"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
GOP Supremes believe in a different version of the “Christmas Story.” One that bypasses the humane, hopeful message! Albrecht Dürer, Public domain, via Wikimedia Commons
Justices Sotomayor, Kagan, Gorsuch, and Jackson dissented, with Justice Jackson joining Justice Gorsuch in a written dissent. In it, Gorsuch explains why he would deny the states’ request for a stay of the district court order and request for an expedited briefing:
“Reasonable minds can disagree about the merits of the D. C. Circuit’s intervention ruling. But that case-specific decision is not of special importance in its own right and would not normally warrant expedited review. The D. C. Circuit’s intervention ruling takes on whatever salience it has only because of its presence in a larger underlying dispute about the Title 42 orders. And on that score, it is unclear what we might accomplish. Even if at the end of it all we find that the States are permitted to intervene, and even if the States manage on remand to demonstrate that the Title 42 orders were lawfully adopted, the emergency on which those orders were premised has long since lapsed. In April 2022, the federal government terminated the Title 42 orders after determining that emergency immigration restrictions were no longer necessary or appropriate to address COVID–19. 87 Fed. Reg. 19944. The States may question whether the government followed the right administrative steps before issuing this decision (an issue on which I express no view). But they do not seriously dispute that the public-health justification undergirding the Title 42 orders has lapsed. And it is hardly obvious why we should rush in to review a ruling on a motion to intervene in a case concerning emergency decrees that have outlived their shelf life.”
For more on the devastating impact of Title 42 and other Trump-era changes on asylum seekers, see Lindsay Muir Harris, Asylum Under Attack, 67 Loyola Law Review 1 (2021).
IE
Migrant families have been used in political stunts this year. The governors for Texas and Arizona have sent them on buses to the District to make a statement, and in doing so, have treated people as the problem instead of the country’s immigration system, which doesn’t provide clear paths to citizenship for many. An estimated 11,000 migrants have been bused to the District, and while many have since left the region, hundreds alone remain in local hotels and shelters. Many of those are children.
A donated item dropped off at those hotels in recent days was one that a mom had been hoping to give her daughter — a toy kitchen.
Woods cried as she talked about the impact of that and the many other gifts that were received. The strangers who came together to help the families recognized the system is broken, not people, she said.
“They wanted to support people who have escaped trauma, climate crisis, gang violence and the most inhumane things possible to arrive here,” she said. It didn’t matter that they didn’t speak the same language or share the same experiences as those families, she said. “Everyone wanted to make sure they felt welcomed and had a good Christmas, and that’s the true spirit of Christmas.”
Here’s more on GOP political stunts with vulnerable humans as pawns from today’s WashPost:
Three buses full of migrants arrived at Vice President Harris’s residence in Washington from Texas on Christmas Eve amid bitingly cold weather, a mutual aid group said, the latest in an influx of newcomers sent to the Northeast by Southern states.
About 110 to 130 men, women and children got off the buses outside the Naval Observatory on Saturday night in 18-degree weather after a two-day journey from South Texas, according to the Migrant Solidarity Mutual Aid Network. On the coldest Christmas Eve day on record in the District, some migrants were bundled up in blankets as they were greeted by volunteers who had received word that Texas Gov. Greg Abbott (R) had sent the caravan.
Volunteers scrambled to meet the asylum seekers after the buses, which were scheduled to arrive in New York on Christmas Day, were rerouted due to the winter weather. In a hastily arranged welcoming, a church on Capitol Hill agreed to temporarily shelter the group while one of the mutual aid groups, SAMU First Response, arranged 150 breakfasts, lunches and dinners by the restaurant chain Sardis.
“D.C. continues to be welcoming,” the network’s core organizer, Amy Fischer, told The Washington Post. “Whether it’s Christmas Eve, whether it’s freezing cold outside or warm outside, we are always ready to welcome people with open arms and make sure they have a warm reception in this community.”
. . . .
In D.C., the buses had been arriving all week — three from Arizona, another three from Texas — so Tatiana Laborde knew it was going to be an “intense” time. But on Friday, Laborde — who is the managing director of SAMU First Response, one of the agencies along with the mayor’s office and the mutual aid network helping with the migrants — found out about the three rerouted buses. They were scheduled to arrive Sunday morning, Christmas Day.
But then there was another surprise — the buses, from Del Rio, Tex., got in early, parking near the vice president’s Naval Observatory residence on Christmas Eve.
That destination appears to have more political significance than logistical purpose: While other buses have stopped at Union Station, the Naval Observatory is not near any other transportation hubs. The vice president was in D.C. this weekend.
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While Biden Administration spokesperson Abdullah Hasan claimed that they were “willing to work with anyone,” the reality is quite different. The Biden Administration campaigned on the need to end the abusive, deadly Title 42 charade and restore order and the rule of law at the border. Yet, after two years they have accomplished little of substance in addressing this very predictable and urgent humanitarian situation.
The asylum system at both USCIS and EOIR remains a backlogged mess. Regulatory changes, some enacted over the strong objections of human rights legal experts, have failed to meaningfully improve the system.
The administrative legal precedents governing asylum are still unhelpful, often unrealistically restrictive, and frequently impede efficient granting of relief. Improvements for gender-based asylum seekers — directed in one of Biden’s first Executive Orders — are well over a year “overdue” and appear to have fallen off the “radar screen.”
The refugee system outside the U.S., which could have reduced asylum pressure, remains largely as broken and underutilized as the day Trumpleft office. Leadership and personnel changes at DHS and DOJ that should have been made early on were ignored by the Biden Administration.
Significantly, the Administration has neither taken a leadership role nor developed a coherent plan for the orderly, systematic, and rational resettlement of most asylum seekers away from border communities. This has left vulnerable individuals who are legally entitled to apply for asylum at the mercy of grandstanding GOP nativist governors.
