blog/2022/1/31/stuck-on-repeat

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

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Stuck on Repeat

The first three lessons learned from the BIA’s recent decision in Matter of Laparra1 are: (1) the Board knows only one tune; (2) that tune is the “Falls Church Two-Step,” and (3) the tune does not improve with repeated listening.

As background, Congress in 1996 passed a statute creating a document called a Notice to Appear, or “NTA” for short, which is used to commence removal proceedings before the Immigration Court. Congress defined an NTA to require that it include the time and place of the first hearing; the document is, after all, called a “notice to appear.”

However, for many years, the Department of Homeland Security cut a corner by leaving that crucial information out of hundreds of thousands of NTAs. The courts (which are not part of DHS, the entity issuing the NTA) would later send a different document telling the person when and where to appear. That second document might be sent weeks, months, or even years later.

As an aside, in other areas of immigration law, EOIR has applied a literal approach to interpreting statutory terms. An unfortunate example is found in the asylum context, where the BIA felt a strong need to add “particularity” and “social distinction” requirements for particular social group recognition, creating significant obstacles for asylum seekers. Yet the government’s defense of those terms has been based on the argument that every word in the term “particular social group” must be accorded a very literal meaning.

However, when it comes to the term “Notice to Appear,” the Board inexplicably doesn’t seem to think meaning should matter. According to the online version of the Cambridge English Dictionary, “notice” is defined as “(a board, piece of paper, etc. containing) information or instructions.” A “Notice to Appear” would therefore be a piece of paper containing information or instructions about when and where to appear. However, that is exactly the information or instructions that DHS saw fit to leave out of this particular document. The BIA nevertheless long stood firm in its conviction that a document which provides as much information or instruction about an upcoming hearing as a take-out menu from L&B Spumoni Gardens meets the legal definition of a “Notice to Appear.”

Not surprisingly, this government shortcut was successfully challenged by noncitizens wishing to seek a path to legal status in this country called cancellation of removal. One can’t apply for cancellation of removal unless they’ve been present in the U.S. for ten years,2 but once one is served with a Notice to Appear, the accrual of time towards that ten years stops.3 So whether or not what ICE was handing out met the definition of an NTA would determine whether hundreds of thousands of people would be eligible to apply for legal status. In a case called Pereira v. Sessions,4 the Supreme Court resoundingly held that an NTA without the time and place of hearing was not an NTA, and therefore did not stop the noncitizen from accruing time to reach the 10 years of presence necessary to apply for cancellation of removal.

The BIA’s response was to issue a precedent decision, Matter of Mendoza-Hernandez,5 in which it held that in spite of the Supreme Court’s clear view to the contrary, the combination of the non-NTA and a later-sent document that is also not an NTA containing the missing information together form a valid NTA, which stops the noncitizen from continuing to accrue time towards the ten years.

The matter again reached the Supreme Court, where, at oral argument, Justice Gorsuch referred to the case as “Pereira groundhog day,” and actually asked counsel for the government why it was pursuing the case in light of the Court’s 8-1 decision in Pereira.6 In its 2021 decision in that case, Niz-Chavez v. Garland,7 the Court held that an NTA must be a single document containing all of the required information, and that the two-step method endorsed by the Board does not constitute one valid NTA, and thus will not stop the accrual of time.

Although Pereira and Niz-Chavez involved what is known as the “stop-time rule” described above, the question of proper service of an NTA also arises in other contexts. For those who missed their initial removal hearing and were ordered removed as a result, the Supreme Court decisions seemed to offer a new opportunity.

The reason is because the statute provides for in absentia removal orders only where the noncitizen failed to appear for their hearing “after written notice required under paragraph (1) or (2) of section 1229(a) of this title has been provided” to the noncitizen or their lawyer.8 Section 1229(a) is the section of the law that lists the requirements for an NTA to actually be an NTA; it was the specific section interpreted by the Supreme Court in Pereira and Niz-Chavez. Pursuant to those decisions, no one who was issued an NTA lacking a time and place of hearing received proper notice under section 1229(a) of the Act, which specifically requires that the time and place information be provided in a single document. Where notice was not proper, the law allows the filing of a motion to rescind an in absentia order, and further permits the motion to be filed at any time.9

The U.S. Court of Appeals for the Fifth Circuit addressed this issue of proper notice in a published decision issued in September, Rodriguez v. Garland.10 The decision cited the Supreme Court’s holding in Niz-Chavez, and determined that a single document containing all of the required information (including the time and place) is required in the in absentia context as well. The Fifth Circuit made clear that where the NTA did not contain the time and place, it could not be cured by the mailing of a subsequent notice for in absentia purposes.

Anyone unable to guess the BIA’s response has not been paying attention. The BIA issued Matter of Laparra in order to say that the recipient of an in absentia removal order did in fact receive proper notice pursuant to section 1229(a) even if their NTA lacked a time and place of hearing, as long as the court subsequently sent an entirely different paper days, months, or years later containing the missing information.

How did the BIA believe it could reach this same conclusion yet again in spite of the Supreme Court decisions to the contrary? Please try to follow along as we review the Board’s explanation.

First, the Board emphasized that the statute governing in absentia orders (8 U.S.C. § 1229a(c)(5)(A)) states that such order may be entered “after written notice required under paragraph (1) or (2) of section 239(a) has been provided.” The Board emphasized the words “written notice,” which it distinguished from “a written notice,” which the Supreme Court interpreted to indicate a single document.11 The Board’s position seems to be seriously undermined by the fact that “written notice under paragraphs (1) or (2) of section 239(a)” is subsequently referred to twice more in the same section of the law as “the written notice.”

The Board employed a novel approach here. It dropped a footnote in which it admitted to the two subsequent mentions of “the written notice.” But the Board then said that it reads those two subsequent uses of “the” as simply referring back to the initial “written notice” (without the definite article).12 And apparently, because they are referring to the first mention of “written notice,” the definite article “the” can just be ignored in those other two usages. Why is that? To explain, the Board cited a Supreme Court decision in a non-immigration case decided in 2015, Yates v. U.S.13

Yates involved a fisherman apprehended at sea with a catch containing a large number of undersized fish. However, by the time the ship reached shore, only fish of legal size remained on board. After a long delay, Yates was charged and convicted under 18 U.S.C. § 1519, prohibiting tampering with a “tangible object” in order to impede a federal investigation.

