🤮🤯🏴‍☠️👎🏽GARLAND’S DOJ GOES “FULL MILLER LITE” ON TRAUMATIZED REFUGEE FAMILIES! — Some Dem “Strategists” Like New Policy: Dis Progressives, Abandon Campaign Promises, Trash Vulnerable Migrant Families Of Color In Hopes Of Appeasing White Nationalist GOP Nativists!

Maria Sacchetti & Sean Sullivan report for WashPost:

https://www.washingtonpost.com/national/biden-separated-families-court-migrants/2022/01/12/5c592f74-725a-11ec-8b0a-bcfab800c430_story.html

Two months after President Biden said migrant families separated at the border under the Trump administration deserve compensation, his administration’s lawyers are arguing in federal court that they are not in fact entitled to financial damages and their cases should be dismissed.

The Justice Department outlined its position in the government’s first court filings since settlement negotiations that could have awarded the families hundreds of thousands of dollars broke down in mid-December.

Government lawyers emphasized in the court documents that they do not condone the Trump administration’s policy of separating the children of undocumented migrants from their parents. But they said the U.S. government has a good deal of leeway when it comes to managing immigration and is immune from such legal challenges.

“At issue in this case is whether adults who entered the country without authorization can challenge the federal government’s enforcement of federal immigration laws” under federal tort claims laws, the Justice Department said in a Jan. 7 brief in a lawsuit in Pennsylvania. “They cannot.”

The legal strategy reflects the Biden administration’s awkward position as it shifts from championing the migrant families politically to fighting them in court. Migrant families have filed approximately 20 lawsuits and hundreds of administrative claims seeking compensation for the emotional and sometimes physical abuse they allege they suffered during the separations.

. . . .

But while immigrant advocates and liberals are likely to be furious at the administration’s position in court, some Democrats say privately that it has a political upside. The image of the administration fighting against the large payments, they say, could blunt GOP arguments that the administration is too soft on immigration.

. . . .

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Read the full article at the link.

“Awkward” seems like a “sanitized term” for “duplicitous and immoral!”

So, I assume that the Dems who are unwilling to stand up for progressive values and the human rights of migrants will look to their GOP nativist, White Nationalist buddies for contributions and votes come election time. Contrary to DOJ’s misrepresentation to the courts, individuals regardless of status had a statutory and treaty right to seek protection in the U.S. regardless of manner of entry. The unconstitutional Sessions/Miller scofflaw conduct was intended to punish and deter individuals from asserting and vindicating their legal rights.

Additionally, so-called “illegal entries” are to a large extent fueled by illegal policies by both the Biden and Trump Administrations of not having an operating, fair, timely asylum system at legal ports of entry. This has been compounded by failure of both Administrations to establish robust, fair refugee processing systems for Latin America in the regions where the refugee situations are generated.

I have a different perspective: A party afraid to stand up for the values of its core constituency stands for nothing at all! And we already have a major “party of no values.” So, the “competition” for the “no values voters” might already be over.

Disgusting as the anti-democracy, White Nationalist GOP is, I must say that they know who their supporters are and aren’t afraid to act accordingly. Just who are the Dems representing in this disgraceful and cowardly race to the bottom being led by Garland and Mayorkas (with an assist from Vice President “Die in Place” Harris)?

The Biden Administration’s “policy” of abandoning asylum seekers and allowing the Immigration Courts to operate dysfunctionally with mostly “holdover judges” and ever-mushrooming backlogs hasn’t proved to be a “political winner” to date. So, why do the tone-deaf Dems pushing it believe it will help them in November?

Hopefully, at least some Federal Courts will see through Garland’s disingenuous smokescreen and stick the DOJ & DHS with judgements much larger than the ones they were afraid to agree to in settlement.

The Garland DOJ continues to squander time, resources, and goodwill by filling the Article IIIs with ill-advised “Stephen Miller Lite” litigation positions. And, these are the folks progressives are depending on to vindicate voting rights and hold the leaders of the insurrection accountable? Good luck with that! Garland appears to be too busy defending Stephen Miller’s policies to effectively push progressive, due-process-oriented positions in the Article IIIs or reform his wholly owned, totally dysfunctional Immigration “Courts.”

🇺🇸Due Process Forever!

PWS

01-13-22

☹️CREDIBILITY WOES CONTINUE IN 1ST CIR FOR GARLAND’S BIA!

From Dan Kowalski @ LexisNexis:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca1-remand-menjivar-bonilla-v-garland

CA1 Remand: Menjivar Bonilla v. Garland

Menjivar Bonilla v. Garland

“Jose Ernesto Menjivar Bonilla, a native and citizen of El Salvador, petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for withholding of removal under Immigration and Nationality Act (“INA”) Section 241(b)(3) and relief under Article 3 of the United Nations Convention Against Torture (“CAT”). We grant the petition in part and remand for further proceedings. … [B]ecause the IJ’s assessments of Bonilla’s credibility and the decision to require corroborating evidence were based in significant part on discrepancies with the 2012 Record, which we have determined to be unreliable, further factfinding is required. See Mboowa v. Lynch, 795 F.3d, 222, 229 (1st Cir. 2015) (finding remand warranted where a central aspect of the agency’s credibility assessment is flawed). Accordingly, we remand to the agency for further factfinding. Guta-Tolossa v. Holder, 674 F.3d 57, 61 (1st Cir. 2011) (“Where a question is best resolved by the agency in the first instance, or is left primarily in the agency’s hands by statute, and the agency has failed to address that question, we generally must remand.”); see also Kho v. Keisler, 505 F.3d 50, 56 (1st Cir. 2007) (“If, in the absence of a credibility finding by the IJ, a reviewing court determines that such a finding is necessary for effective review of the case, it may remand to the agency for further factfinding.”). Accordingly, we vacate the denials of withholding and relief under the CAT and remand for further consideration consistent with this opinion.”

[Hats off to Rachel L.Rado!]

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

Let’s see, an IJ gets it wrong, a “single member BIA panel” summarily affirms w/o opinion, and a three member panel of the First Circuit unanimously reverses in a published opinion!

Seems to be a “weak link in the chain” here!

🇺🇸Due Process Forever!

PWS

01-13-21

🌬🤯MORE BLOWBACK FOR GARLAND’S “COURTS” — Problems Emerge On Credibility (1st Cir., 10th Cir.), Agfel (9th Cir.)

From Dan Kowalski @ LexisNexis:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/en-banc-ca1-credibility-remand-diaz-ortiz-v-garland

En Banc CA1 Credibility Remand: Diaz Ortiz v. Garland

Diaz Ortiz v. Garland

“Cristian Josue Diaz Ortiz, a native of El Salvador, seeks review of a decision by the Board of Immigration Appeals (“BIA”) affirming the denial of his claims for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”). The Immigration Judge’s (“IJ”) rejection of Diaz Ortiz’s petition for relief rested on an adverse credibility determination that primarily drew its support from a “Gang Assessment Database.” Flaws in that database, including its reliance on an erratic point system built on unsubstantiated inferences, compel us to conclude that the credibility judgment — and, in turn, the rejection of Diaz Ortiz’s request for relief — is not supported by substantial evidence. Accordingly, we grant the petition for review and remand for new immigration proceedings.”

[Hats way off to Kristin Beale, Ph.D., Ellen Scordino and Sameer Ahmed!]

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

And here’s one sent in by Round Table leader and scholarly blogger Judge “Sir Jeffrey” S. Chase:

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110629330.pdf0

Takwi v. Garland, 10th Cir., 01-10-22, published

Nkemchap Nelvis Takwi seeks review of a decision by the Board of Immigration Appeals (BIA) dismissing his appeal from a removal order entered by an Immigration Judge (IJ) and denying his motion to remand. Exercising jurisdiction under 8 U.S.C. § 1252, we grant the petition for review. We remand this matter to the BIA because the IJ did not make an explicit adverse credibility determination, and the BIA did not afford Mr. Takwi the required rebuttable presumption of credibility.

Just for a good measure, the 9th Circuit also “busted” Garland’s BIA on an agfel issue:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca9-on-agfel-togonon-v-garland

CA9 on AgFel: Togonon v. Garland

Togonon v. Garland

“Petitioner Longinos Togonon, a native and citizen of the Philippines, was admitted to the United States as a lawful permanent resident in 2013. In 2015, he was convicted of arson in violation of California Penal Code § 451(b) and sentenced to three years of imprisonment. In 2018, the Department of Homeland Security initiated removal proceedings against Togonon, alleging (as relevant for our purposes) that his arson offense qualifies as an “aggravated felony.” See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any time after admission is deportable.”). The Immigration and Nationality Act defines the term “aggravated felony” to include “an offense described in” 18 U.S.C. § 844(i). 8 U.S.C. § 1101(a)(43)(E)(i). The Board of Immigration Appeals (BIA) held that a conviction under California Penal Code § 451(b) is an offense described in 18 U.S.C. § 844(i) and that Togonon is therefore subject to removal from the United States. Reviewing that decision de novo, see Sandoval v. Sessions, 866 F.3d 986, 988 (9th Cir. 2017), we conclude that the BIA erred in so holding. We accordingly grant Togonon’s petition for review.”

[Hats off to pro bono publico appointed counsel Matthew N. Ball (argued), Gibson Dunn & Crutcher LLP, Denver, Colorado; Paul J. Collins, Gibson Dunn & Crutcher LLP, Palo Alto, California; Andrew T. Brown and Matt Aiden Getz, Gibson Dunn & Crutcher LLP, Los Angeles, California!]

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The First Circuit decision was 4-3. It appears that the respondent’s lawyers, experts, and the majority did the careful, critical analysis that the BIA failed to perform. Even the dissenters, who got it wrong, appear to have spent more time and thought on this issue than Garland’s BIA.

The Tenth Circuit decision highlights “Basic Asylum 101” failures by both the IJ and the BIA. It’s not that hard to make a specific credibility finding in every case. I did it in every contested asylum case I heard over 13 years on the bench. Nor is applying the presumption of credibility on appeal profound.

I’ll concede that the 9th Circuit agfel issue was more tricky. But, the BIA’s practice of almost always going with the most expansive, pro-DHS interpretations of the agfel definition to maximize deportation and minimize relief doesn’t help.

Go NDPA!

🇺🇸Due Process Forever!

PWS

01-12-22

☹️HE BEAT THE GOVERNMENT TWICE IN COURT — But, After Three Years In Jail Without Being Charged With Any Crime, Omar Ameen Still Can’t Get A Bond From Garland’s Courts — How Can A System Where The Prosecutor Makes The Rules & Picks The Judges, Mostly From The Ranks Of Former Prosecutors, Provide The “Fair & Impartial Judging” Required By Due Process?

Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)
Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.

IMMIGRANT LEGAL DEFENSE

FOR IMMEDIATE RELEASE January 10, 2022

Contacts:

Immigrant Legal Defense

Ilyce Shugall, ilyce@ild.org, (415) 758-3765

Siobhan Waldron, siobhan@ild.org, (510) 479-0972

Edwin F. Mandel Legal Aid Clinic, The University of Chicago Law School Nicole Hallett, nhallett@uchicago.edu, (203) 910-1980

Omar Ameen Files Federal Lawsuit Seeking His Release

After the U.S. Government Fails Once Again to Prove Any Connection to Terrorism

San Francisco, CA. Immigrant Legal Defense and the University of Chicago Immigrants’ Rights Clinic have filed a petition for a writ of habeas corpus on behalf of Omar Ameen seeking his immediate release from immigration custody. Mr. Ameen has been held by the U.S. government for over three years based on false allegations that he was involved in terrorism in Iraq before he arrived in the United States as a refugee. Multiple courts have now rejected those allegations. The petition alleges that his continued detention in these circumstances violates the Due Process Clause and the Immigration and Nationality Act.

After an investigation initiated by the Federal Bureau of Investigations (FBI) and the Department of Homeland Security (DHS), the Iraqi government issued a warrant for his arrest in connection with the 2014 murder of a police officer in Rawa, Iraq. Mr. Ameen was subsequently arrested by U.S. authorities in August 2018 and placed in extradition proceedings, with the government arguing that not only was Omar responsible for the 2014 murder, but that he also occupied a leadership position in ISIS. After two and a half years of fighting his extradition, the federal magistrate judge found that the warrant was not supported by probable cause because Mr. Ameen had been in Turkey, not Iraq, at the time of the murder. He further found that there was no evidence that Mr. Ameen was an ISIS leader and ordered his immediate release.

Instead of releasing him or charging him with a crime, DHS took Mr. Ameen into immigration custody, and placed him in removal proceedings before the Department of Justice (DOJ). DHS abandoned the murder claim, but otherwise made the same terrorism allegations against Mr. Ameen in immigration court that had been made – and rejected – in the extradition proceedings. After months of proceedings, the immigration judge found that the government had not proved that Mr. Ameen had any involvement with terrorism, yet still denied him bond while he seeks relief from deportation. Mr. Ameen continues to fight for his freedom, to remain in the United States, and to clear his name.

“It is a fundamental principle that the government cannot detain someone based on unsubstantiated rumors and unproven accusations,” said Ilyce Shugall, an attorney with Immigration Legal Defense (ILD) and a member of Mr. Ameen’s legal team. “The government keeps losing, yet continues to believe it can detain Omar indefinitely without cause. The Constitution does not allow such a cavalier denial of individual liberty.”

“Omar’s bond request was denied by the same agency – the Department of Justice – that has maliciously targeted for him years. Omar deserves a fair hearing in federal court,” said Siobhan Waldron, another ILD attorney on Mr. Ameen’s legal team.

“The government seems to think that it can do whatever it wants as long as it invokes the word ‘terrorism,’” said Nicole Hallett, director of the Immigrants’ Rights Clinic at the University of Chicago Law School, “Rather than admit it was wrong about Omar, the government will go to extraordinary measures to keep him locked up. We are asking the federal court to put a stop to this abuse of power.”

###

Immigrant Legal Defense’s mission is to promote justice through the provision of legal representation to underserved immigrant communities.