It has also overtaxed and overwhelmed border communities and NGOs in “receiving localities” throughout the U.S. There has been no coordination of essential Immigration Court and Asylum Office notices and scheduling with the actual destinations of asylum seekers and with those available to support and represent them. In other words, the Administration has presided over an inexcusable, and unnecessary, mess!
Regardless of its merits, so-called “comprehensive immigration reform” clearly isn’t on the horizon. That means that it’s up to the elected officials — the Biden Administration — to make the current law work — without resorting to illegal and counterproductive gimmicks like Title 42 and “expedited dockets.” That means cutting the whining and finger pointing and getting to work governing and solving immigration problems!
That takes courage, boldness, expertise, human values, creativity, urgency, and competence — seven areas where the Biden Administration has been sorely lacking when it comes to immigration, human rights, and racial justice!
So far, the 2020s have proven to be a time of great change, and the past year has been no exception. In 2022, we endured a third year of the COVID-19 pandemic, saw girls and young women fight for gender equality in Iran, watched as Russia escalated its invasion in Ukraine, protested after the Supreme Court overturned Roe v. Wade, and continued to fight for racial equality and social justice of all kinds.
Amid the hardship, however, has been immense hope — driven particularly by young people. Gen-Z turned out in droves to vote in the midterm elections, hampering the “red wave” predicted by the GOP; young LGBTQ people have fought back against homophobic rules in their cities and states; and groups like the ever-powerful Gen-Z for Change have made waves across activist spaces.
To honor their work and the lasting change young people have made this year, Teen Vogue presents our annual 21 Under 21, a list of changemakers, influencers, activists, and artists who have made a substantial impact in both their communities and the world.
But as we celebrate these young people, we also understand that we shouldn’t have to — young people are too often upheld as the ones who will save the world, but it’s a job that shouldn’t necessarily rest on their shoulders. In our recent cover marking 10 years since the tragedy at Sandy Hook, March for Our Lives co-founder Delaney Tarr wrote about the gun violence crisis in America: “[The youth activist industrial] complex puts the focus on…the individual vs. the system, the youth vs. everyone who should bear responsibility for this crisis. And at what cost?”
So, as you read about and celebrate these extraordinary young people who are, no doubt, doing their part to save the world, ask yourself how you can help. We’re in this together, after all.
Here are Teen Vogue’s 21 Under 21 2022:
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Read all about these talented, courageous, inspiring young people at the above link.
Hannah Cartwright Executive Director & Immigration Attorney Mariposa Legal Foundation Indianapolis, IN PHOTO: Mariposa Legal Foundation
Many thanks to the amazing Hannah Cartwright (“Hannah from Indiana”) for sharing this! Hannah is an “outstanding alum” of the Arlington Immigration Court Internship Program and a former EOIR Judicial Law Clerk, selected under the AG’s Honors Program! She’s a “charter member” of the NDPA, and has degrees from Catholic University in both law and social work.
Hannah currently is Executive Director & Immigration Attorney at the Mariposa Legal Foundation in Indianapolis, IN, a program of COMMON Foundation. Look forward to seeing you on the Immigration Bench in the future, Hannah! Your “practical scholarship,” proven leadership, and real life experience assisting individuals caught up in the morass of today’s immigration bureaucracy are exactly what EOIR needs right now to fulfill the one-time vision of “through teamwork and innovation, being the world’s best administrative tribunals, guaranteeing fairness and due process for all!” ⚖️🗽
“Federal Reserve chief Jerome Powell showed last week that he’s thinking about how recent lower immigration has factored into the ongoing U.S. labor shortage, but he said it’s not appropriate for the Fed to call for increased legal immigration to help alleviate the shortage. Could his remarks, careful as they were, somehow move the needle on immigration policy? His comments came as one new bipartisan proposal for immigration reform flopped in Congress, and some analysts say they aren’t optimistic about progress on immigration next year in a divided Washington. Still, others see Powell’s remarks having a small effect. … Powell’s answer could be seen as part of a slow process that eventually results in long-awaited fixes to the U.S. immigration system, according to Stephen Yale-Loehr, a professor of immigration law at Cornell Law School. “To me, it’s like water dripping on a rock,” Yale-Loehr told MarketWatch in an interview. “A single drop of water, whether it’s from Fed Chairman Powell or somebody else, won’t make a difference by itself. But if enough drips of water from other people and other studies consistently show that immigration can help our labor shortages and improve our economy, then I hope that will move the needle so that Congress will seriously take up immigration reform in 2023.” … The Cornell professor also suggested that grassroots efforts eventually might end up spurring U.S. lawmakers to do more. “A lot of change happens from the ground up, rather than the top down — if you think about civil-rights legislation in the 60s, the Environmental Protection Act of 1970, the antiwar efforts,” he said. “It was because people really protested the existing framework that they forced Congress to make changes in those areas. And so too, I think that if more Americans stood up and said, ‘We need immigration reform,’ I think that that would help persuade Congress to actually put pen to paper and make some significant changes.””
What better place to start forcing some long overdue changes than by getting more NDPA “practical scholar/experts” onto the EOIR bench where lives are on the line every minute of every working day? There are lots of ways to do justice at the “retail level” despite, or perhaps because of, the indifference of those in charge!
Folks, approximately a decade ago, the asylum grant rate at EOIR exceeded 50%! When grants of withholding (many the result of the 1-year-bar on asylum) and CAT were added in, almost 2/3 of asylum applicants who got a merits determination received some form of legal protection!
The vast majority of these cases were not appealed to the BIA. Slowly, but steadily, the EOIR system “at the retail level” was committing to expertise, sound scholarship, due process, fundamental fairness, faithful application of the generous legal principles established in Cardoza, Mogharrabi, and the regulatory presumption of future future persecution based on past persecution.
For years, those precedents and that regulation were resisted by many EOIR judges who continued, in practice, to apply the higher “more likely than not” standard rejected in Cardoza. But, following a series of savagely critical reversals of EOIR asylum denials by the Courts of Appeals the ground started to shift toward a more generous, proper, and correct interpretation of asylum law. Notably, those Court of Appeals “roastings” came after AG John Ashcroft “purged” the BIA in 2003 of appellate judges who spoke out for a better legal interpretation of asylum laws — one that faithfully followed Cardoza, Mogharrabi, and international standards!