Fish would meet the dictionary definition of “tangible objects.” However, in a decision authored by the late Justice Ruth Bader Ginsburg, the Supreme Court employed a canon of statutory interpretation called noscitur a sociis, under which aid in determining a term’s meaning can derive from the meaning of surrounding terms used in the same section of law.14 As the term “tangible object” in 18 U.S.C. § 1519 is preceded by “makes a false entry in any record, document…,” the Court determined that “tangible object” was meant to refer to items containing records or documents. So tampering with an external hard drive would be covered by the statute; tampering with a fish would not.

This approach has been employed by the BIA (using the closely-related concept of ejusdem generis) in its 1985 decision in Matter of Acosta15 to determine that the term “particular social group” should be defined by an immutable characteristic, the same common denominator found in the surrounding terms of race, religion, nationality, and political opinion. It bears noting that what the Board did in Laparra bears no similarity to the manner in which the canon was applied in either the Board’s earlier usage in Acosta or by the Supreme Court in Yates. In Laparra, there was no comparison to the meaning of surrounding terms; instead, the Board seemed to make a random decision to ignore two usages of the definite article. The only similarity I can see to Yates is that what the Board did seems fishy.

However, even if we do as the Board would like and look only at the first usage of “written notice” contained in section 1229(a)(1), there is still a fatal flaw in the remainder of the Board’s argument. As noted above, the statute in that first usage requires not just any written notice, but specifically, written notice under paragraph (1) or (2) of section 1229(a), i.e., the section titled “Notice to appear.” Paragraph (1) of that section begins: “In removal proceedings under section 1229a of this title, written notice (in this section referred to as a “notice to appear”)…” A notice to appear! Paragraph (1) thus clearly refers to a single document, which as the Supreme Court has now told us twice, must contain the time and place of hearing.

Paragraph (2) of that same section says that “in the case of any change or postponement in the time and place of such proceedings,” then a written notice shall be provided specifying the new time and place of the proceeding, and the consequences of a failure to appear.

The meaning of paragraph (2) was by no means a matter of first impression for the Board to interpret in Laparra as it saw fit. In its decision in Pereira, the Supreme Court said:

If anything, paragraph (2) of § 1229(a) actually bolsters the Court’s interpretation of the statute. Paragraph (2) provides that, “in the case of any change or postponement in the time and place of [removal] proceedings,” the Government shall give the noncitizen “written notice . . . specifying . . . the new time or place of the proceedings.” § 1229(a)(2)(A)(i). By allowing for a “change or postponement” of the proceedings to a “new time or place,” paragraph (2) presumes that the Government has already served a “notice to appear under section 1229(a)” that specified a time and place as required by § 1229(a)(1)(G)(i). Otherwise, there would be no time or place to “change or postpon[e].”16

We know that the BIA is well aware of this; the above language from Pereira was specifically quoted in the six-judge dissenting opinion in Matter of Mendoza-Hernandez, under the heading “Plain Language.”17

Also, in its later decision in Niz-Chavez, the Court stated that “the government could have responded to Pereira by issuing notices to appear with all the information §1229(a)(1) requires—and then amending the time or place information if circumstances required it. After all, in the very next statutory subsection, §1229(a)(2), Congress expressly contemplated that possibility.”18

Thus, the Supreme Court left no doubt in its two decisions that paragraph (2) involves a change in the time and place of hearing that was previously included in the NTA, as the statute requires. Paragraph (2) in no way, shape, or form allows ICE to serve the noncitizen with the L&B Spumoni Gardens menu and then have the immigration court send a second paper that provides a time and place for the first time.

Somehow, the Board chose to ignore this clear and obvious reading twice affirmed by the highest court in the land. Instead, it focused on only one word – the “or” in “paragraph (1) or (2) of section 1229(a).”19 The Board then pretended (can we find a more appropriate word than this?) not only that the “or” somehow allowed paragraph (2) to be read as if paragraph (1) didn’t exist, but also as if the words “any change or postponement in the time and place of such proceedings” could somehow be read as “change or postponement? What a poor choice of words! What we really meant to say was, ‘the absolutely very first time and place ever set.’ Wasn’t that obvious? We feel so foolish. Please just interpret this any way you see fit.”

The Board did acknowledge the Fifth Circuit’s contrary view in Rodriguez, but attributed it to that court’s failure to focus on the “paragraph (1) or (2)” language.20 Apparently, in the Board’s view, had the Fifth Circuit also focused on that word “or,” it would have reached the same twisted conclusion as the Board. Perhaps realizing how unrealistic this might seem, the Board quickly pointed out that “[i]n any event, Rodriguez does not apply here because this case arises in the First Circuit.”21

Speaking of other circuits, it bears noting that the U.S. Court of Appeals for the Third Circuit recently stated for the second time in a published decision that the BIA’s analysis was “more akin to the argument of an advocate than the impartial analysis of a quasi-judicial agency.”21 I believe that the same can be said of the Board’s decision in Laparra. It will be interesting to see if this issue reaches the Supreme Court for a third time. If so, one should wonder why the Board might expect a different result.

Notes:

28 I&N Dec. 425 (BIA Jan. 18, 2022).

8 U.S.C. § 1229b(b)(1)(A).

8 U.S.C. § 1229b(d)(1), often referred to as the “stop-time rule.”

138 S. Ct. 2105 (2018).

27 I&N Dec. 520 (BIA 2019) (en banc).

Transcript of Supreme Court Oral Argument in Niz-Chavez, https://www.supremecourt.gov/oral_arguments/argument_transcripts/2020/19-863_k5gm.pdf, at pp. 25-26, 63-64.

