🇺🇸🗽🤯 HISTORY: 100 YEARS AGO, AMERICA TRIED, BUT ULTIMATELY FAILED, TO STAY “WHITE & PROTESTANT” WITH THE 1924 IMMIGRATION ACT — Many Were Hurt Or Died From This Bias In The Interim — Now Trump & The Nativist Right Want To Revive One Of The Worst Eras In U.S. History — Will Indifference & Ignorance From Dems & So-Called “Centrists” Let Them Get Away With Turning Back The Clock? ⏰☠️🤮 — Two Renowned Authors Offer A View Of A Biased, Deadly, & Ultimately Highly Counterproductive Past That Still Poisons Our Politics & Threatens Our Future As A Beacon Of Hope! — PLUS: Kowalski & Chase Take On The “False Scholars” 🤮 Who Disingenuously Attempt To “Glorify” Xenophobia & Racism!🤯

1924 Act
The 1924 Immigration Act vilified, dehumanized, and barred many of those immigrants who have made America great, like Italian Americans being demeaned in this cartoon. Yet, some descendants of those unfairly targeted appear oblivious to the mistakes of the past and willing to inflict the same immoral lies, harm, and suffering on today’s migrants.
IMAGE: Public Realm
Eduardo Porter
Eduardo Porter
Columnist and Editorial Board Member
Washington Post
PHOTO: WashPost

Eduardo Porter writes in WashPost:

https://www.washingtonpost.com/opinions/interactive/2024/immigration-history-race-quota-progress/

“I think that we have sufficient stock in America now for us to shut the door.”

That sounds like Donald Trump, right? Maybe on one of his campaign stops? It certainly fits the mood of the country. This year, immigration became voters’ “most important problem” in Gallup polling for the first time since Central Americans flocked to the border in 2019. More than half of Americans perceive immigrants crossing the border illegally as a “critical threat.”

Yet the sentiment expressed above is almost exactly 100 years old. It was uttered by Sen. Ellison DuRant Smith, a South Carolina Democrat, on April 9, 1924. And it helped set the stage for a historic change in U.S. immigration law, which imposed strict national quotas for newcomers that would shape the United States’ ethnic makeup for decades to come.

. . . .

The renewed backlash against immigration has little to offer the American project, though. Closing the door to new Americans would be hardly desirable, a blow to one of the nation’s greatest sources of dynamism. Raw data confirms how immigrants are adding to the nation’s economic growth, even while helping keep a lid on inflation.

Anyway, that horse left the stable. The United States is full of immigrants from, in Trump’s memorable words, “s—hole countries.” The project to set this in reverse is a fool’s errand. The 1924 Johnson-Reed immigration law might have succeeded in curtailing immigration. But the restrictions did not hold. From Presidents Johnson to Trump, efforts to circle the wagons around some ancestral White American identity failed.

We are extremely lucky it did. Contra Sen. Ellison DuRant Smith’s 100-year old prescriptions, the nation owes what greatness it has to the many different women and men it has drawn from around the world to build their futures. This requires a different conversation — one that doesn’t feature mass expulsions and concentration camps but focuses on constructing a new shared American identity that fits everyone, including the many more immigrants who will arrive from the Global South for years to come.

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

Gordon F. Sander
Gordon F. Sander
Journalist and Historian
PHOTO: www.gordonsander.com

Gordon F. Sander, journalist and historian, also writes in WashPost, perhaps somewhat less optimistically, but with the same historical truth in the face of current political lies and gross misrepresentations:

https://www.washingtonpost.com/history/2024/05/24/johnson-reed-act-immigration-quotas-trump/

. . . .

Johnson and Reed were in a triumphant mood on the eve of their bill’s enactment. “America of the melting pot will no longer be necessary,” Reed wrote in the Times. He remarked on the new law’s impact: “It will mean a more homogenous nation, more self-reliant, more independent and more closely knit by common properties and common faith.”

The law immediately had its intended effect. In 1921, more than 200,000 Italians arrived at Ellis Island. In 1925, following the bill’s enactment, barely 6,000 Italians were permitted entry.

But there were less intended consequences, too, including on U.S. foreign relations. Although Reed insisted there was nothing personal about the act’s exclusion of Japanese people, the Japanese government took strong exception, leading to an increase in tensions between the two countries. There were riots in Tokyo. The road to Pearl Harbor was laid.

During the 1930s, after the eugenics-driven Nazis seized control of Germany, the quotas established by the act helped close the door to European Jews and others fleeing fascism.

At the same time, the law also inspired a small but determined group of opponents led by Rep. Emanuel Celler (D-N.Y.), who were committed to overturning it. Celler’s half-century-long campaign finally paid off in 1965 at the Statue of Liberty when, as Celler looked on, President Lyndon B. Johnson signed the Immigration and Nationality Act, which ended national origin quotas.

But with anti-immigration sentiment on the rise and quotas once again on the table, it’s clear that a century after its enactment, the ghost of Johnson-Reed isn’t completely gone.

Gordon F. Sander is a journalist and historian based in Riga, Latvia. He is the author of “The Frank Family That Survived: A 20th Century Odyssey” and other books

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

Many thanks to my friend and immigration maven Deb Sanders for alerting me to the Sander article. I strongly urge everyone to read both pieces at the links above.

Perhaps the most poignant comment I’ve received about these articles is from American educator, expert, author, and “practical scholar” Susan Gzesh:

And because of the 1924 Act, my grandparents lost dozens of their siblings, parents, aunts, uncles, nieces, and nephews to the Holocaust in the 1940s because Eastern European Jewish immigration to the US had been cut off. They would have been capable of sponsoring more family to come to the US in the late 1920s and 30s, but there was no quota for them.

I have no words to describe my feelings about so-called experts who would praise the 1924 Act. I know that Asian Americans must feel similarly to my sentiments.

Well said, Susan!

 

Susan Gzesh
Susan Gzesh
American scholar, educator, expert, author
PHOTO: U. Of Chicago

I’ll leave it at that, for you to ponder the next time you hear Trump, DeSantis, Abbott, and the like fear-monger about the bogus “invasion,” spout “replacement theory,” and extoll the virtues of extralegal cruelties and dehumanization inflicted upon “the other” — typically the most vulnerable who are  seeking our legal protection and appealing to our senses of justice and human dignity! And, also you can consider this when the so called “mainstream media” pander to these lies by uncritically presenting them as “the other side,” thereby echoing “alternative facts!”

It’s also worth remembering this when you hear Biden, Harris, Schumer, Murphy, and other weak-kneed Dem politicos who should know better adopt Trumpist White Nationalist proposals and falsely present them as “realistic compromises” — as opposed to what they really are —  tragic acts of political and moral cowardice!

Eventually, as both of the above articles point out, America largely persevered and prospered over its demons of racism, anti-Catholicism, and anti-immigrant nationalism. But, it would be wrong to view this “long arc” analysis as “zeroing out” the sins and horrors of our past. 

Susan Gzesh’s relatives died, some horribly and painfully, before their time. That can’t be changed by future progress. Nor can the children they might have had or the achievements they never got to make to our nation and the world be resurrected. 

As Susan mentions, the 1924 Act also reinforced long-standing racism and xenophobia against Asian Americans that led to the irreversible harm inflicted by the internment of Japanese American citizens, continuing Chinese Exclusion, and a host of state laws targeting the Asian population and making their lives miserable. Belated recognition of the wrongfulness and immorality of these reprehensible laws and actions does nothing for their past victims.

Many Irish, Italian, and other Catholics and their cherished institutions died, lost property, or were permanently displaced by widespread anti-Catholic riots brought on and fanned by the very type of biased and ignorant thinking that undergirded Johnson-Reed. They can’t be brought back to life and their property restored just by a “magic wave of the historical wand.” 

U.S. citizens of Mexican-American heritage were deported and dispossessed, some from property their ancestors had owned long before there was even a United States. Apologizing to their descendants and acknowledging our mistakes as a nation won’t eliminate the injustices done them — ones that they took to their graves!

Despite the “lessons of the Holocaust,” America continues to struggle with anti-Semitism and anti-Islamic phobias and indifference to human suffering beyond our borders.

And, of course, the poisonous adverse impacts of slavery on our nation and our African-American compatriots continue to haunt and influence us despite disingenuous claims to the contrary.

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)
Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

My friends immigration experts Dan Kowalski and Hon. Jeffrey Chase also had some “choice words” for the “false scholars” who extol the fabricated “benefits” of White Nationalism and racism embodied in “laws” that contravened the very meaning of “with liberty and justice for all” — something to reflect upon this Memorial Day. See https://dankowalski.substack.com/p/true-colors.

That prompted this response from Susan:

Susan Gzesh

11 hrs ago

Thank you, Dan! In memory of my Gzesh, Wolfson, Kronenberg, and Kissilove relatives who were victims of the Holocaust – after their U.S.-based relatives failed to get visas for them.

I also recently weighed in on the horrors of the 1924 Act in a recent article by Felipe De La Hoz, published in The New Republic: https://immigrationcourtside.com/2024/05/02/🏴☠%EF%B8%8F🤯🤮-a-century-of-progress-arrested-the-1924-immigration-act-rears-its-ugly-nativist-head-again-felipe-de-la-hoz-in-the-new-repub/.

Heed the lessons of history, enshrine tolerance, honor diversity, and “improve on past performance!”  We have a choice as to whether or not to repeat the mistakes of the past — to regress to a darker age or move forward to a brighter future for all!  Make the right one!

 

🇺🇸 Due Process Forever!

PWS

05-27-24

⚖️🗽 TGIF:  “Thank Goodness It’s (Five Immigration Things on a) Friday” — From Professor Austin Kocher @ Substack!

Austin Kocher, Ph.D.
Austin Kocher, Ph.D.
Research Assistant Professor
TRAC-Syracuse
PHOTO: Syracuse U.

https://substack.com/app-link/post?publication_id=80027&post_id=142434213&utm_source=post-email-title&utm_campaign=email-post-title&isFreemail=true&r=1se78m&token=eyJ1c2VyX2lkIjoxMDgxNTc5OTAsInBvc3RfaWQiOjE0MjQzNDIxMywiaWF0IjoxNzA5OTM1MzU1LCJleHAiOjE3MTI1MjczNTUsImlzcyI6InB1Yi04MDAyNyIsInN1YiI6InBvc3QtcmVhY3Rpb24ifQ.mUNqwD2zV_1Nm3R_LsiIzbFJ-sb2im3l_E6zFUUoLzY

Welcome back, friends. To celebrate the end of the week and the start of the weekend, I am sending you my personal list of Five Things You Might Have Missed. For this issue, I draw from my bucket of many (many) things that I read or saw during the week and share them with you.