As I used to tell my Georgetown Law students, a quarter century after the Supremes’ landmark decision in INS v. Cardoza-Fonseca, establishing the generous “well-founded fear” standard for asylum (reasonable likelihood = 10% chance) and the BIA’s implementation of that standard in Matter of Mogharrabi (asylum can be granted even where it is significantly unlikely that persecution will occur) the more generous standard was actually achieving “traction” at EOIR!
The law hasn’t changed very much since 2012. But, the progress toward a “Cardoza/Mogharrabi compliant” interpretation and application of asylum law halted and regressed substantially during the last part of the Obama Administration and during the Trump era.
What did change, for the worse, was the attitude of politicos, who have seen the Immigration Courts as captive “tools” to deter asylum seekers and “send negative messages” rather than insuring that they function as due-process-oriented, independent, subject matter expert, courts of law. The qualifications of those selected as Immigration Judges were “watered down” to favor high-volume government prosecutorial experience over demonstrated expertise in immigration and asylum laws and “hands on” experience representing individuals before EOIR.
Not surprisingly, asylum grant rates dropped precipitously during the Trump years. Although they have rebounded some under Biden, they still remain below the 2012 levels. It’s certainly not that conditions have substantially “improved” in major “sending countries.” If anything, conditions are worse in most of those countries than in the years preceding 2012.
So, if the law hasn’t changed substantially and conditions haven’t improved, what has caused regression in asylum grant rates at EOIR? It comes down to poor judging, accompanied by inadequate training, too much emphasis on “churning the numbers over quality and correctness,” and a BIA that really doesn’t believe much in asylum law and lacks the expertise and commitment to consistently set and apply favorable precedents and end disgraceful inconsistencies and “asylum free zones” that continue to exist.
Some of the most disgraceful, intentional asylum misinterpretations by Sessions and Barr now have been reversed by Garland. Unfortunately, he failed to follow-up to insure that the correct standards are actually applied, particularly to recurring circumstances. It’s one of many reasons that the Biden Administration struggles to re-establish a fair and efficient legal asylum system at the Southern Border — notwithstanding having two years to address the problems!
But, it doesn’t have to be this way! Recently, a number of notable “practical scholar experts” have been appointed to the Immigration Judiciary. When such well-qualified jurists reach a “critical mass” in the expanding EOIR, systemic changes and improvements in practices and results will happen.
The “dialogue” among Immigration Judges from government backgrounds and those from the private/NGO sector will improve. Lives will be saved. Life-threatening inconsistencies and wasteful litigation to correct basic mistakes at all levels of EOIR will diminish. The EOIR system will resume movement toward the former noble, but now long abandoned, vision of “through teamwork and innovation, being the world’s best administrative tribunals, guaranteeing fairness and due process for all!”
So, warriors ⚔️🛡of the NDPA, make those applications for EOIR judgeships! Storm the tower from below! Make a difference in the lives of others and help save our democracy! If not YOU, then who?👩🏻⚖️👨🏽⚖️⚖️🗽🇺🇸
CROTONE, Italy — On a continent that has spent years trying to cut off undocumented immigration — using fences, surveillance, financial incentives and sometimes even brute force — the close-the-door strategy is faltering
Migration across the Mediterranean has crested to the highest level in five years. New nationalities, most notably from Egypt, have joined the stream of people seeking escape to Europe. And hard-line border policies are merely driving smugglers to adapt: Soon after Greek authorities instituted a practice of harsh pushbacks, boats departing Turkey began charting a longer route — bypassing Greece and heading instead to Italy’s Calabrian coast, an area that used to see almost no arrivals.
“Here comes another,” a law enforcement official at the port of Crotone said one recent morning, watching a vessel with 80 people come into view, just four hours after the arrival of a boat with 81 others.
The European Union’s desire to obstruct migration on multiple fronts was reflected in a collection of deals cobbled together in the aftermath of a 2015 mass-scale wave from Africa and the Middle East. And, for a while, the strategy appeared to be working: Mediterranean crossings dipped dramatically. The issue lost political primacy, depriving nationalist parties of kindling.
But an increase in arrivals this year is showing the limits of a Fortress Europe strategy — and reviving the highly contentious issue of how to handle and divvy up those who make it to the E.U. and its borderless travel zone.
“Europe’s expectations were based on a wrong assumption — that mobility across the Mediterranean could be stopped or limited, so it would no longer be politically relevant,” said Roberto Cortinovis, a migration specialist at the Center for European Policy Studies. “And that is impossible.”
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Some of the same things are happening here. Nativist/restrictionists, largely, but not exclusively, from the GOP, keep pushing failed “deterrence only” enforcement policies. And, the USG keeps “investing” in them despite decades of proven failure and deadly human results.
Ironically, today should have been the end of the illegal and abominable Title 42 charade. But, as with past fictional “deadlines” for termination, it didn’t happen.
Just to put Lee’s outrageous abuse of the law and human rights in perspective, remember that U.S. District Judge Emmet Sullivan recently concluded, on a voluminous record, that the use of Title 42 to deny migrants’ legal rights at the border was: 1) an illegal pretext from the beginning, and 2) causes “stomach churning” dire, irreparable harm, including rape, torture, and death, to legal asylum seekers. Essentially, nativist politicos like Lee are trying to force the Biden Administration to commit even more egregious human rights violations — on top of the hundreds of thousands, perhaps millions, they have already committed by enforcing Title 42 over the past two years.
While Lee’s scurrilous and totally misguided amendment is likely to fail, another almost equally bad one, sponsored by Sen. Sinema (I-AZ) to extend Title 42 indefinitely (till a “better plan” is in effect, which will never happen, particularly if the GOP has anything to say about it), is also up for a vote. “Lost in the shuffle” is the simple fact that we have existing laws that could and should be used to timely grant refugee to those legally qualified while expeditiously and summarily removing those with no credible claim. That the Biden Administration has failed to develop a viable plan for re-implementing existing law (which had been in effect for decades before being illegally abrogated by Trump) over the past two years should not be confused with impossibility!
