"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
John A. Freedman Senior Counsel Arnold & PorterHon. Ilyce Shugall U.S. Immigraton Judge (Retired) Director, Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Retired Immigration JudgesKnightess of the Round Table
Key Excerpt:
We are in the midst of a nationwide pandemic. From the approach of the Executive Office for Immigration Review (EOIR) headquarters, one would never know that. Through a series of chaotic and inconsistent announcements, EOIR —the office that manages the procedural components of the immigration court system on behalf of the United States Department of Justice2—has continued to schedule non-essential proceedings, requiring judges, court staff and security personnel, litigants and case participants, attorneys, witnesses, interpreters, and interested members of the public to come immigration court, exposing them, their families, and their communities to unnecessary risk of COVID-19.
1 In accordance with Local Rule 7(o), no party’s counsel authored this brief in whole or in part, nor did any party or party’s counsel, or any other person other than amici curiae, contribute money that was intended to fund preparing or submitting this brief.
2 See 8 C.F.R. § 1003.0(b) (setting forth the authority of the Director of EOIR).
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The madness of EOIR s approach is evident in one example, representative of its
approach. Yesterday – April 8 — the immigration court in Elizabeth, New Jersey was open for business as usual. This court is across the Hudson River from New York City, and is near the epicenter of the largest COVID-19 hotspot on the planet, and is in a jurisdiction that has had a mandatory shelter-in-place” order since March 21. Yet EOIR insisted that proceedings continue
yesterday. Until it was learned that two detainees in the courthouse were positive for COVID- 19. Only then did EOIR accede to the obvious, scrambling to order the court to shut the Elizabeth court down. But immigration courts were open in many other jurisdictions yesterday, and are scheduled to be open today and for the foreseeable future.
EOIR’s intransigence defies the practice of numerous federal and state courts, the
recommendations of public health officials, and the orders of dozens of Governors who have ordered all non-essential business be deferred. As Judge Samuel Cole, a spokesperson for the National Association of Immigration Judges warned, everyone is being put at risk.” Close immigration courts? Lawyers and judges push to stop in-person hearings amid coronavirus spread, Fortune (Mar. 26, 2020) (describing how attorneys are wearing swim googles and masks to comply with EOIR orders).
The current EOIR approach manifests this disarray because there was not, and has never been, any meaningful continuity planning by EOIR. EOIR, and therefore the immigration court system itself, has sacrificed due process in favor of rapid removals, leaving the court without any incentive at all to plan to protect the public health or the individuals and participants in the system.
Amici urge the issuance of a temporary restraining order to allow for development of a more comprehensive, systemic, and scientifically sound policy that respects due process and the
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public health. We offer a framework for what a legally and scientifically sound policy could look like and why a court-ordered pause on all non-essential activities for a short 28-day period could allow for such a policy to emerge in deliberations with stakeholder communities.
Read the entire brief, which contains our proposed solution for how the Immigration Courts could conduct essential operations consistent with health, safety, and due process during this pandemic: Amicus brief_NIPNLG
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Again, many, many thanks to John Freedman and his group at Arnold & Porter as well as Ilyce & Jeffrey for their leadership.
The Trump administration has carried out nearly 10,000 summary deportations or “expulsions” since March 21, using emergency public health measures that have given U.S. Customs and Border Protection broad authority to bypass immigration laws, CBP officials said Thursday.
The measures have allowed the agency to quickly turn away most unauthorized migrants —sending them back across the Mexican border. The moves have dramatically slashed the number of detainees held in border stations, where they fear the coronavirus could spread, the officials said. CBP currently has fewer than 100 detainees in custody, down from nearly 20,000 at this time last year during last year’s border crisis, officials said.
[[Under coronavirus immigration measures, U.S. is expelling border-crossers to Mexico in an average of 96 minutes]]
Since the implementation of the rapid expulsions, unlawful border crossings have dropped 56 percent, said acting CBP commissioner Mark Morgan. Morgan also acknowledged that the United States has all but closed its borders to asylum seekers who are fleeing persecution, including those who attempt to enter legally at U.S. ports of entry.
“Those who are undocumented or don’t have documents or authorization are turned away,” Morgan said.
Democratic lawmakers have accused the administration of defying U.S. laws and exceeding the authority of the coronavirus public health order, but Morgan defended the emergency measures as a necessary step to stop the spread of the disease.
“This is not about immigration,” Morgan said. “This is about public health. This is about putting forth aggressive mitigation and containment strategies.”
[[Sign up for our Coronavirus Updates newsletter to track the outbreak. All stories linked in the newsletter are free to access.]]
CBP said the number of migrants detained at the border fell to 33,937 in March, down 7 percent from February. Single adults from Mexico accounted for 70 percent to 75 percent of those taken into custody, and most of the remainder were from Central America’s Northern Triangle countries: Guatemala, El Salvador and Honduras.
The Mexican government has agreed to accept the rapid return of migrants from those nations at the border under an agreement reached with the Trump administration last month.
The recent expulsions include children who would otherwise be protected from rapid removal by U.S. anti-trafficking laws. Since the emergency order took effect, the United States has expelled nearly 400 underage migrants, according to the most recent tally by the Reuters news agency. The minors were released into Mexico or boarded onto planes and flown back to Central America without being transferred to the care of the U.S. Department of Health and Human Services.
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Read the rest of Nick’s article at the link.
It’s going to take more than a letter from Sen. Pat Leahy (D-VT) and other Dems to restore the Constitution and the rule of law. Indeed, with the help of J.R. and his Trumpist GOP majority on the Supremes, I would expect that asylum laws, like voting rights, Due Process, and other individual rights will remain a “dead letter” until we get both 1) regime change; and 2) reform in the appointment of Article III Judges.
There is little, if any, data right now to support the view that asylum seekers at the Southern Border have been a significant source for the initial spread of coronavirus in the U.S.; however, their arbitrary removal to other countries might have helped the worldwide spread of the disease.
Moreover, as COVID-19 spreads into the Gulag and the Immigration Courts from the rest of America, infections in those locations could help spread the virus, given the lawyers, Government employees, and contractors exposed at those dangerous locations. Nor were Asian Americans responsible.
We do, however, have some data to show that U.S. citizens and other travelers returning from Europe were inadvertently a source of the virus’s spread in New York, and that Trump’s ineptness and failure to heed early warnings contributed to the spread.
But, science and truth seldom have any meaning for Trump and his toadies. And, we also know that while Trump often falsely claims “victories” that are either fabricated or largely someone’s else’s, he never takes responsibility for his own many mistakes and shortcomings.
Happy to share my new article Mistreating Central American Refugees: Repeating History in Response to Humanitarian Challenge (forthcoming Hastings Race and Poverty Law Journal). The full article can be downloaded here.
Abstract:
In the 1980s, tens of thousands of Central Americans fled to the United States seeking refuge from civil unrest that ravaged their countries. In a largely geopolitical response, the Reagan administration labeled those fleeing Guatemala and El Salvador as “economic migrants,” detained them, and largely denied their asylum claims. The illegal discrimination against these refugees was exposed in a series of lawsuits and through congressional investigations. This led to the reconsideration of thousands of cases, the enlistment of a corps of asylum officers, and an agreement on the conditions under which migrant children could be detained.
Unfortunately, the lessons of the 1980s have been forgotten, or intentionally neglected. Beginning in 2014, once again large numbers of Central American asylum seekers—including women and children—are being detained. Asylum denial rates for migrants fleeing extreme violence are high. The mixed refugee flow continues to be mischaracterized as an illegal immigration problem. Many of the tactics used in the 1980s are the same today, including hampering the ability to obtain counsel. President Trump has taken the cruelty to the next level, by invoking claims of national security in attempting to shut down asylum by forcing applicants to remain in Mexico or apply for asylum in a third country. We should remember the lessons of the past. Spending billions on harsh border enforcement that preys on human beings seeking refuge is wrongheaded. We should be implementing policies and procedures that are cognizant of the reasons migrants are fleeing today, while working on sensible, regional solutions.
Professor Hing’s article echoes one of the themes of some of my speeches and comments, although, of course, he approaches it in a much more scholarly and systematic manner.
Check out my speech here:
“JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
WASHINGTON, DC–Immigration groups today moved for an emergency temporary restraining order (TRO) against the Executive Office for Immigration Review (EOIR) and U.S. Immigration and Customs Enforcement (ICE) in order to protect the health of immigration attorneys, immigrants, and the public from the impact of dangerous and unconstitutional policies during the COVID-19 pandemic.