The Immigrants’ Rights Clinic is a clinical program of the University of Chicago Law School and provides representation to immigrants in Chicago and throughout the country.

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

Unfortunately, “cavalier denial of individual liberty” largely describes the daily operations of Garland’s dysfunctional and hopelessly backlogged “wholly owned Immigration Courts” — where due process, scholarship, quality, and efficiency are afterthoughts, at best. “Malicious targeting” — that’s a Stephen Miller specialty shamelessly carried forth by Garland in too many instances! Miller must be gratified, and not a little amazed, to find that the guy Dem progressives and human rights advocates thought would be leading the charge to undo Miller’s White Nationalist, scofflaw attack on migrants and people of color would instead be proudly “carrying his water” for him.

To punctuate my point, today Garland’s Solicitor General will follow in the disgraceful footsteps of predecessors in both GOP and Dem Administrations. Essentially (that is, stripped of its disingenuous legal gobbledygook), the SG will argue that individuals, imprisoned without conviction, struggling to vindicate their rights before Garland’s broken, backlogged, and notoriously pro-Government, anti-immigrant Immigration Courts, renowned for their sloppiness and bad judging, are not really “persons” under the Constitution and therefore can be arbitrarily imprisoned indefinitely, in conditions that are often worse than those for convicted felons, without any individualized rationale and without recourse to “real” courts (e.g., Article III courts not directly controlled by the DOJ).

“The right-wing majority on the Supreme Court seems to be planning to eliminate the only way a lot of people in immigration detention can challenge their imprisonment,” appellate public defender Sam Feldman commented in a quote-tweet. “People would still be held illegally, but no court could do anything about it.”

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/jan-11-2022-sc-oral-arg-previews-detention-bond-jurisdiction

One might assume that our nation’s highest Court would unanimously make short-shrift of the SG’s scofflaw arguments and send her packing. After all, that’s what several lower courts have done! But, most experts predict the exactly opposite result from a Supremes’ majority firmly committed to “Dred Scottification” — that is de-humanization and de-personification” — of people of color and migrants under the Constitution.

It’s painfully obvious that Congress must create an independent Article I Immigration Court not beholden to the Executive Branch. But, don’t hold your breath, given the current political gridlock in Washington. It’s equally clear that the Article IIIs, from the Supremes down, have “swallowed the whistle” by not striking down this blatantly unconstitutional system, thereby forcing Congress to take corrective action to bring the system into line with our Constitution.

In the meantime, Garland could bring in better-qualified expert judges, reform procedures, and appoint competent professional administrators who would institutionalize fairness, efficiency, and independence that would help transition the Immigration Courts to a new structure outside the DOJ. He could stop echoing Stephen Miller in litigation.

He could have replaced the architects of “Aimless Docket Reshuffling” and exponentially growing back logs with practical scholars and progressive experts who could reduce backlogs and establish order without violating human or legal rights of individuals. He could have set a “new tone” by publicly insisting that all coming before his Immigration Courts be treated fairly, with respect, dignity, and professionalism.

But, instead, Garland has stubbornly eschewed the recommendations of immigration and human rights experts while allowing and even defending the trashing of the rule of law at the border and elsewhere where migrants are concerned. He’s also done it with many questionably qualified “holdover” judges and administrators appointed by Sessions and Barr because of their perceived willingness, or in some cases downright enthusiasm, to stomp on the legal and human rights of asylum seekers and other migrants.

It’s curious conduct from a guy who once was only “one Mitch McConnell away” from a seat on the Supremes! I guess the “due process” Garland got from McConnell and his GOP colleagues is all that he thinks migrants and other “non-persons” of color get in his wholly-owned “courts.”

Good luck to our Round Table colleague, Judge Ilyce Shugall, and her great team, on this litigation! Obviously, the wrong folks are on the Federal Bench — at all levels of our broken and floundering system.

Interestingly, Judge Shugall was once an Immigration Judge until forced to prematurely resign, as a matter of conscience, by the lawless anti-immigrant policies of the Trump Administration carried out through its DOJ. As in many cases, the Government’s loss is the Round Table’s gain!🛡⚔️

🇺🇸Due Process Forever!

PWS

01-11-22

😎🗽⚖️👩‍⚖️ FLASH: JUDICIAL MAVEN HON. DANA LEIGH MARKS RETIRES, JOINS ROUND TABLE! 🛡⚔️ — “Founding Mother” Of U.S. Asylum Law Successfully Argued INS v. Cardoza-Fonseca @ Supremes, Led Immigration Judges’ Association, Spearheaded “Article I” Movement For Judicial Independence, Saved Thousands of Lives Over Career On Bench Spanning More Than Three Decades!

Hon. Diana Leigh Marks — Hon. Dana Leigh Marks
U.S. Immigration Judge (Ret.) One of the most influential, outspoken, and dynamic Federal Judges of the past half-century enters the next phase of her illustrious career, as a caregiver for her granddaughter and a “fighting knightess” of the Round Table, with typical optimism. “Decades of dealing with DOJ and EOIR management has given me the best possible toolbox to meet any challenges on the road ahead,” says “NanaDana.”

😎🇺🇸🗽⚖️👩‍⚖️ FLASH: JUDICIAL MAVEN HON. DANA LEIGH MARKS RETIRES, JOINS ROUND TABLE! 🛡⚔️ — “Founding Mother” Of U.S. Asylum Law Successfully Argued INS v. Cardoza-Fonseca @ Supremes, Led Immigration Judges’ Association, Spearheaded “Article I” Movement For Judicial Independence, Saved Thousands of Lives Over Career On Bench Spanning More Than Three Decades!

By Paul Wickham Schmidt

Courtside Exclusive

Jan. 9, 2022

Judge Dana Leigh Marks, one of America’s leading “applied scholars” and human rights jurists, joined the Round Table of Former Immigration Judges. Marks retired from the San Francisco Immigration Court on December 31, 2021, following an extraordinary nearly 35-year career on the bench. Round Table spokesperson Judge Jeffrey S. Chase announced Marks’s move in an e-mail yesterday to the group’s more than 50 members.

In addition to her “number one retirement priority” — helping care for her granddaughter — Marks told Courtside that she “looks forward to continuing the fight for Article I and due process for all in America, now without the disclaimers that DOJ requires.” It’s a mission and a sentiment shared by the group.

Long time colleague and fellow past president of the National Association of Immigration Judges (“NAIJ”), Judge John Gossart enthusiastically welcomed and recognized Marks’s fearless advocacy “for due process, fundamental fairness, the right to be heard, and an Article 1 Court.”

Other Round Table judges greeted their newest member with an avalanche of praise, appreciation, admiration, and love for Marks’s intellectual prowess, courage under pressure, and embodiment of the one-time vision of making the U.S. Immigration Courts “the world’s best tribunals, guaranteeing fairness and due process for all.” Over the last several decades, many experts say that noble vision was cashiered by Department of Justice (“DOJ”) politicos in favor of the “go along to get along” and “good enough for government work” aura that infects today’s broken and dysfunctional Immigration Court system. Those courts, now running an astounding, largely self-created backlog in excess of 1.5 million cases, are inappropriately located within the byzantine, politicized bureaucracy of a DOJ still reeling from four years of grotesque mismanagement and misdirection by the Trump group.

Marks graduated from Cal Berkeley in 1974 and received her J.D. from Hastings Law in 1977. She worked for almost ten years as an immigration lawyer in private practice, and was an active leader in AILA’s Northern California chapter during that time. In 1986, as a partner with Simmons & Ungar, then San Francisco’s premier immigration law specialty firm, Marks successfully argued the landmark case, INS v. Cardoza-Fonseca, 480 US 421 (1987).

There, the Supreme Court rejected the Government’s argument that asylum seekers must establish that their future persecution is “more likely than not” to happen. Instead, the Court adopted the much more generous international standard of a “well founded fear” of persecution. The Court thereby recognized that asylum could be granted where the fear was objectively reasonable, even if it were significantly less than “probable.”

Some also consider this to be the “high water mark” of the Court’s positive use of international law concepts in a human rights case involving immigration. Despite considerable internal resistance to fairly applying the more generous legal standard, Cardoza has undoubtedly saved the lives of tens of thousands of refugees and their families over the past three and one-half decades.

Shortly after submitting the brief (co-authored with Bill Ong Hing, Kip Steinberg and Susan Lydon), but prior to her Cardoza argument, Marks was selected for a judgeship by then Chief Immigration Judge, the late William R. Robie. Then Attorney General Ed Meese adopted Robie’s recommendation, and Marks was sworn in as a U.S. Immigration Judge for San Francisco in January, 1987, two months after the oral argument and two months prior to the decision being issued by the Court.

During her distinguished career on the immigration bench, Marks has been an outspoken fighter for professional treatment of her fellow Immigration Judges, for true judicial independence in the Immigration Courts, and for fair, humane, professional treatment of those coming before the courts. She served on a number of occasions as the President and Executive Vice President of the NAIJ, sometimes “swapping” leadership positions with her close friend Judge Denise Slavin, also President Emerita of NAIJ and now a “fearless fighting knightess” of the Round Table.

Marks and Slavin helped battle two DOJ attempts to “decertify” the NAIJ and thus silence the powerful voices that often exposed severe problems in the administration of the Immigration Courts. Indeed, Marks’s determination to speak “truth to power,” her outsized personality, and her willingness to “level” with the media often put her at odds with “handlers” in the court’s bloated bureaucracy and their DOJ overlords.

The latter often sought to divert the Immigration Courts from their due process mission to focus instead on “deterrence” of asylum seekers and fulfilling each Administration’s goals for immigration enforcement. Among other things, this led to a backlog-building phenomenon known as “Aimless Docket Reshuffling.”

In her writings, speeches, and interviews, Marks decried these glaring conflicts of interest and abuses of normal judicial ethics, not to mention common sense and human decency. She tirelessly advocates that the United States adhere more closely to international standards governing refugees and asylees, which was the clearly expressed legislative intent when the Refugee Act of 1980 was enacted.

Summing up her new life after Immigration Court, Marks said “I will enjoy my new day job of caring for my granddaughter, but will continue my hobby of telling truth about EOIR [the bureaucratic acronym for Immigration Courts] through NAIJ and the Roundtable. I am proud to be in such good company!” The feeling is mutual! Due process forever!

⚖️4TH CIRCUIT: BIA ABUSED DISCRETION, BLEW ANALYSIS, FAILED TO FOLLOW PRECEDENT IN MINDLESS DENIAL OF CONTINUANCE FOR U VISA APPLICANT— Garcia Cabrera v. Garland — A Microcosm Of Garland’s Dysfunctional, Backlog-Building Immigration Courts & His Disgraceful Defense Of The Indefensible In The Article IIIs! — Why Garland’s Inept & Disinterested Performance @ EOIR Is A “Nail In The Coffin” Of American Democracy! ⚰️

Melody Bussey — Melody Busey ESQUIRE
Associate Attorney
Devine & Beard Law Office
Charleston, SC
PHOTO: Devineandbeard.com

It should have been a 2-minute “no brainer” administrative closing @ EOIR. Instead, it took two years of tough, smart, dedicated litigation by their firm to get justice in Garland’s broken and dysfunctional “Clown Court” system. But, in the end, Melody Busey, Mark Devine, & Ashley Beard got long-overdue justice for their client by pummeling “Garland’s DOJ Clown-ocracy” in the Fourth Circuit! Should justice in America really be this difficult and uncertain? Garland seems to think so! — Mark J. Devine & Ashley R. Beard
Principal Partners
Devine & Beard Law Office
Charleston, SC
PHOTO: Devineandbeard.com

https://www.ca4.uscourts.gov/opinions/201943.P.pdf

Garcia Cabrera v. Garland, 4th Cir., 01-06-21, published

PANEL: MOTZ, QUATTLEBAUM, and RUSHING, Circuit Judges.

OPINION: Judge Motz

CONCURRING OPINION; Judge Rushing

KEY QUOTE:

In sum, we hold that the BIA and IJ abused their discretion in denying Garcia

Cabrera’s motion for a continuance. Both the BIA and IJ departed from the established policies set forth in precedential opinions in holding that Garcia Cabrera failed to show good cause. Under Matter of L-A-B-R-, the BIA and IJs must consider two factors above all others: (1) the likelihood that USCIS will grant the movant’s U visa application, and (2) whether a U visa would materially affect the outcome of the movant’s deportation proceedings. 27 I. & N. Dec. at 406. Both of these factors weigh in Garcia Cabrera’s favor. The BIA recognized the existence of these factors but failed to consider whether or how they applied, focusing solely on less significant secondary factors. And although the IJ did address the primary factors, he nonetheless abused his discretion by failing to recognize that a U visa would materially affect the outcome of the deportation proceedings.

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Many, many congrats to NDPA stars Melody Busey, Mark J. Devine, and Devine & Beard Law Office in Charleston, SC, for their perseverance and outstanding advocacy in this case! As I’ve said before, it’s painfully obvious (to anyone but Garland and his team) that the wrong folks are on the bench and in key policy positions at EOIR!

Notably, this decision comes from an ideologically diverse 4th Circuit panel with two Trump appointees. Clearly, this panel took more time to understand the record and carefully and correctly analyze the applicable law and policy considerations than did the “faux experts” at EOIR, at either the trial or appellate levels!

Although I don’t always agree with Judge Rushing, her concurring opinion here shows that she took the time to carefully read the record, understand the applicable law, and clearly explain her position in straightforward, understandable terms. In other words, she treated this case like the important life or death matter it is, rather than “just another immigration case on the assembly line.” And, that led her to get the “bottom line” right. That’s a degree of judicial professionalism that we seldom, if ever, see from Garland’s EOIR these days.

That we get better performance on immigration cases from some Trump appointees on the Article IIIs than from Garland’s “wholly-owned EOIR” shows the total disconnect in the Biden Administration’s approach to the ongoing, unmitigated disaster unfolding every day in our broken and dysfunctional Immigration Courts. Unlike the Article IIIs, the Immigration Courts, now sporting an astounding, largely self-created 1.5+ million and growing case backlog, are a “wholly owned subsidiary” of the Administration and Garland’s DOJ!