Far from it, as many experts have pointed out, illegally “closing” ports of entry to asylum seekers has made unauthorized entry the “sole and exclusive” way for asylum seekers to exercise their rights! Yet, nativist politicos, the media, and even the Biden Administration ignore or mister present this truth.
As the International Organization on Migration has said, ““Migration is inevitable, necessary and desirable.” https://www.iom.int/news/migration-inevitable-necessary-and-desirable-opening-exhibition-iom-hague. It can be controlled and channeled with wise, realistic, and humane decisions. But, it won’t be stopped by walls, prisons, deportations, racist nationalistic rhetoric, militarization of borders, or cruel and inhumane laws and restrictionist policies.
Or, as I have said before, “We can diminish ourselves as a nation, but it won’t stop human migration.” Sure, the U.S. needs comprehensive, robust immigration reform that recognizes the inevitably and mutual benefits of human migration. But, particularly with a GOP House, it’s not on the horizon.
In the meantime, it is incumbent on the Biden Administration to make existing laws and policies work to timely, efficiently, and humanely screen refugees and asylum seekers at our borders. Those who qualify should be admitted in a reasonable period of time rather than aimlessly sent to wander the U.S. waiting for interviews from USCIS or hearings from EOIR that might never happen because of mismanagement and lack of vision in the current system. Those who don’t have credible claims should be subject to the summary removal procedures of the current law.
That the Biden Administration has, to date, lacked the competence, vision, and expertise to make the existing laws work in an acceptable manner is a shame. Ultimately, it’s one they won’t be able to “run away from” no matter how hard they try!
The Department of Homeland Security inadvertently tipped off the Cuban government this month that some of the immigrants the agency sought to deport to the island nation had asked the U.S. for protection from persecution or torture, officials said Monday.
Immigration and Customs Enforcement officials are now scrambling to foreclose the possibility that the Cuban government could retaliate against individuals it knows sought protection here. The agency has paused its effort to deport the immigrants in question and is considering releasing them from U.S. custody.
The accidental disclosure to the Cuban government is an example of any asylum seeker’s “nightmare scenario,” said Robyn Barnard, associate director of refugee advocacy at Human Rights First.
Many immigrants who seek safety in the U.S. fear that gangs, governments, or individuals back home will find out that they did so and retaliate against them or their families. To mitigate that risk, a federal regulation generally forbids the release of personal information of people seeking asylum and other protections without sign-off by top Homeland Security officials.
“The words egregious and illegal don’t go far enough,” Barnard said. “And this is not any foreign government, but a government we have irrefutable evidence routinely detains and tortures those they suspect of being in opposition to them.”
An even larger breach of confidentiality last month led directly to the surprising disclosure to the Cuban government. Less than three weeks ago, Immigration and Customs Enforcement officials accidentally posted the names, birth dates, nationalities and detention locations of more than 6,000 immigrants who claimed to be fleeing torture and persecution to the agency’s website.
. . . .
Anwen Hughes, director of legal strategy at Human Rights First, has years of experience comforting asylum seekers who are worried that their home countries will find out about their applications.
“They come in nervous, shaking and afraid their relatives could get arrested,” Hughes said.
Hughes has long told her clients that they should feel secure that their information would be protected.
But the most recent disclosures have given her pause.
“I don’t want to say things that won’t be true,” she said. “It is important that these assurances be meaningful.”
ICE’s November disclosure of the 6,252 names had already triggered a massive effort by the agency toinvestigate the causes of the error andreduce the risk of retaliation against immigrants whose information was exposed.
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Read Hamed’s complete articleat the link.
Robyn Barnard Associate Director of Refugee Advocacy Human Rights First PHOTO: Linkedin
Thanks for speaking out so forcefully, Robyn! There is Fourth Circuit case law holding that breaches of confidentiality can give rise to entirely new asylum claims that require evaluation by adjudicators.
As cogently pointed out by Anwen, problems like this also diminish confidence in the system. That, in turn, undermines efforts by advocates to assure asylum applicants that they should use the legal system, rather than being afraid of it. This is also something that the Government should be doing, but isn’t!
For example, right now at the southern border, thousands of asylum applicants are waiting patiently in Mexico, many in dangerous and substandard conditions, for Title 42 to end so they can appear at legal ports of entry and present their claims in an orderly and legal manner. This right for “any individual, regardless of status” to apply for asylum, is guaranteed by law. Every stay or delay in the lifting of Title 42 undermines the credibility of the entire system.
As cogently found by U.S. District Judge Emmet Sullivan, asylum applicants have been illegally denied this “life or death right” to apply for asylum in an orderly manner at the border since 2020, first by the Trump Administration and now by the Biden Administration. Tellingly, the GOP nativist politicos (and, sadly, some Dems) promoting continuing abuse of Title 42 have abandoned the original Trump claim that it was a “public health measure.” They now openly present it as a “border management tool” something that it clearly was never intended to be!
Contrary to the nativist blather, the unlawful suspension of the legal asylum system at ports of entry has actually driven irregular entries, rather than discouraging them! Additionally, nativists and many member of the media fail to acknowledge that, even without Title 42, the existing law grants DHS extraordinarily authority to “summarily remove” asylum seekers if they can’t establish a “credible fear“ of asylum in an interview by a trained and well-qualified Asylum Officer.
This process was designed to take place within a relatively short period of time, at or near the border, after the individual has indicated a fear of return upon initial encounter with an Immigration Inspector at a port of entry or to a Border Patrol Agent. Those who “fail” the credible fear process can be summarily removed by DHS without formal removal proceedings before an Immigration Judge (although there is a right to request a brief review by an Immigraton Judge of the Asylum Officer’s negative decision).