  1. Justice Department Silences Immigration Judges
  2. Biden Refers to Immigrants as “Illegals”
  3. How Does Asylum Work Right Now?
  4. The Migrant’s Journey by Adam Isacson
  5. Talking About Immigration in an Election Year

. . . . .

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

Thanks, my friend! 🙏 Read Austin’s complete rundown at the above link!

My favorite quote is from John Washington’s article, #3 on Austin’s list:

In fiscal year 2023, 99.5 percent of all people whose asylum cases were decided by immigration judges showed up to court for their hearings, according to data compiled by Human Rights First. Unlike citizens, people seeking asylum are not entitled to attorneys at government expense. That means that people either pay out of pocket, find willing attorneys to help them pro-bono, or represent themselves in court. According to a January report, only 30% of people in removal proceedings — which means the government is trying to deport them — are represented by attorneys. A 2023 study from Migration Policy Institute shows that having representation improves efficiency, lowers the costs of public resources expended and, for the migrants in court, decreases their chances of being deported.

“The immigration system has been pretty broken— backlogged and needing reform — for 20 years,” [Yael] Schacher [Director of Americas and Europe for Refugees International] said.

Though there are major delays, the overwhelming majority of asylum-seekers follow the system as it is currently functioning, Schacher said.

Yael Schacher
Yael Schacher
Historian
Director of Americas & Europe for Refugees International

Not only does this cogently refute the restrictionist myth of asylum seekers “gaming” the system, peddled by politicos of both parties yet primarily a GOP talking point, but it points to what should be the real target of reform! Obviously, what’s actually needed here is professionalization, quality control, innovation, increased staffing, and, perhaps most of all, dynamic, expert, due-process focused leadership in the USG’s asylum adjudication and resettlement programs, with a focus on dramatically increasing representation and orientation resources!

Instead, politicos and pundits focus on eliminating the system, rather than fixing it! It’s basically a cowardly attempt to “destroy evidence” of USG misfeasance and incompetence! At the same time, it would unfairly punish the victims of our Government’s systemic failures.

The political response by both parties is totally irresponsible (not to mention immoral) as well as demonstrably unworkable. Yet, so-called “mainstream media” figures are so ill-informed and disinterested in the human trauma and realities of asylum, migration, and the border, that they present the one-sided, nativist nonsense spouted by both parties as a “debate.” It isn’t! Neither party is interested in actually fixing the problems at the border — just in finger-pointing, posturing, and shifting blame for perceived political gain!

🇺🇸 Due Process Forever!

PWS

03-09-24

🏴‍☠️🤯 112 NGOs BLAST BIDEN ADMINISTRATION’S BAD APPROACH TO CREDIBLE FEAR, DEMAND IMMEDIATE END (Good Luck With That)! “ — “These policies punish people seeking safety and prioritize political optics over the administration’s stated aim of working to ‘restore and strengthen our own asylum system, which has been badly damaged by policies enacted over the last four years that contravened our values and caused needless human suffering.’”

Border Detention
Due process and fundamental fairness are elusive in DHS’s “New American Gulag!” Administration policy wonks absent themselves from the border to avoid witnessing the unnecessary human trauma and suffering their illegal and ill-advised policies cause.
PHOTO: Public Realm

https://www.refugeesinternational.org/reports/2023/6/5/the-biden-administration-must-immediately-stop-conducting-credible-fear-interviews-in-cbp-custody

Refugees International June 5, 2023

 The Honorable Alejandro N. Mayorkas

Secretary

U.S. Department of Homeland Security

2707 Martin Luther King Jr. Avenue, SE

Washington, D.C. 20528

 

Ur M. Jaddou

Director

U.S. Citizenship and Immigration Services

5900 Capital Gateway Drive

Camp Springs, Maryland 20588

 

Troy A. Miller

Acting Commissioner

U.S. Customs and Border Protection

1300 Pennsylvania Avenue, NW

Washington, D.C. 20229

 

David L. Neal

Director

Executive Office for Immigration Review

5107 Leesburg Pike

Falls Church, VA 22041

 

Dear Secretary Mayorkas, Director Jaddou, Acting Commissioner Miller, and Director Neal,

We, the undersigned 112 civil, human rights, faith-based, and immigration groups write to express our deep concern with your return to the Trump-era policy of forcing asylum seekers to explain by phone the life-threatening harms they’re fleeing mere hours after arriving in the U.S., while being held in Customs and Border Protection (CBP) detention, and essentially cut off from legal help. In March 2023, nearly 100 organizations reminded President Biden of his commitment to end the Trump policy, urging him not to rush back to the broken, anti-asylum policies that this administration rightly terminated. We are incredibly disappointed that this administration has chosen to move forward, full steam ahead. We call on the Biden administration to immediately cease conducting credible fear interviews (CFIs) in CBP custody and instead ensure that asylum seekers are given full and fair access to the U.S. asylum system, including meaningful access to counsel.

Since taking effect, President Biden’s iteration of this policy has produced systemic due process barriers similar to its predecessor policy, with asylum seekers being rushed through CFIs and immigration judge reviews with little to no access to counsel. President Biden’s asylum ban, another iteration of Trump-era policies, is further exacerbating these mass due process violations and fueling the systematic deportation of individuals who may qualify for protection in the U.S., in violation of the non-derogable principle of non-refoulement.

The Biden administration is effectively denying asylum seekers any meaningful chance to consult with counsel and rushing them through a sham process to quickly deport them, including by:

  • Conducting CFIs shortly upon an individual’s arrival in CBP detention without providing or allowing them to access the time and resources needed to recover from their journey or the harm they survived;
  • Barring attorneys from entering the CBP facilities where asylum seekers are jailed and CFIs are conducted;
  • Truncating the minimum time period individuals have to attempt to telephonically consult with an attorney to a mere 24 hours after receiving notice of the credible fear process. This change is especially absurd given that new policies, such as the asylum ban and the return of certain nationalities to Mexico, expand the content about which an individual may need to consult an attorney;
  • Failing to provide asylum seekers hard copies of the M-444 Information About Credible Fear Interview in contravention of 8 CFR § 208.30(d)(2), hard copies of the list of pro bono legal service providers, and advanced written notice of the CFI;
  • Heightening the standard for requests to reschedule a CFI to a showing of “extraordinary circumstances,” likely making it nearly impossible for asylum seekers to reschedule a CFI in order to secure representation or prepare for the interview;
  • Restricting asylum seekers’ access to telephones, in contravention of 8 CFR § 208.30(d)(4), and denying them writing utensils, in effect forcing them to attempt to commit key information to memory, including their attorney’s contact information and information about the CFI process;
  • Requiring an applicant’s signature on the Form G-28 for attorneys to enter an appearance with the Asylum Office, which often cannot be timely obtained by attorneys who are remotely representing jailed clients, thereby obstructing their ability to obtain information about their clients;
  • Conducting CFIs, including outside of normal business hours and on weekends, without the attorney of record present, in contravention of 8 CFR § 208.30(d)(4);
  • Failing to provide advance written notice to attorneys of record prior to a scheduled CFI or immigration court review hearing, including by not updating the EOIR Cases and Appeals System (ECAS) to reflect upcoming court hearings;
  • Failing to afford individuals time and opportunity following negative fear determinations to consult with counsel who could advise them about their rights and the review process;
  • Failing to serve asylum seekers and their attorneys with their record of credible fear determinations in contravention of 8 CFR § 208.30(g)(1);
  • Blocking attorneys from entering an appearance with the immigration court, including by not docketing immigration court review cases in a timely manner, thereby preventing them from representing their clients;
  • Refusing to permit attorneys to actively participate in immigration court reviews and rejecting evidence submitted in advance of the immigration court review; and
  • Conducting Immigration Judge reviews of negative credible fear findings without the attorney of record present.

Forcing asylum seekers in CBP detention to proceed with their CFIs while facing nearly insurmountable barriers to legal counsel –while also subjecting them to an asylum ban – upends any notion of fairness. Instead, it is an evisceration of our asylum system. The installation of new phone booths, which you claim differentiate Biden’s program from the Trump policy, fails entirely to address any of these systemic obstacles. Additionally, the Biden administration’s decision to conduct immigration court reviews immediately following these lightning-fast CFIs, while the individual is still in CBP custody, unacceptably further heightens the due process barriers asylum seekers must overcome to avoid summary deportation.

We have also received troubling reports of the terrible conditions that asylum seekers face in CBP custody while awaiting their CFIs, in line with years of reports of abusive, dehumanizing, and sometimes life-threatening conditions that include medical neglect, inedible food and water, and lack of access to showers and other basic hygiene. It has been less than a month since the unforgivable death of eight-year-old Anadith Tanay Reyes Álvarez, who was jailed in one of the CBP facilities where your administration conducts CFIs. We are horrified that the administration has systematized the detention of asylum seekers in these same deadly conditions while rushing them through fear screenings.

Notably, the administration has a choice: it is not required to use expedited removal and has the authority to refer people for full asylum hearings, rather than subjecting them to rushed CFIs in dehumanizing CBP detention while cut off from legal help. Sacrificing fairness for speed by jailing people fleeing persecution and torture, subjecting them to a ban on asylum, and forcing them to proceed with a life-or-death interview without meaningful access to counsel must not be this administration’s response to people wishing to exercise their fundamental human right to seek asylum. These policies punish people seeking safety and prioritize political optics over the administration’s stated aim of working to “restore and strengthen our own asylum system, which has been badly damaged by policies enacted over the last four years that contravened our values and caused needless human suffering.”

Respectfully,

Acacia Center for Justice

Afghans For A Better Tomorrow

African Human Rights Coalition

Al Otro Lado

Alianza Americas

Alliance of Californians for Community Empowerment, ACCE

American Friends Service Committee (AFSC)

American Gateways

American Immigration Council

Americans for Immigrant Justice (AI Justice)

Amnesty International USA

Angry Tias and Abuelas

Asian Americans Advancing Justice | AAJC

Asylum Seeker Advocacy Project (ASAP)

Bend the Arc: Jewish Action

Black Alliance for Just Immigration (BAJI)

Bridges Faith Initiative

Border Kindness

Capital Area Immigrants’ Rights Coalition

Center for Constitutional Rights

Center for Gender & Refugee Studies

Center for Victims of Torture

Central American Resource Center of Northern CA – CARECEN SF

Church World Service

Cleveland Jobs with Justice

Coalition for Humane Immigrant Rights (CHIRLA)

Community Action Board of Santa Cruz County, Inc. (CAB)

Community Legal Services in East Palo Alto (CLSEPA)

Diocesan Migrant and Refugee Services Inc.