141 S. Ct. 1474 (2021).

8 U.S.C. § 1229a(b)(5)(A).

8 U.S.C. § 1229a(b)(5)(C)(ii).

15 F.4th 351 (5th Cir. 2021).

Matter of Laparra, supra at 431.

Id. at 431-32, n.6.

574 U.S. 528 (2015).

Id. at 543.

19 I&N Dec. 211, 233-34 (BIA 1985).

Pereira v. Sessions, supra at 2114.

Matter of Mendoza-Hernandez, supra at 538.

To be clear, the government is capable of providing all required information in a single NTA. EOIR had provided DHS access to schedule Master Calendar hearings through the agency’s Interactive Scheduling System (ISS), which was employed between those agencies until May 2014. And in a memo issued shortly after the Supreme Court’s Pereira decision, then EOIR Director James McHenry stated that EOIR had begun providing hearing dates to DHS in detailed cases, and was working to again provide it access to ISS for scheduling non-detained cases.

Matter of Laparra, supra at 430.

Id. at 436: “The court reasoned that section 240(b)(5)(C)(ii) requires ‘notice’ under ‘section 239(a),’ which Niz-Chavez held must be a single document in the form of a notice to appear. However, the court based this reasoning on a recitation of section 240(b)(5)(C)(ii) that omitted the disjunctive phrase ‘paragraph (1) or (2)’ from the statute and relied solely on a reference to ‘section 239(a).’”

Id.

Nsimba v. Att’y Gen. of U.S., No. 20-3565, ___ F.4th ___ (3d Cir. Dec. 22, 2021) (slip. op. at 10).

Copyright 2022 Jeffrey S. Chase. All rights reserved.

Republished by permission.

*************************

As Jeffrey points out, the legal and practical problems with notice at EOIR and DHS are chronic, well-documented, and consequential! Yet, given a golden opportunity to make a new start while complying with due process and establishing “best practices” Garland has miserably failed!

Instead of appointing a BIA consisting of “practical scholar expert judges” and competent, professional judicial administrators to clean up this awful mess it’s “same old, same old” under Garland’s poor leadership. Indeed, not only has Garland chosen to retain the very folks who created and aggravated the notice problems, he has actually made it worse! How many times do I have to say it: EOIR is supposed to be a “court of law,” not a highly bureaucratic, “headquarters bloated,” “agency” modeled on and “operating” (a term I use lightly with EOIR) like the very worst aspects of the “Legacy INS.” For Pete’s sake, even DHS has done a somewhat better job of automating files than EOIR!

As recently exposed by Tal Kopan in the SF Chronicle, under Garland’s new wave of “Aimless Docket Reshuffling,” and “mindless deterrence gimmicks” EOIR has unconscionably created entire dockets made up of probable “defective notice cases” to “gin up” illegal, bogus “in absentia” removal orders! https://immigrationcourtside.com/2022/01/20/tal-kopan-sf-chron-no-due-process-here%e2%98%b9%ef%b8%8f-garlands-despicable-star-chambers-cheered-engineered-in-absentia-deportation-orders/

At best, these bogus orders require burdensome motions to reopen, rescheduling, and “restarts” that unnecessarily build backlog. They also generate more bogus statistics and false narratives, more endemic problems at EOIR that Garland has ignored or aggravated.

At worst, improper in absentia orders generate improper arrests, detention, and illegal removals of individuals who were clueless about their actual hearing dates!

Having “supervisors and managers” supposedly in charge of operating a fair hearing system engineer and then “cheer” the absence of any hearings at all shows the depths to which EOIR has plunged under Garland’s poor leadership. But, perhaps that shouldn’t surprise us! It comes from an AG who has failed after nearly a year to re-establish a fair hearing system for asylum applicants at the border and who mounts ethically-challenged defenses of Stephen Miller’s complete eradication of asylum at the border based on a bogus, pretextual rationale rejected by almost all migration and public health experts! Why is this acceptable performance from an alleged Democratic Administration?

Judge Merrick Garland — Judge Merrick B. Garland, U.S. Attorney General
Official White House Photo
Public Realm. Appointed by a Democrat, he runs the DOJ largely with Trump holdovers, no accountability, and as if Stephen Miller were still looking over his shoulder. The result corrodes the “retail level” of justice in our Immigration Courts and threatens to de-stabilize our entire legal system!

No wonder Garland is building the already incredible 1.6 million case EOIR backlog at a ”new record” pace!

The speculation on Biden’s Supreme Court pick is “sucking all the air out of the room.” But, Garland’s disgraceful failure to counter the Trump AGs’ “packing” of the BIA with unsuitable judges and filling EOIR “senior management” with unqualified individuals who lack the requisite expertise and consistently tilt in favor of DHS Enforcement and against Due Process, fundamental fairness, immigrants’ rights, and best practices will have more immediate corrosive effects on racial justice in America and individual human lives than any court in America outside the Supremes!

And, unlike the Supremes, Garland “owns” all the picks for the “Supreme Court of Immigration!” Rather than standing up for progressive reforms, and giving new progressive judicial talent a chance to shine, he has chosen to enable and empower regressive forces and to frustrate progressive experts, further undermine the rule of law, and thwart best practices!

I’m not the only observer to recognize Garland’s failure of leadership, accountability, and progressive values at DOJ. See, e.g., Biden must fix riven guardrails of democracy, https://edition.pagesuite.com/popovers/dynamic_article_popover.aspx?guid=3686d1bd-1c2f-402e-afe8-ad86040534f8&v=sdk

Indeed, just this week, Garland’s DOJ put on another stunning display of professional incompetence by botching the plea bargain in the Ahmaud Arbery case so badly that a Federal Judge took the highly unusual step of rejecting it! https://ktar.com/story/4865811/plea-deal-in-hate-crime-case-in-the-killing-of-ahmaud-arbery/

But, even these somewhat “understated” critics of Garland don’t fully grasp the catastrophic consequences for our entire justice system and our democracy of Garland’s unwillingness and/or inability to prioritize the creation of a progressive due-process/equal-justice-oriented judiciary of experts to replace his regressive, oppressive, deadly, and beyond dysfunctional immigration judiciary at DOJ!