Additionally, under recently enacted regulations, Asylum Officers can now grant asylum to those who pass credible fear if they find that the generous “well-found fear” standard has been met. This also has the potential of avoiding full Immigration Court hearings. Unfortunately, however, DHS to date has failed to “leverage” this ability to rapidly grant asylum, even though the potential volume of asylum seekers has been evident for many months, if not years!
It’s also notable, in contravention of many nativist politico claims, that individuals crossing the border to seek asylum often voluntarily turn themselves in to the Border Patrol so that they can get the legal screening that the Government has been improperly denying them under Title 42.
Life threatening mistakes, two years without a plan to restore the rule of law for asylum seekers, inaccurate data, bad legal rulings, many poorly qualified judges, inadequate training, failure to use and leverage refugee programs, screwed up priorities, regressive thinking, lack of expertise, no commitment to protection, unending backlogs, absence of inspiring dynamic leadership: The Biden Administration’s inept and morally vapid approach to human rights is a life-threatening mess!
The temporary stay doesn’t address the merits. It just allows the full Court to consider the the State GOP AG’s frivolous challenge to reinstitution of the rule of law at the Southern border which was set to take effect on Wednesday, Dec. 22.
Frivolous as the challenge might be, it’s unclear how the current GOP-dominated Supremes will react to this latest right-wing abuse of our legal system and war on human rights and the rule of law!
Click this link to listen to immigration law professor Craig Mousin’s podcast Lawful Assembly. He makes the case for not pitting demands for border security against immigration reform and justice for asylum seekers.
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Mousin explores how the claim for a fully secure border has stalled immigration reform for over three decades. He calls for comprehensive immigration reform to address many of the issues the failed policies of detention and deportation have been unable to resolve.
KJ
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Thanks Craig for speaking truth when so many are spreading false information and advocating trading human rights that aren’t ours to give away for “benefits” that should be conferred on their own merits with no “strings attached.”
Unhappily, even the normally reliable and sensible Greg Sargent @ WashPost is spouting some of this absolute nonsense! He speaks of indefinitely extending massive violations of legal and human rights (“Title 42”), prisons for asylum seekers (“processing centers”), and expedited dockets (“deportation railroads without due process”) as if they are “OK trade-offs” for so-called “immigration reform.”
Notably, there is nothing now stopping the Administration from processing more refugees outside the U.S., providing grants to innovative organizations like “VIISTA Villanova” for training more qualified pro bono asylum representatives without having to rely exclusively on law schools, replacing poorly qualified Asylum Officers and Immigration Judges with asylum and human rights experts, appointing a new expert BIA qualified to establish affirmative precedents to guide Asylum Officers, IJs, and lawyers on both sides in how to recognize, document, and grant asylum in accordance with the generous intent of the law and the U.N. Convention on which it is based, providing grants to NGOs for systemic resettlement of asylees and applicants away from the border, targeting and prosecutinghuman smugglers, and expeditiously removing those arriving at or near the border who can’t establish a “credible fear” of persecution.
That the Administration has failed to bring in the necessary visionary, dynamic, competent leadership to accomplish any of the foregoing, and thata Dem-controlled Congress has failed in its oversight responsibilities and to push the Administration to fulfill its legal obligations to asylum seekers is a question of competence and will, NOT the fault of asylum seekers and their advocates. Nor is it a basis to reduce the already unfairly and illegally compromised rights of asylum seekers
Craig basically echoes some of the themes I set forth this week in my “Dissenting Opinion!”
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It’s possible that the nativist AGs will try the Supremes. But, a stay at this point seems unlikely.
The next issue is that the Biden Administration has shown little enthusiasm for actually ending Title 42 (despite nominally professing a desire to do so) and no apparent confidence that they can competently restore the rule of law for asylum seekers. Maybe, advocates and the asylum seekers themselves will save the Administration from itself once again. But, that’s a tall order.
Michigan Stadium, America’s largest, holds 107,601. It would take approximately 20 Michigan Stadiums to hold all the 2,000,000 + folks waiting for hearings in Garland’s dysfunctional and backlogged Immigration Courts! And, that doesn’t include their families, communities, employers, co-workers and others affected by their fates! If Garland were the managing partner of a law firm or the CEO of a business, he would be “long gone.” Why aren’t competence and accountability “minimum requirements” for America’s chief lawyer? Michigan Stadium Photo by Andrew Horne, Creative Commons License
Even at this accelerated completion rate, on an annualized basis, I calculate thatEOIR will still be building backlog at a rate of nearly 300,000 annually, based on 800,000 new receipts from DHS.
At approximately 700 completions/year/judge (EOIR’s figure), EOIR would need approximately 400 additional, fully trained, fully productive IJs on the bench just to “break even” and stop creating more backlog.
Nearly 800,000 asylum cases are sitting in the backlog, many ready to try and pending for years. With a better BIA and better trained IJs who actually applied Cardoza-Fonseca, Mogharrabi, and the regulatory presumptions of well-founded fear properly (instead of being “programmed to deny”) the vast majority of these old asylum cases could be prioritized and granted in short hearings.
Even with today’s broken, biased, and unconstitutionally inconsistent Immigration Courts, migrants prevail against deportation in approximately 60% of cases! This suggests that the majority of the Immigration Court’s cases could be prioritized and resolved in the migrant’s favor without lengthy hearings IF the system had a better BIA, better IJs, better training, better practices, and a better working relationship with the private bar and DHS.
Far too few bonds are being granted, and insufficient attention is being paid to inconsistencies in the bond process.
Only an infinitesimally small percentage, .56%, of new cases filed by ICE involve allegations of criminal conduct. This suggests continuing problems with the way ICE allocates enforcement resources and chooses to use Immigration Court time.
Earlier this year, I had predicted that Garland would top the 2 million backlog mark by the end of August 2022.https://wp.me/p8eeJm-7dT
I was off by 3 months, as it actually took him until the end of November 2022 to achieve this negative landmark.