When you’re in an EOIR “programmed to deny” by White Nationalist nativist overlords like Sessions, Barr, and Miller, you do dumb things and churn out sloppy work.

Indeed, “virtual discussion” of this case spurred some “PTSD” recollections by NDPA attorneys of other horrible, lawless decisions by this particular Immigration Judge, who never should have been on the bench in the first place. Incredibly, this judge, a member of the disgraceful “90% Denial Club” that has helped create disgusting “Asylum Free Zones” at EOIR throughout America, was appointed by the tone-deaf Obama Administration!

The idea that there weren’t better-qualified candidates out there at the time in private practice, the NGOs, clinical education, or even the government is simply preposterous! Failure of Dems to realize the progressive potential of the Immigration Courts has a long and disreputable history! Indeed, EOIR under Garland looks and performs disturbingly similar to EOIR under Miller, Sessions, and Barr!

While this particular IJ has retired, too many other unqualified judges appointed in the past under selection systems stacked against outside advocates and experts remain on the bench, at both the trial and appellate levels, under Garland.

Here’s part of the “Garland Tragedy/Missed Opportunity.” He actually has at least a few folks among his judiciary ranks who have experience and actually understand U visas and how to deal properly, justly, and efficiently with them. I guarantee that none of them would have come up with this inane and wasteful performance of judicial ineptitude and, frankly, anti-immigrant bias!

Why aren’t those folks “running the show” on the BIA, rather than the “deny anything for any reason” holdover gang that (save for Judge Saenz) Garland has “adopted as his.” Excluding Judge Saenz, I doubt that collectively the appellate judges on the BIA have ever handled a U visa case for an applicant. They are blissfully clueless as to both the practical stupidity and traumatic human consequences of the horrible decision-making exhibited at both the trial and appellate levels in this debacle! What’s a wrong with this bizarre picture of Dem incompetence and malfeasance?

Interesting that White Nationalist xenophobes like Sessions, Barr, and Miller had no problem whatsoever using their positions to further lies and myths about asylum seekers and other migrants and acting to weaponize the Immigration Courts (including “packing”them with unqualified and questionably qualified judges, unfairly selected) against individuals and their lawyers seeking justice (following eight years of indolent mismanagement of EOIR by politicos in the Obama DOJ which “teed EOIR up” for Trump and Miller).

By contrast, Dems appear afraid to speak out and act with resolve and purpose on due process, fundamental fairness, human rights, impartial professional expert judging, and human dignity — at our borders and in our Immigration Courts. Why?

Is is because deep down they don’t really believe in racial justice and equal justice for all? Because they can’t accept the humanity of migrants? Why is Garland still carrying out many of Stephen Miller’s White Nationalist policies and using a “court system” unfairly “packed” with those selected because they were perceived to be willing to carry out the Trump/Miller White Nationalist, anti-immigrant agenda?

More than nine months after taking over at “Justice,” why is Garland still defending clearly wrong, counterproductive, and frivolous EOIR decisions like this? Why should simple justice for migrants require a two-year battle by members of the NDPA to be realized?

And, I daresay that there are other panels, in other Circuits, that would have “rubber-stamped” EOIR’s errors. Lack of professionalism and judicial expertise at EOIR, promoted and defended by Garland, breeds wildly inconsistent results and turns justice in life or death cases into a “crap shoot.” That undermines and builds contempt for the entire Federal Justice System and exposes deep flaws at the DOJ that Garland has ignored!

In a functioning system, this case involving someone who is prima facie qualified to remain in the US: 1) should never have been brought by DHS, and 2) if brought, should have been promptly administratively closed or terminated without prejudice by EOIR. A competent judge might also have considered sanctioning DHS counsel for pushing ahead with this case with no justification whatsoever. In other words, conducting frivolous litigation!

That’s how you: 1) cut cases that don’t involve legitimate enforcement issues from the intentionally bloated EOIR docket; 2) reduce incredible, largely self-created backlogs; 3) hold DHS accountable for wasting court time; 4) deliver a long overdue “shape up or ship out” message to poorly performing Immigration Judges (like those in this case) at both the trial and appellate levels; 5) promote consistency and equal justice for all; 6) end the reprehensible practice of “Aimless Docket Reshuffling” at EOIR; and 7) stop wasting the time of the Article IIIs by defending garbage like that churned out at both the IJ and BIA level here!

Garland has demonstrated cluelessness, timidity, and intransigence in all of the foregoing essential areas of long overdue radical, yet common-sense and basically “no brainer,” progressive reforms at EOIR! You can’t get there with the current, holdover BIA! That’s as clear today as it was the day Garland was sworn in as AG.

The Biden Administration’s gross failure to bring progressive leadership, scholarship, competency, quality, and professionalism to a poorly performing, dysfunctional EOIR is corroding our justice system! Seems like an incredibly bad stance for an Administration claiming to be the “last best hope” for preserving American democracy, heading into midterms with a significant portion of its reliable progressive base angry and turned off by its contemptuous mal-performance on immigration, human rights, racial justice, and EOIR reforms!

Sometimes, just asking for financial support and votes isn’t enough! You have to earn it with bold actions!

🇺🇸Due Process Forever!

PWS

01-08-21

🤮👎🏽WASHPOST SLAMS BIDEN ADMINISTRATION FOR ABANDONING NEGOTIATIONS WITH FAMILIES WHO SUFFERED CHILD ABUSE BY SESSIONS & MILLER! — “Having condemned a policy that traumatized children and their parents, Mr. Biden now leads an administration fighting in court to deny recompense to those same families.”

“Floaters” — So, what’s the “dollar value” of brown-skinned human lives to Biden, Harris, & Garland? We’re about to find out!
EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)

https://www.washingtonpost.com/opinions/2022/01/05/president-biden-broke-his-promise-separated-migrant-families/

Opinion by the Editorial Board

January 5 at 2:18 PM ET

When the Trump administration wrenched migrant babies, toddlers and tweens from their parents as a means of frightening away prospective asylum seekers, it was guilty of emotionally torturing innocent children. Americans of every political leaning expressed revulsion toward the policy implemented in 2018, especially when it became clear that the government had kept no clear records linking parents with their children — in other words, no ready means to reunite the families.

President Biden, as a candidate and also once in office, made clear his own disgust at the so-called zero-tolerance policy, calling it “criminal.” He said, correctly, that it “violates every notion of who we are as a nation.”

Now the president, having explicitly endorsed government compensation that would address the suffering of separated migrant family members, has apparently had a change of heart — or political calculation. In mid-December, the Justice Department abruptly broke off negotiations aimed at a financial settlement with hundreds of affected families. Having condemned a policy that traumatized children and their parents, Mr. Biden now leads an administration fighting in court to deny recompense to those same families.

The government has no means of alleviating the trauma inflicted by the previous president’s egregious treatment of those families. That is particularly true as regards the children, whose torment has been described and documented by medical professionals, advocates and journalists. The babies and toddlers who didn’t recognize their own mothers when they were finally reunited; the depression; the fear of further separations, even brief ones — the human aftershocks of Donald Trump’s heartlessness will linger for years, and for lifetimes in some cases.

The administration compounds the hurt by breaking off negotiations on compensating victims. The government must be held accountable; compensation is the most potent and credible vehicle for achieving that.

Granted, there may be a political price to pay. Republicans had a field day blasting the White House after media reports this fall suggested the government might pay $450,000 to separated family members — a settlement that could amount to $1 billion if applied to the several thousand affected migrants. Mr. Biden, apparently unaware of the status of negotiations at that time, said the reports, first published in the Wall Street Journal, were “garbage.” He later backed away from that remark, saying he did not know how much money would be suitable but that some amount was certainly due.

Now, it seems, all bets are off. In the absence of a negotiated settlement, the government would enter into what would likely be years of costly litigation, in which Mr. Biden’s Justice Department would be in the awkward position of defending a policy that Mr. Biden himself — and most Americans — have condemned as evil. There is no predicting how individual judges or juries might react to documented accounts of harm done to children. No one should be surprised if some were to award enormous damages — conceivably in amounts that exceed the $450,000 contemplated in the now-stalled negotiations.

By walking away from the bargaining table, Mr. Biden has broken an explicit, repeated promise. Whatever the political calculus behind that decision, it is morally indefensible.

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

Garland fails to stand up for the rights of families of color — again. At the same time, he ties up resources on a frivolous DOJ defense of the indefensible!

“Replacement theory,” White Nationalism, and racism always have been and remain at the core of the GOP’s anti-democracy insurrection. It’s no coincidence that Trump’s plans to de-stabilize American democracy began with cowardly attacks on vulnerable migrants (enabled by a failed Supremes) and culminated in open insurrection.

The dots aren’t that hard to connect. But, Garland doesn’t seem to be able to do it!

If Garland can’t handle the “low hanging fruit” — like settling these cases and creating a progressive judiciary at EOIR who will stand up for the rights of all persons while using expertise and “practical scholarship” to replace dysfunction with efficiency, his pledge to hold the January insurrectionists and their leaders accountable rings hollow!

I’m not the only one to note and question Garland’s uninspiring performance as Attorney General at a time of existential crisis. https://www.sfchronicle.com/opinion/editorials/article/Editorial-Merrick-Garland-isn-t-going-to-save-16752522.php?utm_source=newsletter&utm_medium=email&utm_content=headlines&utm_campaign=sfc_opinioncentral&sid=5bfc15614843ea55da6b8709

For those who read the LA Times, there was a “spot on” letter to the editors today accurately characterizing Garland as the “Attorney General for different era.”

As I’ve noted before, this is NOT Ed Levi’s, Griffin Bell’s, or Ben Civiletti’s DOJ. It isn’t even Janet Reno’s DOJ. (I ought to know, as I worked under each of the foregoing.)

It’s an organization that has become increasingly politicized over the last two decades (as it was during Watergate), and that allowed itself to be weaponized by Trump’s White Nationalist regime. EOIR, Executive Orders, and immigration litigation were perhaps the most obvious, but by no means the only, examples.

🇺🇸 Due Process Forever!

PWS

01-07-22

☠️🤮⚰️ AMERICAN TRAVESTY — IN GARLAND’S TOTALLY DYSFUNCTIONAL (NON) COURT SYSTEM, LIFE OR DEATH⚰️ IS A COMPLETE “CRAP SHOOT!” — WHY ISN’T THE PRESSURE ON BIDEN’S AG TO FIX IT BEFORE MORE LIVES ARE UNJUSTLY LOST?

https://www.kqed.org/news/11900535/a-simple-paperwork-error-can-get-asylum-seekers-deported-rosa-diaz-got-lucky-on-a-lunch-break

Tyche Hendricks reports for KQED:

A Simple Paperwork Error Can Get Asylum Seekers Deported. Rosa Díaz Got Lucky on a Lunch Break

Jan 4

Sitting in her home in Colusa County on Dec. 29, 2021, Rosa Díaz holds the papers she was given by immigration officials when she fled Honduras and asked for asylum at the U.S. border. Díaz was ordered deported ‘in absentia’ when she missed a hearing in immigration court due to a clerical error in her address. (Courtesy of Rosa Díaz)

Rosa Díaz vividly remembers the summer day in 2019 when she showed up for an appointment at the Sacramento office of U.S. Immigration and Customs Enforcement.

“The surprise I got on July 12 was that I was going to be deported,” she said, speaking in Spanish.

An ICE officer told her that a judge had ordered her removed from the country after she missed an immigration court hearing in Los Angeles the previous November. Díaz was stunned.

She had left Honduras with her three children in 2018 after police failed to protect her from an abusive partner who beat her close to death while she was pregnant with her youngest child. Over two weeks, they walked, got rides and took buses to the U.S. border, hoping to find protection. They were sent to an ICE family detention center in Texas for three weeks.

Before she was released from detention, Díaz, 40, gave ICE agents the phone number for her adult son, who lived in Maxwell, a town in rural Colusa County in the Sacramento Valley. Her son provided officials with his address, where his mom and siblings would be living. But the address ICE sent to the immigration court got botched: ICE listed the city as Los Angeles.

“I never received a notice of that hearing. If I had, I would have been there,” Díaz said. “My intention was to do things the right way.”

‘I never received a notice of that hearing. If I had, I would have been there.’Rosa Díaz, asylum seeker from Honduras

When she was released from detention with a temporary status called “parole,” she was given a year before she had to check in with ICE. Díaz said she thought she had already been granted asylum.

“When a person first gets here, they don’t know how things work, and nobody explained it to me,” she said.

The asylum process can be baffling, and, as Díaz learned, navigating it without a lawyer can be disastrous. Unlike in criminal cases, people in federal immigration court have no right to a court-appointed lawyer if they can’t find their own.

Like Díaz, thousands of newly arrived asylum seekers never get their day in court. They can be tripped up by paperwork, and a clerical error can be enough to get them deported.

Last year a third of all immigrants in asylum cases did not have representation, according to data analyzed by the Transactional Records Access Clearinghouse, or TRAC, a research center at Syracuse University. And over the past two decades, just 10% of asylum seekers without legal representation won their cases, while those with lawyers were nearly four times as likely to win protection, according to TRAC’s data.

The luckiest lunch break

After passing an initial asylum screening, Díaz and her kids were released from family detention on June 20, 2018, and told to check in with ICE before her one-year parole document expired. So on June 13, 2019, Díaz voluntarily went to the ICE office in Sacramento. She was instructed to return on June 20 with all her documents, which she did. That day, ICE officials put her in a GPS ankle monitor. On July 12, they summoned her again, and that’s when she learned she had been ordered deported “in absentia” by a Los Angeles immigration judge on Nov. 27, 2018.

ICE officials told Díaz they planned to deport her that same day. But first, the office was closing for lunch.

“I went outside, sat down and burst into tears,” Díaz said. “I cried because I had gotten all the way here with my three children and I couldn’t imagine taking them back to Honduras.”

A pair of immigrant rights advocates with NorCal Resist who were leafleting outside the ICE building stopped to check on Díaz, said Katie Fleming, director of the removal defense program at the California Rural Legal Assistance Foundation in Sacramento. The advocates drove her to Fleming’s office and made an urgent plea for legal help.