Dorcas International Institute of RI

Fellowship Southwest

First Focus on Children

Florence Immigrant & Refugee Rights Project

Franciscan Action Network

Freedom Network USA

Greater Boston Legal Services

Harvard Immigration and Refugee Clinical Program

HIAS

Houston Immigration Legal Services Collaborative

Human Rights First

Human Rights Initiative of North Texas

Immigrant Defenders Law Center

Immigrant Legal Resource Center

Immigration Equality

Immigration Law & Justice Network

Immigration Hub

Innovation Law Lab

Interfaith-RISE

Interfaith Welcome Coalition – San Antonio

International Center of Kentucky

International Institute of Los Angeles

International Institute of New England

International Refugee Assistance Project (IRAP)

ISLA: Immigration Services and Legal Advocacy

JAMAAT – Jews and Muslims and Allies Acting Together

Jewish Family Service of San Diego

Jewish Vocational Service of Kansas City

Just Neighbors

Justice in Motion

Kino Border Initiative

Las Americas Immigrant Advocacy Center

Latino Community Foundation

Lawyers for Good Government

Legal Aid Justice Center

Lost and Found Church of the Nazarene

Lutheran Immigration and Refugee Services

Mariposa Legal, program of COMMON Foundation

Massachusetts Law Reform Institute

Metrowest Legal Services

Minnestoa Freedom Fund

MLPB

Mujeres Unidas y Activas

Muslim Advocates

National Employment Law Project

National Immigrant Justice Center

National Immigration Law Center

National Network for Immigrant and Refugee Rights

National Partnership for New Americans

NCLR (National Center for Lesbian Rights)

Northeastern University School of Law Immigrant Justice Clinic

Open Immigration Legal Services

Oromo Center for Civil and Political Rights

Oxfam America

Phoenix Legal Action Network

Physicians for Human Rights

Public Law Center

RAICES

Refugees International

Resource Center Matamoros / Asylum Seeker Network of Support, Inc.

Robert F. Kennedy Human Rights

Rocky Mountain Immigrant Advocacy Network

SIREN, Services Immigrant Rights and Education Network

Southwest Asylum & Migration Institute (“SAMI”)

Student Clinic for Immigrant Justice

Survivors of Torture, International

Team Brownsville

Tennessee Justice for Our Neighbors

The Advocates for Human Rights

The Catholic Legal Immigration Network, Inc.

The Reformed Church of Highland Park

UC Davis Immigration Law Clinic

Unitarian Universalists for Social Justice

Unitarian Universalist Service Committee

United Sikhs

U.S. Committee for Refugees and Immigrants (USCRI)

USAHello

Vera Institute of Justice

Washington Office on Latin America

Wind of the Spirit Immigrant Resource Center

Witness at the Border

Women’s Refugee Commission

Young Center for Immigrant Children’s Rights

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

Interesting way for a Dem Administration to treat human rights, due process, and fundamental fairness! Remarkable rejection of values that got them elected! Is “dismissive dissing” of the views of the “folks who brought you to the dance” really the key to future success?

🇺🇸 Due Process Forever!

PWS

06-07-23

🤮☠️ EGREGIOUS “ETHNOCENTRIC” JUDGING! — BIA IGNORES RECORD IN FABRICATED DENIAL OF GUATEMALAN  CLAIM — 3RD CIR PUZZLED BY BIA’S CONDUCT: “At times, the IJ’s decision completely conflicts with the record. Yet, for reasons that are not at all apparent, the BIA affirmed the IJ’s decision in its entirety.“

Four Horsemen
BIA Asylum Panel cutting down the backlog by trampling asylum seekers and their legal rights! Guatemalans are a favorite target for Garland’s “Band of Bullies” at EOIR. 
Albrecht Dürer, Public domain, via Wikimedia Commons

 

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca3-on-guatemala-law-facts-and-standard-of-review-saban-cach-v-atty-gen

pastedGraphic.png

Daniel M. Kowalski

25 Jan 2023

  • persecution
  • standard of review
  • Guatemala
  • asylum

CA3 on Guatemala, Law, Facts and Standard of Review: Saban-Cach v. Atty. Gen.

Saban-Cach v. Atty. Gen.

“Based on past experiences, if returned to Guatemala, Selvin Heraldo Saban-Cach fears being persecuted by a local gang because of his identity as an indigenous person. Accordingly, he seeks withholding of removal under the Immigration and Nationality Act and protection from removal under the Convention Against Torture. The Immigration Judge denied his applications and ordered his removal, and the Board of Immigration Appeals affirmed. This petition for review followed. For the reasons that follow, we will grant the petition, vacate the BIA’s decision, and remand for further proceedings consistent with this opinion. … Although the BIA need not write an overly detailed explanation of its review of an IJ’s decision, it must provide an adequate explanation of its ruling and afford us an opportunity to review it. Here, the BIA did neither. At times, the IJ’s decision completely conflicts with the record. Yet, for reasons that are not at all apparent, the BIA affirmed the IJ’s decision in its entirety. … The BIA must review the first, factual question for clear error and the second, legal question de novo. In affirming the IJ’s decision of the second question regarding acquiescence, the BIA concluded that it found “no clear error in the [IJ]’s predictive fact-finding.” Accordingly, in addition to not bifurcating the Myrie step-two inquiry, the BIA also erred by applying this heightened standard of review to a legal question. Because of these errors, “we have little insight into the basis for [the BIA’s] determination that the IJ’s opinion ‘clearly reflects that [s]he used the proper “willful blindness” standard in relation to the issue of acquiescence.’” Accordingly, on remand the BIA needs to reassess each question.”

[Hats way off to Stephanie Norton, CSJ Practitioner-in-Residence, Detained Immigrant Project Education, Seton Hall!]

Stephanie Norton
Stephanie Norton
CSJ Practitioner-in-Residence, Detained Immigrant Project Education, Seton Hall Law
PHOTO: Seton Hall Law website

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

Congratulations to NDPA star Stephanie Norton! This is yet another example of the great talent “out here” who could replace mal-functioning EOIR judges. Human lives are at stake, this system is dysfunctional, crying out for bold reforms! Wonder how the Dems will try to “spin” their miserable performance at EOIR in 2024?

The IJ’s and BIA’s findings of “no past persecution” in this case rise to the level of absurd! Here’s what happened:

The BIA recognized that gang members had attacked Saban-Cach on multiple occasions and that the worst attack left him unconscious after he was stabbed with a broken glass bottle. However, the BIA agreed with the IJ that, in the aggregate, this abuse did not rise to the level of persecution. The BIA explained that, “because most of the incidents did not involve physical injuries, and because the worst attack did not require him to seek professional medical care for his physical injuries, the applicant did not establish harm rising to the level of past persecution.”

Come on man! No competent, fair minded judge would reach such a totally ridiculous conclusion based on such shallow, specious, and basically “made up reasoning!” Not incidentally, it also directly conflicted with Circuit precedent as well as with the realities of life in Guatemala!

The BIA also ran roughshod over its OWN binding precedent, Matter of O-Z- & I-Z-, 23 I&N Dec. 22 (BIA 1998) (cumulative harm is persecution), which should have made a finding of past persecution a “no brainer” for a panel of competent asylum adjudicators! The sloppy, biased, “any reason to deny” culture at EOIR is a major cause of their out of control backlog. Efforts to deny easily grantable cases, and failure to direct wayward asylum-denying IJs to get it right in the first place, is a drag on our entire justice system — all the way up to the Courts of Appeals!

That’s because EOIR’s “any reason to deny” approach to asylum encourages, and often rewards, frivolous litigating positions by ICE, discourages stipulations and settlements in cases that should easily be granted, and results in OIL taking ethically and legally flawed positions in the Courts of Appeals. For example, in this case the 3rd Circuit characterized parts of OIL’s position as “disingenuous,” “puzzling and disappointing,” and pointedly stated that “[r]egrettably, the government’s response brief doubles down on this inaccuracy.”

So, these are the legal quality and ethical standards set at DOJ by AG Merrick Garland, a former Circuit Judge himself who certainly should be expected to “know better.” Apparently, in his view, due process, fundamental fairness, impartial adjudication, adherence to the law, judicial and legal ethics don’t apply when it’s “only migrants” whose lives are at stake! While this is a common approach from White Nationalist GOP politicos, don’t we deserve better from a Dem Administration that claims to care about racial justice, but whose actions with respect to migrants say otherwise?

The court also blasted EOIR for “ethnocentric” judging and failure to fairly evaluate cases.

We have previously cautioned IJs and the BIA against ethnocentric evaluations of petitioners’ resources. Petitioners primarily come from countries in the poorest and most dangerous regions of the world. Any presumption that they enjoy the same kinds of resources as their adjudicators is shortsighted and unfair. Unless the record supports it, IJs and the BIA should not assume that their own views of appropriate medical care and its ready accessibility make up a universal reality.

Petitioners for relief under the asylum system must be afforded the just hearing that due process and basic fairness demands. The immigration system can only provide a fair and neutral determination of the claims of people from different cultural and economic circumstances if adjudicators diligently avoid unrealistic assumptions about petitioners’ circumstances.

Any competent asylum practitioner would understand what the court is getting at. But, EOIR IJs at both the trial and appellate level make these basic mistakes time after time.

The 3rd Circuit and other courts might claim to find the BIA’s “entire” affirmance of a decision often in “complete conflict” with the record to be inexplicable. But, WE know that it’s because the “deportation assembly line” works on the “principle” of “any reason to deny” and “keep cranking out those final orders of removal.” To Hell with justice, quality, fairness, and the human lives involved!

Also, Guatemalan applicants, along with others from the Northern Triangle, are “de facto disfavored” in EOIR’s asylum adjudications. That’s right “in line” with the bias against asylum seekers from the Northern Triangle exhibited by both the Trump and Biden Administrations. See, e.g., https://immigrationcourtside.com/2023/01/25/historical-perspective-from-yael-schacher-refugees-international-biden-administrations-bias-against-refugees-fleeing-the-northern-triangle-is-baked-into-the-prob/.

It’s also part of an ingrained institutional bias at EOIR against asylum seekers from the Northern Triangle and Latin America that Garland has failed effectively to address! See, e.g.,  https://immigrationcourtside.com/justice-betrayed-the-intentional-mistreatment-of-central-american-asylum-applicants-by-the-executive-office-for-immigration-review/;  https://immigrationcourtside.com/appellate-litigation-in-todays-broken-and-biased-immigration-court-system-four-steps-to-a-winning-counterattack-by-the-relentless-new-due-process-army/.