Represented by the National Immigration Project of the National Lawyers Guild (NIPNLG) and the law firm of Cleary Gottlieb Steen & Hamilton LLP, NIPNLG, the American Immigration Lawyers Association (AILA), and the Immigration Justice Campaign–a joint initiative of the American Immigration Council and AILA–filed the TRO, in NIPNLG, et al., v. EOIR, et al., to seek a brief pause of in-person hearings for detained individuals and facilitate remote confidential communication between attorneys and their clients. The pause would enable EOIR and ICE to adopt policies, practices, and procedures to enable the consistent and safe conduct of remote hearings (for example by video teleconference) that are protective of attorney-client privilege.
EOIR and ICE have repeatedly ignored recommendations regarding how to maintain health and safety in the courts and in detention, including the use of remote access. Detainees, court staff, and attorneys are subject to inconsistent practices and procedures for in-person hearings in 58 of the nation’s 69 immigration courts.
The National Immigration Project of the National Lawyers Guild (NIPNLG) is a national non-profit organization that provides technical assistance and support to community-based immigrant organizations, legal practitioners, and all advocates seeking and working to advance the rights of noncitizens. NIPNLG utilizes impact litigation, advocacy, and public education to pursue its mission. Follow NIPNLG on social media: National Immigration Project of the National Lawyers Guild on Facebook, @NIPNLG on Twitter.
The American Immigration Council works to strengthen America by shaping how America thinks about and acts towards immigrants and immigration and by working toward a more fair and just immigration system that opens its doors to those in need of protection and unleashes the energy and skills that immigrants bring. The Council brings together problem solvers and employs four coordinated approaches to advance change–litigation, research, legislative and administrative advocacy, and communications. Follow the latest Council news and information on ImmigrationImpact.com and Twitter @immcouncil.
The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members. Follow AILA on Twitter @AILANational.
Thanks, Laura, for sending this around and for everything you and AILA are doing to save some lives from the “malicious incompetence” of the Trump regime.
Will the Article III Courts finally do the right thing? Or will they continue their “head in the sand” approach to the ever-worsening disaster in our Immigration Courts and the New American Gulag? I’d have to say that at this point, while some U.S. District Judges notably have “stepped up to the plate” in a number of cases involving a limited number of releases or threatened releases, I have seen little to indicate an inclination toward taking the necessary bold, decisive nationwide action to save lives in the face of this crisis.
Since the early days of the Trump administration, an impassioned group of mental health professionals have warned the public about the president’s cramped and disordered mind, a darkened attic of fluttering bats. Their assessments have been controversial. The American Psychiatric Association’s code of ethics expressly forbids its members from diagnosing a public figure from afar.
Enough is enough. As I’ve argued before, an in-person analysis of Donald J. Trump would not reveal any hidden depths — his internal sonar could barely fathom the bottom of a sink — and these are exceptional, urgent times. Back in October, George T. Conway III, the conservative lawyer and husband of Kellyanne, wrote a long, devastating essay for The Atlantic, noting that Trump has all the hallmarks of narcissistic personality disorder. That disorder was dangerous enough during times of prosperity, jeopardizing the moral and institutional foundations of our country.
But now we’re in the midst of a global pandemic. The president’s pathology is endangering not just institutions, but lives.
TWITTER CHATS During these extraordinary times, Opinion columnists and writers will be going live on Twitter every weekday at 1 p.m. Eastern to chat with viewers. This was Jennifer Senior’s conversation.
Let’s start with the basics. First: Narcissistic personalities like Trump harbor skyscraping delusions about their own capabilities. They exaggerate their accomplishments, focus obsessively on projecting power, and wish desperately to win.
What that means, during this pandemic: Trump says we’ve got plenty of tests available, when we don’t. He declares that Google is building a comprehensive drive-thru testing website, when it isn’t. He sends a Navy hospital ship to New York and it proves little more than an excuse for a campaign commercial, arriving and sitting almost empty in the Hudson. A New York hospital executive calls it a joke.
Second: The grandiosity of narcissistic personalities belies an extreme fragility, their egos as delicate as foam. They live in terror of being upstaged. They’re too thin skinned to be told they’re wrong.
What that means, during this pandemic: Narcissistic leaders never have, as Trump likes to say, the best people. They have galleries of sycophants. With the exceptions of Drs. Anthony Fauci and Deborah Birx, Trump has surrounded himself with a Z-team of dangerously inexperienced toadies and flunkies — the bargain-bin rejects from Filene’s Basement — at a time when we require the brightest and most imaginative minds in the country.
Faced with a historic public health crisis, Trump could have assembled a first-rate company of disaster preparedness experts. Instead he gave the job to his son-in-law, a man-child of breathtaking vapidity. Faced with a historic economic crisis, Trump could have assembled a team of Nobel-prize winning economists or previous treasury secretaries. Instead he talks to Larry Kudlow, a former CNBC host.
Meanwhile, Fauci and Birx measure every word they say like old-time apothecaries, hoping not to humiliate the narcissist — never humiliate a narcissist — while discreetly correcting his false hopes and falsehoods. They are desperately attempting to create a safe space for our president, when the president should be creating a safer nation for all of us.
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Read the rest of the article at the link.
Yup, you heard it here @ “Courtside” long ago — kakistocracy is dangerous to our democracy and our health. Who could have known?
Kate Morrissey reports for the San Diego Union Tribune:
On the same day the first person in immigration custody in San Diego was confirmed to have the new coronavirus, the American Civil Liberties Union sued for the release of certain high-risk detainees at the region’s two detention centers.
In the lawsuit, ACLU attorneys argue that specific detainees at Otay Mesa Detention Center and Imperial Regional Detention Facility who have pre-existing conditions that would make severe symptoms of COVID-19 more likely should be released in order to protect them from likely exposure to the virus. Some similar cases, filed by other groups around the country, have been successful in getting immigrant detainees released.
This coverage of the coronavirus pandemic is part of your subscription to The San Diego Union-Tribune. We also provide free coverage as a service to our community.
“During this pandemic, we’ve seen institutions at all levels take these really drastic, life-altering measures to preserve public safety and community well being,” said Monika Langarica, an attorney with the ACLU of San Diego & Imperial Counties. “(U.S. Immigration and Customs Enforcement), which oversees massive detention operations across the country, rather than follow the course of these other institutions, has done almost the opposite.”
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Read the rest of Kate’s article at the above link.
Similar suits have produced mixed results throughout the country. While some U.S. District Judges have ordered or threatened to order the release of certain detainees, others have “blown off” legitimate health concerns and the failure of DHS and DOJ authorities to follow health guidelines during the pandemic.
Of course, the idea that social distancing, universal testing, basic hygiene, or individual protective equipment is being employed in any part of the “DHS Gulag” and the Immigration “Courts” is preposterous on its face. Yet, remarkably, some U.S. District Judges prefer the “show me the dead bodies approach” as an alternative to the sensible preventive measures recommended by health professionals. After all, “they are only aliens” in the eyes of the regime and some Federal Judges.
Others, more astutely, have recognized that those stuck in the Gulag and the never-ending dysfunction of the Immigration “Courts” are actually their fellow human beings, most without serious criminal convictions. They are also “persons” under the Fifth Amendment to the U.S. Constitution, entitled to have their health, safety, and lives protected from dangerous and unreasonable actions by the Federal Government.
PHOENIX – Nearly a month into a seemingly worldwide shutdown, it may be hard to find an everyday business or public area that has not been closed because of COVID-19. Many companies have allowed their employees to work from home, but businesses deemed essential are still in operation.
This includes grocery stores, fuel stations, banks, transportation systems, pharmacies – and most U.S. immigration courts.
The coronavirus pandemic has upended the daily routines of hundreds of millions of Americans.
Yet for migrants in federal custody waiting for their cases to be heard, their reality has not changed much.
As of March 28, Immigration and Customs Enforcement’s average daily population – the total number of individuals in ICE detention across the current fiscal year (Oct. 1 through Sept. 30), divided by the number of days into the fiscal year – was 43,026.
Three out of four Arizona immigration courts – in Phoenix, Eloy and Florence – remain open. A fourth, in Tucson, was closed due to a water main break. All hearings scheduled through May 1 for immigrants who are not in federal detention, as well as cases under the Migrant Protection Protocols docket scheduled through May 1, have been postponed by the Department of Justice.
Yet all detained migrants still remain in federal custody.