As Jeffrey cogently relates, “same old, same old” failed approaches by “holdover judges” doesn’t “cut it!” Sessions and Barr recognized the cosmic importance of the immigration judiciary and the imperative to “weaponize it for evil” and to use their limited time in office to maximize and further a White Nationalist agenda developed and promoted by Stephen Miller. It’s a pity that Garland has failed to act on the legal and moral imperatives to “mine and realize EOIR’s ‘counter-potential’ for good!”

That potential was memorialized in the long-forgotten “EOIR vision of yore:” “Through teamwork and innovation, be the world’s best administrative tribunals guaranteeing fairness and due process for all!” Remarkably, that “noble due process vision” was once displayed in bold letters on EOIR’s internal website. Now, folks like Garland are too embarrassed and spineless to even admit that such a goal ever existed.

For my equally critical if less scholarly analysis of the Laparra travesty, see https://immigrationcourtside.com/2022/01/19/garlands-bia-sidesteps-supremes-again-statutorily-defective-notice-is-good-enough-for-in-absentia-deportation-matter-of-laparra/.

Funny how right-leaning supposed “textualists” and “strict constructionists” have difficulty following clear statutory commands when the result might favor the individual while holding the Government accountable for intentionally violating the law. Also, strange how an Administration that got into office in no small measure by promoting its competence and strong commitment to humane values and equal justice for all, particularly racial justice, continues to fail on all counts! Go figure!

🇺🇸Due Process Forever!

PWS

02-01-22

🇺🇸🗽IN MEMORIAM: BELOVED “PRACTICAL SCHOLAR” DR. DEMETRIOS G. PAPADEMETRIOU, DIES @ 75 — Renowned Migration Expert Co-Founded Migration Policy Institute, Among Many Other Life Achievements!

As reported on ImmigrationProf Blog:

https://lawprofessors.typepad.com/immigration/2022/01/mpi-honors-the-life-of-dr-demetrios-papademetriou.html

Friday, January 28, 2022

MPI Honors the Life of Dr. Demetrios Papademetriou

By Immigration Prof

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Dr. Demetrios G. Papademetriou, president emeritus and co-founder of Migration Policy Institute, and founding president of MPI Europe, died Wednesday, January 26, at the age of 75. He was one of the world’s pre-eminent scholars and lecturers on international migration, with a rich body of scholarship shared in more than 275 books, research reports, articles and other publications. He also advised numerous governments, international organizations, civil society groups and grant-making organizations around the world on immigration and immigrant integration issues.

Papademetriou began his career as Executive Editor of the International Migration Review. After stints at Population Associates International and the U.S. Labor Department, he served as Chair of the Migration Group of the Organization for Economic Cooperation and Development. He then joined the Carnegie Endowment for International Peace’s International Migration Policy Program, which in 2001 was spun off to create the freestanding Migration Policy Institute.

He co-founded Metropolis: An International Forum for Research and Policy on Migration and Cities, which he led as International Chair for the initiative’s first five years and then served as International Chair Emeritus. He was Chair of the World Economic Forum’s Global Agenda Council on Migration (2009-11) and founding Chair of the Advisory Board of the Open Society Foundations’ International Migration Initiative (2010-15).

Papademetriou, who traveled the world lecturing and speaking at public conferences and private roundtables, also taught at the University of Maryland, Duke University, American University and the New School for Social Research.

MHC

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Demetrios was one of those amazing, charismatic, “larger than life” intellects who could “electrify” a room just by walking through the door. His ability to “connect” with audiences far beyond the world of scholarly research — and to appreciate the “human lives and heroic stories beyond the number-crunching” was unparalleled.

He led in “putting immigration scholarship on the map” — as an academic discipline, a ground-breaker in clinical legal education, and a basis for progressive migration and human rights policies in government and NGOs. Through his work at MPI, Carnegie, and other institutions, he used scholarship to spur and encourage practical “grass roots” reforms in our immigration system and, indeed, in the international migration system. Many leaders of today’s “New Due Process Army” can trace their “practical scholarly roots” to Demetrios’s inspiration and example!

Perhaps ironically, another recent posting on ImmigrationProf Blog points out how the Biden Administration has disturbingly and inexcusably failed to “cash in” on the full potential of the extraordinary growth in “applied migration scholarship” fueled by Demetrios, his long time friend and colleague former Immigration Commissioner Doris Meissner, MPI Executive Director Donald Kerwin, Jr., and other giants in the field.

Rather, the Biden Administration has veered far off-track on immigration, human rights, and social justice issues by placing politicos without immigration expertise and lacking both moral courage and belief in fundamental human values in charge of its flailing and failing immigration mess. In particular, these tone-deaf politicos have failed to “connect the dots” between immigrant justice and racial justice in America.

Not surprisingly, that has resulted in across the board failures, unfulfilled promises, and angry, disgruntled potential allies on meaningful reforms in both areas. This, in turn, has demoralized and turned off the younger, dynamic, diverse, progressive, expert immigration, human rights, and social justice leaders who are key to the future of the Democratic Party and the preservation of American democracy.

https://lawprofessors.typepad.com/immigration/2022/01/mpi-honors-the-life-of-dr-demetrios-papademetriou.html

Talk about a lose-lose-lose approach! And, I guarantee that it hasn’t garnered one vote of support from “hard-liners” and “naysayers” who continue to mindlessly and dishonestly babble about “open borders!”

I’m not exaggerating here. Yesterday, I was on (Zoom) panels in Houston and DC. Both audiences and fellow panelists were stunned and outraged by the betrayal of due process, good government, expertise, common sense, and human values demonstrated by Biden’s “Miller Lite” approach to asylum at the Southern Border, the intentional mistreatment of migrants of color, and Garland’s beyond dysfunctional and chronically unjust Immigration Courts!

Particular disgust was reserved for the Administration’s intentional, continued, cowardly abuse of Haitian migrants. That, actually says more about their attitude toward true racial justice than the promise to appoint a Black Woman to the Supremes.