This disasterous, backlogged, “star chamber system” is neither appropriately staffed nor competently operated to afford individuals “the just hearing that due process and basic fairness demands.” How is this due process and fundamental fairness required by our Constitution?

Star Chamber Justice
“Justice”
Star Chamber
Style. — AG Merrick Garland appears to be blissfully unconcerned about the methods applied by too many of his EOIR “judges,” and his DOJ attorneys who “run interference” for them, to achieve “removal for any reason, at any cost!”

Until a court has the guts to “pull the plug” on EOIR’s ongoing, deadly clown show 🤡, declare it unconstitutional, and require at least minimal due process reforms, these outrages will continue! “Puzzling” about recurring miscarriages of justice at EOIR, as the 3rd Circuit did here, is one thing; acting decisively to enforce the Constitution by stopping the abuse, once and for all, is quite different. Requiring EOIR judges with demonstrated expertise in asylum law, willing to professionally review records, and decide cases of asylum seekers correctly, without “ethnocentrism” or bias, would be a logical starting point! It should be a “no brainer!”

Clown Court
“When you walk into your EOIR ‘courtroom’ and this guy takes the bench, you’re probably in for a BAD day! Isn’t it time to finally END the ‘Clown Show’ in our dystopian Immigration ‘Courts?'”
PHOTO: Clown Civertan.jpg, Creative Commons License

🇺🇸Due Process Forever!

PWS

01-27-23

⏳HISTORICAL PERSPECTIVE FROM YAEL SCHACHER @ REFUGEES INTERNATIONAL: Biden Administration’s Bias Against Refugees Fleeing The Northern Triangle Is “Baked Into” The Problematic History Of U.S. Refugee & Asylum Programs!☹️

Yael Schacher
Yael Schacher
Historian
Senior U.S. Advocate
Refugees International

https://www.washingtonpost.com/made-by-history/2023/01/23/bidens-announced-asylum-transit-ban-undermines-access-life-saving-protection/

Yael Schacher writes in WashPost:

On Jan. 5, the Biden administration announced that it planned to issue a regulation “to provide that individuals who circumvent available, established pathways to lawful migration, and also fail to seek protection in a country through which they traveled on their way to the United States, will be subject to a rebuttable presumption of asylum ineligibility in the United States.”

These two reasons to bar people from seeking asylum — for transiting through other countries and for crossing the U.S. border without authorization — have different rationales and historical origins. But both have been marshaled against Central Americans since the late 1980s — severely undermining access to asylum. Doing so endangers people’s lives and breaks U.S. and international law. History reveals the purpose and perils of such bars.

No such bars stopped earlier waves of refugees seeking protection in the United States, especially those coming from Europe. When people who fled the Bolshevik Revolution applied to be considered “bona fide refugees” under a 1934 U.S. law, it did not matter that they had spent several years during the previous decade in Germany, France, China, Argentina, Cuba, Mexico or Canada and then crossed a land border without getting inspected by a U.S. official — as many did — beginning in the mid-1920s. They told immigration officials that conditions in those countries made it hard for them to live and it would be years before they could qualify for an immigration visa to the United States. So, they made their way to the United States on their own — and their mode of entry, and even their use of fraudulent travel documents, did not preclude them from adjusting to permanent status.

. . . .

The Biden administration insists its regulation will be different because it has opened up new legal pathways from transit countries and it will give asylum seekers a chance to prove why they didn’t use one of the legal pathways available to them. But migrants from Guatemala and Honduras lack parole programs that are newly available only to Venezuelans, Nicaraguans, Cubans and Haitians who have passports and sponsors in the United States. Further, parole, discretionary temporary permission to enter and stay in the United States with no path to citizenship, is a far cry from permanent refugee status. Fifteen thousand refugee resettlement slots this year are for all of the Caribbean and Latin America, where over 7 million Venezuelans are displaced. It is hard not to see this rule as an effort to limit access to asylum in the United States specifically for people from northern Central America and to treat today’s forcibly displaced people from the Americas unlike people seeking refuge from elsewhere in the past.

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

Read Yael’s complete article at the link.

Many of us had believed that the Biden Administration would get beyond the biases, manipulations of law, and implicit or explicit racism of the past to achieve the orderly, legal, timely admission of refugees, including those from Latin America, from abroad and at the border. Unfortunately and outrageously, they haven’t even tried!

Instead, they have turned human rights and border policies into an unholy, largely incomprehensible and arbitrary, mishmash of many of the worst, most ineffective, and invidiously biased policies of the past. 

🇺🇸 Due Process Forever!

PWS

01-25-23

NOLAN RAPPAPORT @ THE HILL TAKES ON THE “LA DECLARATION,” QUOTING SCHACHER & SCHMIDT!

Nolan Rappaport
Family Pictures
Nolan Rappaport
Opinion Writer
The Hill
Yael Schacher
Yael Schacher
Historian
Deputy Director
Refugees International
Hon. Paul Wickham Schmidt
Hon. Paul Wickham Schmidt
U.S. Immigration Judge (Ret.)
Adjunct Professor, Georgetown Law
Blogger, immigrationcourtside.com.

 

Biden’s ‘Summit of the Americas’ commitments on immigration more show than substance

Nolan Rappaport, opinion contributor

 

Former President Bill Clinton established the Summit of the Americas in 1994, to bring all of the countries in the Western Hemisphere — except Cuba — together for discussions on trade, immigration, and democracy. President Joe Biden hosted the event this year.

 

The participants recorded their immigration agreements in the Los Angeles Declaration on Migration and Protection. It represents a regional partnership to address historic migration flows affecting most of the countries in the region.

 

The declaration was signed by 20 countries in the region that are committed to protecting the safety and dignity of all migrants, refugees, and asylum seekers, and respecting their human rights and fundamental freedoms. They intend to cooperate to facilitate safe, orderly, humane, and regular migration, consistent with national legislation, the principle of non-refoulement, and their respective obligations under international law.

 

But will they keep their commitments?

 

The last line in the declaration acknowledges that its commitments are not legally binding.

 

Yael Schacher, deputy director of Refugees International, says, “summits have traditionally been a parade of promises that are never fulfilled.”

 

According to Georgetown Law immigration professor, Paul Schmidt, the declaration is just “more empty rhetoric.”

 

Highlights

 

International financial assistance may be needed by the countries the migrants come from and the countries that host large numbers of them after they have left their own countries.

 

A fact sheet summarizes financial contribution commitments. For instance, the United States commits to making a contribution of an additional $25 million to the Global Concessional Financing Facility, which assists Latin American countries with programs for providing refuge to displaced migrant and refugee populations.

 

The United States also commits to contributing $314 million in additional funding for humanitarian and development assistance for refugees and other vulnerable migrants.

 

The United States will establish a $65 million pilot program to support U.S. farmers hiring temporary agricultural workers under the H-2A program.

 

And the United States commits to expanding its efforts to address the root causes of irregular migration throughout the hemisphere. The Biden administration previously had proposed allocating $4 billion to Central America over four years, including $860.6 million in fiscal 2022.

 

Read more at https://thehill.com/opinion/immigration/3539483-bidens-summit-of-the-americas-commitments-on-immigration-more-show-than-substance/

 

 

Published originally on The Hill.

 

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.  Follow him at https://www.blogger.com/blog/posts/2306123393080132994

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

Head on over to The Hill to read Nolan’s full article. Internet “hits” help keep him in business!

Always a pleasure to be quoted along with my friend and super-scholar Yael Schacher — a trained historian/archivist in possession of what’s left of the “Schmidt archives!” (Yael stopped me several boxes into my project of using them to fuel our back-yard fire pit. But, Yael’s timely intervention still helped me fulfill my “promise upon retirement” to Cathy to get my boxes of papers out of the attic, basement, and garage. Also, after recently serving as an executor for my cousin, I’m sure our children will be grateful.)

🇺🇸Due Process Forever!

PWS

06-29-22

🗽DR. YAEL SCHACHER: The Biden Administration Must Restore The Rule Of Law At The Border — With Recommendations For Action! — Experts Continue To Provide Blueprints For Garland & Mayorkas To Ignore As The Biden Administration Bobbles Chances For Life-Saving, Democracy-Preserving, Racial & Gender Justice Reforms @ EOIR & DHS!

Yael Schacher
Yael Schacher
Historian
Senior U.S. Advocate
Refugees International

https://www.refugeesinternational.org/reports/2021/5/11/addressing-the-legacy-of-expedited-removal-border-procedures-and-alternatives-for-reform

Introduction

Though he has already revoked some of the former administration’s highly restrictive policies on asylum, President Biden has thus far left in place an expulsion policy first imposed by the Trump administration under Title 42 of the U.S. Code, and based on the unreasonable assertion that public health requires such restrictive measures be essentially directed at asylum seekers. Ports of entry have remained closed to asylum seekers except to a select few exempted from Title 42 in response to a lawsuit challenging the policy. This month, the Biden administration moved to expand the humanitarian exemption process further, tasking NGOs with identifying vulnerable migrants in Mexico and getting information about them to U.S Customs and Border Protection officials (CBP) in order to speed processing at ports. In addition, since February, Mexico’s refusal to accept back expelled Honduran, Salvadoran, and Guatemalan families with young children has meant that the Border Patrol has released some families and allowed them to proceed to their destinations—often the homes of relatives—to pursue their claims for asylum there. This is currently a practice borne of the necessity of limiting congregate detention during the pandemic. But a return to the pre-existing policy and practice—a border screening process called expedited removal—will recreate long-standing problems, and the Biden administration should now consider alternatives.

Under expedited removal, border officials are tasked with asking migrants who lack valid travel documents about their fear of return to their home country and with referring them to preliminary interviews with asylum officers if they express this fear. U.S. asylum officers assess whether the migrants have “a credible fear” of persecution—that is, a significant possibility of establishing eligibility for asylum. If they fail this interview, they are removed  or remain detained (without real access to counsel) for a review by an immigration judge within seven days. A negative decision by a judge is final and leads to removal. A positive credible fear decision leads the Department of Homeland Security (DHS) to place the asylum seeker in full (non-expedited) proceedings designed to secure the “removal” of unauthorized migrants, and the asylum seeker must then prove to an immigration judge (who works for the Executive Office of Immigration Review in the Department of Justice) that they merit refugee status.