“We were able to talk to her and then advocate with ICE to give her a few more days to be able to try to reopen that removal proceeding because she did not know about it,” Fleming said.

The swift response by the activists and lawyers was an incredible stroke of luck for Díaz. Attorneys succeeded in reopening her case. And in March, with Fleming representing her, she won asylum for herself and her children.

But what Díaz experienced is common for asylum seekers without a lawyer. Fleming said Díaz’s case shows how even people with legitimate claims to asylum can be ordered deported without getting a chance to make their case to a judge.

“She didn’t understand, as most people don’t, what the next process entailed in terms of applying for asylum,” she continued. “She didn’t realize that going to an ICE office is different from going to court.”

Judge Phan turned to a towering stack of blue folders for those not present. Then she signed deportation orders for 23 people who failed to appear.

Immigrant rights advocates have long argued for universal access to counsel for people in removal proceedings. In a January 2021 report, the American Bar Association made a series of recommendations for how the incoming administration of President Joe Biden could make the immigration system more fair and efficient by providing government funding for lawyers, among other things.

The stakes for people who are deported can include persecution, torture and death, the report noted.

“Unrepresented individuals in removal proceedings are inherently disadvantaged in an adversarial system in which the government is always represented by an experienced attorney,” the report warned.

The Biden administration has asked Congress to budget $15 million to provide representation to families and children, and $23 million for legal orientation programs, but Congress has yet to act.

Deported in absentia

When a person fails to appear for a hearing in immigration court, they can be ordered removed from the country in absentia. That’s what happened to Díaz, and it’s been happening with alarming regularity at San Francisco’s immigration court, according to Milli Atkinson, who runs the Immigrant Legal Defense Program at the Bar Association of San Francisco.

Atkinson said judges handed out scores of deportation orders in absentia from August to November under a new system ostensibly aimed at correcting bad addresses when mail was returned as undeliverable.

“What the court started doing in August is purposely taking cases that they knew people were unlikely to get their mail and rescheduling their hearing and sending a new notice out to an address that the court knows is incorrect,” Atkinson said. “Some of the judges were just reading off their names and their case numbers and ordering them removed in bunches, without looking at the individual file, making sure the information was all correct and really making no attempt to contact the individuals.”

It’s a self-defeating system, Atkinson said, because most immigrants never get the new notice, so they miss their new court date.

She acknowledged that it’s the responsibility of individuals to notify the court within five days every time they move. But many people in removal proceedings are checking in regularly with ICE under a supervision program, she said.

“A lot of times ICE and the government attorneys have information about where these people are and what their current addresses are, and they have no legal obligation to share those with the court,” she said.

At one “returned notice” hearing in San Francisco in late October, Judge Susan Phan had 31 cases on her afternoon docket, but only six of the people were present.

One woman in the courtroom was Nichol Valencia, a fluent English speaker originally from the Philippines who’s married to a U.S. Coast Guard officer. She said she learned that her December hearing date had been rescheduled for October when she checked the court’s website, concerned that COVID-19 might interfere with court business.

“We called you in today because we were concerned you were not getting hearing notices,” Phan told Valencia. “Even though you submitted your new address to the ICE officer, you have to separately submit it to the court.”

“I did submit a blue form to the court,” responded Valencia, who again provided her new address.

After scheduling a new hearing for Valencia in February, Judge Phan turned to a towering stack of blue folders for those not present. She rescheduled two cases, telling the ICE prosecutor he needed to provide more evidence. Then Phan signed deportation orders for 23 people who failed to appear.

Atkinson said she thinks the new system was an effort to cope with the court’s massive backlog, which recently surpassed 1.5 million cases.

“This was a way to help some cases get back on track that might have otherwise lost contact with the court, but the actual result is they’re deporting people in very high numbers,” she said.

In November, Atkinson sent a letter on behalf of a group of Bay Area legal advocates to the presiding judge for the San Francisco court expressing “grave concerns” about the returned notice dockets, arguing they violate the constitutional due process rights of people who are ordered deported in absentia.

In addition, the letter said, the COVID-19 pandemic has caused housing instability for many immigrants and restricted their access to legal services, two reasons the court should be more understanding.

In December, an official for the court system replied, calling the approach a “longstanding practice” for immigration courts throughout the country.

Courts “routinely create dockets for cases with returned hearing notices for efficiency and docket management,” wrote Alexis Fooshé, the communications and legislative affairs division chief of the Executive Office for Immigration Review. “Like every case before the court, immigration judges make decisions based on the specific and unique factors of each case in accordance with applicable law.”

Atkinson said if people in immigration proceedings had the right to court-appointed counsel, attorneys would help with the simple but essential task of keeping contact information current.

“And all of your mail would go to the lawyer’s office, so that would be a huge problem solved right there,” she said.

Díaz did not have a lawyer to sort out the mess caused when ICE erroneously entered her brother’s address. She’s grateful that the two advocates stopped to help when they saw her weeping outside the Sacramento ICE office.

“If they hadn’t been there, I wouldn’t be here,” she said. “I’d be back in my country and God knows what would have happened to me there.”

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

Garland’s epic failure to address the festering mess in his wholly-owned Immigration Courts is an ongoing and ever-escalating national catastrophe with cosmic human consequences and implications that go to the very future of our nation as a Constitutional democracy!

It’s also a betrayal of not only Biden’s campaign promises, of almost every so-called American value, but also of basic human decency and morality.

For every “lucky individual” like Rosa, there are thousands, probably tens or even hundreds of thousands, who “fall through the gaping, largely Government-created holes” of Garland’s ridiculously broken system.

That includes tens of thousands of potential refugees improperly turned around at the border because Garland has failed to: 1) stand up for the rule of law; and 2) establish a functioning asylum system in his Immigration Courts with competent, qualified judges and professional administrators.

I simply don’t know how he gets away with it! But, he does!

And advocates, NGOS, and supposedly “progressive” Dems in Congress seem to be too discombobulated or too feckless to get his attention and demand that he change his behavior. So, the carnage continues!

The ones who play the biggest price for Garland’s failures are the “unlucky Rosas” — men, women, children, many legally entitled to protection, the most vulnerable among us, who deserve better!

🇺🇸Due Process Forever!

PWS

01-05-21

THE GIBSON REPORT— 01-02-22 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Garland’s Aimless Docket Reshuffling (“ADR”) Squeezes Refugees On Both Ends Of His Ludicrous Backlog, As Those Patiently Waiting Given Court Dates Nearly A Decade In The Future, While Recent Arrivals Mindlessly Rocketed To The “Front Of The Line” Struggle To Find Lawyers & Prepare Cases — Plus Other New Year News From The Dystopian World Of U.S. Immigration!

NEWS

President Biden promised to reform immigration policy. How has that been going?

NPR: President Biden had an ambitious agenda to overhaul the nation’s border policies. But as the end of the year approaches, many of those proposals have been blocked, reversed or simply abandoned.

Biden asks U.S. Supreme Court to hear ‘Remain in Mexico’ case

Reuters: The Biden administration on Wednesday asked the U.S. Supreme Court whether it needed to continue to implement a Trump-era policy that has forced tens of thousands of migrants to wait in Mexico for the resolution of their U.S. asylum cases. See also ‘Remain In Mexico’ Renewal May Bring More Solo Migrant Kids

Hundreds of Afghans denied humanitarian entry into US

AP: Since the U.S. withdrawal, U.S. Citizenship and Immigration Services has received more than 35,000 applications for humanitarian parole, of which it has denied about 470 and conditionally approved more than 140, Victoria Palmer, an agency spokesperson, said this week. See also Months later, Afghan evacuees abroad and at US bases still wait to be resettled.

Mexico Is Detaining More US-Bound Migrants Than Ever

Vice: Authorities in Mexico detained more than a quarter of a million migrants this year, and most of them were from Honduras. See also Mexico disbands makeshift camp with thousands of migrants

“I Hope a Lawyer Will Answer”: Asylum Seekers Risk Deportation in Expedited Process

KQED: Advocates say the current system has more safeguards for migrant families and isn’t placing them in detention facilities, but the accelerated pace still makes it tough for asylum seekers like López to find legal representation.

LITIGATION/CASELAW/RULES/MEMOS

Top Immigration Litigation To Watch In 2022

Law360: Federal courts in 2022 will grapple with immigration law questions ranging from the extent of the president’s authority to set immigration enforcement priorities to federal courts’ ability to review immigration decisions made by the executive branch. Here, Law360 breaks down the cases to watch.

Biden Administration Petitions the High Court, Seeking to End Trump’s “Remain in Mexico” Program

ImmProf: The petition, which asks to review a decision of the Fifth Circuit court of appeals, addresses issues relating to the Migrant Protection Protocols, commonly known as the “Remain in Mexico” program.

Oral Argument and Other Court Operations at the United States Court of Appeals for the Second Circuit

CA2: In light of the recent surge in Covid-19 infections, beginning January 4, 2022 oral arguments will be conducted remotely, by Zoom or teleconference.

Unpub. CA5 Niz-Chavez Remand: Lima-Gonzalez V. Garland

LexisNexis: Lima-Gonzalez v. Garland “Lima-Gonzalez’s NTA did not contain the information required to trigger the stop-time rule. See Niz-Chavez, 141 S. Ct. at 1478-79, 1485; see also § 1229(a)(1)(A)–(G). Neither did any of the subsequent notices of hearing. As a result, the Government has not furnished Lima-Gonzalez with the “single compliant document” required by statute. Niz-Chavez, 141 S. Ct…

Illinois’ law ending immigration detention in 2022 hits snag

WaPo: Three Illinois counties with such federal agreements faced a Jan. 1 deadline to end contracts. While one in downstate Illinois complied last year, two others are involved in a federal lawsuit challenging the law. The case was dismissed last month, but a federal judge on Thursday granted an extension while an appeal is considered. Authorities in McHenry and Kankakee counties now have until Jan. 13.

DOS Proposed Rule to Raise Several Consular Service Fees

AILA: DOS proposed rule which would raise several nonimmigrant visa application processing fees, the fee for the Border Crossing Card for Mexican citizens age 15 and over, and the waiver of the two-year residency requirement fee. Comments are due 2/28/22. (86 FR 74018, 12/29/21)

Third Delay of Effective Date of Final Rule on Pandemic-Related Security Bars to Asylum and Withholding of Removal

AILA: USCIS and EOIR interim final rule further delaying until 12/31/22 the effective date of the final rule “Security Bars and Processing” (85 FR 84160, 12/23/20). Comments on the extension of the effective date as well as the possibility of a further extension are due 2/28/22. (86 FR 73615, 12/28/21)

President Revokes Proclamation Suspending Entry of Certain People Who Pose a Risk of Transmitting Omicron Variant

AILA: Effective December 31, 2021, 12:01 am (ET), Presidential Proclamation 10315 was revoked, thus rescinding travel restrictions on Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe. Vaccine requirements remain in effect.

USCIS Extends Flexibility for Responding to Agency Requests

USCIS: In response to the COVID-19 pandemic, U.S. Citizenship and Immigration Services is extending the flexibilities it announced on March 30, 2020.

USCIS Provides Guidance on Expedited EADs for Healthcare Workers

AILA: USCIS stated that healthcare workers with a pending EAD renewal application, Form I-765, and whose EAD expires in 30 days or less or has already expired, can request expedited processing of their EAD applications. Proof of employment will be required.

RESOURCES

AILA: Client Flyer: U-Visa Petitioners – Bona Fide Determination and Employment Authorization

AILA: Practice Alert: DOS Expands Interview Waivers for Certain Nonimmigrant Visas

AILA: Client Flyer: Overview of the Naturalization Process and Basic Requirements

AILA: Practice Alert: Summary of Omicron Presidential Proclamation

AILA: Get the AILA Discount on the Spanish for Lawyers Online Course

AILA: Custody Redetermination Hearings And Material Change In Circumstances

Asylos Research

Ghana: Accessibility of Dialysis (AFR2020-27)

Nigeria: Mental Health Treatment (AFR2021-09)

Somalia: Situation of ‘Westernised’ Returnees (AFR2021-16)

Mexico: Persecution by and local/national presence of Cartel Jalisco and Familia Michoacana (AME2021-17)

Afghanistan: Treatment of Family Members of Human Rights Activists and Former Government Supporters after the Taliban Take-over (ASI2021-13)

Afghanistan: Availability of Psychiatric Treatment for Returnees with Mental Health Conditions and Treatment of Returnees with Mental Health Conditions by the Taliban (ASI2021-12)

Egypt: Opposing Female Genital Mutilation (FGM), Social Impact, and Availability of State Protection (MEN2021-18)

Egypt: Christians in Egypt & Obtention of Citizenship (MEN2021-17)

EOIR: Appearance Requirements at the New York – Varick Immigration Court (attached)

Project South: Escalating Jailhouse Immigration Enforcement: A Report on Detainers Issued by ICE Against Persons held by Local Law Enforcement Agencies in Georgia, North Carolina, and South Carolina from 2016-2018

DHS OIG: Continued Reliance on Manual Processing Slowed USCIS’ Benefits Delivery during the COVID-19 Pandemic

US Embassy DR: Minors under 14 present during an Immigrant Visa interview

EVENTS

1/5/22 TPS Roundtable – Strategies for Adjusting TPS Holders in Proceedings Who Have Traveled on AP

1/6/22 Broken Promises: MPP 2.0 and Perspectives from the Ground

1/11/22 Comprehensive Overview of Immigration Law (COIL)

1/14/21 Assisting Citizens of Afghanistan

1/25/22 Adoptions for Orphans and Family Members

1/27/22 Immigration Options and Resources For Victims of Human Trafficking

02/02/22 How to Apply for DOJ Full Accreditation

02/03/22 Webinar Series: Overview of Immigration Consequences of Crimes

02/03/22 Basic Immigration Law 2022: Business, Family, Naturalization and Related Areas

02/04/22 Asylum, Special Immigrant Juvenile Status, Crime Victim, and Other Immigration Relief 2022

3/23/22 ASISTA Virtual CLE Conference (Save the Date)

ImmProf

Monday, January 3, 2022

Immigration Reform Is Dead

The Need for Attorneys in Dedicated Docket Cases

Immigration Article of the Day: Constantine’s Legacy: Preserving Empire While Undermining International Law by Craig Mousin

Sunday, January 2, 2022

Immigrant of the Day: Luis Ortiz (Professional Boxer), Cuba

Upcoming Webinar — Broken Promises: MPP 2.0 and Perspectives from the Ground

Saturday, January 1, 2022

U.S. Citizens Placed on Watch List While Taking Part in Caravan Through Mexico

Immigration Article of the Day: Asylum Under Attack by Lindsay Harris

Celebrating Immprof Books & Book Chapters of 2021 * UPDATED *

Americans seeking to renounce their citizenship can’t for now

Friday, December 31, 2021

Celebrating Immprof Achievements in 2021

Happy New Year!