All non detained hearings scheduled through April 10 have been postponed in all 63 immigration courts. But immigration judges and court staff from various professional associations say that’s not nearly enough. They have filed a lawsuit against ICE and the Department of Justice’s Executive Office for Immigration Review (EOIR), which oversees all U.S. immigration court cases.
Immigration attorney Pamela Florian, chairwoman of the American Immigration Lawyers Association’s Arizona chapter, said she and her associates fear for their own well-being as well as the health of their clients.
“Detainees who are in the Arizona detention facilities are at a higher risk because of the conditions that they live in,” Florian said, “and we don’t want to be the ones bringing in the virus to them because we are still forced to continue with our hearings during a pandemic.”
The associations are also looking for the EOIR to provide detained immigrants and legal counselors with protective gear, such as N95 masks, eye protection and gloves, to be used when they meet in facilities that require such gear. The lawyers fear that if they are not provided with the equipment and can’t access them independently, they will not be able to meet with their clients when necessary.
“If we don’t have the required PPE (personal protective equipment) that is in shortage right now at the national level, not seeing our clients or being deprived of that does raise due process concerns because we need to be able to prepare our clients for their hearings,” Florian said.
Immigration lawyer Margarita Silva has been defending both detained and non detained immigrants for 18 years. On March 20, she arrived at an Arizona ICE detention facility to meet with a client with a makeshift collection of PPE that she provided herself.
Silva said that she and her colleagues began to bring their own protective gear to meet with clients in detention centers after they were told by ICE that they would not be allowed in without them.
“I had a friend who had just had a baby in November, and she’s like, ‘Well, I have some masks. You can have a couple,’” Silva said. “And then my husband uses protective eyewear for some of his jobs, and so he said, ‘Well, here you can use these.’ And I ended up getting some nitrile gloves.”
Silva was allowed into the facility wearing her provisional gear. She mentioned that a few of her colleagues have been wearing prescription sunglasses and swimming goggles to meet with clients in custody.
“There was no scrutiny at all,” Silva said. “They had a sign out front that said they were going to take our temperatures before we went in, and that if you had a fever, nobody was getting in. I went in with a group of about 10 people. Nobody’s temperature was taken.”
However, she said she was more shocked to learn she and her colleagues were the only ones in the facility wearing personal protective equipment.
“That was the other weird thing, was that it (the PPE requirement) only applied to the immigrants’ attorneys,” Silva said. “None of the guards were wearing it (protective gear). None of the admin staff were wearing it. Medical personnel inside the facility weren’t wearing any of this. Detainees aren’t wearing any of it.”
The immigration lawyers suing the EOIR also insist the Department of Justice make it possible for them to communicate with their detained clients to promote a safer environment, as the limited phone calls they currently have access to are simply not enough.
Silva said she and her associates have been given the green light to attend all Arizona detained cases by phone at this time. In the past, she said, attorneys had to submit a written request to a judge if they wanted to attend a short hearing by phone, which lawyers who lived far from facilities did frequently.
If the EOIR can’t meet their demands, the professional bar associations said, it must release the detained immigrants with “inadequate access to remote communication” with their legal representatives or immigration courtrooms.
Immigration attorneys and detained immigrants differ on whether detainees should be released at this time, Silva said. Many feel the courts should be closed entirely, she added, but others are frustrated that immigrants in custody will not be released as a result.
“A large amount of these people could be released safely, either on their own recognizance or on bond,” Silva said. “A lot of (immigrants in custody) are not people that would have been considered dangerous. They have houses and families to go to. So it’s not like they would just be wandering the streets. These are people that had jobs.”
Although non detained immigrants may not mind having their cases put on hold for the time being, she said, many want their cases to move forward if they’re forced to remain in custody.
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Video by Frankie McLister/Cronkite News
Meanwhile, the American Immigration Lawyers Association has taken the lead in the effort to temporarily suspend immigration courts. The organization initially joined with the National Association of Immigration Judges and the American Federation of Government Employees Local 511 to publish a statement on March 15 that expressed concerns for the health and safety of immigration prosecutors and attorneys.
Since then, 73 other organizations have joined their efforts to close the courts by addressing a letter to U.S. Attorney General William Barr. The letter, signed by organizations including the Arizona Coalition to End Sexual and Domestic Violence and Amnesty International USA, called on Barr to immediately close all U.S. immigration courts.
As the president of the National Association of Immigration Judges, Judge A. Ashley Tabaddor oversees a union of judges that works to improve the immigration court system and promotes the well-being of its members.
“It’s really a historic event that we have prosecutors and the defense attorney organizations come together with the judges, all agreeing that the immigration courts across the country should close temporarily and immediately to allow for the public health officials to get a handle on” the outbreak, said Tabaddor, whose court is in Los Angeles.
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Read Kelly’s full article at the link.
Not surprising that an organization like EOIR which has institutionalized the dehumanization of others — treating human lives as “production statistics” and touting cutting corners, skewed decisions, and unfair deportations as a “deterrent” — would eventually start “devouring its own.”
On Monday, by a 5–4 vote, the U.S. Supreme Court approved one of the most brazen acts of voter suppression in modern history. The court will nullify the votes of citizens who mailed in their ballots late—not because they forgot, but because they did not receive ballots until after Election Day due to the coronavirus pandemic. As Justice Ruth Bader Ginsburg wrote in dissent, the court’s order “will result in massive disenfranchisement.” The conservative majority claimed that its decision would help protect “the integrity of the election process.” In reality, it calls into question the legitimacy of the election itself.
Wisconsin has long been scheduled to hold an election on April 7. There are more than 3,800 seats on the ballot, and a crucial state Supreme Court race. But the state’s ability to conduct in-person voting is imperiled by COVID-19. Thousands of poll workers have dropped out for fear of contracting the virus, forcing cities to shutter dozens of polling places. Milwaukee, for example, consolidated its polling locations from 182 to five, while Green Bay consolidated its polling locations from 31 to two. Gov. Tony Evers asked the Republican-controlled legislature to postpone the election, but it refused. So he tried to delay it himself in an executive order on Monday. But the Republican-dominated state Supreme Court reinstated the election, thereby forcing voters to choose between protecting their health and exercising their right to vote.
Because voters are rightfully afraid of COVID-19, Wisconsin has been caught off guard by a surge in requests for absentee ballots. Election officials simply do not have time, resources, or staff to process all those requests. As a result, a large number of voters—at least tens of thousands—won’t get their ballot until after Election Day. And Wisconsin law disqualifies ballots received after that date. In response, last Thursday, a federal district court ordered the state to extend the absentee ballot deadline. It directed officials to count votes mailed after Election Day so long as they were returned by April 13. A conservative appeals court upheld his decision.
The U.S. Supreme Court has overturned the only protection in place to ensure that voters could still safely cast ballots.
Now the Supreme Court has reversed that order. It allowed Wisconsin to throw out ballots postmarked and received after Election Day, even if voters were entirely blameless for the delay. (Thankfully, ballots postmarked by Election Day but received by April 13 still count, because the legislature didn’t challenge that extension.) In an unsigned opinion, the majority cited the Purcell principle, which cautions courts against altering voting laws shortly before an election. It criticized the district court for “fundamentally alter[ing] the nature of the election by permitting voting for six additional days after the election.” And it insisted that the plaintiffs did not actually request that relief—which, as Ginsburg notes in her dissent, is simply false.
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Read the rest of Mark’s article at the link.
Just last week Trump admitted that if more Americans voted, “you’d never have a Republican elected in this country again.”
John Roberts and his fellow GOP partisans on the Supremes got the message loud and clear. Although, they didn’t really need much direction from their Great Leader, since the GOP Supremes have scarcely ever seen a civil rights or voting rights law that they didn’t want to gut and pervert.
With markets wobbling, unemployment rising, and Trump’s “malicious incompetence” threatening American lives every day, the GOP hopes for November could depend on large-scale disenfranchisement and massive voter suppression. And, the J.R. Five have made it clear that they are primed and ready to twist and manipulate the law as necessary to guarantee their party’s minority stranglehold on government.
So much for “just calling balls and strikes.” Nope! The J.R. Five “resizes the strike zone” as necessary to guarantee victory for “their team” and defeat for American democracy.
In the words of the Supreme Court, “Freedom from imprisonment – from government custody, detention, or other forms of physical restraint – lies at the heart of the liberty that [the Due Process] Clause protects.”1 While imprisonment usually occurs in the criminal context, courts have allowed detention under our immigration laws, which are civil and (purportedly) non-punitive, only to protect the public from danger or to ensure the noncitizen’s appearance at future hearings.2 Case law thus requires a determination that a detained noncitizen does not present a danger to the public, a risk to national security, or a flight risk in order to be eligible for bond under section 236 of the I&N Act.
