"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.
“At Some Point the Country Is Going to Have to Wake Up”: James Clyburn on the Floyd Killing and The Role of Race In The Coming Election
Chris SmithMay 29, 2020
Clyburn, who helped hand Biden his presumptive nomination, talks about Biden’s “you ain’t black” and V.P. possibilities, and why this moment is defined by “raw politics and meanness.”
by Stephen Maturen/Getty Images.
James Clyburn grew up in a segregated South Carolina. He is now the longest-serving member of the state’s congressional delegation and the highest-ranking black Democrat in the House. In February, Clyburn basically saved Joe Biden’s presidential bid, endorsing Biden three days before South Carolina’s pivotal primary and helping deliver the decisive black vote. On Thursday evening, just after landing in his home state for a weekend visit, the 79-year-old Clyburn talked about holding on to his optimism in the wake of yet another brutal killing of a black man by police.
Vanity Fair: What was your reaction when you saw the video of a Minneapolis cop kneeling on the neck of George Floyd?
James Clyburn: I don’t know that I would describe my emotion as anger. I guess I should be angry. Maybe at my age, and as many of these kinds of things as I’ve experienced, you get to the point where you say, but for the video, I would not have seen it; other people would not have seen it; and the official word would be all anyone knew. I do feel, though, that at some point the country is going to have to wake up to this reality.
What do you tell black Americans, particularly young black male Americans, who say the country is long past the point when it should have awakened, and that the reality is just racism and hatred?
Going back to the student movement and the civil rights movement, I’ve really questioned many times whether or not what we were doing made any real sense. Whether there was any possibility of success. But along with people like John Lewis, who I met in October 1960, he’s held on to his faith in the country, and I’ve held on to mine. I went to jail several times. I ran for office three times before I got elected. You don’t give up. You aren’t going to win by giving up.
by Salwan Georges/The Washington Post via Getty Images.
The four Minneapolis police officers have been fired. Should they be tried for murder?
They certainly should stand trial. The hand of one is the hand of all, so four people need to be on trial.
In a conference call with House leaders two days after Floyd’s death, you talked about it being a symptom of larger problems that plague minority communities, and that it showed the need for systemic change. What did you mean?
I have been saying for a long time now that so much in this country needs to be restructured. Health care, education, the judicial system. Every time these issues are raised, folks on the Republican side find a way to parse the words and turn it to their agenda, and they get accommodated by too many people in the media. When we first started discussing the CARES Act, I said to my caucus, in a Zoom call, that this was a tremendous opportunity for us to restructure things in our vision. My vision comes from the pledge of allegiance: liberty and justice for all. That remains a vision—but we’re not doing much to make that vision a reality. Mitch McConnell goes on the floor of the Senate and calls me out, as if there’s something nasty about my vision. He never asked me what my vision was. I’ve got it on billboards all over Charleston: “Making America’s Greatness Accessible and Affordable for All.” What’s wrong with that? And that’s been weaponized by the other side as something untoward. It’s ideology, it’s raw politics, and meanness. That’s why we can’t fix these things.
Do you think the Floyd killing will end Minnesota senator Amy Klobuchar’s chances of being picked as Joe Biden’s running mate?
It certainly won’t help. But it’s not just this. Her history with similar situations when she was a prosecutor came up time and again during the campaign. I suspect this incident plays into that.
You said you cringed when Biden told a radio host, “If you have a problem figuring out whether you’re for me or for Trump, then you ain’t black.”
I compare Joe Biden to the alternative, not the Almighty. One of the things I learned early in this business is that one of the worst things you can do in politics is to make a joke out of any serious matter. He would have been better off not doing that.
Senator Tim Scott, a Republican from South Carolina who happens to be black, said that Biden’s remark showed him to be “condescending and arrogant.”
I’ve known Joe Biden for a long, long time. I don’t perceive anything about him to be arrogant. Tim Scott supports [Donald] Trump, and I don’t. If he can reconcile his blackness with Trump, that’s fine. I can’t reconcile mine with Trump. I’ll never ever accept the president of the United States looking into a camera and calling a black woman a dog. I will never get over that. Nothing else he says will matter to me. And he said that not about one of his opponents—that was about one of his staffers! Who supported him! I have three daughters, and I know how I’d feel about any man calling one of them a dog.
With his attacks on former president Barack Obama, among other things, it’s clear that Trump is going to play the race card in his reelection campaign. Do you worry about the tensions becoming dangerous, or is it better to have the issue out in the open?
I think we’re in much better shape for it to be out in the open than for it to be hidden under a bushel. That’s what happened in 2016. The whole thing about African American males responding to Trump saying, “What do you have to lose?” I know from my visits to barber shops that it resonated. But if you fool me once, that’s on you. If you fool me twice, that’s on me. If black men allow themselves to be fooled twice, it’s on them. Four years later, if it ain’t clear what they have to lose, if they can’t count up their losses with Trump, ask them to ask me.
You have said that it isn’t “a must” for Biden to pick a black woman as the vice presidential nominee. Why not?
I remember Sarah Palin. She was fine until it turned out the vetting hadn’t been thoroughly done. I remember Geraldine Ferraro. She was fine. It was her husband that got exposed during the campaign. So if I say it’s a must and something turns up in the vetting, what does that make me? I’m never going to say it’s a must for him to choose a black woman. It would be a plus.
Are you confident that black turnout will be high enough to win no matter whom Biden chooses?
I don’t know about that. Black voters are incentivized already. You can always stimulate the vote. There are picks that could energize the vote.
If Biden said, “Jim, I’ll choose whomever you want,” what would say?
I’m not gonna tell you! But I would tell him.
There’s a tremendous amount of outrage right now about the George Floyd and the Ahmaud Arbery killings. But unfortunately, we’ve seen this cycle many times before, where attention fades after a few weeks.
I think something’s going to be different about this. After the Minneapolis killing, I saw the Minnesota attorney general on TV. For the first time in the state’s history, that attorney general is African American. Also Muslim. That, to me, helps set this whole issue on a different plane. Minneapolis had issues with the former mayor and the police. This mayor says he’s calling for these men to be indicted. To me, that’s progress in something all of us need to work on. You can’t take these things in silos. I’m a history guy. I’ve been studying this country’s history pretty much all my life. It’s pretty sordid in some areas. But that history ought to inform us. Everybody’s not going to learn the lessons. The ones who learn, you hope they change the world.
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Our country can’t get to the better future we need with horrible, unqualified, bigoted leaders like Trump, Pence, Mitch, et al.
One of the most unhelpful of our failed institutions: A Supreme Court that has abandoned the courageous heritage of Brown v. Board of Education and instead encouraged, embraced, aided, and abetted the “Dred Scottification of the other” by a corrupt, bigoted, racist, overtly White Nationalist Executive and his equally corrupt cronies and toadies.
This November, vote like your life depends on it. Because it does!
That’s because the pretense was nonsense from the start. Trump’s regulatory agenda was never about helping the economy; it was always about rewarding friends and punishing enemies. White House officials have weaponized the “administrative state” they claim to hate and have repeatedly tried to strangle disfavored groups with regulations and red tape.
Not just Twitter, either.
Arbitrary delays in processing visa applications, for example, have been used to punish immigrants and the companies that employ them. U.S. Citizenship and Immigration Services has rejected visa applications because applicants lack a middle name. It has also waited to mail approved visas until (oops!) after the visas had already expired.
The additional costs and uncertainty these processing changes create for workers and their employers are a feature, not a bug.
Elsewhere, both federal and state officials have ratcheted up bureaucratic hurdles for the poor, as Georgetown University professors Pamela Herd and Donald P. Moynihan have documented.
Right now, for example, states can decide a poor family is automatically eligible for food assistance if the family is enrolled in other means-tested safety-net programs. The Trump administration is trying to block states from doing this, and require more paperwork to prove eligibility. By the administration’s own calculations, this would cause 1 million children to lose their automatic eligibility for free school lunches.
The administration, of course, argues that its regulatory decisions are determined not by Trump’s political whims but by meticulous analysis of what’s best for the economy.Helpfully, a method exists to check their work: the cost-benefits analysis that agencies must produce ahead of major rule changes.
These records show, however, that the administration has repeatedly struggled to prove that its regulatory actions actually increase economic and social welfare.
To get the numbers to work out in its favor, the administration has had to cook the books.
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The only upside to this slapdash math is that it makes the administration’s most damaging and punitive regulatory changes less likely to hold up in court. Already, the Trump administration has lost more than 90 percent of the legal challenges to its regulatory policies, according to New York University’s Institute for Policy Integrity. By comparison, previous administrations lost only about 30 percent of the time.
“A lot of these losses have been because of the poor quality of the analysis — who’s harmed, who’s helped, by how much,” said Richard Revesz, a law professor who directs the institute.
The only thing that may save us from the administration’s regulatory vindictiveness is its incompetence.
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Read the rest of Catherine’s article at the link.
As usual, Catherine’s analysis is “spot on.” My problem is this.
If the same private litigant and his or her lawyers kept presenting Federal Courts with false, misleading, or just plain faked evidence and statistics, the private lawyers likely would be facing discipline or disbarment for failure to provide “candor to a tribunal.” The client would be facing large penalties and likely contempt for continuing to institute or cause frivolous litigation.
Yet, except for occasional “harsh but toothless” language in judicial opinions or a couple of minor fines, Trump, his sycophantic toadies, and his battery of unethical Government lawyers get off scot-free for abusing the Article III Judiciary and our legal and judicial processes. Meanwhile, the private litigants are forced to file the same challenges over and over again in different jurisdictions across the country. In the area of immigration, asylum, and human rights, most of the lawyers are donating their time pro bono, while the unethical Government attorneys and their corrupt clients are on the taxpayer’s dime.
The occasional Equal Access to Justice Act award against the Government seldom comes close to compensating private lawyers for their actual lost time and lost opportunities. Nor does it deter the Trump regime, because it comes out of “you of the taxpayers’” pocket.
A Federal Judge demands accurate statistics from DHS after private litigants show the last batch was bogus; the DHS merely submits another set of bogus or misleading data, forcing the private litigants to once again have to demonstrate their unreliability. Government officials and their attorneys claim, contrary to fact, that there is no “child separation” policy, but suffer no consequences other than to be told to stop violating the Constitution. Instead of doing that, they “repackage” unconstitutional child separation as a bogus “parental choice.” So, now the private litigants, who have already won once, have to show that the latest iteration of a clearly illegal and contemptuous policy is what it is: unlawful.
A Federal Judge orders they DHS to make individualized release determinations for detainees held in overcrowded substandard conditions that violate the Government’s own health guidance. Instead of doing that, the DHS merely moves them to another, slightly less crowded facility with equally bad conditions and falsely claims they have “fixed” the problem. Again, the private litigants have to gather new evidence that the move has not materially reduced the health risks to the clients. And so on.
Essentially, the Trump regime and their lawyers are playing a big game of “hide the ball;” every time the private advocates show the Federal Judge where the ball actually is hidden, the Government simply moves it again. And, unfortunately, most Federal Judges give the regime and its ethics-challenged lawyers unlimited “plays” at the expense of the other side. Even when relief is ordered, it just solves the “problem of the moment” rather than halting the pattern of ethical abuses, contemptuous attitudes, and unlawful conduct by the regime and its complicit lawyers.