Welcome and long overdue as the latter is, it isn’t going to change the result on any major issue before this version of the Supremes. By contrast, the Biden Administration’s anti-Haitian policies are actually harming, dehumanizing, endangering, and even potentially killing Black migrants every day! No wonder they want to “sweep truth under the rug.”

It’s exactly the type of “applied stupidity,” willful blindness, intentional cruelty, and disdain for common sense, humanity, facts, and relevant experience that Demetrios would have resisted!

🇺🇸Due Process Forever!

PWS

01-29-22

🤯👎🏽MORE CIRCUIT REJECTS FOR GARLAND & PRELOGAR — 1st & 3rd Cirs “Just Say No” To DOJ’s Ill-Advised Positions On “Theft Offense” & Derivative Citizenship! — It’s Part Of A Larger Leadership Failure @ Garland’s Broken DOJ!

From Dan Kowalski @ LexisNexis:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-categorical-approach-da-graca-v-garland

CA1 on Categorical Approach: Da Graca v. Garland

Da Graca v. Garland

“Aires Daniel Benros Da Graca petitions for review of a decision of the Board of Immigration Appeals (the “Board”) affirming his order of removal and denying his requests for cancellation of removal and voluntary departure. Because we find that a conviction under Rhode Island General Laws (“RIGL”) § 31-9-1 is not categorically a theft offense, we grant the petition for review, vacate the decision below, and remand for further proceedings.”

[Hats off to Randy Olen and Robert F. Weber!]

******************

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca3-derivative-citizenship-victory-jaffal-v-director

CA3 Derivative Citizenship Victory: Jaffal v. Director

https://www2.ca3.uscourts.gov/opinarch/203148p.pdf

“Appellant Imad Jaffal, born in Jordan, seeks a declaration that he is entitled to derivative U.S. citizenship under former 8 U.S.C. § 1432(a). That statute provides that “a child born outside the United States automatically acquires United States citizenship if, while the child is under the age of eighteen, the parent with legal custody of the child is naturalized while that child’s parents are legally separated.” Jaffal’s father was naturalized when Jaffal was seventeen years old, and Jaffal presented evidence to the District Court that he was in the sole legal custody of his father when his father was naturalized and his parents were separated. The District Court, however, declined to accept Jaffal’s evidence of his parents’ divorce. Because we conclude that was error, we will reverse the order of the District Court and remand the matter with instructions to issue a judgment declaring Jaffal to be a national of the United States.”

[Hats way off to Alexandra Tseitlin!]

****************************

Here’s my favorite quote from Judge Torresen’s decision in Da Garcia v. Garland:

Despite this apparent disconnect between RIGL § 31-9-1 and the Board’s definition of theft offense, the Board in Da Graca’s case determined that to prove the statute’s overbreadth, the Petitioner was required to identify actual cases in which Rhode Island had enforced the statute against de minimis deprivations of ownership interests. Da Graca contests the Board’s imposition of an actual case requirement and argues that he “need not necessarily proffer specific examples of Rhode Island prosecutions in order to establish a ‘realistic probability’ that the state would apply its statute to conduct that falls outside the generic definition of a crime.” We agree with Da Graca.

Essentially, Garland’s BIA “makes it up as it goes along” to reach a denial, then Prelogar’s DOJ attorneys defend the illegal result. Sounds like a really bad system, lacking accountability, expertise, common sense, and, sometimes, professional responsibility.

Lest you think that the legal nonsense being produced by Garland’s BIA and the USCIS is “below Prelogar’s radar screen” in her exulted position, that’s NOT true! Every adverse decision suffered by the USG must be reported to the SG’s Office with an analysis and recommendations from the agency’s attorneys, the litigators who handled the case, the appellate section of litigating division (here the Civil Division), and the SG’s staff. No appeal, petition for rehearing en banc, or petition for cert. can be filed without the express authorization of the SG’s Office.

So, Prelogar is well aware of the bad positions, unfairness, and poor work product DOJ attorneys are defending (sometimes with a lack of candor or misleading the courts) and their abuses of the time of the Article IIIs.

Even with the “real” (Article III) Federal Courts moving markedly to the right (following four years of Trump-McConnell appointments and eight years of lackadaisical performance by the Obama Administration), and rules that strongly favor the Government on judicial review, DOJ’s haphazard performance under Garland and Prelogar continues to earn a stream of avoidable “kickbacks” from the Article IIIs. The DOJ system is broken in many places — EOIR is just the most obvious, most pressing, and most easily addressed area of failure.

There is a tendency of immigration advocates, perhaps still hoping to curry favor with an Administration that largely ignores and despises them, to overemphasize the largely cosmetic and low impact “positive” changes made by the Biden Administration. See, e.g., https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/biden-at-the-one-year-mark-a-greater-change-in-direction-on-immigration-than-is-recognized;

https://lawprofessors.typepad.com/immigration/2022/01/biden-keeps-trump-immigration-policiesand-stephen-miller-is-loving-it.html

At the same time they acknowledge but downplay the existential crippling effects of Garland’s failure to bring progressive reforms to EOIR, his defense of disgraceful, immoral, and inhumane “Miller Lite” positions in Federal Court, his intentional indifference to human suffering and the complete breakdown of the rule of law at our borders, and his disdain for removing the Trump enablers, deadwood, and poor lawyers from DOJ — at all levels.

I have a radically different perspective on the future of meaningful progressive immigration reforms, based on my nearly 50 years of involvement with the system on both sides and at all levels — more than most folks.

There will be no meaningful, sustainable immigration reforms without a radically reformed, remade, Immigration Court system with a judiciary of due-process-oriented progressive experts who have the courage to “speak truth to power,” stand up for the legal, constitutional, and human right of the most vulnerable, and put integrity, humanity, and the best interests of our nation above career advancement, survival, or “ingratiation with the powers that be.” That’s NOT Garland’s DOJ — which remains largely the out of control, often ethically challenged morass that he inherited from his predecessors.