The Board of Immigration Appeals has acknowledged the complexity of such determinations. In it’s 2006 decision in Matter of Guerra,3 the Board suggested nine factors that an immigration judge may consider in deciding if bond is warranted. The list included whether the respondent has a fixed U.S. address; the length of residence, employment history, and family ties in this country (and whether such ties might lead to legal status); the respondent’s criminal record, and their record of appearing in court, fleeing prosecution, violating immigration laws, and manner of entry to the U.S. But the Board made clear that an immigration judge has broad discretion in deciding what factors to consider and how much weight to afford each factor.The ultimate test is whether the decision was reasonable.
What makes such a decision reasonable? Given what the Supreme Court has called “an individual’s constitutionally-protected interest in avoiding physical restraint,”4 Guerra’s broad discretion must be interpreted as an acknowledgment of the inadequacy of relying on “one size fits all” presumptions as a basis for overriding such a fundamental constitutional right. In allowing IJs to consider what factors to consider and how to weigh them, Guerra should be read as directing those judges to delve deeply into the question of whether the noncitizen poses a danger or a flight risk. Obviously, all recently-arrived immigrants are not flight risks, and all of those charged with crimes don’t pose a threat to society.As the trier of fact, immigration judges are best able to use their proximity to the respondent, the government, and the evidence and witnesses presented to determine what factors are most indicative of the likelihood that the respondent will see their hearings through to the end and abide by the result, or in the case of criminal history, the likelihood of recidivism.
In considering the continued custody of one with no criminal record, the risk to public safety or national security are generally not factors. And in Matter of R-A-V-P-,5 a case recently decided by the BIA, the immigration judge found that the respondent, an asylum-seeker with no criminal record, presented no risk on either of those counts. However, the immigration judge denied bond on the belief that the respondent was a flight risk, and it was that determination that the BIA was asked to consider on appeal.
How does one determine whether someone detained upon arrival is likely to appear for their hearings? It is obviously more complicated than whether one presents a threat to public safety, in which the nature of the criminal record will often be determinative. In R-A-V-P-, the Board repeated the nine Matter of Guerra factors, and added a tenth: the likelihood that relief will be granted.
As stated above, Guerra made clear that these were suggestions; the immigration judge could consider, ignore, and weigh whatever factors they reasonably found relevant to the inquiry. Furthermore, many of the listed Guerra factors were not applicable to the respondent. Guerra involved a respondent found to pose a danger to others. The nine factors laid out in the decision were not specific to the question of flight risk; clearly, all the listed factors were not meant to apply in all cases. As to the specific case of R-A-V-P-, obviously, someone who was detained since arrival can have no fixed address, length of residence, or employment history in this country. The respondent’s history of appearing for hearings also reveals little where all appearances occurred in detention.And the Guerra factors relating to criminal record and history of fleeing prosecution are inapplicable to a respondent never charged with a crime.
The Board’s decision in R-A-V-P- is very short on details that would provide meaningful context. There is no mention of any evidence presented by DHS to support a flight risk finding. In fact, the absence of any listing of government counsel in the case caption indicates that DHS filed no brief at all on appeal, a point that doesn’t appear to have made a difference in the outcome.6
The few facts that are mentioned in the decision seem to indicate that the respondent sought asylum from Honduras based on his sexual orientation. Not mentioned were the facts that the respondent entered as a youth, and that although he entered the U.S. without inspection, he made no attempt to evade immigration authorities after entry. To the contrary, he immediately sought out such authorities and expressed to them his intention to apply for asylum.These facts would seem quite favorable in considering the Guerra factors of the respondent’s “history of immigration violations,” manner of entry to the U.S., and attempts to “otherwise escape from authorities.”7 And although not mentioned in Guerra, the respondent is also represented by highly competent counsel, a factor that has been demonstrated to significantly increase the likelihood of appearance, and one within the IJ’s broad discretion to consider as weighing in the respondent’s favor.
Regarding the tenth criteria introduced by the Board, i.e., the likelihood of relief being granted, the persecution of LGBTI individuals is well-documented in Honduras, and prominently mentioned in the U.S. Department of State’s country report on human rights practices for that country. The State Department reported an increase in killings of LGBTI persons in Honduras in 2019, and that 92 percent of hate crimes and acts of violence committed against the LGBTI community went unpunished. Such asylum claims are commonly granted by asylum officers, immigration judges, and the BIA.
Yet the Board took a very strange approach to this point. It chose to ignore how such claims actually fare, and instead speak in vague, general terms of how “eligibility for asylum can be difficult to establish,” even for those who were found to have a credible fear of persecution. The Board next noted only that the immigration judge found that the respondent “did not demonstrate a sufficient likelihood that he would be granted asylum,” without itself analyzing whether such conclusion was proper.
In fact, the immigration judge did deny the asylum claim; a separate appeal form that decision remains pending before the BIA. But the Board missed an important point.The question isn’t whether the respondent will be granted asylum; it’s whether his application for asylum will provide enough impetus for him to appear for his hearings relating to such relief. From my experience both as an attorney and an immigration judge, the answer in this case is yes.One with such a claim as the respondent’s who is represented by counsel such as his will almost certainly appear for all his hearings.The author of the Board’s decision, Acting BIA Chair Garry Malphrus, did sit as an immigration judge in a non-detained court for several years before joining the BIA. I’m willing to bet that he had few if any non-appearances on cases such as the respondent’s.
Yet the Board’s was dismissive of the respondent’s asylum claim, which it termed a “limited avenue of relief” not likely to warrant his appearance in court. Its conclusion is strongly at odds with actual experience. Early in my career, I represented asylum seekers who arrived in this country in what was then known as “TRWOV” (transit without visa) status, which meant that the airline they traveled on was responsible for their detention. The airline in question hired private guards to detain the group in a Queens motel.As time passed, the airline calculated that it would be cheaper to let those in their charge escape and pay the fine than to bear the ongoing detention costs. The airline therefore opened the doors and had the guards leave, only to find the asylum seekers waiting in the motel when they returned hours later.None were seeking to abscond; all sought only their day in court.And that was the determinative factor in their rejecting the invitation to flee; none had employment records, community ties, or most of the other factors held out as more important by the BIA in R-A-V-P-. They chose to remain in detention rather than jeopardize their ability to pursue their asylum claims.
My clients in the above example had a good likelihood of being granted asylum. But volunteering in an immigration law clinic three decades later, I see on a weekly basis individuals with much less hope of success nevertheless show up for all of their hearings, because, even in these dark times, they maintain faith that in America, an impartial judge will listen to their claim and provide them with a fair result. In one case, an unrepresented asylum applicant recently released from detention flew across the country for a preliminary master calendar hearing because the immigration judge had not yet ruled on his motion for a change of venue.
So for what reason did the BIA determine that the respondent in R-A-V-P- would behave to the contrary? The Board made much of the fact that an individual who promised to pay for the respondent’s bus ticket and provide him with a place to live (an offer which the Board referred to as “laudable”) was a friend and not a family member of the respondent. But on what basis can it be concluded that living with a cousin rather than a friend increases the chances of his future appearance in court? In the absence of statistics or reports that support such determination, is this fact deserving of such discretionary weight? The Board felt it could rely on this factor simply because it was mentioned in Matter of Guerra. But while that decision requires a finding that the IJ’s conclusion was reasonable, the decision in R-A-V-P- appears to be based more on a hunch than a reasoned conclusion, with the Board referencing seemingly random factors in support of its conclusion without explaining why such factors deserve the weight they were afforded, while ignoring other more relevant factors that would weigh in favor of release.
The respondent has now been detained for well over a year, including the seven months his bond appeal lingered before the Board, a very significant deprivation of liberty. The respondent’s asylum appeal remains to be decided, likely by a different Board Member or panel than that which decided his bond appeal.But now that the majority of the Board has voted to publish the bond denial as a precedent decision, what is the likelihood that any Board member will review that appeal with an unbiased eye?
As a final point, although the drafting of the decision likely began months earlier, the Board nevertheless chose to allow the decision to be published as precedent in the midst of an unprecedented health pandemic that poses a particular threat to those detained in immigration jails. So at a time when health professionals and numerous other groups are pleading for the government to release as many as possible from immigration detention centers, the BIA chose to instead issue a decision that will likely lead to an opposite result.