In effect, the regime has “weaponized” the Federal Courts and the Article III Judiciary in a way not dissimilar from how Sessions and Barr have “weaponized” the Immigration Courts. Turning the Article III Courts into a feckless “runaround” where the individuals and their lawyers “lose even when they win” makes the process punitive and serves as a deterrent to those seeking to challenge the regime’s overtly lawless agenda.
The November election is the chance to throw a scofflaw regime out of office. But, the deep-seated institutional and integrity problems of an Article III Judiciary, beginning with the dangerously complicit and spineless in the face of tyranny “Roberts Court,” that has allowed itself to be “weaponized” and used by the army of authoritarian scofflaws to punish those seeking to uphold the Constitution and the rule of law won’t be solved so quickly. The Article III Judiciary requires an institutional re-examination and a philosophical and ethical overhaul so that it serves the Constitution, due process of law, and equal justice for all, rather than protecting the interests of an insular right-wing minority that seeks nothing less than the disintegration of our nation and our cherished democratic institutions.
DOJ memo offered to buy out immigration board members
The buyouts were only offered to Board of Immigration Appeals members hired before Trump took office
The Justice Department memo came from the director of the Executive Office of Immigration Review, a Justice Department agency. (Bill Clark/CQ Roll Call file photo)
The Justice Department offered buyouts to pre-Trump administration career members on its influential immigration appeals board as part of an ongoing effort to restructure the immigration court system with new hires who may be likely to render decisions restricting asylum.
An internal memo viewed by CQ Roll Call shows that James McHenry, the director of the Executive Office of Immigration Review, offered financial incentives to longtime members of the Board of Immigration Appeals to encourage them to retire or resign. The buyouts and “voluntary separation incentive payments” were offered to “individuals whose positions will help us strategically restructure EOIR in order to accommodate skills, technology, and labor markets,” according to the April 17 memo.
EOIR is the Justice Department agency that oversees the Board of Immigration Appeals, a 23-member body that reviews appealed decisions by immigration judges and sets precedent.
According to two knowledgeable sources at EOIR who declined to be identified for fear of retaliation, the memo was sent to the nine board members appointed under previous Republican and Democratic administrations, before Trump took office. No one accepted the buyout offers, according to both sources.
CQ Roll Call reached out for comment on the memo to McHenry, EOIR and the Justice Department and received a statement Wednesday saying that “the Department does not comment on personnel matters.”
“Any insinuation that politicized hiring has become ramped up is inconsistent with the facts,” the statement said.
The memo sheds light on an ongoing debate over BIA hiring. Immigration judges, lawyers and former EOIR employees say the Trump administration has used the board to help meet its goal of reducing immigration, while government officials say they have simply streamlined a lengthy hiring process that was always subject to political judgments.
In October, CQ Roll Call reported on documents showing the Justice Department had tweaked the hiring process to fill six new vacancies on the board with immigration judges with high asylum denial rates and a track record of complaints. Additional memos that CQ Roll Call wrote about earlier this month shed further light on these rule changes that enabled fast-tracking of those and more recent hires.
The three most recent hires to the board include an immigration judge who denied 96 percent of the asylum requests before him and had a history of formal complaints about “bias and prejudice.” The vacancies were created after a flurry of career board members left the BIA.
“EOIR does not select board members based on prohibited criteria such as race or politics, and it does not discriminate against applicants based on any prohibited characteristics,” the Justice Department said in its statement. “All board members are selected through an open, competitive, merit-based process that begins with a public advertisement on the Office of Personnel Management’s (OPM) federal employment website.”
Recent changes to EOIR hiring procedures “have made the selection process of board members more formalized and neutral,” the department said.
While buyouts are typically offered to soften the blow of workforce reductions, the two sources at EOIR said the agency’s offers were made so that the BIA could be reconfigured entirely, with the positions of “board members” replaced by those of “appellate immigration judges.” The differences go beyond title, extending to pay ranges and leave policy. Appellate immigration judges also hear cases at both the trial and appellate levels, creating potential conflicts of interests.
“Many board members have viewed themselves as appellate immigration judges for years, and EOIR first proposed such a designation in 2000,” according to the Justice Department statement. “Elevating trial-level judges to appellate-level courts is common in every judicial system in the United States.”
The American Immigration Lawyers Association and other critics said the buyout offer is the latest example in a series of moves that have undermined the neutrality of the immigration court system. They point out that BIA is already housed under a law enforcement agency, the Justice Department, whose leadership may have a stake in the outcome of the court process.
“The administration is trying to further politicize the immigration court system by packing the appellate bench and is seeking to make room for more handpicked judges with this buyout,” Benjamin Johnson, AILA’s executive director, told CQ Roll Call.
“These latest actions reveal the severe impact of our nation’s immigration system being housed under the Attorney General and only underscore the real need to create an independent immigration court,” he said.
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The refusal of the “holdovers” to take the “buyout” just forced the DOJ politicos to use a different “strategy:” creating additional “appellate judgeships” and “packing” them with appointees with established records of hostility to asylum seekers and the due process rights of respondents.
This presents an interesting historical comparison with an earlier GOP Administration’s program for promoting an anti-immigrant agenda at the BIA. Under Bush II, Ashcroft arbitrarily “cut” the size of the BIA to get rid of the vocal minority of judges who dared to speak up (usually in dissent) for the rights of asylum seekers and other migrants to due process, fundamental fairness, and humane treatment. I was one of those judges “exiled” from the BIA during the “Ashcroft Purge of ‘03.”
Fortunately, I got a “soft landing” just down the hill from the “EOIR Tower” at the Arlington Immigration Court where I remained on the bench and (mostly) “below the radar screen” for the following 13 years. And, yes, I was offered a “buyout” in the form of “early retirement,” which would have been a rather bad financial deal for me at the time.So, I rejected it, and eventually got a much better “deal.”
The DOJ’s claim that the current farce is a “merit selection system” is beyond preposterous. But, as long as Congress and the Article IIIs won’t stand up to Trump’s blatant abuses of due process, the “de-professionalization” of the career Civil Service, and the dehumanization of the “other” before the law (“Dred Scottificfation”), the charade will continue.
Of course the problem isn’t, as EOIR would lead you to believe, that some “trial judges” are elevated to the appellate bench. It’s which “trial judges” are being “rewarded” for their records of hostility to asylum seekers, respondents, and their attorneys.
Also, in what has become essentially a “closed system” of Immigration Judges, staffed almost exclusively by government attorneys overwhelmingly with prosecutorial backgrounds, the “elevation” of existing trial judges, basically tilts the system heavily in favor of DHS and against respondents. Indeed, some fine Immigration Judges with broader experience including private practice, who would have made superior Appellate Immigration Judges in a true merit-based system, were instead forced off the bench by the demeaning, biased, restrictionist policies implemented at EOIR.
Also, having served as both a trial and appellate judge, I know that the “skill sets” are related, but by no means identical. Not all good trial judges make good appellate judges and vice versa. While it’s certainly to be expected that some trial judges will be elevated to the appellate bench, that should not be the sole source of appellate judges.
Appellate judging requires scholarship, collegiality, creativity, writing, and a broad perspective that many talented private advocates, academics, and NGO lawyers possess in abundance. The same holds true of the Article III Appellate Bench. From the Supremes on down, it’s basically in various degrees of failure to uphold the rule of law and the Constitution against the attacks by the Trump regime.
It’s a case of far too many former District Court Judges, former prosecutors, and right-wing “think tankers,” and far too few individuals who have litigation, legal, and life experience gained from representing those who actually come before the courts. The Supremes in particular are badly in need of folks with a broader, more practical, more humane perspective on the law.
The institutional failure of today’s Supremes in the face of concerted Executive tyranny threatens to collapse our entire justice system and take our democratic republic down with it. The whole Article III judicial selection system needs careful reexamination and reforms lest it fall into the same type of institutional dysfunction and disrepute as today’s Immigration “Courts” (which aren’t “courts” at all in any normal sense of the word).
Of course, Trump, Barr, and the rest of their anti-democracy gang would love to make the captive, biased, Executive-controlled Immigration “Courts” the “model” for the Article III Judiciary. And, John Roberts and the rest of the “JR Five” seem all too eager to accommodate them. The perception already is out here that Roberts & Co. “work for” Trump Solicitor General Noel Francisco in somewhat the same way as Immigration “Judges” work for Billy Barr. Until Roberts and his gang show the courage to stand up to Trump and enforce the legal, constitutional, and human rights of “the other” in our society, that perception will only deepen.
As generations of African-Americans discovered following the end of Reconstruction, Constitutional and legal rights are meaningless in the face of biased and cowardly legislators, judges, and other public officials who simply look the other way, join the abuses, or “go along to get along” with treating “the other” unfairly under the law.
Due Process Forever, Captive & Complicit Courts, Never!
Washington, DC – According to the Roll Call story published May 27, 2020, Executive Office for Immigration Review (EOIR) Director McHenry sent the remaining members of the Board of Immigration Appeals (BIA) a buy-out memo offering them financial compensation in exchange for early retirement or resignation. This memo was sent on April 17, 2020, during the global public health crisis, and highlights the continuing push by this administration to manipulate the functions of the BIA, the appeals court located within EOIR.
AILA Executive Director Benjamin Johnson stated, “This administration has taken numerous steps to alter the composition and role of the BIA, all in an effort to gain more control over the immigration courts and influence court decisions. In recent months, it came to light that the EOIR Director was attempting to pack the immigration bench with more appointees who have among the lowest asylum grant rates in the country. Now, he is attempting to winnow existing members from the BIA and replace them with a roster of Appellate Immigration Judges, despite congressional and stakeholder concerns about politicization of the BIA. Last year, these new appellate judge positions were created out of thin air. They appear to have nearly identical job functions as the BIA members but the Appellate Immigration Judges can adjudicate both trial and appellate level cases at the same time and can be reassigned away from the BIA at the whim of the EOIR Director.”
“This effort shows a complete disregard, or at the very least a failure to appreciate how our judicial system is supposed to work to provide a fair day in court. In 2003, Attorney General Ashcroft purged several members of the BIA, a political move that was severely criticized and ultimately undermined the credibility of our court system. These recent efforts by this administration make it even clearer that our nation urgently needs an immigration court system that is independent, fair and impartial.”
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The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.
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The BIA is a travesty, to be sure. But, an even bigger travesty is the continued “deference” given to a biased, unqualified, non-expert tribunal and its political handlers by the Article III Courts! Under Marbury v. Madison, it’s the job of the Article III Courts to say what the law is. To “defer” to the BIA, a body that currently functions not like a independent, expert tribunal, but has become a “shill” for DHS Enforcement and an adjunct of White Nationalist White House Policy Advisor Stephen Miller, is a disgraceful case of judicial task avoidance and dereliction of duty.
If nothing else, the ongoing disaster at the BIA points to an “inconvenient truth” in America’s justice system: We need better, more informed (particularly in the areas of immigrants’ rights and human rights), more courageous judges at all levels of the Federal Judiciary if we are to survive as a democratic republic where the rule of law and equal justice under law have meaning!