Expedited removal created an entirely “defensive” system—whereby asylum seekers are presumed removable. It is also an adversarial system, and, as applied, has undermined the right to seek asylum at the border and recognition that asylum is a legal pathway to protection regardless of status. For example, prior to a determination of eligibility, U.S. officials have criminally prosecuted those who have sought refuge but have been without travel documents or have entered without inspection. Many arriving asylum seekers get screened out even before credible fear assessments can be made, as they have been unfairly rejected by CBP officers who did not ask them about fear or inform them of their right to seek protection. Those who CBP refer for credible fear interviews are required to show they can meet a complex legal protection standard just after arrival and while detained; those denied at the credible fear stage have inadequate opportunity for appeal. Expedited removal has cut off access to the federal courts for border arriving asylum seekers; as a result, asylum jurisprudence is left to develop without addressing protection issues raised by a large majority of today’s asylum seekers. In practice, expedited removal has limited the ability of Central Americans in particular to obtain access to protection and fair assessments of their asylum claims, and many have been removed to life-threatening danger.

Expedited removal has been justified as a means to promote efficiency in asylum processing. Yet over the last decade, when large numbers of families have come to the border to seek refuge, expedited removal has proven extremely inefficient. President Trump expanded expedited removal—extending its application far beyond the border (anywhere within the United States to anyone present for less than two years without authorization), putting credible fear interviews in the hands of enforcement officers, and raising eligibility standards.

On February 2, 2021, President Biden issued Executive Order 14010 on “Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border.” The Executive Order called for a review of the use of expedited removal within 120 days. The Order suggests that the Biden administration intends to implement expedited removal in a way that is more efficient and respectful of due process after the lifting of Title 42. For reasons described in this brief, it is highly questionable that such a system will prove to be fair or even effective and workable. Thus, this issue brief suggests alternative ways the United States can have a fair and efficient system that better fulfills its obligation to provide access to protection at the border. A different reception system at the border is an essential component of a new, comprehensive, protection-oriented approach to migration from Central America.

 

. . . .

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

Read Yael’s full paper at the link.

I think the Administration could and should have taken a much quicker and more aggressive approach to restoring the rule of law at the border. In the more than six months since the election, the Biden Administration could have reached out to the private/NGO sectors, as well as  identifying qualified due process and human rights experts already on the USG payroll, who could have re-established legal asylum screening ART USCIS and reinstituted due process and the rule of law at EOIR while longer term reforms and more permanent personnel recruitments and selections were being made.

Why are brilliant experts like Yael and many others still writing papers and making suggestions (that the Administration insultingly ignores or fobs off) instead of leading from the inside and solving problems on a daily basis? What a waste of brainpower and opportunity for immediate improvment, not to mention the human lives and national values being “flushed down the toilet”🚽  at EOIR and DHS every day! 

Why are inferior “Miller Lite Holdover” candidates, recruited under a badly flawed and much criticized process, being selected by Garland at EOIR, when a potentially far superior and more diverse group of experts from the NDPA could be attracted and hired under a legitimate recruitment process that targets the many underrepresented pools of talent for key jobs at DHS and DOJ?

It is a priority, and it’s not rocket science!🚀 But, it will remain beyond the capabilities or priorities at DOJ and DHS unless or until the Biden Administration brings in some better personnel and experts to solve the problems!

Neither Garland nor Mayorkas has put the “A-Team” in place, despite lots of recommendations that they do so and the pools of far better personnel readily available in the private sector and outside the “Miller-Restrictionist In-Team” that systematically abused and disrespected immigrants’ and human rights over the past four years!

It’s frustrating to watch yet another Dem Administration unnecessarily screw up immigration law and policy. It also costs human lives and undermines the future of our national democracy.☠️⚰️👎🏻

🇺🇸⚖️🗽Due Process Forever!

PWS

05-17-21

😰NO HAPPY NEW YEAR FOR FAMILIES IN “THE NEW AMERICAN GULAG”☠️⚰️ — As Kakistocracy Of War Criminals 🤮🏴‍☠️ Departs, Will President Biden Have The Wisdom & Guts To Move Beyond “The Dem Border Alarmists” & Get The Progressive Leaders 🦸🏽‍♂️⚖️ From The NDPA In Place To Bring Due Process & Order To The Border?🗽🇺🇸

Trump Dumping Asylum Seekers in Hondiras
Dumping Asylum Seekers in Honduras
Artist: Monte Wolverton
Reproduced under license
Amanda Holpuch
Amanda Holpuch
Reporter
The Guardian

 

Erika Pinheiro
Erika Pinheiro, Litigation & Policy Director, Al Otro Lado, speaks at TEDSalon: Border Stories, September 10, 2019 at the TED World Theater, New York, NY Photo: Ryan Lash / TED, Creative Commons License

https://www.theguardian.com/us-news/2021/jan/01/family-detention-still-exists-immigration-groups-warn-the-fight-is-far-from-over?CMP=Share_iOSApp_Other

Amanda Holpuch reports from the Gulag for HuffPost:

. . . .

The Centers for Disease Control and Prevention (CDC) bars asylum seekers and refugees from the US under an order called Title 42. People who attempt to cross the border are returned, or expelled, back to Mexico, without an opportunity to test their asylum claims. More than 250,000 migrants processed at the US-Mexico border between March and October were expelled, according to US Customs and Border Protection data.

The situation is dire. Thousands of asylum-seekers are stuck at the border, uncertain when they will be able to file their claims. The camps they wait in are an even greater public health risk that before.

Outside the border, Al Otro Lado has fought for detained migrants to get PPE and medical releases. Prisons are one of the worst possible places to be when there is a contagious disease and deaths in the custody of US immigration authorities have increased dramatically this year. They have also provided supplies to homeless migrants in southern California who have been shut out of public hygiene facilities.

Pinheiro said there will be improvements with Trump out of office, but some of the Biden campaign promises to address asylum issues at the border will be toothless until the CDC order is revoked. It’s a point she plans to make in conversations with the transition team.

A prime concern for advocates about the Biden administration is that it will include some of the same people from Barack Obama’s administration, which had more deportations than any other president and laid the groundwork for some controversial Trump policies.

While it is a worry for Pinheiro, she has hope that the new administration will build something better. “I would hope a lot of those people, and I know for some of them, have been able to reflect on how the systems they built were weaponized by Trump to do things like family separation or detaining children,” she said.

Family separation, which has left 545 children still waiting to be reunited with their parents, was a crucial issue for many voters and Pinheiro hopes that energy translates to other immigration policies.

“How did you feel when your government committed the atrocity of family separation in your name?” Pinheiro said. “The next step is really understanding that similar and sometimes worse atrocities are still being committed in the name of border security and limiting migration.”

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

Read the complete article at the link.

I totally agree with Erika Pinheiro that there is no excuse for the continuing violations of our Constitution, statutes, international obligations, and simple human decency. The regime’s policies are nothing more than “crimes against humanity” thinly disguised as “law enforcement,” “national security,” and  “public health” (from a regime whose “malicious incompetence,” cruelty, and callous intentional undermining of medical advice during the pandemic have contributed to the unnecessary deaths of tens of thousands of Americans).

Even more disgracefully, the Supremes and other Federal Courts have failed in their Constitutional duty to stand up to the abusers and hold the regime’s scofflaw “leaders” (to where, one might ask?) accountable. What’s the purpose of life-tenured judges who lack the training, wisdom, ethics, and most of all courage to enforce the legal and human rights of the most vulnerable against lawless, dishonest, and fundamentally cowardly “Executive bullies” hiding behind their official positions? Not much, in my view! There are deep problems in all three branches of our badly compromised and ailing Government!

I have also spoken out on Courtside against the dangers of putting the same failed Dem politicos who thoroughly screwed up immigration policy, and particularly the Immigration Courts, back in charge again. I agree with Erika’s hope that some of them have gained wisdom and perspective in the last four years. But, why rely on the hope that those who failed in the past have suddenly gotten smarter, when there are “better alternatives” out there ready to step in and solve the problems?

Why not put in place some talented new faces from the NDPA with better, more progressive ideas, tons of dynamic energy, and the demonstrated willingness and courage to stand tall against bureaucratic tyranny? Give them a chance to solve the problems! Erika looks like one of those who should be solving problems and implementing better immigration policies “from the inside” in the Biden-Harris Administration!

The “deterrence only paradigm” that has driven our border enforcement policies over the past half century has been a demonstrable failure, both in terms of law enforcement and the unnecessary and unjustifiable human carnage that it has caused. Why keep doing variations on discredited policies and expecting better results?

We know that ugly, racist rhetoric, jailing families and kids in punitive conditions, weaponizing courts as enforcement tools, suspending the rule of law, denying hearings, and even summarily, illegally, and immorally returning asylum seekers to death won’t stop folks from fleeing unbearable conditions in their native countries! They will continue to seek protection in America, even in the face of predictable abuses, life-threatening dangers, and little chance of success in a system intentionally “gamed” to mistreat and reject them while denying their humanity.

Desperate people do desperate things. They will continue to do them even in the face of inhuman abuses inflicted by those whose better fortunes in life have not been accompanied by any particular compassion, understanding of the predicament of others, or recognition of an obligation to abjure the power to bully and torment those less fortunate in favor of addressing their situations in a fair, reasonable, and humane manner.

Human migration is far older than nation states, zero tolerance, baby jails, family incarceration, biased judging, national selfishness disguised as “patriotism,” and border walls. It has outlasted and outflanked all of the vain attempts to artificially suppress it by force and gimmicks. It’s time for some policies that recognize reality, see its benefits, and work with the flow rather than futilely in opposition to it.

It’s past time to look beyond the failures of yesterday to progressive solutions and new leadership committed to solving problems while enhancing justice, respecting human dignity, and enhancing human rights (which, in the end, are all of our rights)!

 

Due Process Forever!⚖️🗽🇺🇸 Same old, same old never!

Happy New Year!😎👍🏼

PWS

O1-01-21

DEMS NEED TO STOP REPEATING THE BOGUS 🤥 NARRATIVES ABOUT THE (LARGELY SELF-CREATED & OVERBLOWN) “SOUTHERN BORDER CRISIS:” Channeling “Courtside,” Yale Schacher Sets Forth A Plan For Using Experts To Not Only Reinstitute But Drastically Improve Due Process ⚖️🗽🇺🇸 For Asylum Seekers! — It’s NOT Rocket 🚀 Science!

Yael Schacher
Yael Schacher
Historian
Senior U.S. Advocate
Refugees International

https://www.refugeesinternational.org/reports/2020/12/17/building-better-not-backward-learning-from-the-past-to-design-sound-border-asylum-policy

Introduction

President-elect Biden has promised a broad array of reforms that would impact refugees, asylum seekers, and other forced migrants. He has indicated he will restore Temporary Protected Status, place a moratorium on deportations, and end prolonged detention and for-profit detention centers. These are all crucially important to the safety and security of migrants and their families in the United States and other countries, especially in the Western Hemisphere. President-elect Biden has also promised to end the Trump administration’s policy of making asylum seekers “remain in Mexico” while awaiting hearings in U.S. immigration court.