Let’s not forget that through intentional misuse of precedents, weaponization of EOIR, and White Nationalist litigation strategies, Jeff Sessions was able to largely disable the entire asylum system, including USCIS Asylum Offices, and shift USCIS Adjudications from service to “enforcement only,” in preparation for the “final eradication” of asylum and crippling of our entire legal immigration system by his crony and former subordinate, Stephen Miller. And, the folks who helped him do that and “went along to go along” with abuses are still largely on board and in key positions in Garland’s DOJ — actually operating with his apparent “stamp of approval.” Outrageous!

From a due process, human rights, progressive, good government, equal justice, racial equality standpoint, as well as from any aspect of moral leadership on fundamental values, Garland’s performance at DOJ has been unacceptable. Has Garland visited any of the camps in Mexico or gone to the “New American Gulag” to witness first-hand the human carnage for which he is responsible? Heck no! That’s a job for progressive experts whose input and advice he then shuns, ignores, and “tunes out!”

For progressive advocates to downplay the Biden Administration’s gross failures or “over-cheer” incremental progress that means little without fundamental reforms at EOIR and the DOJ only deepens the fecklessness of their own positions and furthers the disrespect and under-appreciation of their efforts, potential power, and value that has become an endemic feature of the Democratic Party.

The Biden Administration might talk a good game, particularly around election time; but, in reality, they are governing largely in fear of and like nativist Republicans — but getting no “political return” whatsoever for betraying their supposed values and their base (see, Catherine Rampell). Advocates reward and tolerate such disgraceful and intellectually dishonest conduct at their own peril!

Meanwhile, Suzanne Clark, President of the U.S. Chamber of Commerce, certainly no “progressive shill,” speaks truth about the need for and our ability to accept more immigrants:

Allowing more immigrants into the US would help mitigate both soaring inflation and the current labor shortage, the CEO of the US Chamber of Commerce said.

“We need more workers,” Suzanne Clark told reporters Tuesday, per CNN. “We should welcome people who want to come here, go to school, and stay.”

“That is a place the government could be particularly helpful and we do believe it would be anti-inflationary,” she said, per CNN.

https://apple.news/AT8YmOLhiTOCuUFZijTLJCQ

Those immigrants are right in front of us: rotting in camps at the border, being returned to danger or death with no process — both as a result of Garland’s failure to re-establish our legal asylum system at the border — or languishing in Garland’s mushrooming 1.6 million Immigration Court backlog! It doesn’t take a “rocket scientist” to see that instead of wasting time, money, and resources on mindless “enforcement” intended to deter and discourage those who might help us by helping themselves, we should have set up fair and timely processing systems, staffed by experts, that would identify the many individuals at the border and already in the U.S. who can qualify to remain under fair and properly generous interpretations of asylum law, withholding, CAT, U & T visas, “stateside processing waivers,” cancellation of removal” (for those already here), TPS, and other possibilities.

This is just as much”law enforcement” and “maintaining the integrity of our system” as are the efforts to increase deportations, terrorize communities, or close borders to “deter” migrants (primarily those of color) that has been practiced to some degree by every Administration. It also makes sense, economically, practically, and ethically.

It starts with an Attorney General and DOJ with the courage and vision to end the “deterrence only” misconstruction of our laws and stand up for the legal and human rights of migrants, regardless of race, color, creed, or manner of entry. That’s not what Garland has been doing to date! Too bad, because there will be no resolution of immigration issues — nor will there be racial justice in America — without an AG who will stand up for the real rule of law rather than the parody of the law and justice purveyed by Miller and his White Nationalists and still being parroted and too often defended by Garland and his minions.

🇺🇸Due Process Forever.

PWS

01-21-22

TAL KOPAN @ SF CHRON: NO DUE PROCESS HERE☹️: GARLAND’S DESPICABLE “STAR CHAMBERS” CHEERED “ENGINEERED IN ABSENTIA” DEPORTATION ORDERS — Garland Fails To Provide Justice @ The Border Or In Biased “Courts,” But Inflicts Outrageous “Miller Lite” Anti-Due-Process “Gimmicks” On Vulnerable Migrants!🤮🤮🤮🤮🤮👎🏽👎🏽👎🏽👎🏽👎🏽

Immigration court officials cheered results of fast-tracked deportation orders, emails reveal

WASHINGTON — Last June, the San Francisco Immigration Court quietly tested a new idea: Fast-track the cases of immigrants whose mail wasn’t reaching them. In the trial run, 80% of the immigrants scheduled were ordered deported for not showing up.

Top officials were effusive with praise over the results, emails obtained by The Chronicle show, and rushed to set up more hearings: “Very positive!” emailed one of the top supervising immigration judges overseeing the nation’s hundreds of courts.

The newly uncovered emails reveal that the fast-track docket for immigrants with returned mail, which was first reported by The San Francisco Chronicle last fall, was cheered at the highest levels of the courts and pursued with full awareness that scores of immigrants would likely be ordered deported as a result.

Advocates and attorneys for immigrants raised concerns about the practice as a sort of deportation conveyor belt last year, as many of the lawyer-less immigrants may have no idea they missed a court hearing, much less that they were ordered deported during it, because they didn’t know how to update their address with the court or thought that Immigration and Customs Enforcement would do so on their behalf. The immigration courts are run by the Justice Department, with judges hired and ultimately overseen by the attorney general.

The emails were obtained through a Freedom of Information Act request by a nonprofit watchdog group, American Oversight, prompted by The Chronicle’s reporting. The group shared the records with The Chronicle.

The Department of Justice declined to comment specifically on the emails, noting that removal orders for failing to appear in court are legally valid and that issuing notices with new hearing dates gives unreachable immigrants an opportunity to appear in court and avoid a deportation order.

Chronicle analysis of available data last year found that the practice significantly increased the number of immigrants who were ordered deported for not being present in court, called an “in absentia” removal order. As many as 173 people were given deportation orders because of such proceedings in August and September — a nearly ninefold increase from the 20 similar orders given the previous seven months combined.