Nevertheless, some things are clear: This system is “beyond FUBAR!” It needs professional leadership, a new appellate board, better judges, better training, better utilization of the private bar, smarter, more creative and innovative practices, and authority to “rein in” in out of control ICE Enforcement. All the same things experts said were needed back at the time of Biden’s election! Ignoring expert advice has resulted in just the continuing, mushrooming disaster at EOIR and in our legal system that experts predicted!
Over two years, Garland has shown that he is not the person for the job. Nor have his political subordinates shown any aptitude for addressing the festering management, legal, and quality control problems @ EOIR!
Experts and advocates should be pushing the Administration and Dems in Congress for a change in leadership at the DOJ! Every day of failure means more backlog, more injustice, more frustration, more lives endangered, and a growing threat to American democracy — from those sworn to protect and uphold it, but aren’t getting the job done!
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Migrants should be welcomed with dignity and compassion—not turned away or treated inhumanely.
Finally, after over two years, a district court has ruled that the Title 42 expulsion policy- which has blocked most migrants from crossing the U.S.-Mexico border to seek asylum- violates U.S. law and ordered the Biden administration to end it.
This anti-immigrant policy has led to hundreds of thousands of people deported back to dangerous conditions or stranded in makeshift camps. Other migrants have been forced to take dangerous routes through deserts, mountains, rivers, and the ocean—facing extreme heat, violence, even death.
The termination of the policy goes into effect at the end of December, unless the administration attempts to delay this. That is why we are calling on the Biden administration to end this policy IMMEDIATELY and to not accompany this with the expansion of detention.
Sign our petition to speak out against this cruel policy today!
Letter to President
Dear President Biden:
I believe that people fleeing dangerous situations in their home countries should be welcome to the United States with compassion—not dealt overwhelming obstacles to seeking asylum.
That is why I am relieved to hear that after over two years, a district court has ended the cruel and unnecessary use of Title 42. This anti-immigrant policy has led to hundreds of thousands of people deported back to dangerous conditions or stranded in makeshift camps. Under this cruel policy, Black and Brown migrants have suffered disproportionately while some others have been able to seek asylum—evidence of the racism that drives our immigration enforcement policies.
That is why I am calling on the Biden administration to end Title 42 immediately and to not replace it with other inhumane and xenophobic policies that cause similar harm. Additionally, your administration must not accompany this with the expansion of immigration detention. Any efforts to uphold this policy actively supports more family separations, trauma, and violence against Black, Brown, and immigrant communities.
All people—regardless of where they were born, the color of their skin, their culture or religious affiliation—should be able to seek refuge and be welcomed with the compassion, dignity, and respect we all deserve. I urge your administration to do all that you can to end Title 42 immediately—and ensure all migrants can exercise their right to seek asylum.
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American Friends Service Committee is a Quaker organization devoted to service, development, and peace programs throughout the world. Our work is based on the belief in the worth of every person, and faith in the power of love to overcome violence and injustice.
The regime that employed this monster to abuse and persecute asylum seekers was voted out of office more than TWO YEARS AGO! Long past time for the Biden Administration to STOP defending, expanding, and carrying out his illegal and immoral policies that inflict “DIRE HARM” on vulnerable LEGAL asylum seekers! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
”BIDEN DOJ HALL OF SHAME” — Those Who Have Defended or Enabled Stephen Miller’s “Crimes Against Humanity:”
Merrick Garland, Attorney General
Lisa Monaco, Deputy Attorney General
Vanita Gupta, Associate Attorney General
Kristen Clarke, Assistant Attorney General, Civil Rights
Elizabeth Prolager, Solicitor General
When these guys eventually “come out” of their cushy political positions, and are looking for jobs in the “real world” they now blithely ignore, progressives, human rights, and racial justice advocates should remember where they stood and what they did or failed to do when human rights and the rule of law were “on the line!”
🗽DISSENTING OPINION: TRADING AWAY REFUGEE RIGHTS & DUE PROCESS FOR LONG OVERDUE DREAMER PROTECTIONS IS “NOT OK!”
By Paul Wickham Schmidt
Courtside Exclusive
Dec. 6, 2022
I dissent.
I was outraged when I read in this morning’s Washington Post about the horrible “Sinema/Tillis misnamed immigration compromise” (actually a “sellout”) being negotiated during the lame duck session of Congress. In short, that proposal apparently would trade long overdue protection for “Dreamers” for the rights and lives of refugees and asylum seekers.
Incredibly, in the face of U.S. District Judge Emmet Sullivan’s findings that the intentional illegal use of Title 42 had resulted in countless clear violations of the legal rights of asylum seekers, subjecting them to a litany of horrors and abuses that he described as “dire harm,” these legislators would extend those abuses for an indefinite period! That’s notwithstanding evidence not only of the irreparable harm that Title 42 has caused, but also the rather obvious fact that once we “normalize” those abuses, they will never end.
There will always be another fabricated reason for extending the Title 42 charade. Indeed, once we start mischaracterizing abuse as “law,” we can’t even call it “abuse” and hold the abusers accountable! That’s all part of the dehumanizing or “Dred Scottification” process!
Additionally, in the place of a functioning working asylum and refugee system, the proposal would eventually substitute so called “processing centers” and “expedited procedures” to railroad asylum seekers out of the country without due process. And, it wouldn’t address the total dysfunction and denial of due process in our Immigration “Courts” by enacting another long overdue provision: the “Lofgren Article I Immigration court bill!” What a farce!
Let’s be clear about what’s happening here! The legal and human rights of refugees and asylum seekers are not “ours” to trade away for relief for another deserving group that has long been irrationally denied! “Processing centers” are a euphemism for “immigration prisons” — part of the “New American Gulag.” “Expedited processing” is a euphemism for “railroading.” Both detention and artificially expediting dockets have been proven to be ineffective and unjust, over and over. Yet, here we go again!
My outrage turned to shock and dismay when I learned that some erstwhile defenders of due process, human rights, and racial justice for asylum seekers (incredibly) thought that this type of immoral compromise was a “good idea!” Not me!