Notes:
Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
Ibid; Robert Pauw, Litigating Immigration Cases in Federal Court (4th Ed.) (AILA, 2017) at 418.
24 I&N Dec. 37 (BIA 2006).
Kansas v. Hendricks, 521 U.S. 346, 356 (1997).
27 I&N Dec. 803 (BIA 2020).
Appeals may be summarily dismissed due to the failure to file a brief or to sufficiently state a ground for appeal. However, the BIA does not view an appeal or motion as unopposed where ICE files no brief.
Matter of Guerra, supra at 40.
Copyright 2020 Jeffrey S. Chase. All rights reserved.
HOW EOIR’S “CAPTIVE COURTS” INTENTIONALLY DISTORT AND PERVERT JUSTICE — The Shocking Failure Of Congress & The Article IIIs To Stand Up For Justice In America!
By Paul Wickham Schmidt
“Courtside” Exclusive
April 6, 2020
Jeffrey and I both get to pretty much the same “bottom line” here. But, as usual, he is more “nuanced” in his approach.
Certainly, the DOJ’s two-decade program, under Bush, Obama, and now Trump, of systematically excluding from the BIA (and also largely from the Immigration Judiciary, with a more than 9-1 government/private sector hiring ratio) any acknowledged immigration and human rights expertise from those who actually represent and work with asylum applicants is paying huge dividends for Trump’s nativist immigration agenda.
A “captive BIA” well-attuned to “not rocking the boat” and “implementing the Attorney General’s priorities” abandons due process and fundamental fairness for individuals. Instead, they crank out an endless stream of one-sided pro-DHS-enforcement “precedents.”
Led by the Supremes’ “supreme abdication of judicial duties” in Chevron and Brand X, the Courts of Appeals and sometimes the Supremes themselves “defer” to “any old interpretation” by the BIA rather than undertaking the more challenging search for the “best interpretation.” In immigration law, “deference” to the BIA “tilts the playing field” overwhelming in favor of DHS and against individuals and due process.
And, if the BIA occasionally lets the immigrant “win” or at least not outright “lose,” one or two precedents, Sessions, Whitaker, and Barr have shown a frequentwillingness to merely step in and change the results. Sometimes, they do this on cases decided years ago, even when DHS doesn’t ask them to. They openly and aggressively are carrying out a predetermined White Nationalist, nativist agenda. Because, they can!
If this sounds like a parody of due process, that’s because it is! But, the Supremes and the rest of the Article IIIs have been studiously looking away while due process, fundamental fairness, and equal protection are trampled in Immigration Court for more than a half-century. Why step up to the plate now?
Although it’s hard to do under Chevron, the BIA does sometimes so clearly ignore the statute or come up with such “off the wall” interpretations that the Article IIIs occasionally have to distinguish Chevron and intervene. In other words, generally screwing immigrants is OK by the Article IIIs; but, at some point looking totally feckless or downright idiotic by rubber stamping the BIA’s most outlandish anti-immigrant rulings is a “no no.” Bad for their reputations, law school speaking tours, and recruitment of the “best and brightest” clerks that the “Supremos” and other Article IIIs enjoy so much.
Another “big advantage” of a captive and fundamentally unfair BIA is that its “perversions of justice” become a “self-fulfilling prophecy.” The respondent inR-A-V-P- should not only have been released on bond, but his asylum case could easily have been granted in a “short hearing” in a system committed to a fair interpretation and application of asylum law. That might have led to the release of others and the more efficient granting of other similar cases. That actually would be an huge step forward in a dysfunctional system running a largely self-inflicted backlog of approximately 1.4 million cases.
Instead, denying meritorious cases creates hugely inflated denial rates. This supports the Trump Administration’s intentionally false narrative that all asylum claims are frivolous or fraudulent.
And, naturally, if the claims are overwhelmingly non-meritorious, who cares if we give asylum applicants any due process or not. Just summarily deny them all and you’ll be right 90% of the time.
That’s probably why Trump has gotten away with his biggest outrage: Simply eliminating the statutory right to apply for asylum at the border by Executive fiat, confident that the Supremes and the Article IIIs will never have the guts to effectively intervene and hold him accountable merely for arbitrarily inflicting potential death sentences on asylum seekers. After all, they are just “aliens,” not really “humans” or “persons” under the warped views of the Roberts’ Court majority! “Dred Scottification in action.”
Also, by denying meritorious claims for asylum seekers already in the U.S., the BIA“sends a message” that asylum seekers shouldn’t bother applying — they can’t and won’t win no matter how meritorious their cases. And, what’s more, the BIA will use the manipulated, improperly inflated “denial rates” to show that there is “little likelihood of success” on the merits of any asylum claim.
Under R-A-V-P–, this virtually guarantees punitive DHS detention, serving as both a punishment for asserting rights and a further deterrent to asserting claims in Immigration Court. Heck, in a “best case scenario” for Trump, COVID-19 will wipe out all detained asylum seekers, thereby eliminating that “problem.”
The system is a farce. But, it is a farce that both Congress and the Article IIIs have enabled.
Asylum seekers and other migrants deserve justice from America. When they will finally get it from a system intentionally rigged against them, and judges and legislators all too often unwilling to acknowledge or recognize their humanity, remains to be seen.
The United States operates the largest immigration detention system in the world. More than 50,000 immigrants are detained every day in county jails and for-profit prisons that contract with Immigration & Customs Enforcement (ICE) — at great human cost, and at a cost to taxpayers of $3 billion per year. The current administration has drastically expanded the system, establishing over 20 new detention centers (17,000 more people per day). Christina Fialho, an Ashoka Fellow since 2016 and co-founder of Freedom for Immigrants, is working not only to stop this expansion, but to end immigration detention altogether. Ashoka’s Lorena García Durán caught up with her to learn more.
You co-founded Freedom for Immigrants eight years ago with Christina Mansfield. What was the main goal you set out to achieve?
We want to build a country where no person is imprisoned for crossing a border. Freedom for Immigrants is working to achieve this goal through two main strategies. First, we’ve built a network of 4,500 volunteers that is a consistent watchdog inside this system. We started by building the first visitation program in California. Now volunteers in our network visit people in 69 immigrant prisons in nearly 30 states every week. Second, we launched a community-based alternative to free over 250 people by paying their immigration bonds. Once they are released, we connect them to housing, lawyers, transportation, and mental health services — and we do it all for only $17 per person per day, far less than the government pays to detain people (roughly $165 per person per day).
We are proving that our strategy works. Freedom for Immigrants drafted and co-sponsored the Dignity Not Detention Act — composed of the first statewide bills in the country to stop detention expansion and give the state attorney general oversight powers. These bills passed in California — a state that used to detain a quarter of all people in immigration detention. Since Dignity Not Detention went into effect, seven municipalities ended their ICE contracts. We then worked in a statewide coalition of immigrant rights groups to pass another bill to phase out private prisons in California. Together, we are proving that abolition is possible in the 5th largest economy in the world.
You talk a lot about the importance of creativity and risk taking in the face of obstacles. What are some obstacles you’ve overcome along the way?
Since 2013, we’ve faced “a litany of retaliatory acts by DHS in response to our public advocacy,” as Judge Andre Birotte Jr. explained in his recent court ruling granting us a preliminary injunction against ICE. We’ve had over a dozen of our affiliated visitation programs suspended when we’ve published articles or spoken out in favor of a new system. When we worked with Orange Is The New Black to dramatize the reality of detention, our national hotline was terminated. Private prison companies have muzzled us for reporting sexual assault in detention, and I was personally barred from visiting at certain detention facilities. However, we have successfully moved the work forward through creative persistence, community mobilization, and legal action when necessary.
Speaking of obstacles, ICE just ended all social visitation in response to COVID-19. How is Freedom for Immigrants responding?
If ICE is truly serious about ensuring the health and wellbeing of people in its custody, the agency would release immigrants, beginning with vulnerable populations. Other countries like Spain and Iran are releasing people in response to Covid-19. In fact, Spain’s Interior Ministry has begun a gradual release of people from immigration detention whose deportation cannot be effected before March 29. Freedom for Immigrants has launched an interactive map that tracks ICE response to Covid-19, and we have trained our national hotline volunteers to respond to medical negligence.
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Read the rest of Lorena García Durán‘s interview of Christina Fialho at the above link.