This op-ed argues that the terms we use to discuss immigration rely on a lot of anti-immigrant assumptions.
The United States has a long history of hostility toward immigrants, from barring “undesirables” (a shifting category that has targeted the nonwhite, the disabled, and women) to turning away desperate asylum seekers who went on to gruesome deaths. Even after these cruel laws have been rolled back (and some haven’t), they’ve fundamentally shaped the way we as a nation think of immigration. A lot of the modern policy we consider “common sense” was directly molded by this history. It means that often the terms of the immigration debate rely on a lot of anti-immigrant assumptions. Even the best-intentioned progressives can fall into these traps, which is why examining how we talk about these issues is so important.
THE NOTION THAT THERE ARE “GOOD” AND “BAD” IMMIGRANTS
One common talking point holds that we should welcome the “good” immigrants while getting rid of the “bad” or “criminal” ones. This framing obscures the realities of the U.S. justice system, which disproportionately arrests, convicts, and incarcerates people of color. Black immigrants make up just 7.2% of the noncitizen population, yet they make up over 20% of people facing deportation on criminal grounds. The “good” vs. “bad” framework also obscures how laws are an expression of class power: Financial crimes committed by wealthy individuals and corporations often go unpunished, while everyday people are often punished for their poverty. And even people convicted of crimes shouldn’t lose their humanity, especially in a system that is incentivized to incarcerate.
Anti-immigration advocates often invoke misleading language and statistics suggesting that immigrants commit more crime, while ignoring a vast legal framework set out to criminalize immigrants for minor infractions. Many studies have found that undocumented immigrants actually commit crimes at lower rates than native-born Americans, but our very definition of what constitutes a crime has grown dramatically over the past few decades. A set of 1996 laws expanded deportable offenses by reclassifying more minor crimes as “aggravated felonies” in the context of immigration. As a result, immigrants can be considered felons for acts like drug possession or failing to appear in court.
DISTINGUISHING “REAL” REFUGEES FROM ECONOMIC MIGRANTS
Another dangerous misconception is the differentiation between “real” refugees (people whose search for safety we consider valid) and “economic migrants,” who are perceived as “gaming the system” to obtain a higher standard of living in America. This is a fundamentally false dichotomy: People, and the systems we live in, are far too complex to fit in these binaries. Who gets to be considered a “real” refugee is significantly informed by America’s ideological attitudes; for decades, the system was based more on Cold War politics than any real concern for the safety of asylum seekers. Those fleeing political or religious persecution are seen as legitimate, while those fleeing violent crime or a lack of economic opportunity — causes that also have political roots — are, too often, not. It’s a pattern that continues today: People coming to the U.S. from countries where America has vested geopolitical interests have historically had a harder time gaining asylum than those from countries the U.S. ideologically opposes, even if they have strong claims of persecution.
This hierarchy has stark consequences. As the bar becomes ever higher for who is a “true” refugee, many who flee certain death are turned away. Meanwhile, those who flee “less serious” violence, like poverty and starvation, often have no avenue for help. Their experiences expose the glaring gaps in our asylum policy. Why should certain types of violence be taken more seriously than others? Who is to say that the fear of gang violence is worse than that of not being able to feed your children?
. . . .
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Read the rest of the op-ed at the link.
Whether you accept Uhlmann’s conclusions or not, her point that immigrants’ advocates often accept the terms and framework set forth by nativists and restrictionists is basically valid. One false concept that appears to govern much of the debate is that immigration is fundamentally “negative” and therefore 1) must be limited to those who can provide immediate economic benefits to us (leaving aside the range of human interests of the immigrants themselves), and 2) that any increases in “desirable” immigration must be offset by cuts, restrictions, and/or removals of “undesirables.”
In many ways, this explains the sad failure of the Obama Administration to adopt more humane and effective immigration policies. They apparently never could get over the idea that they had to “prove their toughness” by deporting record numbers of folks and inflicting some gratuitous cruelty on migrants, particularly helpless asylum seekers, to “establish their creds” and get the GOP to the table to discuss serious immigration reform. No chance!
With restrictionists, even record levels of removals and historically low levels of border apprehensions are “never enough.” That’s because they are coming from a place of ideological nativism which is neither fact nor reality driven. It’s driven by inherent biases and nativist myths.
Overall, immigration is both a human reality — one that actually predated the establishment of “nation-states” — and a plus for both the immigrants and the receiving countries.
That being said, I personally think that immigration should be robust, legal, humane, and orderly. But, I doubt that “immigration without limits” is politically realistic, particularly in today’s climate.
Generally, global “market forces” affect immigration much more than nativists are willing to admit. When the legal system is too far out of line with the realities of “supply and demand” the excess is simply forced into the “extralegal market.”
That’s why we have approximately 11 million so-called “undocumented immigrants” residing in the U.S. today. Most are law abiding, gainfully employed, and have helped fuel our recent economic success. Many have formed the backbone of the unheralded “essential workforce” that has gotten us through the pandemic to this point. Many pay taxes now and all could be brought into the tax system by wiser government policies.
That’s why the mass removals touted by Trump and his White Nationalists are both impractical and counterproductive, as well as being incredibly cruel, inhumane, and cost ineffective.
There is a theory out there that although Trump’s uber-enforcement policies might be doomed to long-term failure, he is “succeeding” in another, much more damaging, way. By attacking the safety net, government, education, science, the environment, worker safety, and the rule of law while spreading racism, xenophobia, divisiveness, and maximizing income inequality, Trump has finally succeeded in making the U.S. a less desirable place for “immigrants with choices” to live.
As Bill Gelfeld wrote recently in International Policy Digest:
This pandemic has laid bare national weaknesses, and these weaknesses will have not gone unnoticed by potential and future migrants. Where they have a choice, and many skilled and even unskilled migrants do indeed have a choice, they will increasingly opt for those locales that have figured out universal health care, pandemic and crisis response, and unified national action, and these are the nations that now stand to gain from this migratory boon. https://apple.news/AiY6v3tN0SU6ES08RMUe29g
In the “post-pandemic world economy,” as our birthrate continues to go down and we need immigrants to fuel continued economic growth, the U.S. might well find itself losing the international competition for immigrants, particularly those we most want to attract.
The latter is likely if we give in to the restrictionist demand that we cut legal immigration. That simply forces more immigrants into the “extralegal market.” “Immigrants with choices” are more likely to choose destinations where they can live legally, integrate into society, and fully utilize their skills over a destination that forces them to live underground.
Over the last several years, America has been rocked by evidence of the mistreatment of migrants in detention centers. While the nation makes its political judgments about the future of immigration policy, Stephen Manning has assembled a team of lawyers, organizers, and tech innovators working to squeeze more humanity out of the current system while imagining its replacement. We talked to Stephen about how he pursues justice and reform.
How did you get involved in immigration law in the first place?
I was volunteer teaching at an elementary school, helping immigrant children from Central America with homework. I asked, “Why don’t you do your homework?” and I found their answer hard to believe: “We’re going to be deported.” No one deports second-graders, I thought. It must be an administrative matter. Naively, I took the whole family to Immigration, unprepared for the experience. I discovered a system based on the otherization and exclusion of human beings, as core principles. I could have gotten the whole family deported but luckily everyone was ok, and are still ok—I’ve since presided over two of their weddings.
What is so dehumanizing about immigration?
In fact, immigration could be a deeply humanizing experience—it could be the ultimate humanizing concept, actually. Instead, though, today it is the opposite. Its purpose is to categorize persons and judge their desirability. Racism and other biases have corrupted these functions. For example, on April 22nd, President Trump issued a proclamation to end family-based immigration. The next day his advisor explained that they want to “re-white” the country. The Remain in Mexico program does the same thing. Take a person seeking asylum: they are treated based not on their individual lives and circumstances, but on their assignment to a less desirable macro category—the asylum-seeker. They lose their individuality and simply become members of an undesired group. That classification has nothing to do with their hopes, fears, dreams or their contributions to our collective prosperity.
The same sense of power affects the whole system and shows up in myriad small ways. For example, I remember being at a detention center filled with families, working on a very compelling claim by a mother and her children. I’m working on my laptop surrounded by small children playing. We had sent a letter to the officer showing cause for their release. He showed up armed, in aviator glasses, ignored the children, and crumpled up and threw away the letter right in front of everyone. That’s dehumanization on a micro scale.
What surprises people when they learn about the realities of the U.S. immigration system?
People expect law to reflect some kind of morality. We expect the power of the law to be used justly. When law and power seem to align against common sense—that’s a tough lesson, even for lawyers. The immigration legal system is a world unto itself, and even for experienced lawyers, nothing prepares them for it.
You started and lead Innovation Law Lab, one of the largest pro bono projects in the country, to push for reforms. How do you recruit lawyers to volunteer?
Innovation Law Lab is equal parts lawyers, organizers, and coders. Our core team is about 20 people. For volunteers, actually, we don’t have any formal recruitment mechanisms. The work itself is demanding—you’re volunteering, giving up family time, spending your own money to participate. What we offer is a chance to use the law for justice and to join a team of like-minded people. And we’ve also structured it so that it can scale. We ask, Can you come for a day, a week, three weeks? Big law does not have to worry—there’s no mass exodus coming, but there is a small trend towards movement-based lawyering. The last time I looked, our numbers at Innovation Law Lab were in the tens of thousands of volunteers. And about 30% are repeat volunteers; they participate in multiple projects.
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Stephen Manning is an Ashoka Fellow. You can read more about him and his work here.
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You can read the rest of the profile at the link.
Innovation Law Lab is doing some spectacular work in defending the Constitution, the rule of law, and humanity against the Trump regime’s relentless onslaught.
Family Separation 2.0: “You aren’t going to separate me from my only child.”
On April 7, 2020, Amnesty International issued a report, ‘We are adrift, about to sink’: The looming COVID-19 disaster in US immigration detention facilities, documenting how the Trump administration was failing to adequately protect tens of thousands of immigrants and asylum- seekers whom the U.S. Department of Homeland Security’s (“DHS”) Immigration and Customs Enforcement (“ICE”) agency was detaining in over 200 detention centers across the United States.1
Three of these facilities detain families, including infants as young as 1-year-old who are still breast-feeding. Deceptively named “family residential centers” (FRC), these detention facilities are: the Berks County Residential Center (“Berks”) in Leesport, Pennsylvania; the South Texas Family Residential Center (“Dilley”) in Dilley, Texas; and the Karnes County Residential Center (“Karnes”) in Karnes City, Texas.
While the dangerous conditions in immigration detention remain little changed since Amnesty International published its April report, ICE has now introduced a new element of harm: family separation. Once again, this administration is weaponizing its public health response to COVID- 19 to punish and deter people seeking safety.
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Read the complete report at the above link.
The regime’s “Dred Scottification” — dehumanization of “the other” before the law — continues unabated as those institutions charged with preventing such abuses tank.
This November, vote like your life depends on it! Because it does!
Another day, another extreme cruelty: according to a report in the New York Times, the Trump administration has deported almost 1,000 migrant children and teens during the past two months of the covid-19 pandemic, sending them out of the United States alone and at times putting them on a flight without even telling their family members. Stephen Miller, who is unfortunately still alive, must be thrilled.