However, in recent weeks, a flawed and fatalistic view of migration to the U.S. southern border has taken hold in some media accounts and reports. It goes like this: President Trump’s Remain in Mexico (or MPP) policy has created a logistical and humanitarian crisis at the southern U.S. border that, despite President-elect Biden’s promises, will be very difficult to undo. Further, a combination of pull and push factors (especially in the wake of hurricanes in Central America) will lead to increased migration to the southern U.S. border this spring such that President-elect Biden will have little choice but to keep the border sealed under an order from the Centers for Disease Control and Prevention (CDC), as he attempts to deal with COVID-19 in border states and fulfill other immigration policy promises—including uniting families the Trump administration ripped apart two years ago.

There are several problems with this line of argument, many of which are addressed in this report. Most fundamentally, keeping the border sealed and migrants waiting in Mexico will perpetuate serious abuses. Family separations and other violations of human rights, as well as violations of U.S. law, will continue to occur under a Biden administration that does not implement new policies at the border. Recently, MPP and the CDC border closure have exacerbated smuggling and trafficking at the border, as well as other forms of abuse against migrants. For example, the CDC order has led to the repatriation of Nicaraguan dissidents as well as the return of a sexually abused Guatemalan child.  It has also led asylum seekers to try to cross undetected in remote desert areas. Further, unwinding MPP and allowing asylum seekers to ask for protection at the border is not only the right thing to do, but also feasible with the proper planning. Indeed, it presents the incoming administration with an opportunity to rethink migration management, especially for those seeking asylum, and to implement a new screening process that is both more humane and more efficient.

President-elect Biden has invoked President Franklin Delano Roosevelt—healer, rebuilder, and practical problem solver—as a model. During World War II, Roosevelt planned and devoted significant resources to resolving the largest displacement crisis the world had ever known. This planning was part of an effort to ensure that what happened in 1939 to the S.S. St. Louis—a ship of asylum-seeking Jews turned away by the United States and other countries—would not occur again.  

During his first week in office, President-elect Biden should issue an executive order on border asylum policy that departs dramatically from that which President Trump put forth during his first week. President Biden’s executive order should give asylum seekers access to the border and provide for cooperation with border states and shelters to safely and humanely receive asylum seekers. It should allocate resources to alternatives to detention, including case management, and to improved adjudication of asylum claims in immigration courts, especially through provision of legal services. It should also commit to ending practices associated with expedited removal of asylum seekers that have resulted in abuses, and to the use of parole to unwind MPP. Finally, through revocation of Trump administration decisions, regulations, and policies, as well as through settlement of lawsuits and the withdrawal of appeals to federal courts regarding these policies, the executive order should commit to restoring asylum eligibility to those who have fled persecution but have been denied or prevented from obtaining protection. 

In taking such action, President-elect Biden would be fulfilling not only his campaign promises but the commitment he made when he voted for Senate passage of the Refugee Act of 1980. That law, supported by large majorities of both parties, promised to ensure fair access to asylum at the border 

This report shows why it is imperative that the Biden administration do this rather than keep us mired in a policy framework that does not work and that has led to a cycle of crises. It does so by looking back to a momentous time of transition about thirty years ago. With the Cold War ending, the United States had to rethink its assumptions about who merited refugee status. Only a handful of refugee resettlement slots in the U.S. Refugee Program were allotted to Central Americans, and the United States had not yet developed clear procedures for effectively handling asylum seekers at the southwestern border. Rather than acknowledge the forces pushing people northward, U.S. policymakers adopted a paradigm that was focused primarily, if not exclusively, on deterrence. This is a paradigm that we are still in today.

At different points over the past thirty years, humanitarian and constructive policies have tempered the harshness of this paradigm, and such policies have also brought benefits in terms of cost and efficiency. These policies need to be adapted and scaled up. But they also need to be placed within a welcoming framework that does not presume asylum seekers are a threat. Instead of devoting tremendous resources to a futile and rights-violating attempt to block those already on the move, we have to try to better understand the drivers of migration, which, for Central Americans, include corruption, poverty, insecurity, and violence.  We must devote resources instead to humanely receiving asylum seekers and adjudicating their claims fairly. We also have to stop assuming that the best place to manage admissions of all Central Americans seeking protection is at the border.

The Deterrence Paradigm 

The deterrence paradigm has been implemented repeatedly using the same counterproductive strategies.

. . . .

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

Read the rear of Yael’s article at the link.

👍🏼👍🏼👍🏼👍🏼👍🏼⚖️🗽🇺🇸

Folks like my Round Table 🛡⚔️ colleague Judge Paul Grussendorf and I have been “preaching” for an abandonment of the unlawful, inhumane, incredibly wasteful, and demonstrably ineffective “deterrence paradigm.” 

The skill set to establish a lawful, better, humane, efficient asylum system, consistent with our Constitutional, statutory, and international obligations is out there, mainly in the private/NGO/academic communities. I/O/W the “practical scholars, litigators, and advocates” in the NDPA.

It’s a just a question of the incoming Biden/Harris Administration getting beyond the “enforcement only” mentality, personnel, and White Nationalist nativist thinking that currently infects the entire USG immigration bureaucracy, at all levels. Replace the current failed leadership with experts from the NDPA and empower them to work with other experts in the private sector to institute a better system that would be no more costly, likely less, than the current “built to fail” abominations that not only waste resources but destroy human lives and are an ugly stain on our national conscience!

I also appreciate Yael’s recognition of the pressing and compelling need to “end the Clown Show 🤡🦹🏿‍♂️☠️@ EOIR:”

Immigration Court Reform

EOIR policies during the Trump administration have been at odds with principles of due process and judicial independence. These include the imposition of numeric case completion quotas and docket management policies that deprive asylum seekers of procedural protections; appointment of judges who almost exclusively come from prosecutorial backgrounds (especially working at DHS and in law enforcement); promotion to permanent positions on an expanded BIA of judges with asylum denial rates much higher than the national average; and procedures that limit the ability of claimants to effectively appeal their cases. The Biden administration should conduct an urgent review of EOIR hiring practices and immigration court procedures and develop recommendations for regulatory or structural changes consistent with the protection needs of asylum seekers.

 

The critical “urgent review” should be done by a “Team of Experts from the NDPA” brought in on an immediate temporary basis, if necessary, in accordance with Federal Personnel Rules, to replace the current Senior “Management” @ EOIR as well as the entire BIA. There’s no better way to fix the system than to take over management, restore fairness and order, and get inside the current disastrous mess @ the Clown Show 🤡🦹🏿‍♂️! Importantly, the “Team of Experts” with effective operational control could immediately begin fixing (and conversely stop aggravating and creating) the glaring problems while putting the structure and personnel in place for long-term reforms.

Lives ☠️⚰️ are at stake here! We need ACTION, not merely study and evaluation. “Fixing the system on the fly” may be challenging, but it’s perfectly within the capabilities of the right team of NDPA experts! Dems often prefer study and dialogue to effective actions. As Toby Keith would say: We need “a little less talk and a lot more action.”

(Toby Keithhttps://www.google.com/search?q=%22a+little+less+talk+and+a+lot+more+action&ie=UTF-8&oe=UTF-8&hl=en-us&client=safari)

Due Process Forever!  It’s NOT rocket 🚀 science!

PWS

12-30-20

🗽⚖️🇺🇸YAEL SCHACHER @ REFUGEES INTERNATIONAL FILES AMICUS BRIEF ON WHY “REMAIN IN MEXICO” IS A “CRIME AGAINST HUMANITY” — “When I wasn’t visiting border, I was trying to understand how the U.S. government could put in place a policy that seemed the very antithesis of what seeking asylum was supposed to be, as articulated in Refugee Act of 1980.”

Yael Schacher
Yael Schacher
Historian
Senior U.S. Advocate
Refugees International

https://www.google.com/url?q=https://www.refugeesinternational.org/reports/2020/11/25/le4a9nihwqnhgcn0q2l5fufa8fah6v&source=gmail-imap&ust=1606928318000000&usg=AOvVaw0Fc_OTkc3MFgBm5dijso0i

. . . .

When I wasn’t visiting border, I was trying to understand how the U.S. government could put in place a policy that seemed the very antithesis of what seeking asylum was supposed to be, as articulated in Refugee Act of 1980. I had spent my time before coming to Refugees International researching the writing and passage of that law and the development of the contemporary asylum system since 1980. The Remain in Mexico policy is unprecedented. The U.S. government claims the authority for it lies in a provision of the 1996 immigration law that allows for the return of certain applicants for admission to contiguous territory to await processing.  I began researching this provision and it became clear that it was not intended to apply to asylum seekers.

In support of a challenge to the Remain in Mexico program in California federal court, Refugees International and I, with attorneys from Sidley Austin LLP, submitted this brief describing why the Refugee Act forbids the program, a reality that the 1996 law does not change. The argument of the brief is that, when the 1980 Refugee Act was enacted, it was intended to establish a uniform process for consideration of asylum claims that would preclude this return to Mexico approach. A lynchpin in the argument is that there were two versions of the asylum provision of the Refugee Act—one proposed by Congresswoman Holtzman and one by Senator Edward Kennedy. Only the House version provided that asylum seekers at a land border be accorded the same ability to seek asylum as those already in the country. When, in conference, Holtzman’s version was accepted, Congress made a conscious choice in pursuit of uniformity in consideration of asylum requests: that the United States would treat asylum seekers at the border the same as it would all others. And the language mandating uniform treatment of asylum seekers in the 1980 Refugee Act was reiterated in the 1996 immigration law.

. . . .

 

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

The case is Immigrant Defenders Law Center v. Wolf, USDC, C.D. CA.

Read Yael’s intro, her outstanding brief prepared by Sidley Austin LLP, and the “Holtzman Papers” at the above link.  Notably, Sidley Austin is one of the great firms that have helped our Round Table with amicus briefs! It’s what happens when you connect the dots among history, research, social justice, and the law. It’s why the Liberal Arts are the wave of a better future and a better Federal Judiciary! It’s all about perspective and problem solving!


Thanks Yael for all that you, Refugees International, and great pro bono lawyers like Sidley Austin do for justice and humanity.

The real problem here: A disgraceful Supremes’ majority 🏴‍☠️ that improperly “greenlighted” this totally illegal, racist-inspired, “crime against humanity,” cooked up by neo-Nazi hate monger Stephen Miller ☠️🤮, after it had properly and timely been enjoined by lower Federal courts. And, a complicit EOIR that consistently fails to provide due process and justice to asylum seekers is a huge part of the problem. 