In my experience, there are a few cases where ICE could show on an individualized basis that temporary detention is necessary to protect the public or insure appearance. But, such caseswould be the “exception to the rule,” a very small percentage of today’s “New American Gulag” population.
As this article points out, in most cases government grants to enable community placements and legal representation actually would be much cheaper than today’s wasteful funding of the Gulag.
Unlike the Gulag, it also would promote due process, fundamental fairness, best practices, docket efficiency, and most important, maximize the chances of fair results.
Under the Trump regime, the cruel, costly, and counterproductive Gulag has expanded as a means of punishing, coercing, dehumanizing, and deterring those asserting legal rights, particularly the right to apply for asylum and mandatory protections like withholding of removal and protection under the Convention Against Torture (“CAT”).
It also is used by the regime to hinder the statutory and constitutional right to counsel and to promote biased results. Consequently, individuals entitled to relief and protection under our laws are instead railroaded out of the country by judges employed by the regime who have been instructed to disregard migrants’ rights and follow unethical and legally incorrect “precedents” intentionally misconstruing the law to make release from detention unnecessarily difficult and to promote unjust removals.
In other words, a systemic “Due Process Disaster” and a national disgrace.
Thanks to Christina and her team at Freedom for Immigrants for their courageous efforts to stand up to tyranny and defend due process. You certainly are brave front line fighters for the New Due Process Army!
One government lawyer who appeared in a crowded Newark, New Jersey, immigration court last month is in a medically induced coma. A New York immigration lawyer and her client are both sick. Immigration judges are being denied sick leave when they use anxiety or safety as reasons. Migrant children are asking their lawyers if they will fall ill if they go to court, and whether they’ll be deported if they don’t show up.
Sickness, panic, and confusion in the midst of a pandemic: These are the acute side effects of immigration courts continuing to operate as the novel coronavirus races across the country. Despite three weeks of intense pleading to close all 69 courts—across a united front of immigration lawyers, the union representing lawyers for ICE, and the immigration judges’ union—more than two-thirds of them remain open.
The courts that have been closed by the Executive Office for Immigration Review (EOIR), the federal agency that runs them, have often only been shuttered in reaction to a confirmed case of COVID-19 or suspected exposure. The closures are often last-minute, and not clearly communicated, except on Twitter. This week, several immigration legal associations filed two separate federal lawsuits to close the courts because they fear that the government has put their lives in danger.
“I think it’s about time the American people woke up to the fact that EOIR’s willingness to perpetuate and extend this pandemic will inevitably bring the virus to their hometown,” Rebecca Press, the legal director at UnLocal in New York, said Thursday via email. She contracted coronavirus two weeks ago and at least one of her clients is sick. “The longer courts remain open even for filing, and the longer the courts require attorneys and immigrants to engage in the work of preparing evidence, the more likely it becomes that the virus will be brought right back to another community.”
Government lawyers are affected, too. Fanny Behar-Ostrow, the president of American Federation of Government Employees Local 511, the union representing ICE lawyers, is getting calls at all hours of the day from members who worry they have been exposed to the virus. “They are panicked, frightened, desperate, upset,” she said.
In addition to the 36,000 adults in ICE detention facilities, there are some 3,500 migrant children in government custody who are affected by the disarray in the courts. In most courts, children must still attend in-person hearings, putting them at exposure risk. In New York City, the current epicenter of the pandemic, lawyers from Kids in Need of Defense (KIND) have not been told whether EOIR will reschedule cases for next week. They are also unclear about whether the minors even need to come to court at a time when state and city officials have issued stay-at-home orders.
“We are receiving phone calls from children who had their safety net shaken,” said Maria Odom, vice president for legal services for KIND, which is a nonprofit organization contracted to represent unaccompanied minors. “For us serving vulnerable children, there are so many moving pieces and at a time when we should be able to look to the government, they are just contributing to the chaos.”
“I hope that it won’t take a death, but I worry that it will,” said Aaron Reichlin-Melnick, an immigration lawyer and policy counsel for the American Immigration Council. His organization is one of the groups behind a lawsuit filed Monday by the National Immigration Project of the National Lawyers Guild.
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Read the rest of Liz’s article at the link.
Looks like the dead bodies will have to pile up before the Article IIIs and EOIR will take action. As the rest of us know, but to which U.S District Judges & EOIR appear willfully blind, by the time individuals show symptoms and begin dying, it’s too late to stop the spread. The larger community has already been infected.
I wonder what it is that gives both EOIR officials and Article III Judges such great confidence that they and their families will escape the consequences of their irresponsible behavior? Maybe, it’s that both EOIR Senior Execs and Article III Judges manage to studiously avoid “direct exposure” to Immigration Courts. “Below their pay grade,” so to speak.
But, according to folks like Dr. Fauci, who possibly knows even more about infectious diseases than EOIRDirectorMcHenry and the Federal Judges who continue to defer to the irresponsible EOIR “guidance,” nobody will be immune.
So far, the U.S. has done the worst job of any developed country in the world of “flattening the curve.” Inevitably, we eventually will become the “world leader” in coronavirus deaths. After observing the inept response of EOIR and the failure of the U.S. District Courts to promptly intervene on the side of medical knowledge, common sense, and preserving human lives, I can now see why we are failing as a nation to take the extreme measures necessary for self-preservation.
I would think that as lawyers, judges, and other members of the legal community start dying as a result of EOIR’s policies, that the officials responsible eventually will face legal actions brought by surviving family members and colleagues. Life tenure and the judicial doctrine of “absolute immunity” will protect the feckless Federal Judges from legal accountability. But, it won’t protect them and their reputations from moral accountability and the “judgements of history” which are likely to be harsh and as unforgiving as the Trump Immigration Kakistocracy’s treatment of the most vulnerable among us and their brave lawyers.
Due Process Forever! Trump’s Immigration Kakistocracy & Feckless Federal Courts, Never!
White House adviser Jared Kushner broke the irony meter as he — not someone qualified, such as Anthony S. Fauci — took over the daily coronavirus briefing on Thursday to inform us: “What a lot of the voters are seeing now is that when you elect somebody … think about who will be a competent manager during the time of crisis.”
Yes, President Trump’s voters, along with those who elected the similarly ignorant and slothful Republican governors in Florida and Georgia who failed to act promptly to stem the coronavirus, should remember that next time. Better to elect someone like California Gov. Gavin Newsom (D) or Ohio Gov. Mike DeWine (R) rather than someone continually pandering to Trump, resisting readily available scientific advice and attacking the media.
One has the sinking feeling that things are going from bad to worse. Trump and the feds declined to act swiftly, in particular failing to get widespread testing up and running. Now they are failing to remedy the dire medical crisis that their negligence brought on. Kushner said the federal stockpile of medical equipment is for the feds to use, not the states. His father-in-law seems allergic to implementing fully the Defense Production Act, so the bidding war among the states for critical equipment continues.
Republican governors in Florida, Georgia, Mississippi and Alabama declined to issue prompt stay-at-home orders. Now? Trump refuses to issue one nationally despite Fauci’s advice. “I don’t understand why that’s not happening,” he said in a CNN interview. “As you said, the tension between federally mandated vs. states’ rights to do what they want is something I don’t want to get into. But if you look at what is going on in this country, I do not understand why we are not doing that. We really should be.” The answer: We have a total lack of federal leadership and competence.
Congress set up a $350 billion fund for small-business loans. Beginning Friday, many banks promptly announced that they could accept applications in the absence of clear federal guidance. The chaos, confusion and delays surrounding the Small Business Administration loans might make the unemployment insurance process seem like a fine-tuned machine. (Thousands, if not millions, of unemployment claims remain unprocessed due to overwhelming demand.)
The Defense Department is no better. Trump jettisoned a career professional serving as defense secretary (James Mattis) for a meek, subservient aerospace executive. The result is predictable. Politico reports: “Defense Secretary Mark Esper is under fire for the Pentagon’s response to the coronavirus pandemic as lawmakers, national security experts and people throughout the Defense Department’s ranks fault him for a slow and uneven approach to the outbreak.” His most notable action: Supporting the firing of the Navy commander whose letter pleading to allow his sailors to disembark from a floating petri dish, the USS Theodore Roosevelt, was leaked. The military under Trump can forgive war crimes, just not pleas to save men and women in uniform from incompetent superiors.