Trump’s latest tactic in the service of slashing immigration is, as the New York Times points out, a complete 180 from past policy:
The deportations represent an extraordinary shift in policy that has been unfolding in recent weeks on the southwestern border, under which safeguards that have for decades been granted to migrant children by both Democratic and Republican administrations appear to have been abandoned.
Historically, young migrants who showed up at the border without adult guardians were provided with shelter, education, medical care and a lengthy administrative process that allowed them to make a case for staying in the United States. Those who were eventually deported were sent home only after arrangements had been made to assure they had a safe place to return to.
But now, not even children who are already in the United States with pending asylum cases are safe from deportation. As the Times reported, in addition to the more than 900 children and teens who were deported in March and April shortly after arriving at the border, 60 young people who were already being held in government shelters were also abruptly sent out of the United States, at times “rousted from their beds in the middle of the night.”
According to the Times, even young children have been put on flights by themselves. Take the case of Sandra Rodríguez and her 10-year-old son Gerson, whom she sent across the southern border with the expectation that once Gerson arrived in the United States, he would be able to eventually live with Rodríguez’s brother in Houston. But instead, shortly after entering the U.S., Gerson was sent to Honduras alone.
This incredibly callous treatment of young migrants as well as their families is part of the Trump administration’s attempt to erase any vestige of due process at the border with Mexico. Citing the pandemic, immigration officials have used provisions in the 1944 Public Health Act as justification to essentially close the United States to all asylum seekers who cross the border. The impact has been severe: In an almost two-month period from mid-March to May, only two people seeking protection on humanitarian grounds at the border were allowed to stay within the United States.
“What is happening at the border right now is a tragedy. We are abandoning our legal commitment to provide asylum to people whose lives are in danger in other countries,” Kari Hong, an immigration attorney and Boston College law school professor, told the Washington Post. “By invoking these emergency orders, the Trump administration is simply doing what it’s wanted to do all along, which is to end asylum law in its entirety,” she said.
While Trump administration officials have justified their likely illegal use of emergency orders in the name of public health, the fact that officials have also deported children and teens who were already in the care of the federal government sure indicates that something else is going on here. I wonder what that could be.
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Who would have thought that America would become a nation of child abusers and that Federal Courts would be so feckless and complicit in the face of such clear abuses? Three years of concerted failure, led by John Roberts and the Supremes, to give meaning to Due Process and Equal Protection in the face of the “New Jim Crow” have emboldened the regime’s White Nationalist, anti-American abusers while kneecapping democratic and constitutional institutions.
Then, there’s the extreme, wanton cruelty and dehumanization inflicted on the mostly vulnerable among us that has come to symbolize our nation in the Age of Trump. Like all the other abuses by the regime, it’s been “normalized” by feckless legislators and judges: “Another day, another extreme cruelty!” ☠️⚰️🤮🏴☠️
Somewhere down there in the fires of the underworld, Chief Justice Roger Taney, author of the infamous “Dred Scott Decision” must be feeling totally vindicated by Roberts and his gang!
Is this really how we want to be remembered by future generations? If not, vote ‘em out this November!
WASHINGTON — The Trump administration has expedited the deportation of child migrants during the coronavirus pandemic, citing public health, but documents obtained by NBC News show that as far back as 2017, now–DHS Acting Secretary Chad Wolf sought to expedite child deportations in order to discourage Central American asylum seekers.
Recent reports from immigration lawyers, DHS officials and congressional staff have indicated a rise in the number of rapid deportations of unaccompanied migrant children. Previously, children who arrived in the U.S. without a parent or legal guardian were given protections under anti-trafficking laws, which included the right to claim asylum and to be placed in the custody of the Department of Health and Human Services until they could be placed with a guardian.
The New York Times recently reported that more than 900 children have been deported under a new policy that sends children back to their home countries before they have had a chance to coordinate plans with a guardian at home or claim asylum in the U.S.. Many of those children, according to the Times, were in the U.S. and living in HHS custody or with family members before the pandemic began.
DHS has said the deportations are justified under Title 42, which allows restrictions on immigration to slow the spread of disease.
But a 2017 policy proposal by Wolf shows that the agency has long sought the ability to deport children more quickly, long before the threat of a virus gave it cover to do so.
The documents were first obtained by Sen. Jeff Merkley, D.-Ore., and then shared with NBC News.
Wolf, who was then chief of staff to DHS Secretary Kirstjen Nielsen, sent a collection of policy ideas to the Justice Department, which included plans to reclassify unaccompanied migrant children as accompanied once they had been placed in the care of a parent or sponsor.
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Read Julia’s complete article at the link.
As I keep saying, ever since “tanking” on the so-called “Travel Ban Cases,”John Roberts and his GOP buddies on the Supremes have been avoiding their duty to critically examine the clearly invidious motives of the Trump regime. They have encouraged legal and intellectual fraud by inviting the regime to present a plethora of demonstrably bogus pretexts to thinly cloak their unlawful intent.
Undoubtedly, we’re just seeing the “tip of the iceberg” here. Future historians will unearth overwhelming evidence of the racism and other improper drivers of the regime’s cowardly attack on vulnerable children and asylum seekers. They will expose fully the disgraceful role of Roberts and his gang in encouraging and covering up what future generations will almost universally view as grotesque abuses of human rights and the rule of law. Which they are!
This November, we have a chance to change course and start writing an end to this disgraceful chapter of American history. Don’t blow it!
The last time Sandra Rodríguez saw her son Gerson, she bent down to look him in the eye. “Be good,” she said, instructing him to behave when he encountered Border Patrol agents on the other side of the river in the United States, and when he was reunited with his uncle in Houston.
The 10-year-old nodded, giving his mother one last squinty smile. Tears caught in his dimples, she recalled, as he climbed into a raft and pushed out across the Rio Grande toward Texas from Mexico, guided by a stranger who was also trying to reach the United States.
Ms. Rodríguez expected that Gerson would be held by the Border Patrol for a few days and then transferred to a government shelter for migrant children, from which her brother in Houston would eventually be able to claim him. But Gerson seemed to disappear on the other side of the river. For six frantic days, she heard nothing about her son — no word that he had been taken into custody, no contact with the uncle in Houston.
Finally, she received a panicked phone call from a cousin in Honduras who said that Gerson was with her. The little boy was crying and disoriented, his relatives said; he seemed confused about how he had ended up back in the dangerous place he had fled.
Hundreds of migrant children and teenagers have been swiftly deported by American authorities amid the coronavirus pandemic without the opportunity to speak to a social worker or plea for asylum from the violence in their home countries — a reversal of years of established practice for dealing with young foreigners who arrive in the United States.
The deportations represent an extraordinary shift in policy that has been unfolding in recent weeks on the southwestern border, under which safeguards that have for decades been granted to migrant children by both Democratic and Republican administrations appear to have been abandoned.
Historically, young migrants who showed up at the border without adult guardians were provided with shelter, education, medical care and a lengthy administrative process that allowed them to make a case for staying in the United States. Those who were eventually deported were sent home only after arrangements had been made to assure they had a safe place to return to.
That process appears to have been abruptly thrown out under President Trump’s latest border decrees. Some young migrants have been deported within hours of setting foot on American soil. Others have been rousted from their beds in the middle of the night in U.S. government shelters and put on planes out of the country without any notification to their families.
The Trump administration is justifying the new practices under a 1944 law that grants the president broad power to block foreigners from entering the country in order to prevent the “serious threat” of a dangerous disease. But immigration officials in recent weeks have also been abruptly expelling migrant children and teenagers who were already in the United States when the pandemic-related order came down in late March.
Since the decree was put in effect, hundreds of young migrants have been deported, including some who had asylum appeals pending in the court system.
Some of the young people have been flown back to Central America, while others have been pushed back into Mexico, where thousands of migrants are living in filthy tent camps and overrun shelters.
In March and April, the most recent period for which data was available, 915 young migrants were expelled shortly after reaching the American border, and 60 were shipped home from the interior of the country.
During the same period, at least 166 young migrants were allowed into the United States and afforded the safeguards that were once customary. But in another unusual departure, Customs and Border Protection has refused to disclose how the government was determining which legal standards to apply to which children.
“We just can’t put it out there,” said Matthew Dyman, a public affairs specialist with the agency, citing concerns that human smugglers would exploit the information to traffic more people into the country if they knew how the laws were being applied.
On Tuesday, the Trump administration extended the stepped-up border security that allows for young migrants to be expelled at the border, saying the policy would remain in place indefinitely and be reviewed every 30 days.
Chad F. Wolf, the acting secretary of the Department of Homeland Security, said the policy had been “one of the most critical tools the department has used to prevent the further spread of the virus and to protect the American people, D.H.S. front-line officers and those in their care and custody from Covid-19.”
An agency spokesman said its policies for deporting children from within the interior of the country had not changed.
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Read the rest of Caitlin’s article at the above link.
Thanks to my friend, the amazing “Due Process Warrior Queen,” 👸🏼 👑 ⚔️🛡Deb Sanders for bringing Caitlin’s article to my attention.
Kids suffer, the law is ignored, corrupt bureaucrats like Chad Wolf continue to wander around spreading lies. There is no evidence that any of those kids “rocketed” out of the country in violation of laws and human rights had coronavirus.
And if they did, returning them to a poorer nation with even fewer resources to fight the pandemic without taking proper precautions and safeguards would be totally irresponsible, inhumane, and ultimately counterproductive. What goes around, comes around!
This has absolutely nothing to do with “protecting” the U.S. from coronavirus (something that Trump otherwise largely eschews) and everything to do with advancing a racist, xenophobic, White Nationalist political agenda designed to appeal to a relatively narrow slice of Trump voters. So, how does this pass “legal muster?” Clearly, “It doesn’t!”
How do folks like Trump, Miller, Wolf, and their accomplices get away with it? Easy when GOP legislators and life-tenured Federal Judges look the other way rather than forcing the regime to comply with the rule of law and simple human decency.
Congressional letters, particularly to a lawless regime, are useless unless accompanied by veto-proof legislation. Courts that fail to take a unified “Just Say No” approach to Trump’s systemic abuses, all the way up to the Supremes, and which rule without holding the officials and lawyers masterminding these abuses legally accountable are basically feckless!
These are not difficult questions from either a legal or moral standpoint. What the Administration is doing is wrong! Period! Those who say otherwise are wrong! Period!
The Trump regime disguises their vicious attacks on human dignity and the rule of law as bogus “legal issues.” And, the Federal Courts encourage them by going along with the charade. This is no “normal Executive.” It’s a “rogue regime” and must be treated as such!
The failure to end these disgraceful practices and hold those who are abusing their authority accountable says much about the current state of our democratic institutions, justice system, civil servants, and the inadequacy and moral complacency of many of our current GOP legislators and Federal Judges.
This November, vote like your life and your humanity depends on it! Because it does!