Unlike the Supremes, the EOIR Clown Show 🤡 can be removed and justice at all levels improved just by a putting the right experts from the NDPA in charge right off the bat.

Democratic Administrations, particularly the Obama Administration, have a history of not getting the job done when it comes to achievable immigration reforms within the bureaucracy. If you don’t want four more years of needless death, disorder, demeaning of humanity, and deterioration of the most important “retail level” of our justice system, let the incoming Biden Administration know: Throw out the EOIR Clown Show and bring in the experts from the NDPA to turn the Immigration Courts into real, independent courts of equal justice and humanity that will be a source of pride, not a deadly and dangerous national embarrassment! 

Contrary to all the mindless “woe is me” suggestions that it will take decades to undo Stephen Miller’s (is he really that much smarter than any Democrat politico?) racist nonsense, EOIR is totally fixable — BUT ONLY WITH THE RIGHT FOLKS FROM THE NDPA IN CHARGE!  

It’s only “mission impossible” if the Biden-Harris Administration approaches EOIR with the same indifference, lack of urgency, and disregard for expertise and leadership at the DOJ that has plagued past Dem Administrations on immigration, human rights, and social justice.

It won’t take decades, nor will it take zillions of taxpayer dollars! With the right folks in leadership positions at EOIR, support for independent problem solving (not mindless micromanagement) from the AG & DOJ, and a completely new BIA selected from the ranks of the NDPA, we will see drastic improvements in the delivery of justice at EOIR by this time next year. And, that will just be the beginning!

No more clueless politicos, go along to get along bureaucrats, toadies, and restrictionist holdovers calling the shots at EOIR, America’s most important, least understood, and “most fixable” court system! No more abuse of migrants and their representatives! No more ridiculous, “Aimless Docket Reshuffling” generating self-created backlogs! No more vile and stupid White Nationalist enforcement gimmicks being passed off as “policies!” No more “Amateur Night at The Bijou” when it comes to administration of the immigrant justice system at the DOJ under Dems!

Get mad!  Get angry! Stop the nonsense! Tell every Democrat in Congress and the Biden Administration to bring in the NDPA experts to fix EOIR! Now! Before more lives are lost and futures ruined! It won’t get done if we don’t speak out and demand to be heard!

This is our time! Don’t let it pass with the wrong people being put in charge — yet again! Don’t be “left at the station” as the train of immigrant justice at Justice pulls out with the best engineers left standing on the platform and the wrong folks at the controls! Some “train wrecks” aren’t survivable! 🚂☠️⚰️

Due Process Forever!

PWS

11-28-20

OUR IMPLEMENTATION OF ASYLUM LAW HAS ALWAYS BEEN FLAWED — NOW, TRUMP HAS SIMPLY ABROGATED THE REFUGEE ACT OF 1980, WITHOUT LEGISLATION — But, Led By The Complicit Supremes, Federal Appeals Courts Seemingly Have Lost Interest In Protecting Human Rights, Saving Lives, & Holding The Regime Accountable — America No Longer Has A Functioning Asylum & Refugee Protection System

https://www.washingtonpost.com/outlook/2020/03/21/coronavirus-cant-be-an-excuse-continue-president-trumps-assault-asylum-seekers/

Yael Schacher
Yael Schacher
Historian
Senior U.S. Advocate
Refugees International

 

By Yael Schacher in WashPost: 

The coronavirus has crowded out many policy debates. But in one area, immigration, it is fusing with the Trump administration’s broader agenda.

Using covid-19 as a cover, the administration is making its most overt move yet to eliminate the right to seek asylum in the United States. Officials claim that because of coronavirus, beginning March 21, they swiftly can return or repatriate asylum seekers at the U.S.-Mexico border. This unprecedented move violates U.S. and international law and may actually exacerbate the spread of covid-19 at the border. It also betrays the core promise of the 1980 Refugee Act, signed 40 years ago this week.

With this law the United States belatedly accepted the definition of a refugee established by the 1951 U.N. Convention and 1967 Protocol on the Status of Refugees. The Act passed Congress with overwhelming bipartisan support and made resettling refugees from abroad a part of the nation’s immigration policy. But the Act also accorded people fleeing persecution a chance to seek asylum if they arrived at U.S. borders or already were in the United States.

The law established that people could seek asylum regardless of their immigration status or mode of entry and prohibited U.S. authorities from sending asylum seekers to a place where their lives or freedom would be threatened. It is crucial to remember this right now, given the all-out assault on the U.S. asylum system by the Trump administration, which began even before the coronavirus. The proposed new ban on asylum that would turn back asylum seekers will endanger the lives of even more refugees and further jeopardize our collective public health by sending people to live on the Mexican side of the border where they will lack adequate shelter and care and where there is no way to prevent the spread of coronavirus. As the United Nations High Commissioner for Refugees has written, turning away asylum seekers would send them into “orbit” in search of a refuge and, as such, may contribute to the further spread of the disease.

Before the passage of the Refugee Act in 1980, the United States was violating the human rights of asylum seekers, in particular the thousands of Haitians who arrived in Florida by boat. Instead of having their asylum cases heard they were systemically detained by the Immigration and Naturalization Service, denied due process in the immigration courts and threatened with deportation to the persecution they had fled.

Haitian leaders and refugee advocates in New York and Florida protested against this treatment and, in May 1979, sued the government in federal court in Haitian Refugee Center v. Civiletti. In his 1980 decision, Judge James Lawrence King (a Nixon-appointee) excoriated the U.S. government for violating the rights of Haitians and prejudging their claims. As King wrote, the evidence presented at trial was “both shocking and brutal, populated by the ghosts of individual Haitians — including those who have been returned from the United States — who have been beaten, tortured, and left to die in Haitian prisons.”

King also referred to convincing evidence provided by Amnesty International and the Lawyers Committee for International Human Rights (now Human Rights First) that asylum seekers were mistreated both by U.S. immigration authorities and upon return to Haiti.

As the litigation was going on, members of Congress worked on the language of the Refugee Act. Amnesty and the Lawyers Committee suggested to then-Rep. Elizabeth Holtzman (D-N.Y.) language be added specifically to prevent people from being returned, as Haitians had been, and safeguard the right to seek asylum upon reaching anywhere in the United States. Without such a safeguard written into the law, the right to seek asylum would not be secure outside of South Florida, where Judge King’s ruling applied. Grounding the right to seek asylum in a statute also makes it harder to limit federal court review of executive branch policies that violate it.

Holtzman adopted Amnesty’s language into the House version of the bill, and it became the first provision of section 208 of the Immigration and Nationality Act. Holtzman’s language explicitly provided for the right to seek asylum not only to those who came by sea but also to those who crossed a land border or arrived at a border port of entry. Unfortunately, Holtzman did not accept the Lawyers Committee’s recommendation that the Refugee Act also include “guidelines” for determining who would be eligible for asylum and how they would prove it. It left these procedures to the executive branch.

Nonetheless, as she wrote in her report on the bill, “The Committee wishes to insure a fair and workable asylum policy which is consistent with this country’s tradition of welcoming the oppressed of other nations and with our obligations under international law.”

Almost immediately after the Refugee Act went into effect in April 1980, Fidel Castro allowed thousands of Cubans to sail to the United States. As the Carter administration devised a special program to deal with this influx, the development of general asylum procedures was put off (with only interim regulations published). Beginning in 1981, the Reagan administration embraced deterrence through interdiction, detention and externalization as the path to deal with asylum seekers, shirking the intention of Holtzman and Congress, which had ensured the right to seek asylum in the 1980 Act.

These strategies remain the norm to this day. As Sen. Ted Kennedy wrote in 1981, the Act would be an effective instrument only if U.S. leaders used it wisely, to serve the country’s humanitarian traditions. The U.S. government has not paid adequate attention or resources to ensure fair and efficient adjudication of asylum claims. Indeed, Congress itself appropriates no money to United States Citizenship and Immigration Services for asylum adjudication and has allowed the immigration courts to be weaponized against asylum seekers. Over the last three years, the Trump administration has engaged in an all-out assault on asylum that already has restricted the ability of many immigrants to qualify for refuge and sent over 60,000 people to wait in Mexico, where they are forced to live in dangerous, inhumane conditions in open-air encampments and shelters.

. . . .

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

Read the rest of the article at the link.

This article inspires me to do a “reprise” of remarks I made at the Federal Bar Association’s Annual Immigration Conference in Austin, Texas, in May 2018. I describe the post-1980 history of asylum in the Immigration Courts and how the Obama Administration’s exceptionally poor and often tone-deaf handling of asylum issues at EOIR, and particularly their ill-advised response to the so-called “Southern Border Crisis” in 2014, seriously deteriorated due process and the functioning of the Immigration Courts while “paving the way” for even more blatantly scofflaw actions by the Trump regime.

JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

By

Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Federal Bar Association Immigration Conference

Austin, Texas

May 17, 2019

Hi, I’m Paul Schmidt, moderator of this panel. So, I have something useful to do while my wonderful colleagues do all the “heavy lifting,” please submit all questions to me in writing. And remember, free beer for everyone at the Bullock Texas State Museum after this panel!

Welcome to the front lines of the battle for our legal system, and ultimately for the future of our constitutional republic. Because, make no mistake, once this Administration, its nativist supporters, and enablers succeed in eradicating the rights and humanity of Central American asylum seekers, all their other “enemies” — Hispanics, gays, African Americans, the poor, women, liberals, lawyers, journalists, civil servants, Democrats — will be in line for “Dred Scottification” — becoming “non-persons” under our Constitution. If you don’t know what the “Insurrection Act” is or “Operation Wetback” was, you should “tune in” to today’s edition of my blog immigrationcourtside.com and take a look into the future of America under our current leaders’ dark and disgraceful vision.

Before I introduce the “Dream Team” sitting to my right, a bit of asylum history.

In 1987, the Supreme Court established in INS v. Cardoza-Fonseca that a well founded fear of persecution for asylum was to be interpreted generously in favor of asylum applicants. So generously, in fact, that someone with only a 10% chance of persecution qualifies.

Shortly thereafter, the BIA followed suit with Matter of Mogharrabi, holding that asylum should be granted even in cases where persecution was significantly less than probable. To illustrate, the BIA granted asylum to an Iranian who suffered threats at the Iranian Interests Section in Washington, DC. Imagine what would happen to a similar case under today’s regime!

In the 1990s, the “Legacy INS” enacted regulations establishing that those who had suffered “past persecution” would be presumed to have a well-founded fear of future persecution, unless the Government could show materially changed circumstances or a reasonably available internal relocation alternative that would eliminate that well-founded fear. In my experience as a judge, that was a burden that the Government seldom could meet.