Restrictionist/nativist Dems masquerading as “moderates” are a huge problem. They play right into the GOP’s hands.
When committing crimes against humanity or giving away refugees’ rights becomes a “strategy,” “option,” or “bargaining chip,” we’re lost as a nation. And, that’s exactly where we’re heading with horrible, immoral proposals like this.
Human rights and due process are non-negotiable! And, I guarantee that extending Title 42, building additional Gulag (rather than making the existing legal asylum and refugee systems work), and railroading asylum seekers will empower smugglers and lead to further growth of our underground population.
Human migration won’t be stopped by ineffective and immoral “deterrence.” And, although many hate the idea, refugees basically “self-select” and are driven by forces beyond our immediate control.
Refugees are, by definition, folks who can’t return! So, there is no reason to believe that true refugees (of which there are many) are going to be “deterred.” They might be “incentivized” to seek refuge in particular, relatively safe, places; but, nobody seems interested in a “carrot” approach — even though the “stick approach” has failed and continues to do so!
Look at the folks who continue to die in vessels in the Mediterranean even though they are fully aware that they are unwanted and that the EU will stop at no cruelty to keep them out.
And, examine the wealth of documentation that folks forced to “remain in Mexico” — and apply under what we know to be a corrupt and inadequate system — are systematically abused and exploited.
This time, we’re not just “pushing the St. Louis out to sea.” We’re torpedoing her and watching the passengers drown. And Dems are a huge part of the problem!
Other (soon to be former) progressive Democrats might choose to “go along to get along” with heaping additional abuses on largely defenseless refugees and asylum seekers. But, not me! I dissent!
Who would have thought that the Biden Administration would be dumb and treacherous enough to let this neo-Nazi xenophobe and refugee hater “own” human rights “policy” in a Dem Administration? But, it appears they have! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
From Michael Shear & Eileen Sullivan the NY Times:
WASHINGTON — The Biden administration is considering substantial new limits on the number of migrants who could apply for asylum in the United States, according to people familiar with the proposal, which would expand restrictions similar to those first put in place along the border by former President Donald J. Trump.
The plan is one of several being debated by President Biden’s top aides as the country confronts a high number of illegal crossings at the border. It would prohibit migrants who are fleeing persecution from seeking refuge in the United States unless they were first denied safe harbor by another country, like Mexico.
People familiar with the discussions said the new policy, if adopted, could go into effect as soon as this month, just as the government stops using a public health rule that was put in place at the beginning of the coronavirus pandemic by the Trump administration and became a key policy to manage the spike in crossings during Mr. Biden’s tenure. A federal judge has ordered the administration to stop using the health rule on Dec. 21.
But the idea of broadly prohibiting migrants from seeking asylum strikes directly at the heart of decades of American and international law that has shaped the United States’ role as a place of safety for displaced and fearful people across the globe.
. . . .
*****************************
Read the complete article at the link.
[U.S. District Judge Emmet ]Sullivan wrote that the federal officials knew the order “would likely expel migrants to locations with a ‘high probability’ of ‘persecution, torture, violent assaults, or rape’ ” — and did so anyway.
“It is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals,” Sullivan wrote. “It is undisputed that the impact on migrants was indeed dire.”
What part of Judge Sullivan’s very clear ruling on their “crimes against humanity” and knowing violations of U.S. and international law doesn’t the “Biden Administration Clown Show” 🤡 understand? Just follow the asylum law and due process, already! If you can’t do that, resign and let folks who can do the job (of which there are plenty out here in the “real world”) take over and do the job you have been failing at for two years!
In any event, the talent is out here in the private/NGO sector and will resist this latest insult to humanity and degradation of the rule of law and due process that Administration officials are “pondering!” “Studying and deciding whether or not to violate the law (again)?” Sounds like a potential criminal conspiracy to me!
In any event, expert litigators like Lee Gelernt of the ACLU and other NDPA superstars are prepared to “beat the Biden Administration’s brains (if any) out” in court again if they try to implement any more of their illegal and immoral immigration gimmicks!
“If the Biden administration simply substitutes the unlawful and anti-asylum Trump transit ban for Title 42,” Mr. Gelernt said, “we will immediately sue, as we successfully did during the Trump administration.”
The Chair of the Senate Foreign Relations committee was also “not on board” with the Biden Administration’s latest harebrained ideas on diminishing human rights that they have substituted for basic competence over the past two years of disasters, and unforgivable policy screw-ups on immigration, human rights, and racial justice issues:
“If the reported story is true, the Biden administration would further step away from our nation’s commitment to offer refuge to asylum seekers,” Senator Bob Menendez, Democrat of New Jersey and the chairman of the Foreign Relations Committee, said in a statement on Thursday. “I will firmly oppose this misguided attempt to rewrite our asylum laws without congressional approval, just as I firmly opposed the same efforts under President Trump.”
I also have to wonder how Judge Sullivan will react when he learns how Biden Administration officials are using his “reluctantly granted” five weeks of delay in implementing his “cease and desist order.” Instead of, at long last, getting their collective tails in gear to finally put in place a competent legal system for re-establishing legal asylum at the southern border, these disgraceful petty bureaucrats and so-called “policy” officials have been scheming to evade the rule of law and commit yet more “crimes against humanity.”
The NDPA is not going to let them get away with it. Even if it means ripping apart the “so-called Democratic Coalition” going into the 2024 elections!
🇺🇸 Due Process Forever! Tyranny & Stupidity From either Dems or the GOP, never!
It’s been over 30 years since Congress enacted the most recent set of comprehensive immigration reforms: the Immigration Reform and Control Act of 1986 and the Immigration Act of 1990. These bipartisan yet hotly contested bills passed only after a debate spanning five presidential administrations, eight congressional sessions, and painful compromises by all parties. Even then, both bills died on the House floor before being resurrected at the 11th hour.