Juan Antonio v. Barr, 6th Cir., 05-19-20, published
PANEL: COLE, Chief Judge; BOGGS and GIBBONS, Circuit Judges
OPINION BY: Judge Gibbons
CONCURRING OPINION: Judge Boggs
KEY QUOTES:
Footnote 3:
3Matter of A-R-C-G was overruled by Matter of A-B, which held that the Board in Matter of A-R-C-G- did not conduct a rigorous enough analysis in its determination that the particular social group was cognizable. See Matter of A-B-, 27 I. & N. Dec. 316, 331 (A.G. 2018) (noting that because DHS conceded that particular social group was cognizable, “the Board performed only a cursory analysis of the three factors required to establish a particular social group”). Our sister circuits have determined that this change counsels remand. See Padilla- Maldonado v. Att’y Gen. U.S., 751 F. App’x 263, 268 (3d Cir. 2018) (“While the overruling of A-R-C-G- weakens [the applicant’s] case, it does not automatically defeat her claim that she is a member of a cognizable particular social group. As we remand to the BIA to remand to the IJ, the IJ should determine whether [the applicant’s] membership in the group . . . is cognizable . . ..”); Moncada v. Sessions, 751 F. App’x 116, 118 (2d Cir. 2018) (“This Court, like the BIA, applies the law as it exists at the time of decision. And, where, as here, intervening immigration decisions from the executive branch alter the applicable legal standards, we have previously exercised our discretion to remand the matter to the BIA to apply the new standards in the first instance. Recognizing the wisdom of this practice, we take the same tack here and remand this case ‘for the BIA to interpret and apply the standards set forth in [Matter of A-B-] in the first instance.’” (quoting Biao Yang v. Gonzales, 496 F.3d 268, 278 (2d Cir. 2007) (internal citations omitted)).
However, Matter of A-B- has since been abrogated. See Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018). Grace found that the policies articulated in Matter of A-B- were arbitrary, capricious, and contrary to law. See id. at 126–27 (holding that there is no general rule against claims involving domestic violence as a basis for membership in a particular social group and that each claim must be evaluated on an individual basis under the statutory factors). The district court’s decision in Grace is currently on appeal to the D.C. Circuit. We acknowledge that we are not bound by Grace but find its reasoning persuasive. Because Matter of A-B- has been abrogated, Matter of A-R-C-G- likely retains precedential value. But, on remand, the agency should also evaluate what effect, if any, Matter of A-R-C-G- and Grace have had on the particular social group analysis. See Bi Xia Qu, 618 F.3d at 609 (“When the BIA does not fully consider an issue, . . . the Supreme Court has instructed that a reviewing court ‘is not generally empowered to conduct a de novo inquiry into the matter being reviewed.’ Rather, ‘the proper course, except in rare circumstances, is to remand to the [BIA] for additional investigation or explanation.’” (quoting Gonzales v. Thomas, 547 U.S. 183, 186 (2006))).
. . . .
When an asylum claim focuses on non-governmental conduct, the applicant must show that the alleged persecutor is either aligned with the government or that the government is unwilling or unable to control him. See Khalili, 557 F.3d at 436. An applicant meets this burden when she shows that she cannot “reasonably expect the assistance of the government” in controlling her perpetrator’s actions. Al-Ghorbani, 585 F.3d at 998. For example, in In re S-A, the Board found that an applicant was eligible for asylum when she suffered domestic abuse at the hands of her father. In re S-A-, 22 I. & N. Dec. 1328 (BIA 2000). Relying on evidence showing that “in Morocco, domestic violence is commonplace and legal remedies are generally unavailable to women,” and that “‘few women report abuse to authorities’ because the judicial procedure is skewed against them,” the Board held that “even if the respondent had turned to the government for help, Moroccan authorities would have been unable or unwilling to control her father’s conduct.” Id. at 1333, 1335 (quoting Committees on International Relations and Foreign Relations, 105th Cong., 2d Sess., Country Reports on Human Rights Practices for 1997 1538 (Joint Comm. Print 1998)).
Here, both the immigration judge and Board agreed that the beatings, rape, and threats Maria suffered were severe enough to constitute persecution, but that she failed to show that the Guatemalan government was unwilling or unable to control Juan. In support of its conclusion,
No. 18-3500 Juan Antonio v. Barr Page 16
the Board noted that the government issued a restraining order against Juan, the mayor fined Juan for beating their daughter, and that Maria and their children were able to remain in their home for the year before she left Guatemala. AR 5, BIA Decision. Maria argues on appeal that the Board’s decision was not supported by substantial evidence on the record as a whole. We agree with her.
Taken as a whole, the record compels the conclusion that Maria cannot “reasonably expect the assistance of the government” in controlling Juan. Al-Ghorbani, 585 F.3d at 998. First, the Board’s conclusion that the restraining order effectively controlled Juan is clearly contradicted by the evidence. Maria testified that Juan “did not obey [the restraining order] because there [was] no police” and “[h]e wasn’t afraid” of any consequences, AR 180, Immigration Ct. Tr., and that at some time that year, Juan came to Maria’s home and beat their oldest child with his belt. She further testified that she went to the police station to file a complaint, but the police never investigated the crime. Second, the Board’s conclusion that “the respondent and her children were able to live legally in the family house” for a year does not paint an accurate picture of that year. AR 5, BIA Decision. The year was not a “period of calm,” as the Board characterized it, but rather, a year which affirmed that the Guatemalan government had not effectively gained control over Juan. Id at 5 n.2. Throughout the course of the year, Maria received threats that Juan “was going to kill [her], and if not[,] that he would pay someone to do something.” AR 188, Immigration Ct. Tr. Juan’s girlfriend also “began threatening [Maria] about once a week, yelling at [her] . . . that she and Juan would kill [her] if [she] didn’t move out of the house.” AR 332, I-589 Appl. In May 2014, Juan’s sister told Maria that “Juan had bought a gun and that he planned to kill [Maria].” Id. at 333. The events of that year indicate that the government had not effectively gained control over Juan.
Moreover, that Juan received a fine of approximately $200 for beating up their oldest child (from a judge who no longer works in town, at a courthouse that has since been destroyed) may indicate some willingness of the Guatemalan government to control Juan but it does not indicate its ability to do so. The concurrence points to the restraining order and fine as evidence
No. 18-3500 Juan Antonio v. Barr Page 17
Guatemala is willing to enforce its laws but may not always be successful.4 While the concurrence would emphasize what Guatemala did, it is more important to look at the numerous instances when the government failed to act or even respond as well as the harm the government failed to prevent. The death threats Maria received continued even after Juan was fined. And Juan’s purchasing of a gun—which ultimately led Maria to flee—came after Juan was fined. Moreover, the police failed to respond to Maria’s calls for help on two occasions when Juan came to Maria’s house and threatened her and/or their children. In reviewing this evidence, the immigration court opined that it “would be left to wonder if Juan intended to kill the respondent, the mother of his four children, why would he not have done so.” AR 70, Immigration Ct. Order. But it cannot be that an applicant must wait until she is dead to show her government’s inability to control her perpetrator.
The supplemental evidence regarding Guatemala’s country conditions corroborates that Maria could not “reasonably expect the assistance of the government” in controlling Juan’s actions. Al-Ghorbani, 585 F.3d at 998; see In re S-A-, 22 I. & N. Dec. 1328 (BIA 2000). The evidence Maria submitted shows that “[t]he systemic marginalization of indigenous communities . . . continues with no meaningful efforts by the government to overcome it.” AR 285, State of the World’s Minorities and Indigenous Peoples 2015—Guatemala. It also indicates that “[i]mpunity for perpetrators remain[s] very high,” AR 255, Country Reports on Human Rights Practices for 2016, and that for Mayan indigenous women, there is “increased vulnerability and gender-based violence . . . exacerbated by a weak state apparatus that struggles to implement laws and programming to protect these groups.” AR 274, Guatemala Struggles to Protect Women Against Endemic Violence. Indigenous Mayan women are particularly unable to seek help from the government because they speak a different language from most of the country’s authorities. To be sure, the supplemental material does not indicate no willingness on behalf of the Guatemalan government—indeed, the country has taken some steps to codify laws prohibiting violence against women—but rather, the material reinforces the country’s lack of
4The concurrence’s reference to the enforcement of domestic abuse law violations in this country is both inapt and irrelevant.
No. 18-3500 Juan Antonio v. Barr Page 18 resources and infrastructure necessary to protect indigenous Mayan women from their perpetrators.
Further, the Board’s conclusion that Maria did not meet her burden of showing that the Guatemalan government was “helpless” relies on a standard that has since been deemed arbitrary and capricious. AR 5, BIA Decision. The United States District Court for the District of Columbia found that the “complete helplessness” standard is arbitrary, capricious, contrary to law, and “not a permissible construction of the persecution requirement.” Grace v. Whitaker, 344 F. Supp. 3d 96, 130 (D.D.C. 2018).
Thus, the Board’s conclusion that Maria did not demonstrate that the Guatemalan government was unwilling or unable to control Juan is not supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” Zhao, 569 F.3d at 247 (quoting Koulibaly, 541 F.3d at 619). Maria’s testimony about her experiences, corroborated by supplemental evidence of the conditions for indigenous Mayan women in Guatemala, compels a contrary conclusion to that of the Board. See Mandebvu, 755 F.3d at 424. Based on the evidence in the record, Maria could not “reasonably expect the assistance of the government” in controlling Juan’s actions. Al-Ghorbani, 585 F.3d at 998. We therefore vacate the Board’s finding that Maria did not show that the government was unable or unwilling to protect her and remand so the agency can reconsider her application consistent with this opinion.
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Thanks to my Round Table colleague Judge Jeffrey Chase for spotting this decision and sending it my way.
And congratulations to Margaret Wong, Esquire, of Cleveland, OH, who represented the respondent so ably before the 6th Circuit. Margaret and the attorneys from her firm appeared before me numerous times during the many years that I was assigned to the Cleveland docket part-time from Arlington, with most of the hearings taking place by televideo.
Margaret W./ Wong Senior PartnerMargaret W. Wong & Associates LLC
The BIA’s bogus “helpless standard” came directly from Matter of A-B- — Sessions’s unethical, legally incorrect, and misogynistic attempt to write female domestic violence victims from Central America out of refugee protections as part of his White Nationalist agenda. Judge Gibbons’s opinion found persuasive U.S. District Judge Sullivan’s (D. D.C.) conclusion in Grace v. Whitakerthat Sessions’s A-B- atrocity was “arbitrary, capricious, and contrary to law.”
This further confirms the problems of a politicized and weaponized Immigration Court system controlled by anti-asylum politicos. How many more “Marias” are out there who are arbitrarily denied protection by the Immigration Courts and the BIA, but lack the ability to obtain competent counsel to assist them and/or are not fortunate enough to have a Court of Appeals panel that takes their case seriously, rather than just “deferring” to the BIA? For example, the Fifth Circuit has “tanked” on the A-B- issue. And, today, the Trump regime is being allowed to turn away asylum seekers at the border in violation of law and without any meaningful opportunity whatsoever to present a claim.
Disgraceful as the BIA’s performance was in this case, worse happens every day in the broken Immigration Court system and the abusive, scofflaw enforcement system administered by the Trump regime.And those charged with putting an end to such blatant violations of law and human rights – the Article III Judiciary – have largely shirked their duty to put an end to this unconstitutional, illegal, unethical, and inhumane “bad joke” of a “court system” and to stop the regime’s illegal abrogation of U.S. asylum laws.