Opinion: Harry Reid’s immigration legacy put politics over country

Thursday, December 30, 2021

Immigration Article of the Day: We Broke It, We Own It: How To Meet The Climate Migration Future by Elizabeth Keyes

Biden Administration Petitions the High Court, Seeking to End Trump’s “Remain in Mexico” Program

JOTWELL Administrative Law Listings feature immigration

The Citizenship Angle of the Ghislaine Maxwell Sex Trafficking Case

Disillusionment and disappointment: Biden’s White House struggles to find its footing on immigration

Wednesday, December 29, 2021

Animated film about Afghanistan refugee in top ten movies list

Silver lining of remote learning for LEP parents

Uyghur Forced Labor Prevention Act

Latino USA: 9/11’s Immigration Legacy

Escalating Jailhouse Immigration Enforcement: A Report on Detainers Issued by ICE Against Persons held by Local Law Enforcement Agencies in Georgia, North Carolina, and South Carolina from 2016-2018

Tuesday, December 28, 2021

A Proclamation on Revoking Proclamation 10315

Biden’s First Year Brings Modest Changes to Immigration Policy

Immigration Article of the Day, The Unexamined Law of Deportation, by David Hausman

The most neglected story of 2021? Immigration

Monday, December 27, 2021

Afghans in America: WaPo Calls for a Christmas Miracle

Has President Biden kept his immigration promises?

Xenophobia Spills Into Japan’s Covid-Era Debate on Immigration

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

Thanks, Elizabeth!

The problem with “ADR” @ EOIR is chronic! It’s one that Garland seems determined to repeat, despite ample advice to the contrary.

Also, he’s ignored the availability of many “practical experts” on the outside who, if appointed to key EOIR positions, could have helped him solve this without stomping on due process (although, I admit the solution would have been easier in March 2021, when Garland was sworn in as AG, than it is after 9 months of his making it worse — not to mention that his “defiant tone-deafness” has probably “turned off” some of the top-flight talent he needed to “reach out” to). As the KQED article points out:

“But there’s a lot of room for improvement, and I don’t know if the people that are being named to supervise this actually know what’s happening in the trenches.”
- Duh! That’s what all of us have been saying. Truth is, they aren’t the right people, and they don’t know what’s happening. Not by a long shot!
- I also understand why Torres, who’s trying to maintain a relationship with Garland’s “Clueless Crew” is trying to be charitable.
- But, as someone not currently “out there in the trenches,” I don’t have to be so reticent. So, I’ll say what she can’t. This is a totally unacceptable and inexcusable performance from Garland!
Another reason why this program is a massive failure is that, like their ADR-promoting, backlog-building predecessors, Garland & Mayorkas started this misguided and mishandled program without seeking the advice, counsel, and support of the pro bono lawyers who have to staff it to make it work!
- Think of the total absurdity of what Garland is doing here! While a pro bono (or low bono) lawyer is having already prepared cases “orbited” years out on the docket (a process that usually requires re-preparation of the entire case), the phone is ringing off the hook with desperate, perspective new clients given unrealistically expedited hearing dates that should have been used for the cases “orbited” to the end of the docket.
Also, having not practiced privately for many years, Garland appears to have forgotten the Code of Ethics.
- Attorneys are obligated not to take on work (even pro bono work) that they can’t professionally and timely handle.
- Yet, Garland is pushing them to do exactly that! The choice is let folks try to prepare their own cases (literally tantamount to a “death sentence” in many cases); or
- Take on work you can’t handle (a clear ethical violation that could have the same unfavorable result for the client).
There actually are ways of working with outside experts to increase pro bono representation. One of the most promising is the the amazing VIISTA Program created and run by Professor Michele Pistone at Villanova Law to train non-attorney “Accredited Representatives” to handle pro bono asylum cases.
- I have no knowledge that Garland or anyone at EOJ/EOIR has ever reached out to Professor Pistone, despite recommendations that Garland do so.
- Worse yet, Garland has allowed his “EOIR Clown Show” to also create a “new backlog” in the approval process for Accredited Representatives! Talk about clueless, counterproductive mismanagement!
Garland’s mis-handling of EOIR and his new round of “Aimless Docket Reshuffling” raises serious issues about his own performance.
- Whatever happened to Democratic oversight of EOIR in Congress? Why is Garland getting a “free pass” on mismanagement of EOIR, his further undermining of Due Process in Immigration Court, and his disrespectful treatment of the immigration pro bono and low bono bar?

🇺🇸Due Process Forever!

PWS

01-04-22

☹️👎🏽BIDEN’S MUDDLED IMMIGRATION APPROACH WINS FEW FANS, WHILE CONTINUING TO TREAT HUMAN LIVES CALLOUSLY! — Weak AG, Underperforming VP, Fear Of The Right, Dysfunctional Immigration Courts, Failure To “Connect The Dots” Between Immigrant Justice & Racial Justice Appear To Have Led Administration To Treat Re-Establishing The Rule Of Law & Standing Up For Human Rights As “Bogus Policy Option” Rather Than The Legal & Moral Imperative It Is! — Tal Kopan Reports In The SF Chron!

Tal Kopan
Washington Reporter, SF Chronicle

https://www.sfchronicle.com/politics/article/One-year-in-Biden-has-been-slow-to-unwind-Trump-16725642.php

One year in, Biden has been slow to unwind Trump immigration policies

WASHINGTON — As President Biden approaches a year in office, immigration advocates fear he may have learned some lessons from his predecessor, Donald Trump — and not the ones they would have wanted.

Most immigration advocates abhor virtually every policy in the sphere that Trump pursued, but they do give him credit for two things: showing how much change an administration can make quickly, and driving home the power of fully committing to a salient political message. But they fear that instead of using those lessons to enact Biden’s stated objective — a fair, orderly and humane immigration system — the president has borrowed too many of his predecessor’s policies and not enough of the fervor.

Biden has extended Trump’s policy turning away the vast majority of immigrants at the border ostensibly because of COVID. The administration has also, under court order, reinstated and expanded a policy forcing migrants to wait in Mexico for court hearings, despite Biden running against the policy in his campaign. And his Justice Department is defending some of Trump’s policies in court against challenges from immigrant advocates.

Several immigration groups worked together on what became known as the “Big Book,” a collection of more than 500 policy recommendations for the incoming Biden administration. The pro-immigration group Immigration Hub has tracked about 150 that have been implemented so far. Many of those were reversing Trump policies.

“What we don’t have is a White House that’s committed to moving forward on the stated Biden administration agenda in the way that the Trump White House was committed to moving forward on theirs, and as a result, we’re living in a world where a whole lot of those Trump policies are still around,” said Omar Jadwat, director of the Immigrants’ Rights Project with the American Civil Liberties Union.

A White House spokesperson objected to the notion that Biden has not delivered progress on immigration, citing actions in the early days of the administration to roll back some of Trump’s policies, extend protections to young undocumented immigrants who came to the U.S. as children and new protections for migrants whose home countries are in turmoil.

“This administration is committed to working day in and day out to provide relief to immigrants and bring our immigration system into the 21st century,” spokesperson Vedant Patel said.

During the presidential campaign, Biden ran on turning the page from Trump’s hardline immigration policies and talked up a plan to get a pathway to citizenship for the undocumented into law. He also emphasized the importance of letting asylum-seekers make their case to stay in the U.S., and said the Obama administration in which he served made a mistake in waiting too long to enact immigration reforms.

In his early days in office, Biden did introduce policies cheered by immigration advocates, including rescinding Trump’s travel bans and embracing an aggressive legislative strategy to legalize millions of undocumented immigrants through procedural maneuvers that would require only Democratic votes.

But he also kept in place a controversial policy known as Title 42 that essentially closed the southern border to virtually all immigrants. Then in the spring, when border crossings soared to historic levels, the Biden administration doubled down on deterring migration, vexing many advocates who saw that strategy as essentially an embrace of the right’s talking points. Others have pinned their hopes on Vice President Kamala Harris, who forged a strong progressive streak on immigration while serving as California’s senator. She has led administration efforts to improve conditions in Central America, but also adopted deterrence talking points, including urging would-be migrants directly while in Guatemala: “Do not come.”

More: https://www.sfchronicle.com/politics/article/One-year-in-Biden-has-been-slow-to-unwind-Trump-16725642.php

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

As Tal and others have observed, the Trump Administration “hit the ground running” on its White Nationalist anti-immigrant agenda, which was a key part of it’s overall anti-democracy, neo-fascist program.

The Biden Administration’s campaign pledges to undo the damage — not so much. In the end, lack of backbone, failure to leverage and use the expert talent available, not acting quickly, and treating values-based campaign promises as “fungible political capital” has left the Administration “wandering in the wilderness” on this key issue. Usually, standing for the right thing, even if risky, is a far better path than aimlessly wobbling around.

“Don’t come” is not part of our asylum law!

🇺🇸Due Process Forever!

PWS

01-03-22

CODE RED! 🆘☠️⚰️IMMIGRATION COURTS FAIL AS GARLAND FLAILS — With Human Lives In The Balance & A Catastrophic Collapse Of System On The Horizon, Garland “Rearranges The Deck Chairs On The Titanic!” — “Aimless Docket Reshuffling” is a “Clown Court Strategy” 🤡 But, It’s No Laughing Mater For The Asylum Seekers & Their Lawyers Stuck In Garland’s Dysfunctional Mess!🤮

Deepa Fernandes reports for the SF Chron:

Waiting nine years for an asylum hearing in San Francisco https://www.sfchronicle.com/bayarea/article/An-El-Salvadoran-attorney-has-waited-five-years-16739505.php

A Salvadoran attorney who fled death threats in her home country and built a new life in Oakland faces a nearly nine-year wait for her day in immigration court. She’s among hundreds of thousands stuck in the same bureaucratic limbo.

Ana and her son first arrived in Oakland in 2016 with a harrowing story and an urgent case for asylum. They had escaped the same gang that chased her niece out of El Salvador three years earlier. Ana said the gang’s leader had stalked and threatened her niece. When she intervened, Ana said, the gang retaliated with threats of sexual violence and death.

“They pressured me to agree to many things that could be in their favor, which I did not agree to,” Ana told The Chronicle in Spanish. The Chronicle is withholding Ana’s last name in accordance with its policy on anonymous sources because of the dangers she faces if sent back.

Ana and her son first arrived in Oakland in 2016 with a harrowing story and an urgent case for asylum. They had escaped the same gang that chased her niece out of El Salvador three years earlier. Ana said the gang’s leader had stalked and threatened her niece. When she intervened, Ana said, the gang retaliated with threats of sexual violence and death.

“They pressured me to agree to many things that could be in their favor, which I did not agree to,” Ana told The Chronicle in Spanish. The Chronicle is withholding Ana’s last name in accordance with its policy on anonymous sources because of the dangers she faces if sent back.

At her first appearance in San Francisco immigration court in 2017, Ana was told to return in 2019 to make her asylum case. That court date was postponed to this past November. Then Ana received notice that her hearing had been canceled again — and rescheduled to May 2025.

Ana represents just one of the 670,000 asylum requests in the U.S., a figure that continues to climb due to the complexity of the cases, Trump administration policies that delayed processing times and the federal government’s slow adaptation to the pandemic. According to the Transactional Records Access Clearinghouse at Syracuse University, the average wait time for an asylum hearing is 1,621 days — or nearly four-and-a-half years.

In an attempt to put a dent in the growing backlog, the Biden administration announced a strategy over the summer that previous administrations have tried to expedite cases for certain groups. President Biden’s “dedicated docket” catapults 5,000 migrants who crossed the southwest border of the U.S. after May 28 to the front of the line.

But critics warn the initiative means these recent arrivals have limited time to prepare their immigration cases while migrants who have been waiting for years, like Ana, must wait even longer.

A growing backlog

Immigration Judge Dana Leigh Marks feels constant pressure to avoid getting sick. She is one of 28 judges in a San Francisco court that is fielding 78,992 immigration cases. That means if Marks needs to cancel court for any reason, the ramifications are years-long delays to “people whose lives hang on our decisions,” she said.

“That is the problem of being so overbooked,” added Marks, who spoke in her role as the president emeritus of the National Association of Immigration Judges. “The number of cases assigned to any judge have exponentially exploded in recent years.”

Like other federal immigration courts, San Francisco’s saw its asylum backlog start its sharp ascent in 2017, as the Trump administration began rolling out policy changes that tightened eligibility while increasing evidentiary thresholds, grinding processing to a halt. The court went from more than 25,000 asylum claims that year to nearly 56,000 this year, TRAC figures show.

The pandemic compounded delays by forcing courts to cancel or significantly scale back in-person hearings. Part of the problem is that the Department of Justice, which runs the nation’s immigration court system, was slow to implement video conferencing technology when judges began working from home in March 2020, Marks said.

“Other state and federal courts across the country pivoted much more quickly to the use of remote technology, which allowed them to keep their caseload moving,” Marks said.

This past summer, over a year into the pandemic, immigration hearings began taking place over Webex, a video conferencing platform. Still, only six of San Francisco’s 28 immigration judges have been set up with government-issued laptops and special audio recording capabilities to conduct the video hearings, Marks noted, and the current average wait between asylum hearings has ballooned to 1,715 days.