Can lessons learned during the last round of reform be applied to future debates? Charles Kamasaki, author of “Immigration Reform: The Corpse That Will Not Die” (Mandel Vilar Press, 2019), thinks so. The book provides a history of how the 1980s-era reforms were enacted, along with a summary of developments since then. It concludes with seven lessons that advocates and lawmakers should consider in advancing future immigration reform.
Join us for a discussion with Mr. Kamasaki, Cornell Law School professor Steve Yale-Loehr, and Wall Street Journal immigration reporter Michelle Hackman about the prospects for immigration reform legislation in 2023.
This webinar is cosponsored by the Cornell Migrations Initiative, the Cornell Law School Immigration Law and Policy Research Program, and Catholic Charities of Tompkins and Tioga Counties.
Dalia Castillo-Granados and Yasmin Yavar. So far this year, the Children’s Immigration Law Academy has responded to more than 300 legal technical assistance questions. It has coordinated five in-depth virtual trainings and hosted eight webinars that attracted more than 1,600 attendees.
Dalia Castillo-Granados had just begun her fellowship with the St. Frances Cabrini Center for Immigrant Legal Assistance, a program of Catholic Charities of the Archdiocese of Galveston-Houston, when she met Yasmin Yavar in 2008.
Like Castillo-Granados, Yavar focused a lot of her attention on special immigrant juvenile status cases as the pro bono coordinator of Kids in Need of Defense’s new office in Houston. Despite changes in the law that allowed more children to apply for this form of immigration relief—which gives those who have been abused, neglected or abandoned a pathway to lawful permanent residence in the United States—attorneys were just beginning to test the waters in this area.
After collaborating on a case, Castillo-Granados and Yavar stayed in touch and created their own support system.
“There was a very small community of attorneys, even nationwide, representing unaccompanied children,” says Castillo-Granados. “In Houston, Yasmin and I were trying to get into state court and educating judges about why we were there. We had each other on speed dial, calling to talk over strategy and get suggestions and push the cases forward.”
Several years later, as an increasing number of unaccompanied children crossed the United States-Mexico border, Castillo-Granados and Yavar wanted to support the legal service providers and volunteer attorneys who were taking their cases. They drafted a plan for a legal resource center focused on children’s immigration law, and Yavar, who had worked with the ABA’s South Texas Pro Bono Asylum Representation Project in Harlingen, Texas, shared it with Commission on Immigration Director Meredith Linsky.
At the time, Linsky met regularly with the ABA Working Group on Unaccompanied Minor Immigrants. Its members liked the idea, and in September 2015, Linsky helped Castillo-Granados and Yavar launch the Children’s Immigration Law Academy.
“We decided to do exactly what we did for each other back when we were starting, but for everyone else,” says Castillo-Granados, who serves as CILA’s director.
. . . .
******************
Read Amanda’s full article at the link.
Here’s an interesting contrast in problem-solving, creative thinking, dynamic leadership, and effectively using resources. Between 2008, when they met, and 2021, Dalia and Yasmin experienced an approximately 15X growth in the number of unaccompanied children, from 8,000 to 120,000. Faced with this stressful situation and a U.S. Government that under Administrations of both parties has displayed a rather callous indifference to child welfare, it would have been easy to give up and take their talents to another area of law!
Because they worked for an NGO, the couldn’t demand more resources or claim that drastic reductions in children’s rights, harsher enforcement, or “deterrence” were the “only solutions.” Interestingly, these were exactly the type of “rote, alarmist, reactionary reactions” that the Obama Administration had and that the Trump Administration tried to “implement” without the benefit of legislation.
Dalia and Yasmin viewed the problem as challenging, yet solvable, came up with a plan, and sold it to other members of the legal community — on its merits, not its “scare value.” They were able to “leverage” their experience, skills, and dynamic leadership to pool resources, create teamwork, and “teach and inspire others to help those in need.”
They actually expanded, improved quality, and increased efficiency, thus multiplying rather than diluting their effectiveness. The also relied largely on existing tools and frameworks, but “leveraged” them in a creative and more efficient manner.
I submit that this is the exact opposite of how the broken bureaucracies at DHS, DOJ, and ORR have reacted to most immigration issues. Given lots of personnel, considerable resources, a workable, if not “perfect,” legal framework, and ample flexibility to redirect and repurpose wasted or misused resources, the last three Administrations have fallen “flat on their overstuffed and moribund bureaucratic faces.”
With billions in taxpayer dollars, thousands of employees, and a legal framework that actually provides plenty of useful options, the USG has underachieved, to put it charitably. It has fallen back on wasteful, disruptive, andinefficient “proven to fail” deterrence “gimmicks;” ludicrous rhetoric; mythical threats; aimless reshuffling and churning of existing workload; bolloxed priorities; victim shaming and blaming; cruelty; and most disturbingly, massive scofflaw actions, crackpot proposals, and blatant curtailment of important human and legal rights.
To make matters worse, at least the Biden Administration has had access to what is probably the greatest “talent pool” of human rights, immigration, and child welfare experts on the face of the earth — almost all of it in the private/NGO/advocacy/academic sectors! Yet, they have resisted sound expert advice and creative solutions, while largely passing over available dynamic and inspiring leadership to overstuff their bloated immigration bureaucracy largely with a mixture of Trump holdovers, Obama retreads, and lesser lights.
Obviously, talented NDPA superstars like Dalia and Yasmin are the wave of our future — not just in immigration and human rights, but in government, politics, our legal system, and American society! The issue is how we can force unwilling, “stuck in reverse” Dem Administrations to grow some backbone, enforce the values they espouse during elections, “clean house” in the bureaucracy and the ranks of ineffective, often clueless, politicos, and “repopulate and reform” the USG immigration bureaucracy and the beyond dysfunctional Immigration Courts with stars like Dalia and Yasmin. That is, courageous, visionary, experts who can actually solve problems rather than creating new ones and blaming the victims and those striving to hep them!
Many thanks to Roberto Blum, Esquire, of Houston Texas for sending this article my way. Roberto says “they are the real heroes!” I concur, my friend, 100%!