Born in 1993, Marica was raised in Maryland and earned a B.A. in Sociology from Rice University. Marica worked in the past as a paralegal at Hudson Legal in Ann Arbor and most recently explored eGovernance based infrastructure projects on the Dorot Fellowship. In the past, she received the Wagoner Fellowship, from the Higher School of Economics in Saint Petersburg, Russia, where she completed a year long ethnographic research project. She is fluent in Russian and proficient in Spanish and Hebrew.
Hon. Paul Wickham Schmidt U.S. Immigraton Judge (Ret.) Adjunct Professor, Georgetown Law Blogger, immigrationcourtside.com
Judge (Retired) Paul Wickham Schmidt
Judge Schmidt was appointed as an Immigration Judge at the U.S. Immigration Court in Arlington, Virginia, in May 2003 and retired from the bench on June 30, 2016. Prior to his appointment as an Immigration Judge, he served as a Board Member for the Board of Immigration Appeals, Executive Office for Immigration Review, in Falls Church, VA, since February 12, 1995. Judge Schmidt served as Board Chairman from February 12, 1995, until April 9, 2001, when he chose to step down as Chairman to adjudicate cases full-time. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996), extending asylum protection to victims of female genital mutilation.He received a Bachelor of Arts degree from Lawrence University in 1970 (cum laude), and a Juris Doctorate from the University of Wisconsin School of Law in 1973 (cum laude; Order of the Coif). While at the University of Wisconsin, he served as an editor of the Wisconsin Law Review. Judge Schmidt served as acting General Counsel of the former Immigration and Naturalization Service (INS) (1986-1987; 1979-1981), where he was instrumental in developing the rules and procedures to implement the Immigration Reform and Control Act of 1986. He also served as the Deputy General Counsel of INS for 10 years (1978-1987). He was the managing partner of the Washington, DC, office of Fragomen, Del Rey & Bernsen (1993-95), and also practiced business immigration law with the Washington, DC, office of Jones, Day, Reavis and Pogue from 1987-92 (partner, 1990-92). Judge Schmidt also served as an adjunct professor of law at George Mason University School of Law in 1989 and at Georgetown University Law Center (2012-14; 2017–). He has authored numerous articles on immigration law, and has written extensively for the American Immigration Lawyers Association. Judge Schmidt is a member of the American Bar Association, the Federal Bar Association, and the Wisconsin and District of Columbia Bars. Judge Schmidt was one of the founding members of the International Association of Refugee Law Judges (“IARLJ”).In June 2010, Judge Schmidt received the Lucia R. Briggs Distinguished Achievement Award from the Lawrence University Alumni Association in recognition of his notable career achievements in the field of immigration law. Since retiring, in addition to resuming his Adjunct Professor position at Georgetown Law, Judge Schmidt has established the blog immigrationcourtside.com, is an Americas Vice President of the IARLJ, serves on the Advisory Board of AYUDA, and assists the National Immigrant Justice Center/Heartland Alliance on various projects, as well as speaking, lecturing, and writing in forums throughout the country on contemporary immigration issues, due process, and U.S. Immigration Court reform.
So, what now? Will the intentional cruelty, “Dred Scottification,” false narratives, and demonization of “the other,” particularly women, children, and people of color, by presidential advisor Stephen Miller and his White Nationalists become the “future face” of America? Or, will “Our Better Angels” help us reclaim the vision of America as the “Shining City on the Hill,” welcoming immigrants and protecting refugees, in good times and bad, while “leading by example” toward a more just and equal world?
The Refugee Act of 1980 feels like a huge success…for a short amount of time. The first test of the act comes when Fidel Castro opens Cuba’s borders (and Cuba’s prisons) and hundreds of refugees arrive on Florida shores. The Mariel Boatlift Crisis forced the U.S. government to realize that not all asylum processing can happen abroad. Unfortunately, it also left the public with the impression that “Open arms and open hearts” leads only to crisis.
The year is 1980 and the war in Vietnam has displaced hundreds and thousands of people. The system of presidential parole doesn’t seem like it can handle the growing global refugee crisis. What is the answer to this ballooning need? Process most refugees abroad to streamline their entrance to the U.S. Codify asylum in the U.S. in legislation that puts human rights first. Increase prestige, improve overall government coordination, provide a permanent source of funding, and institutionalize refugee resettlement programs and assimilation. Have Ted Kennedy be the face of the effort. For once, things are actually working out for humanity.
In the 1990s, Judge Schmidt was BIA Chairman Schmidt. With the support of then Attorney General Janel Reno, he aspired to “open up” appellate judgeships to all immigration experts, and to lead the BIA to much-needed progressive steps towards humane asylum law, better scholarship, improved public service, transparency, and streamlined efficiency to reduce the backlog. However, progress seemed to stall at several points and certain types of behavior tended to be rewarded. The Board sits at the intersection between a court and an agency within the administration, which means its hurdles come both from structural issues with the U.S. Justice System and with entrenched government bureaucracy.
In the 1980s, critics claimed that the federal agency in charge of immigration enforcement, the “Legacy” Immigration and Naturalization Service (“INS”), could not process quasi-judicial cases in a fair and just manner due to limited autonomy, non-existent technology, insufficient resources, haphazard management, poor judicial selection processes, and backlogs. The solution? Create a sub-agency of the Department of Justice (“DOJ”) just for the immigration courts, focused on “due process with efficiency” and organizationally separate from the agency charged with immigration enforcement. The Executive Office of Immigration Review (“EOIR”) was an ambitious and noble endeavor, meant to be an independent court system operating inside of a Federal Cabinet agency. Spoiler: despite significant initial progress it did not work out that way in the long run.
In 1986, the United States was facing an immigration crisis with an overwhelmed INS and a record number of undocumented folks in the country. IRCA, a bipartisan bill, was created to solve the immigration crisis through a three-pronged approach: legalization, enforcement and employer accountability. However, it soon became apparent that some parts of IRCA were more successful than others. IRCA taught us relevant lessons for going forward. Because while pathways to citizenship are self-sustaining, enforcing borders is not.
Judges are meant to be impartial; but, U.S. Immigration Judges have political bosses who are willing and able to fire them while making little secret of their pro-enforcement, anti-immigrant political agenda. What are the public consequences of an Immigration Court with limited autonomy from the Executive Branch? We begin the podcast at one of the “turning points,” when Attorney General John Ashcroft fired almost all the most “liberal” Board Members of the BIA, all of whom were appointed during the Clinton Administration. What followed created havoc among the U.S. Courts of Appeals who review BIA decisions. The situation has continually deteriorated into the “worst ever,” with “rock bottom” morale, overwhelming backlogs, fading decisional quality, and the “weaponized”Immigration Courts now tasked with carrying out the Trump Administration’s extreme enforcement policies.
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Many, many thanks to Marica for persuading me to do this project and for doing all the “hard stuff.” I just “rambled on” — her questions and expert editing provided the context and “framework.”And, of course, Marica provided all the equipment (the day her brother “borrowed” her batteries) and the accompanying audio clips and written introductions.
Also, many thanks to my wife Cathy for the many hours that she and “Luna the Dog” (a huge “Marica fan”) spent trying not to listen to us working in the dining room, while adding many helpful suggestions to me, starting with “you sound too rehearsed” and “lose the ‘uhs’ and ‘you knows.’” She even put up with me playing some of the “original takes” while we were “on the road” to Wisconsin or Maine.
Immigration courts in ‘chaos,’ with coronavirus effects to last years
By Tal Kopan
WASHINGTON — Raquel and her sons fled gang threats in El Salvador, survived the weeks-long journey to the U.S., and then endured the Trump administration’s 2018 separations at the southern border.
This month, she was finally going to get her chance to convince an immigration judge in San Francisco that she should be granted permanent asylum in the U.S., ending the agony of having to prepare for her court date by reliving the danger in her native country and her weeks of detention at the border.
Thanks to the coronavirus, she will have to endure the wait for three more years.
“It’s really traumatizing, because I have to keep telling them the same thing,” Raquel said. “I thought I had gotten over everything that had happened to me … but every time I remember, I can’t help crying.”
Raquel’s case is one of hundreds of thousands in the immigration courts that are being delayed by the pandemic. The courts, run by the Justice Department, have been closed for health reasons in the same way that much of U.S. public life has been on hold. But many of those who work in the system say the Trump administration has handled the shutdown in an especially haphazard manner, increasing the stress on judges and attorneys in addition to immigrants and making it harder for the courts to bounce back.
“There isn’t a day that goes by that there isn’t mass chaos behind this veil of business as usual,” said Ashley Tabaddor, president of the National Association of Immigration Judges.
The Justice Department began postponing hearings for immigrants who are not in detention on March 18, and the delays have been extended every few weeks. Hearings are now set to resume June 15. But many courts technically remain open, including the one in San Francisco, with frequently changing statuses announced on social media and a website. It also took weeks for all judges to get laptops that would allow them to work remotely, said Tabaddor, who hears immigration cases in Los Angeles.
The scattershot communications make it difficult to prepare for if and when the hearings are held, immigrants say. And it’s worse for those who have no lawyer who can help navigate the changes. About one-third of immigrants with pending cases have no representation, according to Justice Department statistics, and missing a hearing is grounds for deportation.
The Justice Department says it is being proactive in balancing safety with immigrants’ rights. A spokeswoman said the agency is “deeply concerned” for the health of its staff and the public.
In a recent legal filing, the director of the immigration courts, James McHenry, said a “one size fits all” approach to court closures and procedures wouldn’t work, given varying situations at different locations.
With postponements happening on short notice, most immigrants fighting deportation feel they must prepare for court even if pandemic-caused delays seem likely. But doing so can force them to revisit the terrifying situations they say they came to the U.S. to escape.
None who spoke with The Chronicle said they wanted to risk their health by keeping the courts open. But they and their attorneys said they wished the administration was doing more to take immigrants’ and staffers’ needs into account.
Because the immigration courts already have a backlog of more than 1 million cases, it can take years for an asylum applicant such as Raquel to go before a judge. In the meantime, they build lives here, knowing that can be yanked away if they’re ordered deported.
Raquel and others whose hearings have been postponed won’t go first when the courts reopen — they go to the back of the line. The alternative for the immigration courts would be a logistical nightmare of rescheduling everyone else’s hearings, which are now booked years in advance.
The Trump administration ended the practice of prioritizing cases of criminal immigrants or recent arrivals, and has curtailed judges’ ability to simply close the case of a low-risk migrant less deserving of deportation, which would clear court schedules for more serious cases.
The Justice Department declined to say how many hearings have been postponed because of the pandemic. But a nonprofit statistics clearinghouse estimated that the government shutdown of 2018-19 resulted in the cancellation of 15,000 to 20,000 cases per week.
Raquel’s case is emblematic of the thousands that are now in limbo. The Chronicle has agreed not to use her real name out of her concern for her safety, in accordance with its anonymous sourcing policy.
Raquel says she came to the U.S. in 2018 because a gang in the area of El Salvador where she lived threatened her family after her two sons refused to join.
She was among the immigrant families that were forcibly separated at the border. She spent a month and a half apart from her teenage son as she was shuffled between detention centers and jails. She says she endured numerous indignities, including having to shower in front of guards and being shackled by her wrists and ankles.