Ana was not given the option of a video hearing, said Julie Hiatt, Ana’s attorney from Centro Legal De La Raza. Armed with detailed legal briefs and hundreds of pages about conditions in El Salvador, Hiatt said she was ready to present her client’s gender-based persecution claim for asylum in November. But the judge couldn’t be in court that day and the hearing was pushed to the judge’s next available opening — more than three years away.

Despite believing her client has a strong asylum claim, Hiatt said the lengthy wait will make it harder to win Ana’s case, and not because the facts of the case have changed.

“I worry about memory fading, circumstances changing and everything that can happen that could impact on her ability to confidently tell her story when it comes time to do so,” Hiatt said.

Immigration advocates worry President Biden’s dedicated docket plan to cut down processing times could end up hurting asylum seekers, by rushing ill-prepared new arrivals through the process while supplanting immigrants whose cases have languished for years.

An analysis by the Migration Policy Institute shows that in 17,000 expedited docket cases under previous administrations, the majority of immigrants lacked legal representation and 80% of them were ordered removed without even being in court.

History appears to be repeating. Current Justice Department data shows that of San Francisco’s 1,138 dedicated docket cases being heard right now, 1,008 — nearly 90% — do not have legal representation.

“This docket is not fair to asylum seekers,” said Milli Atkinson, an attorney with the Justice & Diversity Center of the Bar Association of San Francisco who has witnessed local dedicated docket hearings. “These expedited dockets make it extremely difficult for respondents to find counsel and puts enormous pressure on them to move forward with their case without an attorney.”

. . . .

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

Woman Tortured — “What if Garland had to hang out with us in his backlogs?”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

Read Deepa’s full article at the link.

Notably, a 9-year wait for a merits hearing in Immigration Court more than spans the tenure of even a two-term Administration!

The scary thing is that San Francisco probably is by no means the most screwed up Immigration Court in the nation. The 9th Circuit, which reviews some of their cases and establishes precedents for the Circuit, does sometimes “call out” chronically poor performance by EOIR and poorly reasoned, anti-immigrant “precedents” emanating from the BIA and Garland’s predecessors as AG.

But, with a large number of Trump/McConnell right wing appointees, many of them younger, even the 9th Circuit is moving rightward. So, unless Biden can stem the tide, one of the last “fail safes” in a dysfunctional system might be neutered.

Although Garland has (too slowly) undone some of the worst precedents, he has yet to generate the positive legal guidance necessary to ”move dockets” by granting more cases like Ana’s. Without a new BIA, he lacks the “onboard, progressive, expert, due-process-oriented legal and judicial talent” to fashion and enforce the long overdue and badly needed “enlightened precedents” that will save lives and straighten out the law on a nationwide basis.

As pointed out by this article and other critics, EOIR is “far behind the eight-ball” in using technology to meet the challenges of justice in the age of COVID. Although EOIR has been using some form of televideo for over a quarter of a century, they fell behind other court systems when it came to adapting to COVID. After more than two decades of largely wasted time and money, the Immigration Courts still lack a functional e-filing system, which greatly compounded both dangers and chaos during COVID.

Worse yet, what limited technology that is available at EOIR appears to be used primarily for the benefit of EOIR and its bureaucrats, not for the convenience of the public it supposedly serves. How does this “practical nonsense,” unfolding on a daily basis, without meaningful engagement with judges and parties before the courts, meet any definition of competent “service to the public?” Garland has ignored aspirational, achievable, visions and progressive goals for a culture of “good enough for Government work” and “who cares, it’s only aliens and their ‘dirty’ attorneys!”

Moreover, his continuation of the unconscionable, scofflaw use of Title 42 to suspend the asylum process and send legal asylum seekers to danger or death without due process undermines his credibility and integrity as a leader and role model. Although Garland pretends otherwise, judicial, and legal leadership has a moral element that requires a sense of urgency, courage, and demonstrated competence. Garland’s leadership (and that of his “Senior Team” of political appointees at the DOJ) has fallen woefully short!

Judge Dana Leigh Marks is a good example of Garland’s exceptionally poor approach. One of the best judges in America, on any court, including the Supremes, Marks is a proven fearless leader and extraordinary legal mind. Her victory at the Supremes in INS v. Cardoza-Fonseca, establishing the “well-founded-fear” international standards for asylum, is probably the Court’s most important humans rights’ case of the 20th Century. Her dynamic, inspiring leadership of the National Association of Immigration Judges has helped expose the grotesque shortcomings of EOIR @ DOJ while giving rise to the national movement for an Article I independent Immigration Court outside the DOJ.

I daresay that Judge Marks can “move” asylum cases through the system without tromping on anyone’s due process tights. She, and others like her, both currently in and outside the system, could set a new tone and lead the way toward a better, fairer future!

Too many of her fellow judges, and most members of the BIA not named Saenz, lack the expertise, experience, motivation, and courage to do that. So, cases like Ana’s, which actually might serve as positive precedents for documenting and granting other asylum cases, languish among Garland’s inconceivable backlog while other potentially grantable cases are unfairly pushed to the front of the line without attorneys, adequate preparation time, or accountability for judges programmed to deny rather than stand up for due process and asylum seekers’ legal rights! Much, but by no means all, of this predictably sloppy work product is returned by the Article IIIs for “redos,” thus adding to the backlog, chaos, and “institutionalized arbitrariness” of this approach to “justice!”

Judge Marks is an articulate, energetic experienced public spokesperson for immigration and court reform. She knows where the “bodies are buried” and the “deadwood stored” at EOIR; she has has actual solutions and ideas for addressing many problems now infecting our Immigration Courts. And, unlike past generations of EOIR bureaucrats and “go along to get along judges,” she has no fear and can’t be intimidated!

Judge Marks is already on the payroll. Garland could and should have tapped her on “Day One” to be part of a “Transitional Leadership Group” at EOIR to start “knocking heads and making long overdue due-process-driven changes” while Garland and his Team, with outside input, conducted an expedited emergency, merit-based process to recruit and replace the BIA and Senior Management at EOIR with a diverse team of progressive “practical scholars” as judges and dynamic, progressive, problem-solving leaders and administrators of the Immigration Courts. These sensible recommendations actually were made during the transition period, only to be totally ignored by Garland!

Instead, after a nearly a year, Garland’s tone deaf and dilatory (non)approach to EOIR reform has allowed the system’s continued disintegration, further undermined the credibility of his DOJ, demoralized and “de-enthused” potential supporters in the advocacy community, and continued to degrade and destroy human lives.

Ah, Yes, What Timing!

Just as I was posting this, my friend, Professor Lindsay Muir Harris at UDC Law published what I call the “Practical Scholars Compendium” to the missed opportunities that Garland and other members of “Biden’s Gang With Neither Vision Nor Moral Courage” have been compiling, as documented on Courtside and other blogs! See https://lawprofessors.typepad.com/immigration/2022/01/immigration-article-of-the-day-asylum-under-attack-by-lindsay-harris.html

Thing is, tough-minded, courageous, ethically-driven, “practical scholars” like Professor Harris, Professor Kit Johnson (who posted Harris’s article on ImmigrationProf Blog), and others like them could and should have been enticed by an “AG with a Plan” to join the BIA, serve on the trial bench at the Immigration Courts, or otherwise occupy key positions @ EOIR.

Like Judge Marks, these folks would put an end to “Aimless Docket Reshuffling,” the culture of mindless denial, the improper use of Immigration Courts as (failed) deterrence, and start holding the “main perpetrators” at EOIR and at DHS accountable for their disregard and disrespect for the quasi-judicial system. They would also know how to write and apply accessible “practical scholarly” precedents (written in plain English, rather than “opaque judicial gobbledygook”) that would fulfill our legal (not to mention moral) obligations to provide fair and generous treatment of vulnerable asylum seekers and others caught up in this now-disreputable and dysfunctional parody of a court system.

Instead, Garland has countenanced a continuation of “Clown Courts” 🤡 and “star chambers” ☠️ that have become contributing factors in the precipitous and perhaps fatal disintegration of democracy in America.

Star Chamber Justice — ”This is Stephen Miller’s perverted ‘vision of justice in Immigration Court!’ Why hasn’t Garland moved beyond it by bringing in the ‘best and brightest’ to reform his dysfunctional EOIR system?” “Justice”
Star Chamber
Style

Undoubtedly, the same White Nationalist “replacement theory” motivation that was behind Trump’s weaponization of the Immigration Courts is a driver of the overall anti-democracy movement on the right.

It’s a shame, that given at least a good shot at making a difference, Dems are too timid, distracted, and frankly, inept to pick off the “low hanging fruit” within their reach!

🇺🇸Due Process Forever! And, many thanks to Deepa for putting in the spotlight Garland’s disgraceful failure to lead and institute due process reforms in his dysfunctional, hopelessly backlogged, wholly-owned and unprofessionally operated Immigration “Courts.”

PWS

01-02-22

⚖️👨‍⚖️🤮 JUDICIAL SOPHISTRY AT ITS BEST! — 1ST CIRCUIT REAFFIRMS THAT GARLAND IS RUNNING AN UNCONSTITUTIONAL BOND SYSTEM @ EOIR THAT INFRINGES ON INDIVIDUAL FREEDOMS, BUT MANAGES TO “TALK ITSELF OUT OF” GRANTING EFFECTIVE INJUNCTIVE RELIEF! — Garland’s “Anti-Due Process” Stance “Makes My Point” Once Again!

http://media.ca1.uscourts.gov/pdf.opinions/20-1037P-01A.pdf

Brito v. Garland, 1st Cir., 12-29-21, published

KAYATTA, Circuit Judge. This class action presents a due process challenge to the bond procedures used to detain noncitizens during the pendency of removal proceedings under 8 U.S.C. § 1226(a), the discretionary immigration detention provision. In light of our recent decision in Hernandez-Lara v. Lyons, 10 F.4th 19 (1st Cir. 2021), we affirm the district court’s declaration that noncitizens “detained pursuant to 8 U.S.C. § 1226(a) are entitled to receive a bond hearing at which the Government must prove the alien is either dangerous by clear and convincing evidence or a risk of flight by a preponderance of the evidence.” Brito v. Barr, 415 F. Supp. 3d 258, 271 (D. Mass. 2019). We conclude, however, that the district court lacked jurisdiction to issue injunctive relief in favor of the class, and we otherwise vacate the district court’s declaration as advisory. Our reasoning follows.

. . . .

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

I can usually count on Garland to “punctuate” my points! See, e.g., https://immigrationcourtside.com/2021/12/29/%f0%9f%97%bd%e2%9a%96%ef%b8%8f-courtside-in-the-news-both-nolan-the-hill-kevin-immigrationprof-blog-highlight-my-blistering-analysis-of-bidens-first-year-immigration/

And, he didn’t disappoint, at least on that score!

No sooner was the ink dry on my last post, than Ol’ Merrick gave me a classic example of why come “panic time” next Fall, when the Dem bigwigs come knocking on the door asking their “old reliable” progressive base to open their pocketbooks and get out the vote, they might find that the windows are dark and nobody’s home! If you don’t exist for the first 19 months of a Dem Administration, it’s hard to see why you wouldn’t be “on vacation” for the next three!

If Dems want to continue as a viable force in American politics, at some point they will need leaders who recognize the difference between “political strategies” and “values.” Standing up for the human and due process rights immigrants and all other “persons” in the U.S. is the latter, not the former!

To reiterate Garland’s position in this and related cases:

No due process for immigrants;
Keep the “New American Gulag” full of non-dangerous individuals;
Promote wasteful litigation, inconsistency, and chaos in my wholly-owed Immigration Courts that continue to operate as if “Gauleiter Stephen” were still calling the shots, and clutter the Article IIIs with my poor work product.

Nice touch! (Although, to be fair, it’s the same regressive, anti-due process, racially tinged position taken by both the Obama Administration and the Trump regime.)

Seems like an Administration that claims to be litigating, to date not very successfully (surprised?), to vindicate the voting rights and civil rights of African-Americans, Latinos, and other minorities might want to rethink arguing for the “Dred Scottification” of migrants, primarily persons of color. Maybe, some right-wing Federal Judge will start citing Garland back to Garland to say that “all persons aren’t really persons.” Sounds like something Rudy would say on a Sunday talk show (except that nobody invites him any more).

Alfred E. Neumann — “Let’s see, if ‘humans’ are ‘persons,’ and ‘all persons’ have Constitutional rights to due process, then immigrants must not be ‘humans!’ Or, maybe we should argue that they are only 3/5 of a ‘person’ with half the rights! Chief Justice Taney would be. proud of me!”
PHOTO: Wikipedia Commons

And, if you are wondering what the 34 pages of opaque legal gobbledygook and all out assault on logic and the English language in the majority opinion means, I’ll simplify it.

“We think it’s reasonable and appropriate that you plaintiffs who admittedly have had your Constitutional rights systematically violated by your litigation opponent should be required to seek redress on a case-by-case basis before a dysfunctional ‘court’ wholly-owned, staffed, and operated by your opponent located within a Government bureaucracy that has been litigating against your Constitutional rights over three Administrations!”

There, you have it! 34 pages of intentionally impenetrable “judgespeak,” legalese, and doublespeak condensed to one sentence of fewer than 65 words!

Anybody (besides me) think that maybe, just maybe, there could be a Constitutional problem with “courts” owned and operated by a litigating party? Certainly seems above Garland’s pay grade to trifle with such trivialities, even when human lives and freedom are on the line.

Nope, better to just regurgitate the “Miller Lite” positions from the “restrictionists’ playbook” left behind by your Trumpy predecessors. And, for a good measure, why not even use some of their lawyers to argue them? But, strangely, those folks don’t seem to be very convincing when, on rare occasions, they are sent out to argue for more humane and reasonable treatment of immigrants! Perhaps their hearts, and heads, just aren’t in it.

My congrats to Circuit Judge Lipez (concurring and dissenting), the only one to actually get this one right and be able to explain it in understandable terms. When you have the right answer, you don’t have to obfuscate as much to cover up your fuzzy thinking (or lack thereof).