More here:

https://www.sfchronicle.com/politics/article/Immigration-court-officials-cheered-results-of-16791798.php

*************

For Garland’s “judiciary,” the object appears to be avoiding fair hearings rather than conducting them! Perhaps, that’s understandable (not justifiable) considering how poorly many of his courts’ decisions fare upon judicial review in the Article IIIs.

For his cowardly attacks on migrants and backlog-building mismanagement and misdirection of EOIR, Garland gets “Courtside’s” coveted “Five Puke-Five Thumbs Down Award!” 🤮🤮🤮🤮🤮👎🏽👎🏽👎🏽👎🏽👎🏽

While Garland is failing in his job, his concerted efforts to break apart and “alienate” key segments the Dem coalition that elected Biden is succeeding and should pay great dividends (for the GOP and Trump) in the Fall Midterms! No wonder Garland’s running the system into the ground using “Trump/Miller holdovers.”

Garland and his equally poorly performing lieutenants (Monaco, Gupta, Clarke, Prelogar) are giving us a “Master Class” in “Why Dems Can’t Govern and Blow Elections 101.”

A party that lacks the courage to act on the values it espoused to get elected doesn’t stand for anything at all!🤮👎🏽

Maybe lots of Dems pulled the lever because they wanted more of Gauleiter Stephen Miller’s White Nationalist policies. But, I haven’t heard of any!

🇺🇸Due Process Forever!

PWS

01-20-21

🤮🏴‍☠️☠️⚰️ GARLAND’S “SHAMEFUL RECORD” GETS EVEN WORSE AS HE DEFENDS STEPHEN MILLER’S DEGRADATION OF HUMANITY AT OUR BORDERS!

Biden’s “Shadow Attorney General” speaks through the likeness of Merrick Garland! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

Priscilla Alvarez reports for CNN:

https://www.cnn.com/2022/01/19/politics/title-42-biden/index.html

. . . .

“Today we heard the same unconvincing arguments from the Biden administration that we’ve been hearing for the last year about this xenophobic and baseless policy, arguments that have already been rejected in federal court. Title 42 unjustly and unnecessarily inflicts harm on families seeking asylum at our border, and we will continue to work tirelessly to ensure that this policy ends once and for all,” said Diana Kearney, senior legal adviser with Oxfam America, in a statement.

In a recently released report, Human Rights First found nearly 9,000 reports of kidnappings and other violent attacks against people who had been expelled to Mexico or blocked from seeking protection in the US.

*******************

Read Priscilla’s full story on the bottomless depths to which Garland has taken American “justice” and the Department of “Justice” at the link.

I can always count on Garland to illustrate and punctuate my points about his unfitness for the job of achieving racial equality, re-establishing the rule of law, and promoting human rights in America, not to mention his total unsuitability and inability to run a fair, impartial, due-process-oriented court system! He probably would have been right at home with the “GOP Six” on the Supremes.

🇺🇸Due Process Forever!

PWS

01-20-22

🗽⚖️HUMAN RIGHTS FIRST: BIDEN ADMINISTRATION’S SHAMEFUL 🤮☠️ FIRST YEAR — Biden, Garland, Mayorkas Fail To Enforce Human Rights At The Border Or In The Federal Courts — Garland’s Abject Failure To Bring Progressive Humans Rights Reformers Into EOIR & Resulting Legal & Human Rights Disaster In His Courts A Critical Part Of Bad Governance!

Grim Reaper — A year ago, who would have thought that Biden and Garland share this guy’s vision of “justice” for migrants at the border and at EOIR?
Image: Hernan Fednan, Creative Commons License

Dear Paul:

In this week’s First Page, we focus on the one-year anniversary of the Biden presidency — with a particular focus on policies that impact migrants and asylum seekers.

Our recently published report makes clear that the administration’s continuing use of Trump-era restrictions has led to escalating human rights violations and needless disorder.

We believe that the United States must welcome people seeking refuge with dignity, not deliver them to danger.

REPORTING THE RECORD

On Thursday, Human Rights First released a new report finding that after a year in office, the Biden administration’s continued implementation of Trump-era restrictions is sending to danger thousands of families and individuals who seek asylum protection in the United States.

The data assembled in our report, “A Shameful Record: Biden Administration’s Use of Trump Policies Endangers People Seeking Asylum,” is a damning indictment of the U.S. government’s border policies.

Courtesy Adrees Latif/Reuters

Between January 2019 and January 2022, our research identified more than 10,000 reported kidnappings, rapes, acts of torture, and other grievous acts of violence against migrants and asylum seekers blocked in, returned to, or expelled to Mexico under the U.S. government’s “Remain in Mexico” and “Title 42” policies.

At least 8,705, or 85%, of these attacks occurred during the first year of the Biden presidency.

“President Biden’s first year in office has set a shameful new record on human rights as his administration continues to deliver asylum seekers to danger in Mexico,” said Kennji Kizuka, associate director for refugee protection research at Human Rights First and co-author of the report. “The Biden administration is well aware of the grave harm asylum seekers suffer when sent to Mexico and yet it has continued to use a policy condemned by public health experts, international authorities, civil rights leaders, and even departing members of President Biden’s administration.”

Courtesy ReuterS

Our report makes clear that kidnappings and rapes of returned migrants – including of children – are common.

Cartels and other organized criminal groups in Mexico have turned torturing asylum seekers and extorting their U.S. family members into a new and lucrative illicit enterprise. At least three asylum seekers sent to Mexico by DHS under these policies were murdered.

Equally frightening, our research shows that Mexican police, immigration officers, and other authorities are often complicit in – if not directly responsible for – these attacks.

Courtesy Getty

As the Biden administration restarts the inherently flawed “Remain in Mexico” program in the wake of court rulings, they have already sent asylum seekers from Cuba, Nicaragua, Venezuela, and other countries to “wait” for their day in immigration court in danger in Mexico.

In addition to inflicting grave and systematic suffering, these policies continue to perpetuate disorder, encourage repeat entries, inflate apprehension statistics, cause family separations, and fuel cartels by putting a bullseye on the backs of people seeking U.S. asylum who are blocked in Mexico.