This is as exasperating as it is frightening. Governors, if you are lucky enough to live in a state with a competent one, can do only so much when, for example, there are no ventilators to be had. The Democratic-led House can only churn out its version of remedial legislation, but it cannot withstand Senate and White House efforts to scuttle anti-fraud, anti-cronyism measures. (“Most big companies that take advantage of the $500 billion corporate bailout in last week’s coronavirus relief bill are unlikely to face restrictions against firing workers or giving bonuses to executives, according to officials familiar with the program.”) And while the House can bird-dog the executive branch as it distributes money, the House cannot do the executive branch’s job for it.
The chaos, confusion and incompetence at the federal level magnify our daily anxiety and uncertainty. We have lost control of our lives, and those supposed to lead us through this ordeal are deepening our national trauma. Years of contempt for expertise, for competent government and for truth itself on the right now haunt us all. God help us.
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Right on, Jennifer!
As if on cue, about the time I was reading Jennifer’s op-ed, the Blathering Boor was on TV demonstrating his “malicious incompetence” by telling American that we should wear face masks, but then immediately contradicting the message by emphasizing that it was voluntary, not required, and he wouldn’t be doing it. Because he has to meet with dictators, kings, queens, emperors, tyrants, princes, fairy godmothers, etc. Even life or death matters become mere sick jokes under the “Clown Kakistocracy,” where ignorance and lies reign.
Here’smy favorite “Theater of the Absurd” quote from Jennifer’s article: “The military under Trump can forgive war crimes, just not pleas to save men and women in uniform from incompetent superiors.”
So much for the mythical “Gang of Generals” who were supposed to save us from Trump’s “malicious incompetence.” Nope. They all “went long to get along” for awhile and then took cover in vain attempts to save what was left of their shredded reputations. Write a “tell nothing” book, give a few disingenuous interviews, hide on the board of directors of a company profiting from child abuse, whatever! Trump corrupts and destroys everything he touches, including our country!
Unlike those guys, I think there is actually gainful employment out there in the real world for someone like Captain Brett Crozier who puts human lives before a maliciously incompetent “chain of command” looking to cover up its malfeasance.
It’s not like our military hasn’t always had a certain penchant for punishing those who “speak truth to incompetent power!” Just ask the ghost of “Milwaukee Hero” Gen. Billy Mitchell who got court-martialed for being smarter, more creative, and more courageous than his superiors. Who would ever have ever believed that air power, not horse drawn caissons, would win the next World War? Duh! Certainly none of his immediate superiors in the Army after WW I!
Due Process Forever! Vote The Kakistocracy Out In November!
Vote Like Your Life Depends On It! Because It Does!
As the coronavirus spread through California and the economic fallout of the pandemic began to hit Patricia’s community in the rural Coachella Valley, she said a new Trump administration policy had layered worries upon her worries.
The so-called “public charge” rule, which allows the government to deny green cards and visas to immigrants who rely on public benefits, went into effect in late February, just as the first cases of Covid-19 were being reported across the US.
“Now, we are in panic,” said Patricia, a 46-year-old mother of three and daughter of two elderly parents. The Guardian is not using Patricia’s real name to protect her and her undocumented family members.
Patricia’s father, who stopped seeking treatment for his pancreatic cancer after a lawyer advised that using some public medical benefits could affect his bid to gain legal status, is among the most at-risk for complications from contracting the coronavirus. So is her mother, who is diabetic.
“I have a broken heart,” she said. “We’ve been told that if we want papers to feel secure and calm here, there’s a tradeoff.”
‘I won’t survive’: Iranian scientist in US detention says Ice will let Covid-19 kill many
Although the US Citizenship and Immigration Services last week announced under pressure from lawmakers and advocacy groups that immigrants who undergo testing or treatment for Covid-19 would not be denied visas or green cards under the new rule, fear and confusion are stopping people from seeking medical care. In the midst of a pandemic, health and legal experts say that policies designed to exclude vulnerable immigrant communities from medical care are fueling a public health disaster.
“The community doesn’t trust the government right now.” said Luz Gallegos, who directs the Todec Legal Center in southern California. As Covid-19 spreads across the state, much of the center’s efforts recently have been dedicated to reassuring immigrants that they can and should take advantage of health programs if they can.
Patricia, who went to Todec for advice, said even though she’s been told that the public charge rule doesn’t apply to those who want to get tested for the coronavirus, she can’t help but worry. “With this president, you can never know,” she said. When immigration policies can change overnight, she said, “how can we have trust?”
Even before the public charge rules went into effect, a UCLA analysis found that more than 2 million Californians enrolled in the state’s public food and medical benefits programs could be affected by the rule, which allows immigration officials to turn away those seeking green cards and visas based on who are “likely to be a public charge”.
“We can’t stop the spread of disease while denying health coverage to people,” said Ninez Ponce, director of the UCLA Center for Health Policy Research. “It’s irresponsible public health policy.”
Although several groups of immigrants, including asylum-seekers and refugees, are exempt from the rule, the complicated, 217-page regulation has a “chilling effect”, Ponce said, driving people to withdraw from social services even if they don’t have to.
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Read the rest of Maanvi’s report at the link.
SUPREME COMPLICITY SPELLS SUPREME DANGER FOR ALL AMERICANS
By Paul Wickham Schmidt
Exclusive for Courtside
April 3, 2020
So, let’s be clear about what happened here with the so-called public charge regulations. The expert public commentary opposing this unlawful and unnecessary (i/o/w “stupid and malicious”) change in the regulations was overwhelming.
Support for the change outside of White Nationalist nativist “fringies” was negligible and had no basis in fact.
The Administration’s rationale, sacrificing health and welfare and screwing immigrants for some small fabricated savings that failed to consider the offsetting harm to the public and individuals, was facially absurd.
Then, the “real emergency” (as opposed to Francisco’s fabricated one) predicted by the health officials who had opposed the regulation change occurred. Now, immigrant families who often form the backbone of our “essential workforce” are at risk and they, in turn, will unavoidably spread the risk. Americans, citizens, residents, documented, undocumented, will unnecessarily die because the J.R. Five were derelict in their duties.
The truth is very straightforward: “The coronavirus pandemic is ‘Exhibit A for why the public charge rule is stupid’ said Almas Sayeed, at the California Immigrant Policy Center.” Apparently, “Exhibit A” was too deep for the “J.R. Five” to grasp.
The Constitution actually doesn’t enable the Executive to promulgate irrational policies that contradict both the best science and endanger the public health and welfare to achieve openly racist and xenophobic political goals. “Stupidity based on racism and ignorance” has no place in our Federal Government.
As Mark Joseph Stern so clearly said in Slate:
Put simply: When some of the most despised and powerless among us ask the Supreme Court to spare their lives, the conservative justices turn a cold shoulder. When the Trump administration demands permission to implement some cruel, nativist, and potentially unlawful immigration restrictions, the conservatives bend over backward to give it everything it wants.
“Stupid” actually means “illegal” in this and most other cases. That such an an obvious concept is over the heads of the ideologically biased “J.R. Five” should give us all great pause. The next time these folks decide to elevate the “stupid” and the “racist” over “rational, legal, and humane,” it could be YOUR life and future going down their drain.
If we continue to empower a regime that elevates poorly qualified individuals who have lost any sense of human values and common decency they might have possessed to life tenure in the highest courts of our land, there will be no end to the avoidable human disasters, unnecessary suffering, and tragedies that will ensue.
We need regime change in November! That won’t change the composition and qualifications of the Federal Judiciary overnight. But, it will be an absolutely necessary start toward a Government and a judiciary that understand and respect the Constitution, the rule of law, and the individual rights and human dignity of all persons before our laws. In other words, due process and equal justice for all.
Vote like you life depends on it. Because, it does!
Citing little-known power given to the CDC to ban entry of people who might spread disease and ignoring the Refugee Act of 1980, an internal memo has ordered Border Patrol agents to push the overwhelming majority of migrants back into Mexico.
For the first time since the enactment of the Refugee Act in 1980, people who come to the U.S. saying they fear persecution in their home countries are being turned away by Border Patrol agents with no chance to make a legal case for asylum.
The shift, confirmed in internal Border Patrol guidance obtained by ProPublica, is the upshot of the Trump administration’s hasty emergency action to largely shut down the U.S.-Mexico border over coronavirus fears. It’s the biggest step the administration has taken to limit humanitarian protection for people entering the U.S. without papers.
The Trump administration has created numerous obstacles over recent years for migrants to claim asylum and stay in the United States. But it had not — until now — allowed Border Patrol agents to simply expel migrants with no process whatsoever for hearing their claims.