“It was the most bitter experience I’ve ever had,” she said in Spanish.
After finally being reunited with her son and released, Raquel rejoined her husband and other son who had come here previously, settling in San Francisco. She was ordered to wear an ankle monitor, which again made her feel like “a prisoner.”
“I had never felt so hurt like I did in this country, which hurt me so much just for crossing a border illegally,” Raquel said. “That was the sin and the crime that we committed, and we paid a high price.”
Raquel spoke with The Chronicle before receiving word that her May hearing was canceled. She and her attorney had felt forced to prepare despite a high likelihood of postponement, just in case the Justice Department forged ahead.
San Francisco attorneys who are working with immigrants during the pandemic say it is an acute challenge. Stay-at-home orders complicate preparing for cases that could have life-and-death consequences for those who fled violence back home.
Difficulties include trying to submit 1,000-page filings from home, needing to discuss traumatic stories of domestic and sexual violence with immigrants who are sharing one-bedroom apartments with 10 other people, and navigating courts’ changing status on Twitter.
“It’s taking an already not-user-friendly system and spinning it into chaos to the extent that even savvy practitioners don’t know how to get information, let alone the applicant,” said Erin Quinn, an attorney in San Francisco with the Immigrant Legal Resource Center.
She added, “The stakes are high, and at the same time, a comment I got yesterday from a practitioner was, ‘I’m tired of trying to figure out what to do with my practice based on tweets.’”
Judges and court staffers are also frustrated. On March 22, an unprecedented partnership was formed among the unions representing Immigration and Customs Enforcement attorneys who serve as prosecutors in the courts, judges and the association for attorneys who represent immigrants. They wrote a letter to the Justice Department demanding it close all the courts, not just postpone hearings for immigrants who are not in detention. The agency later expanded the ability of attorneys to appear by telephone and for some judges to work from home.
Even now, however, the Justice Department is requiring some judges and staff to come in to court to handle cases of immigrants who are being detained — those hearings have not been canceled — or to process filings.
“It is very, very upsetting. Employees do not feel like they are, No. 1, being protected and, No. 2, you don’t feel respected and valued,” said Immigration Judge Dana Leigh Marks, president emerita of the judges’ union.
Marks and Tabaddor say it’s part of a Trump administration pattern of stripping immigration judges of their independence at the expense of fair proceedings— an example of “haste makes waste,” Marks said. The Justice Department has set performance metrics to push judges to complete more cases, and Trump’s attorneys general have issued rulings that made it more difficult for judges to prioritize their caseloads.
The Justice Department, for its part, says it is making the courts more efficient. In November, McHenry testified before Congress that his agency had “made considerable progress in restoring (the courts’) reputation as a fully functioning, efficient and impartial administrative court system fully capable of rendering timely decisions consistent with due process.”
Quinn, the San Francisco attorney, said the Justice Department should work more closely with immigrants’ lawyers like Raquel’s to prioritize cases that are ready to move forward.
“Everything this administration has done to speed up or deal with the backlog are actually actions that limit the meting out of justice in the courts, which even before this crisis have been gumming up the system further,” Quinn said. “We will see the impact of that now as we try to come out of this crisis.”
Meanwhile, for immigrants like Raquel, the wait will continue. Even with the hardship, she says coming to the U.S. was worth the risks.
“It’s about protecting my children,” she said. “I’ve always told my sons, if God let us get here, they have to take advantage of it. … In my country, someone walks down the block and they get assaulted or kidnapped and nobody ever finds them. But not here. Here you feel safe.”
San Francisco Chronicle staff writer Alexei Koseff contributed to this report.
It’s great to have you back, Tal! We’ve missed you!
It’s well worth going to the link to read Tal’s full article! Also, you’ll see some great pictures from the “home chambers” of my good friend and colleague Judge Dana Leigh Marks of the San Francisco Immigration Court, a Past President of the NAIJ.
What also would be great is if the dire situation in the U.S. Immigration Courts had actually improved over the past few months. But, predictably, the “downward spiral” has only accelerated.
Tal’s article brings to life the “human trauma” inflicted not only on those poor souls whose constitutional due process rights have been “sold down the river” by this “maliciously incompetent” regime, but also the unnecessary trauma inflicted on everyone touched by this disgraceful system: private and pro bono counsel, judges, interpreters, clerical staff, government counsel, and their families all get to partake of the unnecessary pain and suffering.
While it undoubtedly would take years to restore due process, fundamental fairness, and some measure of efficiency to this dysfunctional mess, the starting points aren’t “rocket science” – they are deceptively simple. One was eloquently stated by Erin Quinn, an attorney with the Immigrant Legal Resource Center in San Francisco who “said the Justice Department should work more closely with immigrants’ lawyers like Raquel’s to prioritize cases that are ready to move forward.” That’s actually how it used to be done in places like Arlington.
As Judge Marks points out, a host of “haste makes waste” gimmicks and enforcement schemes by this Administration (and to a lesser extent by the Obama Administration) have resulted in massive “Aimless Docket Reshuffling” and total chaos as politicos in at the DOJ and bureaucrats in EOIR HQ “redesign and reshuffle” dockets to achieve political objectives and “send messages” without any meaningful input from the Immigration Judges and attorneys (on both sides) who actually do the work and understand the dynamics of a particular docket.
In particular, under a fair and unbiased application of legal standards there are thousands of well-documented meritorious asylum and cancellation of removal cases that could be handled in “short hearings.”Other individuals could be removed from the docket to pursue U and T nonimmigrant visas or “stateside processing” permanent immigration with USCIS. Still others have documentation establishing that they are productive, law-abiding tax-paying members of their communities, often with U.S.citizen family, who should be removed from the dockets through the type of sensible, mutually beneficial “prosecutorial discretion” (“PD”) programs that were beginning to show meaningful results before being arbitrarily terminated by this Administration.
This is just the “tip of the iceberg.” There are many more improvements in efficiency, without sacrificing due process, and “best practices” that could be made if this were operated as a fair and impartial court system, rather than an appendage of DHS Enforcement committed to Stephen Miller’s nativist agenda.
The other necessary piece is the one promoted by Judge Tabaddor and the NAIJ and endorsed by nearly all “non-restrictionist” experts in the field: establishing an independent Immigration Court outside of the Executive Branch. That’s not likely to happen without “regime change.”
Moreover, it’s clear from his recent actions that Billy Barr, who is currently running the Immigration Courts into the ground, actually aspires to “kneecap” the Article III Judiciary in behalf of his lord and master, Trump. Barr would be delighted if all Federal,Courts, including the Article IIIs, were functionaries of the all powerful “Unitary Executive.” Given the Supremes’ failure to stand up for immigrants’ and asylum seekers’ legal rights as they are systematically dismantled by the regime, Barr is already a ways down that road!
Tal’s article also highlights another glaring deficiency: the lack of a diverse, merit-based Immigration Judiciary committed solely to “due process with efficiency” and fair and impartial adjudications under the law, particularly the asylum laws. Experts like Erin Quinn, folks with a deep scholarly understanding of immigration and asylum laws and experience representing the individuals whose lives are caught up in this system, should be on the Immigration Bench. They are the ones with the knowledge and experience in making “hard but fair” choices and how to achieve “practical efficiency” without sacrificing due process.
Rather than actively recruiting those outstanding candidates from the private, academic, and NGO sectors with asylum experience and knowledge, so that they could interact and share their expertise and practical experiences with other judicial colleagues, the current system draws almost exclusively from the ranks of “insiders” and government prosecutors. They apparently are hired with the expectation that they will churn out orders of removals in support of DHS Enforcement without “rocking the boat.” To some extent this was also true under the Obama Administration, which also hired lopsidedly from among government attorneys.
Indeed, prior immigration experience is not even a job requirement right now. The hiring tends to favor those with high volume litigation skills, primarily gained through prosecution. That doesn’t necessarily translate into fair and scholarly judging, although it might and has in some instances.
Of course, a few do defy expectations and stand up for the legal and due process rights of respondents. But, that’s not the expectation of the politicos and bureaucrats who do the hiring. And the two-year probation period for newly hired Immigration Judges gives Administration politicos and their EOIR subordinates “leverage” on the new judges that they might not have on those who are more established in the system, particularly those who are “retirement eligible.”
Moreover, the BIA has now been “stocked” with judges with reputations for favoring enforcement and ruling against asylum seekers in an unusually high percentage of cases.The design appears to be to insure that even those who “beat the odds” and are granted asylum by an Immigration Judge get “zapped” when the DHS appeals. Even if the BIA dared not to enforce the “restrictionist party line,” the Attorney General can and does intervene in individual cases to change the result to favor DHS and then to make it a “precedent” for future cases.Could there be a clearer violation of due process and judicial ethics? I doubt it. But, the Courts of Appeals largely pretend not to see or understand the reality of what’s happening in the Immigration Courts.
Beyond that, the Immigration Judge job, intentionally in my view, has been made so unattractive for those who believe in due process for individuals and a fair application of asylum laws, that few would want to serve in the current environment. Indeed, a number of fine Immigration Judges have resigned or retired as matters of conscience because they felt unable to square “system expectations” with their oaths of office.
To state the obvious, the current version of Congress has become a feckless bystander to this ongoing human rights, constitutional, ethical, and fiscal disaster. But, the real question is whatever happened to the existing independent Article III Judiciary? They continue to remain largely above the fray and look the other way as the Constitution they are sworn to uphold is further ground into the turf every day and the screams of the abused and dehumanized (“Dred-Scottified”) emanating from this charade of a “court system” get louder and louder.Will they ever get loud enough to reach the refined ears of those ensconced in the “ivory tower” of the Article III Judiciary?
Someday! But, the impetus for the necessary changes to make Due Process, fundamental fairness, and equal justice for all a reality rather than a cruel, intellectually dishonest, and unfulfilled promise is going to have to come from outside the current broken and intentionally unfair system and those complicit in its continuing and worsening abuses of the law and humanity!
WASHINGTON — Several immigrant rights organizations are outraged by a new choice U.S. Immigration and Customs Enforcement is presenting to migrant parents: Separate from your child or stay together in detention indefinitely.
Starting on Thursday, the groups claim, ICE began distributing a form in all three of its family detention centers that would allow parents to apply for their minor children to be released. The form, a copy of which was obtained by NBC News, states that it is in compliance with the Flores court agreement, which prohibits ICE from holding minors for more than 20 days.
The released children are placed with family members, sponsors or placed in the custody of the Department of Health and Human Services.
The Trump administration faced intense criticism for a Zero Tolerance policy in 2018 in which undocumented migrant children were separated from parents who had illegally crossed the order. The policy was implemented in May 2018 but reversed after an outcry in June.
The current, “voluntary” concept was previously termed “binary choice,” but has never been fully implemented. Now, lawyers representing clients in ICE family detention say parents may be persuaded to separate from their children if they are worried about exposing them to COVID-19 in detention.
The timing is no coincidence, said Shayln Fluharty, director of the Dilley Pro Bono Project, which provides legal services for families in detention in Dilley, Texas. A federal judge recently told ICE it was not in compliance with the Flores agreement, and the forms, said Fluharty, are a way for ICE to show that these parents have chosen to keep their children in detention.