Gotta love it! Garland runs an unconstitutional bond system that infringes on individuals’ right to freedom, while improperly shoving those not accused of crimes into his “New American Gulag.” Yet, the panel manages to talk itself out of granting effective relief! Truly remarkable!

If the judges in the majority had actually practiced before the Immigration Courts they might know:

1) Bond cases are hard to appeal because the IJ isn’t required to provide a final rationale for his or her decision until after an appeal has been taken;

2) By regulation, bond hearings aren’t even required to be “on the record” (although many of us chose to nevertheless put them on the record for the convenience and protection all concerned);

3) The BIA has a “general practice” of not adjudicating bond appeals by respondents until after the detained merits hearing has taken place, whereupon the BIA finds the bond appeal to be “moot;”

4) OIL often encourages DHS to release individuals who sue in District Court to moot the case.

I’m sure that Garland’s BIA which has, on occasion, blown off the Supremes and declined to follow Circuit Court orders on remand, will promptly fashion a very well-reasoned progressive precedent vindicating respondents’ rights.

Then again, maybe they will just take whatever position that their “boss” Garland wants to litigate in behalf of his “partners” at DHS Enforcement.

What do you think Garland’s personally owned and operated courts will do?

Better Judges for a Better America — starting with the BIA! And, while you’re at it, how about throwing in an Attorney General committed to vindicating the legal and human rights of all persons!

So, NDPA, take up, the cudgel of justice and flood Garland’s courts and the Article IIIs with as many individual “exhaustion of remedies” cases as it takes to obtain justice or grind Garland’s corrupt system to a halt!

Garland would “rather fight than get it right.” So, take advantage of his limited litigation skills, tunnel vision, and the mediocre talent he employs to do his bidding. Take the fight to him, as he wishes!

Continually pummeling him in court is apparently the only way to get Garland to pay attention to progressives!

Additionally, you should, of course, keep applying for Immigration Judgeships, BIA Judgeships, Asylum Officer positions, and other key jobs where you can make a difference and save some lives.

Garland’s tone-deaf system must be attacked from all angles until it collapses under its own weight. An Attorney General who obviously would like to put migrants, their humanity, their rights, and YOU, their advocates, “out of sight, out of mind” so he can think great thoughts about the “really important things in life,” is eventually going to find that those he ignores and condemns without fair trial will be the ONLY thing on his plate and occupying his time!

When leadership lacks the vision, courage, and skills necessary to promote change, it falls to those at all levels of society and our justice system to assert the pressure and impetus for that essential change to take place! Keep pushing and pressing until “the powers that be” can’t ignore and marginalize you any more!

Vanita Gupta, Lucas Guttentag, and Kristin Clarke, what on earth do you do with yourselves all day long, now that you have removed yourselves from the battle for civil rights, equal justice, and racial justice in America? I guess there are lots of papers to push and meaningless meetings to attend in Garland’s broken DOJ bureaucracy.

I’d say things haven’t changed much. But, I actually think they have gotten measurably worse since “my days” at the DOJ. And, that’s saying a lot!

🇺🇸Due Process Forever, and Happy New Year!🥂

P 😎

🗽⚖️ “COURTSIDE” IN THE NEWS: BOTH NOLAN @ THE HILL & KEVIN @ IMMIGRATIONPROF BLOG HIGHLIGHT MY BLISTERING ANALYSIS OF BIDEN’S FIRST-YEAR IMMIGRATION POLICIES! — Garland’s Monumental EOIR Fail Writ Large Among “Underreported News” Of 2021 — Mishandling Of Immigration Courts Creates Key “Enthusiasm Gap” Among Progressives Heading Into 2022 Midterms!

https://thehill.com/opinion/immigration/587347-has-biden-kept-his-immigration-promises

Biden promised to establish a fair, orderly, and humane immigration system. Has he done it?

Paul Schmidt, a former chairman of the Board of Immigration Appeals, doesn’t think so. He claims that Biden could have established due process and the rule of law at the border and expanded refugee programs in potential sending countries but he didn’t, “preferring instead to use modified versions of ‘proven to fail deterrence-only programs’ administered largely by Trump-era holdovers and other bureaucrats insensitive to the rights, needs, and multiple motivations of asylum seekers.”

Predictably, nobody is pleased.

The problems Schmidt describes are not limited to the border and the treatment of asylum seekers. They are reflected in many of Biden’s other immigration measures too.

. . . .

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

https://lawprofessors.typepad.com/immigration/2021/12/has-biden-kept-his-immigration-promises.html

Nolan Rappaport for the Hill reports that Paul Schmidt, former chair of the Board of Immigration Appeals who now blogs at Immigration Courtside, does not think that President Biden has done enough on immigration. Schmidt claims that Biden could have established due process and the rule of law at the border and expanded refugee programs in potential sending countries but he didn’t, “preferring instead to use modified versions of ‘proven to fail deterrence-only programs’ administered largely by Trump-era holdovers and other bureaucrats insensitive to the rights, needs, and multiple motivations of asylum seekers.”

KJ

December 27, 2021 in Current Affairs | Permalink | Comments (0)

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

Thanks, guys! As I have told both of you, I really appreciate the huge contributions you have made to informing the public about this all-important, yet often misunderstood or “mythologized,” issue!

Following up on my last thought, I urge everyone to view this recent clip from “Face the Nation,” posted by Kevin on ImmigrationProf, in which reporter Ed O’Keefe succinctly and cogently explains how immigration is the “most underreported issue of 2021.” It’s fundamental to everything from COVID, to the economy, to voting rights, to racial justice, to climate change, to our position in the world.

https://lawprofessors.typepad.com/immigration/2021/12/the-most-neglected-story-of-2021-immigration.html

And, I say that the absolute dysfunctional mess that Garland has presided over in his broken and jaw-droppingly backlogged Immigration Courts is the most widely ignored, misunderstood, mishandled, and under-appreciated part of this under-reporting!

As an example of how even “mainstream liberal progressive pundits” get it wrong by not focusing on the spectacular adverse effects of Garland’s botched handling of the Immigration Courts, check out this article by Mark Joseph Stern over at Slate. https://apple.news/AvmEJc5V0RXa8hCgKICcTOA

Overlooking Garland’s disastrous mis-handling of his “wholly owned” U.S. Immigration Courts and the unparalleled “missed opportunity” to put more brilliant progressive judges on the Federal Bench is an all too common “blind spot” for progressive pundits. Mark Joseph Stern
Reporter, Slate

Stern does a “victory lap” over Biden’s 40 great Article III judicial appointments to the lower Federal Courts, closing with the astounding claim that: “Democrats are finally playing hardball with the courts.”

In truth, Dems are only belatedly starting to do what the GOP has been doing over four decades: Get your guys in the positions where they make a difference for better (Dems, in theory) or worse (GOP in practice).

Appointing a diverse, talented, progressive group of 40 out of 870 Article III Judges is an important, necessary, and long, long overdue start; but, it’s not going to make a cosmic difference overnight!

By contrast, there are about 550 Immigration Judges, the majority appointed by GOP restrictionist AGs, many with mediocre to totally inadequate credentials for the job. And, it shows in the consistently substandard performance and mistake-riddled, haphazard “jurisprudence” emanating from Garland’s EOIR.

The main qualifications for a number of these pedestrian to totally outrageous appointments appears to be willingness to carry out former GOP AGs’ restrictionist, nativist policies, or at least to adhere to the DOJ’s enforcement-oriented agenda, while ignoring, distinguishing, or downplaying the due process rights of migrants!

This is “complimented” by an appellate branch (the BIA) with about two dozen judges hand-selected or retained for notorious anti-immigrant records or willingness to “go along to get along” with the wishes of DHS Enforcement. The BIA turns out some truly horrible, almost invariably regressive, “precedents.” A number are so lacking in substance and coherent analysis that they are unceremoniously “stomped” by the Article IIIs despite limitations on judicial review and the travesty of so-called “Chevron deference” that serves as a grotesque example of Supremes-created “judicial task avoidance” by the Article IIIs.

From an informed Dem progressive perspective, it’s an infuriating, ongoing, unmitigated disaster! Only one BIA appellate judge, recently appointed “progressive practical scholar” Judge Andrea Saenz, would appear on any expert’s list of the “best and brightest” progressive legal minds in the field.

Unlike Article III Judges, who are life-tenured, EOIR Judges serve at the pleasure and discretion of the Attorney General and can be replaced and reassigned, including to non-quasi-judicial attorney positions, “at will.”

Starting with Attorney General John Ashcroft’s notorious “BIA Purge of ‘03,” GOP AGs haven’t hesitated to remove, transfer, “force out,” marginalize, demoralize, discourage from applying, or simply not select EOIR judges who stood for due process and immigrants’ rights in the face of nativist/restrictionist political agendas.

Yet, for eight years of the Obama Administration and now a year into the Biden Administration, Dem AGs have lacked the guts, awareness, and vision to fight back by “de-weaponizing” the regressive GOP-constructed Immigration Judiciary and recruiting replacements from among the “best and the brightest” among the “deep pool” of expert, intellectually fearless “progressive practical scholars.”

Not only that, but Dems have totally blown a unique opportunity to remake and establish the Immigration Judiciary not only as “America’s best judiciary” — a model for better Article IIIs — but also as a training ground for the diverse progressive judiciary of the future!

Even more significantly, tens of thousands of lives that should have been saved by an expert, due-process-oriented, racially sensitive judiciary have been, and continue to be, sacrificed on the alter of GOP nativism and Dem indifference to quality judging and human suffering in the Immigration Courts!

Compare the diverse, progressive backgrounds and qualifications of “Stern’s 40” with those on the totally underwhelming list of the most recent Garland “giveaways” of precious, life-determining Immigration Judge positions! See, e.g., https://www.justice.gov/eoir/page/file/1457171/download

Compare Garland’s regressive BIA with what could and should be if progressive practical scholars were “given their due:”https://immigrationcourtside.com/2021/12/18/⚖%EF%B8%8F🗽🇺🇸courts-justice-courtside-proudly-announces-the-dream-bia-its-out-there-even-if-garland/

The progressive talent is definitely out there to change the trajectory of the Immigration Courts for the better! Garland’s failure to inspire, recruit, appoint, and tout the “best and brightest” in American law for his Immigration Courts is a horrible “whiff” with disturbing national and international implications!

Article III Federal Courts deal with the mundane as well as the profound. By contrast, lives and futures are on the line in every single Immigration Court case! Often effective judicial review of EOIR’s haphazard, widely inconsistent, unprincipled, and one-sided decisions is unavailable, either as a legal or practical matter. The exceptionally poor performance of the Immigration Courts that continues under Garland threatens the underpinnings of our entire justice system and American democracy!

Right now, Garland’s broken system has a largely self-created 1.5+ million case ever-expanding backlog! At a very conservative estimate of four family members, co-workers, employees, employers, students, co-religionists, neighbors, and community members whose lives are intertwined with each of those stuck in Garland’s hopelessly broken, biased, and deficient system, at least 6 million American lives hang in the balance — twisting in the wind among Garland’s “backlog on steroids!” Yet, amazingly, it’s “below the radar screen” of Stern and other leading progressive voices!

I doubt that any Federal Court in America, with the possible exception of the Supremes, holds as many human lives and futures in its hands. Not to mention that “dehumanization” and “Dred Scottification” of the other in Immigration Court drifts over into the Article III Courts on a regular basis. Once you start viewing one group of humans as “less than persons” under the Constitution, it’s easy to add others to the “de-personification” process.

Yet, Garland cavalierly treats the Immigration Courts as just another mundane piece of his reeling bureaucratic mess at the DOJ. The long overdue and completely justified “housecleaning” at Trump’s anti-democracy insurrectionist regime seems far from Garland’s serenely detached mind!

For Pete’s sake, even ICE Special Agents understand the need to “rebrand” themselves by escaping the inept and disreputable ICE bureaucracy left over from Trump:

They say their affiliation with ICE’s immigration enforcement role is endangering their personal safety, stifling their partnerships with other agencies and scaring away crime victims, according to a copy of the report provided to The Washington Post.

https://www.washingtonpost.com/national-security/hsi-ice-split/2021/12/28/85dc6c66-61ad-11ec-8ce3-9454d0b46d42_story.html

But, Garland doesn’t understand the well-deserved toxic reputation of EOIR among legal experts? Gimme a break!

Garland also stands accountable for his spineless failure to insist on a dismantling of the bogus, illegal, immoral, and ultimately ineffectual Title 42 abomination at the Southern Border and an immediate return to the rule of law for asylum seekers.

Unless and until the Dems get serious about gutsy, radical progressive reforms of the Immigration Courts, the downward spiral of American justice will continue! Lives will be lost, and many of those who helped put Dems in power will be pissed off and “de-motivated” going into the midterms. That’s a really bad plan for Dems and for America’s future!

As Dems’ hopes of achieving meaningful Article III judicial reforms predictably are stymied, their inexcusable failure to reform and improve the Immigraton Courts that belong to them becomes a gargantuan, totally unnecessary “missed opportunity!” Talk about “unforced error!” See, e.g., https://www.washingtonpost.com/nation/2021/12/28/supreme-court-term-limits/

If Dems suffer an “enthusiasm gap” among their key progressive base going into the key 2022 midterms, they need look no further than Garland’s tone-deaf and inept failure to bring long overdue and readily achievable progressive personnel, procedural, management, and substantive reforms to his dysfunctional Immigration Courts. That — not a false sense of achievement — should have been the “headliner” for Stern and other progressive voices!

“Expedience over excellence, enforcement over equity, gimmicks over innovation is good enough for Government work!” — The “vision” for Garland’s EOIR! But, progressive experts aren’t buying his “tunnel vision.”
PHOTO: Thomas Hawk
Creative Commons
Amateur Night

🇺🇸Due Process Forever!

PWS

12-29-21

👍🏼⚖️🗽MAJORITY OF ASYLUM SEEKERS WIN THEIR CASES, EVEN IN A BROKEN & BIASED SYSTEM INTENTIONALLY STACKED AGAINST THEM — But, Only, If They Can Get To A “Merits Adjudication!” — Nativist Lies, Myths, Driving USG Policies Exposed! — Why USCIS & EOIR Self-Created Backlogs Primarily Shaft Those Deserving Legal Protection Of Some Type!