But the regulations went further and said that even where the presumption of a well founded fear had been rebutted, asylum could still be granted because of “egregious past persecution” or “other serious harm.”

In 1996, the BIA decided the landmark case of Matter of Kasinga, recognizing that abuses directed at women by a male dominated society, such as “female genital mutilation’ (“FGM”), could be a basis for granting asylum based on a “particular social group.” Some of us, including my good friend and colleague Judge Lory Rosenberg, staked our careers on extending that much-need protection to women who had suffered domestic violence. Although it took an unnecessarily long time, that protection eventually was realized in the 2014 precedent Matter of A-R-C-G-, long after our “forced departure” from the BIA.

And, as might be expected, over the years the asylum grant rate in Immigration Court rose steadily, from a measly 11% in the early 1980s, when EOIR was created, to 56% in 2012, in an apparent long overdue fulfillment of the generous legal promise of Cardoza-Fonseca. Added to those receiving withholding of removal and/or relief under the Convention Against Torture (“CAT”), approximately two-thirds of asylum applicants were receiving well-deserved, often life-saving legal protection in Immigration Court.

Indeed, by that time, asylum grant rates in some of the more due-process oriented courts with asylum expertise like New York and Arlington exceeded 70%, and could have been models for the future. In other words, after a quarter of a century of struggles, the generous promise of Cardoza-Fonseca was finally on the way to being fulfilled. Similarly, the vision of the Immigration Courts as “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all” was at least coming into focus, even if not a reality in some Immigration Courts that continued to treat asylum applicants with hostility.

And, that doesn’t count those offered prosecutorial discretion or “PD” by the DHS counsel. Sometimes, this was a humanitarian act to save those who were in danger if returned but didn’t squarely fit the somewhat convoluted “refugee” definition as interpreted by the BIA. Other times, it appeared to be a strategic move by DHS to head off possible precedents granting asylum in “close cases” or in “emerging circumstances.”

In 2014, there was a so-called “surge” in asylum applicants, mostly scared women, children, and families from the Northern Triangle of Central America seeking protection from worsening conditions involving gangs, cartels, and corrupt governments.There was a well-established record of femicide and other widespread and largely unmitigated gender-based violence directed against women and gays, sometimes by the Northern Triangle governments and their agents, other times by gangs and cartels operating with the knowledge and acquiescence of the governments concerned.

Also, given the breakdown of governmental authority and massive corruption, gangs and cartels assumed quasi-governmental status, controlling territories, negotiating “treaties,” exacting involuntary “taxes,” and severely punishing those who publicly opposed their political policies by refusing to join, declining to pay, or attempting to report them to authorities. Indeed, MS-13 eventually became the largest employer in El Salvador. Sometimes, whole family groups, occupational groups, or villages were targeted for their public acts of resistance.

Not surprisingly in this context, the vast majority of those who arrived during the so-called “surge” passed “credible fear” screening by the DHS and were referred to the Immigration Courts, or in the case of “unaccompanied minors,” to the Asylum Offices, to pursue their asylum claims.

The practical legal solution to this humanitarian flow was obvious — help folks find lawyers to assist in documenting and presenting their cases, screen out the non-meritorious claims and those who had prior gang or criminal associations, and grant the rest asylum. Even those not qualifying for asylum because of the arcane “nexus” requirements appeared to fit squarely within the CAT protection based on likelihood of torture with government acquiescence upon return to the Northern Triangle. Some decent BIA precedents, a robust refugee program in the Northern Triangle, along with continued efforts to improve the conditions there would have “sealed the deal.” In other words, the Obama Administration had all of the legal tools necessary to deal effectively and humanely with the misnamed “surge” as what it really was — a humanitarian situation and an opportunity for our country to show human rights leadership!

But, then things took a strange and ominous turn. After years of setting records for deportations and removals, and being disingenuously called “soft on enforcement” by the GOP, the Obama Administration began believing the GOP myths that they were wimps. They panicked! Their collective “manhood” depended on showing that they could quickly return refugees to the Northern Triangle to “deter” others from coming. Thus began the “weaponization” of our Immigration Court system that has continued unabated until today.

They began imprisoning families and children in horrible conditions and establishing so-called “courts” in those often for profit prisons in obscure locations where attorneys generally were not readily available. They absurdly claimed that everyone should be held without bond because as a group they were a “national security risk.” They argued in favor of indefinite detention without bond and making children and toddlers “represent themselves” in Immigration Court.

The Attorney General also sent strong messages to EOIR that hurrying folks through the system by “prioritizing” them, denying their claims, “stuffing” their appeals, and returning them to the Northern Triangle with a mere veneer of due process was an essential part of the Administration’s “get tough” enforcement program. EOIR was there to “send a message” to those who might be considering fleeing for their lives — don’t come, you won’t get in, no matter how strong your claim might be.

They took judges off of their established dockets and sent them to the Southern Border to expeditiously remove folks before they could get legal help. They insisted on jamming unprepared cases of recently arrived juveniles and “adults with children” in front of previously docketed cases, thereby generating total chaos and huge backlogs through what is known as “aimless docket reshuffling” (“ADR”).

Hurry up scheduling and ADR also resulted in more “in absentia” orders because of carelessly prepared and often inadequate or wrongly addressed “notices” sent out by overwhelmed DHS and EOIR court staff. Sometimes DHS could remove those with in absentia orders before they got a chance to reopen their cases. Other times, folks didn’t even realize a removal order had been entered until they were on their way back.

They empowered judges with unusually high asylum denial rates. By a ratio of nine to one they hired new judges from prosecutorial backgrounds, rather than from the large body of qualified candidates with experience in representing asylum applicants who might actually have been capable of working within the system to fairly and efficiently recognize meritorious cases, promote fair access to pro bono counsel, and insure that doubtful cases or those needing more attention did not get “lost” in the artificial backlogs being created in an absurdly mismanaged system. In other words, due process took a back seat to “expedience” and fulfilling inappropriate Administration enforcement goals.

Asylum grant rates began to drop, even as conditions on the ground for refugees worldwide continued to deteriorate. Predictably, however, detention, denial, inhumane treatment, harsh rhetoric, and unfair removals failed to stop refugees from fleeing the Northern Triangle.

But, just when many of us thought things couldn’t get worse, they did. The Trump Administration arrived on the scene. They put lifelong White Nationalist xenophobe nativists Jeff Sessions and Stephen Miller in charge of eradicating the asylum process. Sessions decided that even artificially suppressed asylum grant rates weren’t providing enough deterrence; asylum seekers were still winning too many cases. So he did away with A-R-C-G- and made it harder for Immigration Judges to control their dockets.

He tried to blame asylum seekers and their largely pro bono attorneys, whom he called “dirty lawyers,” for having created a population of 11 million undocumented individuals in the U.S. He promoted bogus claims and false narratives about immigrants and crime. Perhaps most disgustingly, he was the “mastermind” behind the policy of “child separation” which inflicted lifetime damage upon the most vulnerable and has resulted in some children still not being reunited with their families.

He urged “judges” to summarily deny asylum claims of women based on domestic violence or because of fear of persecution by gangs. He blamed the judges for the backlogs he was dramatically increasing with more ADR and told them to meet new quotas for churning out final orders or be fired. He made it clear that denials of asylum, not grants, were to be the “new norm” for final orders.

His sycophantic successor, Bill Barr, an immigration hard-liner, immediately picked up the thread by eliminating bond for most individuals who had passed credible fear. Under Barr, the EOIR has boldly and publicly abandoned any semblance of due process, fairness, or unbiased decision making in favor of becoming an Administration anti-asylum propaganda factory. Just last week they put out a “bogus fact sheet” of lies about the asylum process and the dedicated lawyers trying to help asylum seekers. The gist was that the public should believe that almost all asylum seekers from the Northern Triangle are mala fide and that getting them attorneys and explaining their rights are a waste of time and money.

In the meantime, the Administration has refused to promptly process asylum applicants at ports of entry; made those who have passed credible fear “wait in Mexico” in dangerous and sometimes life-threatening conditions; unsuccessfully tried to suspend the law allowing those who enter the U.S. between ports of entry to apply for asylum; expanded the “New American Gulag” with tent cities and more inhumane prisons — dehumanizingly referred to as “beds” as if they existed without reference to those humans confined to them;illegally reprogrammed money that could have gone for additional humanitarian assistance to a stupid and unnecessary “wall;” and threatened to “dump” asylum seekers to “punish” so-called “sanctuary cities.” Perhaps most outrageously, in violation of clear statutory mandates, they have replaced trained Asylum Officers in the “credible fear” process with totally unqualified Border Patrol Agents whose job is to make the system “adversarial” and to insure that fewer individuals pass “credible fear.”

The Administration says the fact that the “credible fear” pass rate is much higher than the asylum grant rate is evidence that the system is being “gamed.” That’s nativist BS! The, reality is just the opposite: that so many of those who pass credible fear are eventually rejected by Immigration Judges shows that something is fundamentally wrong with the Immigration Court system. Under pressure to produce and with too many biased, untrained, and otherwise unqualified “judges,” many claims that should be granted are being wrongfully denied.

Today, the Immigration Courts have become an openly hostile environment for asylum seekers and their representatives. Sadly, the Article III Courts aren’t much better, having largely “swallowed the whistle” on a system that every day blatantly mocks due process, the rule of law, and fair and unbiased treatment of asylum seekers. Many Article IIIs continue to “defer” to decisions produced not by “expert tribunals,” but by a fraudulent court system that has replaced due process with expediency and enforcement.

But, all is not lost. Even in this toxic environment, there are pockets of judges at both the administrative and Article III level who still care about their oaths of office and are continuing to grant asylum to battered women and other refugees from the Northern Triangle. Indeed, I have been told that more than 60 gender-based cases from Northern Triangle countries have beengranted by Immigration Judges across the country even after Sessions’s blatant attempt to snuff out protection for battered women in Matter of A-B-. Along with dependent family members, that means hundreds of human lives of refugees saved, even in the current age.

Also significantly, by continuing to insist that asylum seekers from the Northern Triangle be treated fairly in accordance with due process and the applicable laws, we are making a record of the current legal and constitutional travesty for future generations. We are building a case for an independent Article I Immigration Court, for resisting nativist calls for further legislative restrictions on the rights of asylum seekers, and for eventually holding the modern day “Jim Crows” who have abused the rule of law and human values, at all levels of our system, accountable, before the “court of history” if nothing else!

Eventually, we will return to the evolving protection of asylum seekers in the pre-2014 era and eradicate the damage to our fundamental values and the rule of law being done by this Administration’s nativist, White Nationalist policies.That’s what the “New Due Process Army” is all about.

PWS

O3-24-20