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Read the rest of Julia’s article at the link.
Just another “in your face” unlawful move by DHS officials sending a strong message of contempt to the Federal Judges handling various aspects of the regime’s intentional child abuse, family separation, and punishing asylum seeking families by needless imprisonment in the New American Gulag (“NAG”).
Yes, the District Court Judges handling these matters have ordered the Government to take various forms of corrective action. But, even where the judges use forceful language, it’s largely ineffective to change illegal policies. The regime and its officials just play “hide the ball” and develop schemes and “work arounds” to violate the law and court orders in other ways. That they continue to do this over and over – a strategy known as “malicious compliance” – shows their total disrespect for the Federal Courts and that they share Trump and Miller’s belief that they are above the law.
So far, particularly in the immigration and refugee area, the scofflaws have largely prevailed.They have dismembered immigration and asylum laws with neither legislative enactments nor meaningful judicial consequences. They have publicly and arrogantly “thumbed their noses” at court orders they don’t like. Unless and until the Federal Judges back up their orders by holding Chad Wolf and other scofflaw officials in contempt – real contempt – jail time not just meaningless fines – the abuse and the open disregard for the rule of law and for the authority of Federal Judges will continue.
The law, our Constitution, and human rights will continue to be mocked. Even the best of Federal Judges will appear feckless unless and until they start treating immigration officials as the lawless criminals they actually are!
Undoubtedly, some of the children and families intentionally being abused, dehumanized, and punished by the Trump regime as Federal Courts play bystander won’t survive long enough to tell their stories. But, some will. While those officials, legislators, and judges enabling, or in some cases masterminding and encouraging, these abuses appear likely to escape “temporal” legal accountability for their actions, moral and historical accountability are a different matter altogether. Lots of folks who believe they are “operating under the radar screen” are going to look very bad when the light of history shines on the grotesque human rights, moral, and constitutional violations at our borders and in our Gulags and those who carried them out or failed to effectively halt them.
THE WORLD CHANNELS “COURTSIDE” — A Shocked & Dismayed World Now Sees America Under The Trump Clown 🤡🤡 Kakistocracy For What It Is: A Rich, Arrogant, Willfully Ignorant, Dishonest, Dangerous “Failing State” To Be Pitied — Not To Be Trusted, Followed, Or Admired — “But there is one emotion that has never been directed towards the US until now: pity.”
The Trump administration has repeatedly claimed that the US is “leading the world” with its response to the pandemic, but it does not seem to be going in any direction the world wants to follow.
Across Europe, Asia, Africa and Latin America, views of the US handling of the coronavirus crisis are uniformly negative and range from horror through derision to sympathy. Donald Trump’s musings from the White House briefing room, particularly his thoughts on injecting disinfectant, have drawn the attention of the planet.
“Over more than two centuries, the United States has stirred a very wide range of feelings in the rest of the world: love and hatred, fear and hope, envy and contempt, awe and anger,” the columnist Fintan O’Toole wrote in the Irish Times. “But there is one emotion that has never been directed towards the US until now: pity.”
The missing six weeks: how Trump failed the biggest test of his life
The US has emerged as a global hotspot for the pandemic, a giant petri dish for the Sars-CoV-2 virus. As the death toll rises, Trump’s claims to global leadership have became more far-fetched. He told Republicans last week that he had had a round of phone calls with Angela Merkel, Shinzo Abe and other unnamed world leaders and insisted “so many of them, almost all of them, I would say all of them” believe the US is leading the way.
None of the leaders he mentioned has said anything to suggest that was true. At each milestone of the crisis, European leaders have been taken aback by Trump’s lack of consultation with them – when he suspended travel to the US from Europe on 12 March without warning Brussels, for example. A week later, politicians in Berlin accused Trump of an “unfriendly act” for offering “large sums of money” to get a German company developing a vaccine to move its research wing to the US.
People gather to protest the stay-at-home orders outside the state capitol building in Sacramento, California, this month. Photograph: Josh Edelson/AFP via Getty Images
The president’s abrupt decision to cut funding to the World Health Organization last month also came as a shock. The EU’s foreign policy chief, Josep Borrell, a former Spanish foreign minister, wrote on Twitter: “There is no reason justifying this move at a moment when their efforts are needed more than ever to help contain & mitigate the coronavirus pandemic.”
A poll in France last week found Merkel to be far and away the most trusted world leader. Just 2% had confidence Trump was leading the world in the right direction. Only Boris Johnson and Xi Jinping inspired less faith.
A survey this week by the British Foreign Policy Group found 28% of Britons trusted the US to act responsibly on the world stage, a drop of 13 percentage points since January, with the biggest drop in confidence coming among Conservative voters.
Dacian Cioloș, a former prime minister of Romania who now leads the Renew Europe group in the European parliament, captured a general European view this week as the latest statistics on deaths in the US were reported.
“Post-truth communication techniques used by rightwing populism movements simply do not work to beat Covid-19,” he told the Guardian. “And we see that populism cost lives.”
Around the globe, the “America first” response pursued by the Trump administration has alienated close allies. In Canada, it was the White House order in April to halt shipments of critical N95 protective masks to Canadian hospitals that was the breaking point.
The Ontario premier, Doug Ford, who had previously spoken out in support of Trump on several occasions, said the decision was like letting a family member “starve” during a crisis.
‘It will disappear’: the disinformation Trump spread about the coronavirus – timeline
“When the cards are down, you see who your friends are,” said Ford. “And I think it’s been very clear over the last couple of days who our friends are.”
In countries known for chronic problems of governance, there has been a sense of wonder that the US appears to have joined their ranks.
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Read the full article at the above link.
Are we still “to be feared,” even if no longer admired or respected?Good question!
Probably, insofar as our collapse would take down a chunk of the world’s economy with it, leave a leadership vacuum, and change the balance of power, perhaps in favor of China, Russia, South Korea, Canada, and India. We also still have a big military and lots of sophisticated weapons, although modern terrorism has shown that sophistication in expensive weaponry is not always the “be all and end all” either for winning wars or causing mass disorder, death, and mayhem.
Still, as our civil governance and international influence disintegrates, what happens with and to our military is a huge concern and a “big X factor.” Will the tradition of “civilian control over the military” also fall victim to the kakistocracy and the failure of civilian governing institutions? What’s happened to our intelligence community under the Trump kakistocracy is likely a bad omen.
Who would have thought that Trump could do so much permanent or at least long-term damage in such a short period of time? And who would have believed that our centuries-old constitutional and democratic institutions, meant to protect individual rights, enforce the rule of law, and check unrestrained abuses of power by a megalomaniac, yet highly incompetent, dishonest, dangerous, and evil Executive would have crumbled so quickly and performed so haplessly when confronted by a President and an unscrupulous, corrupt, authoritarian regime and party of toadies perfectly willing to press aggressively inane and illegal policies and false narratives to destroy the nation and everyone in it as a means of pillaging and enhancing their own power?
Yet, here we are! Much of the rest of the world appears to “get” it. Yet tens of millions of Americans who continue to support and enable the kakistocracy don’t, or they simply don’t care about our nation and the common good.
This November, vote like your life depends on it! Because it does!
The absence of a checked alien classification box on a Notice to Appear (Form I-862) does not, by itself, render the notice to appear fatally deficient or otherwise preclude an Immigration Judge from exercising jurisdiction over removal proceedings, and it is therefore not a basis to terminate the proceedings of an alien who has been returned to Mexico under the Migrant Protection Protocols. Matter of J.J. Rodriguez, 27 I&N Dec. 762 (BIA 2020), followed.
The lesson of this case: The DHS intentionally puts superfluous information on its form NTA so it doesn’t make any difference whether they fill it in or not. The BIA is there to “fill in the blanks” and help their DHS buddies rack up maximo removals, preferably without in person hearings because it’s faster and helps fulfill “quotas,” under the Let ‘Em Die in Mexico Program (a/k/a “jokingly” as the “Migrant ‘Protection’ Protocols” (“MPP”) — which, of course, serve to intentionally endanger and discourage, not protect, asylum seekers).
This follows Matter of J.J. Rodriguezwhere the BIA found that the DHS wasn’t required to put a usable mailing address for the respondent on the NTA. I can only imagine what would have happened in the Arlington Immigration Court if a respondent had given me “Fairfax County, Virginia, USA” as his one and only address! The former is actually probably a “better” address than “Known Domicile, Tijuana, Baja California, Mexico” which was used in this case. What a farce! But, of course, it’s not very funny when it’s your life, or that of a loved one or client that is going down the tubes☠️.
There actually is an old legal axiom of construing problems against the drafter of a document, particularly when the drafter is in a more powerful position than the recipient. It even has a fancy legal name: Contra proferentem. But, today’s EOIR follows a much simpler maxim: The respondent always loses, particularly in precedent decisions.
I suppose at some point the BIA will be called upon to enter an in absentia removal order in a case where the NTA is blank except for the respondent’s name. I have no doubt, however, that they will be “up to the job.”
To his credit, Judge Edward Kelly entered a brief “concurring opinion” specifically noting that the statutory or constitutional authority for the so-called MPP was not at issue. In plain terms, that means, thanks in large measure to a complicit Supremes’ majority, even if that program, certainly a illegal and unconstitutional hoax, were later found to be unconstitutional, it would be far too late for those already removed, extorted, kidnapped, maimed, tortured, sickened 🤮, or dead ⚰️ thereunder. But, of course, the BIA, like Trump himself, will take no responsibility for any of the deadly fallout of their actions.
Great way to run a government! But, it’s the “New America” under Trump. Most of those in a position to stop the abuse merely shrug their shoulders, look the other way, and plug their ears so as not to have their serenity and complicity, as well as their paychecks, bothered by the screams and fruitless pleas of the abused. Except, of course, for true sadists ☠️ like Stephen Miller and his White Nationalist cronies 🏴☠️ who actually “get off” on the death, ⚰️ torture, abuse, and suffering of “others” they believe to be of “inferior stock” and therefore deserving of dehumanization and death⚰️.
Apparently, the “Tower Rumor Mill” @ EOIR HQ says that Acting Chief Immigration Judge Christopher Santoro will soon be replaced by a permanent Chief Immigration Judge hand selected from among DOJ political hacks by none other than one of the American taxpayers’ most highly paid, unelected White Nationalists, White House Advisor Stephen Miller. The name of Gene Hamilton, like Miller an uber restrictionist former sidekick of “Gonzo Apocalypto” Sessions, still kicking around the DOJ, has been bandied about. However, other parts of the “rumor mill” have expressed skepticism about whether Hamilton really wants the job. He might be able to score more “kills” from his current job, whatever it is.
Stay tuned! In the absence of a functioning Congress or a courageous Federal Judiciary, the “killing fields”⚰️⚰️⚰️⚰️⚰️👎 are just getting rolling @ EOIR. Under the Trump regime, EOIR is now on a breakneck pace to write one of the most dismal, disgusting🤮, and disturbing 😰chapters in modern American legal history involving a catastrophic failure of integrity, courage, and humanity spanning all three rapidly disintegrating branches of our flailing democracy.