The administration gave the Border Patrol unchallengeable authority over migrants seeking asylum by invoking a little-known power given to the Centers for Disease Control and Prevention, the U.S. public health agency, to ban the entry of people or things that might spread “infectious disease” in the U.S. The CDC on March 20 barred entry of people without proper documentation, on the logic that they could be unexamined carriers of the disease and out of concern about the effects if the novel coronavirus swept through Customs and Border Protection holding facilities.
U.S. immigration law requires the government to allow people expressing a “well-founded” fear of persecution or torture to be allowed to pursue legal status in the United States. The law also requires the government to grant status to anyone who shows they likely face persecution if returned to their homeland.
“The Trump administration’s new rule and CDC order do not trump U.S. laws passed by Congress and U.S. legal obligations under refugee and human rights treaties,” Eleanor Acer, of the legal advocacy group Human Rights First, told ProPublica. “But the Trump administration is wielding them as the ultimate tool to shut the border to people seeking refuge.”
Two weeks ago, the Trump administration hastily put in place a policy, which the internal guidance calls Operation Capio, to push the overwhelming majority of unauthorized migrants into Mexico within hours of their apprehension in the U.S.
The Trump administration has been publicly vague on what happens under the new policy to migrants expressing a fear of persecution or torture, the grounds for asylum. But the guidance provided to Border Patrol agents makes clear that asylum-seekers are being turned away unless they can persuade both a Border Patrol agent — as well as a higher-ranking Border Patrol official — that they will be tortured if sent home. There is no exception for those who seek protection on the basis of their identities, such as race or religion.
Over 7,000 people have been expelled to Mexico under the order, according to sources briefed by Customs and Border Protection officials.
The guidance, shared with ProPublica by a source within the Border Patrol, instructs agents that any migrant caught entering without documentation must be processed for “expulsion,” citing the CDC order. When possible, migrants are to be driven to the nearest official border crossing and “expelled” into Mexico or Canada. (The Mexican government has agreed to allow the U.S. to push back not only Mexican migrants, but also those from Guatemala, Honduras and El Salvador; the four countries account for about 85% of all unauthorized border crossings.)
Under the Refugee Convention, which the U.S. signed onto in 1968, countries are barred from sending someone back to a country in which they could be persecuted based on their identity (specifically, their race, nationality, religion, political opinion or membership in a “particular social group”).
The Trump administration has taken several steps to restrict the ability of migrants to seek asylum, a form of legal status that allows someone to eventually become a permanent U.S. resident. Until now, however, it has acknowledged that U.S. and international law prevents the U.S. from sending people back to a place where they will be harmed. And it has still allowed people who claim a fear of persecution to seek a less permanent form of legal status in the U.S. (In the last two weeks of February, 2,915 people were screened for humanitarian protection, according to the most recent statistics provided by U.S. Citizenship and Immigration Services.)
The Border Patrol guidance provided to ProPublica shows that the U.S. is acting as if that obligation no longer applies.
Customs and Border Protection, the agency that oversees the Border Patrol, said it would not comment on the document provided to ProPublica. Asked whether any guidance had been provided regarding people who expressed a fear of persecution of torture, an agency spokesperson said in a statement, “The order does not apply where a CBP officer determines, based on consideration of significant law enforcement, officer and public safety, humanitarian, or public health interests, that the order should not be applied to a particular person.”
That language does not appear in the guidance ProPublica received. Instead, it specifies that any exception must be approved by the chief patrol agent of a given Border Patrol sector. One former senior CBP official, who reviewed the guidance at ProPublica’s request, said that because there are so many levels of hierarchy between a chief patrol agent and a line agent, agents would be unlikely to ask for an exemption to be made.
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Read the rest of the article at the link.
Shows how fragile our legal system and our democratic institutions are. Contrary to “popular liberal myth” they have not “been holding up well” in the age of Trump.A GOP Senate, of course, deserves much of the blame. But, it’s not like the Democrats have exactly put protecting the rule of law and Constitutional Due Process for the most vulnerable among us at the forefront.
We can also trace the disintegration of the legal system under Trump directly to the the failure of Roberts and the GOP majority on the Supremes to stand up for separation of powers, racial and religious justice, and Executive accountability. By ignoring a very clear record of invidious racial, religious, and political bias behind Trump’s Executive actions, and allowing a transparently contrived “national security” rationale to be used, in the so-called “Travel Ban Case” the Supremes’ majority basically signaled they had no intention of halting a White Nationalist assault on our Constitution and the rights of vulnerable minorities, particularly migrants. In other words, Roberts & Co. said: “It’s OK to ‘Dred Scottify’ away, we’ll never stand in your way.” And, true to their word, the “J.R. Five” have been more than happy to ignore the law and “green light” the White Nationalist nativist immigration agenda.
So, four decades of painstakingly hard cooperative work by “good government” advocates, NGOs, the private sector, and the international community to reach an imperfect, yet basically workable, consensus that saved countless lives and helped fuel our economic success, the Refugee Act of 1980 lies in tatters. Decades of progress destroyed in a little over three years. That’s “institutional failure” on a massive scale!
Don’t look for the Refugee Act or the rule of law to be resurrected any time soon. Under Trump and his would-be authoritarian kakistocracy, the “emergencies,” real and fabricated, will never end until democracy and human decency are dead and buried. And, don’t count on Mitch McConnell or John Roberts to stand in the way.
This is exactly how democracies die. But, we do have the remaining power to remove the kakistocracy at all levels of our government and start rebuilding America. Yes, Roberts and his gang have life tenure. But, with “regime change,” we can start appointing better judges who will aggressively push back against the far-right, anti-democracy judicial agenda! Folks who believe in Due Process, fundamental fairness, the rule of law, racial equality, human decency, and equal justice for all! Vote to save our nation in November!
I hope this finds you and your loved ones as safe and comfortable as possible right now.
We created a 90-second video – its a series of excerpts about the lack of access to healthcare in immigration detention facilities as a way to highlight how dangerous it is for anyone to be in detention during COVID-19.
Can you post or share this video on social media?
It will have a great impact – it will help engage more people in the movement to get people out of detention.
All info about how to post is below.
I’ve also included a few relevant news stories in case you’re interested in more context. And, there is information about one direct action you can take if you are interested.
Feel free to be in touch if you have any questions.
(AND – if you are also working on this issue and have other ideas about how this video, or the project, can be most effective at this time, we are all ears, our digital doors are open.)
(This is the most direct way to connect your message and your followers to the movement among advocates and policy makers.)
ACTION – if you want to take an action today, this is from RAICES Texas:
> Call the San Antonio ICE Field Office at (210) 283-4712
> “Hi, my name is _____ and I am calling to demand the release of all immigrant detainees from the Residential Centers at Karnes and Pearsall due to the imminent threat of COVID-19. If you don’t, we are all at risk.”
FOLLOW these incredible advocacy organizations to stay informed about the issues and amplify important actions they are instigating:
Detention Watch Network (@DetentionWatch)
Raices (@RAICESACTION @RAICESTEXAS)
Southern Border Community Coalition (@SBCCoalition)
New Sanctuary Coalition (@NewSanctuaryNYC)
ACLU – Border Rights (@ACLU_BRC)
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Join the New Due Process Army and fight to end official child abuse and Article III judicial complicity!
What kind of society allows its government to abuse children? Whatever happened to accountability? How about ethics and common sense for Article III Judges who could end the abuse, but haven’t? How would you feel if your children were treated this way by the authorities? There is a reprehensible “double standard” at work here!
Due Process Forever! Child Abuse Never!
PWS
04-02-20
UPDATE: While folks like McHenry and the operators of the DHS Gulag provide misleading information, or perhaps outright lies, to Federal Judges, Courtside’s sources say that at least six individuals with some connection to the Immigration Courts have died from coronavirus. While I admittedly have no way of “independently verifying” this information, I’d bet that there are many more Immigration Court or Gulag-related coronavirus deaths and serious infections out there that I do not know about!
Why, I wonder, would any Federal Judge accept the word of someone like McHenry or officials in the DHS Gulag over affidavits from detainees, filings from experts, and the advice we hear from the Surgeon General, Dr, Fauci, and Dr. Birx every day? Stay home means “stay home!”
Nobody with any understanding of our immigration system could reasonably believe that running one more removal hearing or keeping non-criminals in prison is worth endangering lives and spreading disease! What in the recent public history of DHSDetention and EOIR would lead a Federal Judge to credit any information on “best practices” on public health provided by these inherently unreliable and incompetent organizations?