Despite the Biden administration’s earlier efforts to terminate “Remain in Mexico,” when it was ordered by a federal court to re-implement the program, the administration has now chosen to expand its scope.

Today the administration is defending the expulsion policy in federal court, with a hearing in a lawsuit challenging expulsions of families at the D.C. Circuit Court of Appeals.

HIRING FOR HUMAN RIGHTS

Reports like A Shameful Record are just one element of our critical efforts to defend the dignity of all people.

Human Rights First seeks passionate team members who are interested in legal, communications, development, finance, and innovation work that can change lives, impact policy, and move public opinion.

Please check out our careers page and apply to join us today.

* * * * *

Watch for more news as our work for human rights continues. And please stay in touch on social media:

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You can read the full version of “A Shameful Record” at the above link.

Not to mention that the extreme lack of expertise, humanity, and quality control in Garland’s wholly-owned Immigration Courts is corroding American justice from the “retail level” up. So unnecessary! So divisive! Such a missed opportunity for Dems to actually govern with values and in the public interest!

Wow! Think of the incredible waste: So much talent, energy, creativity, and manpower that could be working with the Administration to solve problems and make things better for everyone. Instead they are engaged in an all-out war to stop the Biden Administration’s cruel, spineless, and highly ineffective immigration and human rights blunders and, once again, be the last line of defense for American democracy against the Dems’ self-destructive policies and actions.

🇺🇸Due Process Forever!

PWS

01-2.0-21

🤯🤑PROFILE IN FAILURE: GARLAND’S JUDGES: “AMATEUR NIGHT AT THE BIJOU” WITH AN OVERWHELMING TRUMPIAN INFLUENCE — As Experienced Immigration Judges Leave The Bench To Join The “Round Table,” ⚔️🛡 Garland Fails To Consistently Recruit & Hire Immigration/Human Rights/Due Process/Equal Justice “A-Listers” To Replace Them!

From TRAC:

More Immigration Judges Leaving the Bench

The latest judge-by-judge data from the Immigration Courts indicate that more judges are resigning and retiring. Turnover is the highest since records began in FY 1997 over two decades ago. These results are based on detailed records obtained by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University under the Freedom of Information Act (FOIA) from the Executive Office for Immigration Review (EOIR) which administers the Courts.
During FY 2019 a record number of 35 judges left the bench. This is up from the previous record set in FY 2017 when 20 judges left the bench, and 27 judges left in FY 2018. See Figure 1.

. . . .

There has also been an increase in hiring (see Table 1). The combination of elevated hiring plus a record number of judges leaving the bench means more cases are being heard by judges with quite limited experience as immigration judges.
Currently one of every three (32%) judges have only held their position since FY 2019. Half (48%) of the judges serving today were appointed in the last two and a half years. And nearly two-thirds (64%) were appointed since FY 2017[1]. See Figure 2.

. . . .

Thus, record judge turnover means the Court is losing its most experienced judges, judges whose services would be of particular value in helping mentor the large number of new immigration judges now joining the Court’s ranks. Even with mentoring, new judges appointed without any background in the intricacies of immigration law face a very steep learning curve. And without adequate mentoring, there is a heightened risk that some immigrants’ cases could be decided incorrectly.

. . . .

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Read the complete report, with charts and graphs, at the above link.

It certainly didn’t help that Garland inexcusably wasted dozens of his “first picks” on Barr’s pipeline appointments — a group that contained few, if any, recognizable “practical scholars” in immigration/human rights/due process/equal justice.

This also shows why adding more judges under Garland’s indolent and ineffective “leadership to the bottom” is likely to aggravate, rather than alleviate, the myriad of problems and the uncontrolled mushrooming backlogs in his dysfunctional courts.

Garland’s mind-boggling failure to act on principles and make obvious, long overdue personnel and structural reforms at EOIR threatens to shred the Dem party and endanger the future of American democracy! It also underlines the hollowness of Biden’s pledge to fight for equal justice and voting rights reforms.

Faced with a wholly owned system badly in need of progressive reforms, the Biden Administration has carried on many of the scurrilous traditions of its Trump predecessors (“MillerLite policies”) while shunning and disrespecting the advice, values, and participation of progressives committed to due process and fair treatment of all persons, regardless of race, color, creed, or status.

Better options and plans have been out there since “before the git go.” See, e.g., https://immigrationcourtside.com/2021/02/04/its-not-rocket-science-🚀-greg-chen-professor-peter-markowitz-can-cut-the-immigration-court-backlog-in-half-immediately-with-no-additional-resources-and/

And, of course, it goes without saying that Garland has failed to address the glaring integrity and access problems infecting EOIR data, as outlined in the TRAC report above. With “disappearing records,” “stonewalling party lines,” and institutionalized “lack of transparency,” who really knows what the real size of Garland’s backlog is or what other problems are hidden in his EOIR morass?

It just underlines the need for an independent team of professionals to take over Garland’s broken system, “kick some tail,”and get to the bottom of its many, many, largely self-created and often hidden from the public problems and enduring failures!

Overall, a disappointing and disgraceful first-year performance by an experienced Judge and DOJ vet from whom much, much better was expected and required.

Too bad we didn’t get an Attorney General with the guts to lead and engage on progressive reforms at EOIR! One bright spot, though: Some of the “best ever” judges just leave the bench and call “Sir Jeffrey” Chase to enlist in the Round Table’s battle to advance due process and fundamental fairness! 🛡⚔️ And, they are welcomed with appreciation, respect, friendship, and love — things that few, if any, sitting judges in Garland’s dysfunctional and discombobulated system get!

🇺🇸Due Process Forever! Garland’s “Amateur Night @ The Bijou” Never!

PWS
01-20-21

🇺🇸 Due Process Forever!

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As reported on ImmigrationProf Blog:

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From TRAC:

🇺🇸Due Process Forever! Garland’s “Amateur Night @ The Bijou” Never!

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