The “Gauleiter”s” policies of “transportation” of legal asylum seekers to danger zones or death has, to a totally unacceptable extent, been adopted by the Biden Administration. America’s cowardly, immoral, illegal, and unethical treatment of these vulnerable individuals will haunt our nation for generations to come! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

https://trac.syr.edu/immigration/reports/672/

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

. . . .

Completed Asylum Cases and Outcomes

Asylum grant rates have often been the focus of public attention and discussion. An implicit assumption is often made that if the immigrants’ asylum applications are denied that they have been unsuccessful in their quest to legally remain in the U.S. However, this may not always be the case. In addition to asylum, there are often other avenues for relief, and other types of decisions where the Immigration Court can determine that an individual should be allowed to legally remain in the U.S. This report breaks new ground in empirically documenting just how often asylum seekers’ quests to legally remain in the U.S. have been successful.

According to case-by-case records of the Immigration Courts, Immigration Judges completed close to one million cases (967,552) on which asylum applications had been filed during the last 21 years (October 2000 – September 2021). Of these, judges granted asylum to 249,413 or one-quarter (26%) of these cases.

However, only about half of asylum seekers were ordered deported. More specifically, just 42 percent received removal orders or their equivalent,[4] and an additional 8 percent received so-called voluntary departure orders. These orders require the asylum seekers to leave the country, but unlike removal orders voluntary departure orders do not penalize individuals further by legally barring them for a period of years from reentry should their circumstances change.

The remaining one-quarter (24%) of asylum seekers were granted other forms or relief or Immigration Judges closed their cases using other grounds which allowed asylum seekers to legally remain in the country.[5] When this proportion is added to asylum grant rates, half of asylum seekers in Immigration Court cases — about twice the individuals granted asylum — have been successful in their quest to legally remain in the United States at least for a period of time. See Figure 5.

Figure 5. Outcome of U.S. Asylum Applications, October 2000 – September 2021

(Click for larger image)

Focusing on just Immigration Court asylum cases, however, does not take into consideration asylum seekers who have asylum granted by Asylum Officers from the United States Citizenship and Immigration Services (USCIS). Those cases end there with the asylum grant. Only unsuccessful cases are forwarded to the Immigration Court for review afresh, and thus included in the Immigration Court’s records. These referrals of asylum denials by USCIS Asylum Officers are classified in the Court’s records as affirmative asylum cases,[6] to distinguish them from those that start with DHS seeking a removal order from the Immigration Court and the asylum claim being raised as a defense against removal.

Thus, a more complete picture of asylum seekers to the U.S. would add in the asylum grants by USCIS on these affirmative cases. Over the period since October 2000, the total number of asylum grants totals just under 600,000 cases – more than double the asylum grants by Immigration Judges alone.[7] Asylum Officers granted asylum in just over 350,000 cases, while Immigration Judges granted asylum in an additional close to 250,000 cases. See Tables 5a and 5b.

Asylum grants thus make up almost half (46%) of the outcomes on the total number of 1.3 million cases closed in which asylum applications were filed. An additional one in five (18%) were granted some other form of relief or otherwise allowed to legally remain in the U.S. Thus, almost two-thirds (64%) of asylum seekers in the 1.3 million cases which were resolved have been successful over the past two decades.

Figure 5 above presents a side-by-side comparison of asylum case outcomes when examining Immigration Court completions alone, and how outcome percentages shift once Asylum Officers’ asylum grants are combined with decisions made by Immigration Judges.

. . . .

Outcome on Asylum Cases Number Percent**

IJ Outcome on Asylum Cases

Asylum Granted by IJ 249,413 26%

Other Relief, etc. 236,889 24%

Removal Order 403,252 42%

Voluntary Departure Order 77,998 8%

Total IJ Asylum Completions 967,552 100%

USCIS + IJ Outcome on Asylum Cases

Asylum Granted by USCIS+IJ 599,772 46%

Other Relief, etc by IJ 236,889 18%

Removal Order by IJ 403,252 31%

Voluntary Departure Order by IJ 77,998 6%

USCIS + IJ Asylum Completions 1,317,911 100%

. . . .

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

Read the complete TRAC report, containing all the graphs and charts that I could not adequately reproduce, at the link.

Applying the 50% “granted protection of some type” rate in Immigration Court to the ever expanding backlog of 667,000 asylum cases in Garland’s dysfunctional EOIR, that means that there are at least 333,000 asylum seekers who should be “out of Garland’s backlog” and legally living, working, and/or studying in the U.S., probably over 165,000 of whom should be on the way to green cards, citizenship, or already citizens in a functional system!

And, the TRAC-documented success rate has been achieved in a system that has been designed with bias to deter and discourage asylum seekers with mediocre, or even hostile, judges, a BIA that lacks asylum expertise and turns out incorrect restrictionist precedents, and administrative leadership that specializes in ineptitude, toadyism, and mindless “aimless docket reshuffling.”

Obviously, the “get to stay” rate would be much higher with better-qualified, better-trained, merit-selected judges, guided and kept in line by a BIA of America’s best and brightest appellate judges with proven expertise in asylum, immigration, human rights, due process, and racial justice, and dynamic, inspiring, well-qualified leadership. For a great example of what “could have been” with a better AG, see, e.g., https://immigrationcourtside.com/2021/12/18/%e2%9a%96%ef%b8%8f%f0%9f%97%bd%f0%9f%87%ba%f0%9f%87%b8courts-justice-courtside-proudly-announces-the-dream-bia-its-out-there-even-if-garland/.

Better problem-solving-focused judicial leadership at EOIR could come up with innovative ways of screening and getting the many aged, grantable cases of asylum seekers and other migrants (cancellation of removal, SIJS, and “stateside processing” come to mind) out of the Immigration Court backlog and into an alternative setting where relief could granted more efficiently. For the most part, there is no useful purpose to be served by keeping cases more than three years old on the Immigration Court docket.

The Immigration Courts must work largely in “real time” with real judges who can produce consistent, fair results on a predictable timetable. Big parts of that are increasing competent representation, providing better legal guidance on recognizing and promptly granting meritorious cases (that, significantly, would also guide the USCIS Asylum Office), and standing up to efforts by DHS Enforcement to overwhelm judicial resources and use Immigration Courts to “warehouse and babysit” the results of their own mismanagement and misdirection of resources.

There’s no chance that Garland (based on inept and disinterested performance to date, and his near total lack of awareness and urgency) and the crew, largely of Sessions/Barr holdovers, currently comprising his EOIR can pull it off. That’s a monumental problem for migrants and American justice generally!

Without an AG with the guts, determination, expertise, and vision to “clean house” at EOIR and DOJ, or alternatively, a Congress that takes this mess out of the DOJ and creates a real Article I Immigration Court system, backlogs, fundamental unfairness, and incompetence at EOIR will continue to drag down the American legal system.

Worthy of note: The TRAC stats confirm the generally held belief that those asylum seekers held in detention (the “New American Gulag” or “NAG”) are very significantly less likely to be granted relief than those appearing in a non-detained setting. But, what would be helpful, perhaps a task for “practical scholars” somewhere, would be to know “why.”

Is it because the cases simply are not a strong, because of criminal backgrounds or otherwise? Or, is it because of the chronic lack of representation, intentional coercion, and generally less sympathetic judges often present in detention settings? Or, as is likely, is it some combination of all these factors?

Also worthy of note: Three major non-detained courts, with approximately 31,000 pending asylum cases, had success rates significantly below (20% or more) the national average of 50%:

Houston (19%)
Atlanta (29%)
Harlingen (24%)

On the “flip side,” I was somewhat pleasantly surprised to see that the oft-criticized El Paso Immigration Court (non-detained) had a very respectable 48% success rate — a mere 2% off the national average! Interesting!

Also worthy of watching: Although based on a tiny, non-statistically-valid sampling (2% of filed asylum cases), Houston-Greenspoint had a 53% grant rate, compared with “Houston non-detained’s” measly 19%. If this trend continues — and it well might not, given the very small sample — it would certainly be worthy knowing the reasons for this great disparity.

In addition to “giving lie” to the bogus claims, advanced mostly by GOP nativists, but also by some Dems and officials in Dem Administrations, that most asylum seekers don’t have valid claims to remain, the exact opposite appears to be true! Keeping asylum seekers from getting fair and timely dispositions of their cases hurts them at least as much, probably more, than any legitimate Government interest.

Moreover, it strongly suggests that hundreds of thousands of legitimate asylum seekers with bona fide claims for protection have been illegally and immorally returned to danger or death without any semblance of due process under a combination of a bogus Title 42 rationale and an equally bogus “Remain in Mexico” travesty. It should also prompt some meaningful evaluation of the intellectual and moral failings of Administrations or both parties, poorly-qualified Article III judges, and legislators who have encouraged, enforced, or enabled these “crimes against humanity” — and the most vulnerable in humanity to boot!

🇺🇸 Due Process Forever!

PWS

12-24-21

☠️🤮 “TEFLON MERRICK” — GROTESQUE DUE PROCESS MELTDOWN @ GARLAND’S EOIR CONTINUES UNABATED, WHILE AG AVOIDS ACCOUNTABILITY — 3RD CIR. CASTIGATES GARLAND’S BIASED & INCOMPETENT “STAR CHAMBERS” — “It is more akin to the argument of an advocate than the impartial analysis of a quasi-judicial agency.”

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca3-slams-ij-bia-nsimba-v-atty-gen#

CA3 Slams IJ, BIA: Nsimba v. Atty. Gen.

Nsimba v. Atty. Gen.

“Bob Lupini Nsimba petitions for review of a December 8, 2020 decision of the Board of Immigration Appeals affirming the Immigration Judge’s denial of his application for asylum. In affirming that decision, the BIA misapplied and misinterpreted controlling precedent and imposed requirements on those seeking relief that would require petitioners to first endure torture or arrest. Accordingly, for the reasons that follow, we will grant the petition for review, vacate the ruling of the BIA and remand for further proceedings consistent with this opinion.”

[You MUST read the entire opinion; the panel really goes to town on the IJ and the BIA. Hats off to Valentine Brown!]

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

Not news for anyone who (unlike Garland) has even passing familiarity with the daily mockery of justice being carried out by Garland’s “wholly-owned bogus ‘court’ system.” These AREN’T aberrations or isolated incidents! They are “business as usual” in Garland’s totally dysfunctional and out of control Immigration “Courts.”

These aren’t “courts;” they are “adjuncts of DHS enforcement, masquerading as courts,” redesigned as such by Sessions and Barr with Stephen Miller’s influence and enabled to continue their disgraceful degradation of American justice by Garland!

DRC cases, if credible and documented, should be “slam dunk grants of asylum.” They could be put on the “30 minute docket.” Instead, EOIR has been allowed and encouraged to engage in this type of obscene, dilatory nonsense, with obvious racial overtones.

This case is a microcosm of how EOIR and the DOJ have built astounding due process denying backlog! The solution is NOT more Immigration Judges! It’s better Immigration Judges.

Congrats to NDPA Star Valentine Brown!

Obviously Garland has neither standards nor any shame!

Dishonest, biased, and incompetent decisions like this should long ago have resulted in the removal from the BIA and reassignment of the BIA “judge(s)” involved.

When are the Circuits going to catch on that this entire charade is a grotesque denial of due process, pull the plug, and hold Garland accountable for this unconstitutional (not to mention unethical) degradation of American justice?

BIA judges and EOIR judges AREN’T Article IIIs, and they DON’T have life tenure in their particular jobs.

When are Dems in both Houses going to start demanding accountability and competence from Garland? How long are the Article IIIs going to allow this mind-boggling misfeasance that materially affects millions of lives in America, and squanders an unconscionable amount of legal resources, to continue before finally “pulling the plug” on Garland’s “quasi-judicial farce?”

🇺🇸Due Process Forever!

PWS

12-23-21

Outcome on Asylum Cases	Number	Percent**
IJ Outcome on Asylum Cases
Asylum Granted by IJ	249,413	26%
Other Relief, etc.	236,889	24%
Removal Order	403,252	42%
Voluntary Departure Order	77,998	8%
Total IJ Asylum Completions	967,552	100%
USCIS + IJ Outcome on Asylum Cases
Asylum Granted by USCIS+IJ	599,772	46%
Other Relief, etc by IJ	236,889	18%
Removal Order by IJ	403,252	31%
Voluntary Departure Order by IJ	77,998	6%
USCIS + IJ Asylum Completions	1,317,911	100%

Maria Sacchetti & Sean Sullivan report for WashPost:

🇺🇸Due Process Forever!

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From Dan Kowalski @ LexisNexis:

🇺🇸Due Process Forever!

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En Banc CA1 Credibility Remand: Diaz Ortiz v. Garland

And here’s one sent in by Round Table leader and scholarly blogger Judge “Sir Jeffrey” S. Chase:

Takwi v. Garland, 10th Cir., 01-10-22, published

Just for a good measure, the 9th Circuit also “busted” Garland’s BIA on an agfel issue:

CA9 on AgFel: Togonon v. Garland

Go NDPA!

🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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By Paul Wickham Schmidt

Courtside Exclusive

Jan. 9, 2022

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Garcia Cabrera v. Garland, 4th Cir., 01-06-21, published

🇺🇸Due Process Forever!

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🇺🇸 Due Process Forever!

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Tyche Hendricks reports for KQED:

🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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Deepa Fernandes reports for the SF Chron:

Ah, Yes, What Timing!

🇺🇸Due Process Forever! And, many thanks to Deepa for putting in the spotlight Garland’s disgraceful failure to lead and institute due process reforms in his dysfunctional, hopelessly backlogged, wholly-owned and unprofessionally operated Immigration “Courts.”

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🇺🇸Due Process Forever, and Happy New Year!🥂

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Completed Asylum Cases and Outcomes

🇺🇸 Due Process Forever!

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🇺🇸Due Process Forever!

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