TRASVINA RESTORES “PD” @ ICE; 6TH CIR. REJECTS CASTRO-TUM! BUT GARLAND’S FAILURES @ EOIR CONTINUE TO HAMPER BIDEN ADMINISTRATION, CAUSE CONFUSION, INCREASE BACKLOGS! — “In performing their duties, including through implementation of this memorandum, OPLA attorneys should remain mindful that ‘[i]mmigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done.’”

John D. Trasvina
Principal Legal Adviser
ICE — Finally, some common sense, practical scholarship, leadership, and “good government” from someone in the Biden Administration’s Senior Immigration Team! Not surprisingly, it’s from one of the few who has actually “walked the walk” on the relationship between racial justice and immigrants’ rights. He appears to be the “right person” for ICE. Would he have been a better choice to clean up the mess at DOJ?
PHOTO: Wikipedia

https://www.ice.gov/doclib/about/offices/opla/OPLA-immigration-enforcement_interim-guidance.pdf

MEMORANDUM FOR: FROM:

SUBJECT:

May 27, 2021 All OPLA Attorneys

John D. Trasvifia Principal Legal Advisor

JOHN D TRASVINA

DigitallysignedbyJOHN0 TRASVINA

Date:2021.05.27 07:04:19 -07’00’

Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities

On January 20, 2021, President Biden issued Executive Order (EO) 13993, Revision ofCivil Immigration Enforcement Policies and Priorities, 86 Fed. Reg. 7051 (Jan. 20, 2021), which articulated foundational values and priorities for the Administration with respect to the enforcement of the civil immigration laws. On the same day, then-Acting Secretary ofHomeland Security David Pekoske issued a memorandum titled, Review o fand Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities (Interim Memorandum).

The Interim Memorandum did four things. First, it directed a comprehensive Department of Homeland Security (DHS or Department)-wide review of civil immigration enforcement policies. Second, it established interim civil immigration enforcement priorities for the Department. Third, it instituted a 100-day pause on certain removals pending the review. Fourth, it rescinded several existing policy memoranda, including a prior U.S. Immigration and Customs Enforcement (ICE) Office ofthe Principal Legal Advisor (OPLA) memorandum, as inconsistent with EO 13993.2 The Interim Memorandum further directed that ICE issue interim guidance implementing the revised enforcement priorities and the removal pause.

On February 18, 2021, ICE Acting Director Tae D. Johnson issued ICE Directive No. 11090.1,

1

On January 26, 2021, a federal district court issued a temporary restraining order (TRO) enjoining DHS and its components from enforcing and implementing Section C ofthe interim Memorandum titled, Immediate JOO-Day Pause on Removals. See Texas v. United States, — F. Supp. 3d —, 2021 WL 247877 (S.D. Tex. 2021); see also Texas v. United States, 2021 WL 411441 (S.D. Tex. Feb. 8, 2021) (extending TRO to February 23, 2021). On February 23, 2021 , the district court issued an order preliminarily enjoining DHS from “enforcing and implementing the policies described in … Section C.” Texas v. United States, 2021 WL 723856 (S.D. Tex. Feb. 23, 2021). In light of the expiration of the 100-day period described in Section C, that case has been dismissed as moot. Similarly, in light ofthe preliminary injunction, and the fact that the 100-day period described in the Interim Memorandum has now expired, this interim OPLA guidance does not implement Section C of the Interim Memorandum.

2 The Interim Memorandum revoked, as inconsistent with EO 13993, the memorandum from former Principal Legal Advisor Tracy Short, Guidance to OPLA Attorneys Regarding the Implementation ofthe President’s Executive Orders and the Secretary’s Directives on Immigration Enforcement (Aug. 15, 2017). OPLA attorneys should no longer apply that prior guidance.

FOR OFFICIAL USE ONLY

Office o fthe Principal Legal Advisor

U.S. Department of Homeland Security 500 12th Street, SW

Washington, DC 20536

U.S. Immigration

and Customs Enforcement

www.1ce.gov

1

OPLA Guidance Regarding Civil Immigration Enforcement and Removal Policies and Priorities Page 2 of 13

Interim Guidance: Civil Immigration Enforcement and Removal Priorities (Johnson Memorandum). And, on May 27, 2021, Acting General Counsel Joseph B. Maher issued a memorandum titled, Implementing Interim Civil Immigration Enforcement Policies and Priorities (Maher Memorandum). In accordance with these memoranda, and pending the outcome of the Secretary’s review and any resulting policy guidance, I am providing this additional interim direction to OPLA attorneys to guide them in appropriately executing the Department’s and ICE’s interim enforcement and removal priorities and exercising prosecutorial discretion.

Prosecutorial discretion is an indispensable feature of any functioning legal system. The exercise ofprosecutorial discretion, where appropriate, can preserve limited government resources, achieve just and fair outcomes in individual cases, and advance the Department’s mission of administering and enforcing the immigration laws ofthe United States in a smart and sensible way that promotes public confidence. In performing their duties, including through implementation ofthis memorandum, OPLA attorneys should remain mindful that “[i]mmigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done.” 3 As a result, they are both authorized by law and expected to exercise discretion in accordance with the factors and considerations set forth in the Interim Memorandum, the Johnson Memorandum, the Maher Memorandum, and in this guidance at all stages of the enforcement process and at the earliest moment practicable in order to best conserve prosecutorial resources and in recognition o f the important interests at stake.

I. Enforcement and Removal Priority Cases

The Johnson Memorandum identifies three categories of cases that are presumed to be enforcement and removal priorities for ICE personnel. Subject to preapproval from supervisory personnel, other civil immigration enforcement or removal actions also may be deemed priorities. OPLA attorneys assigned to handle exclusion, deportation, and removal proceedings are directed to prioritize agency resources consistent with those presumed priorities and other matters approved as priorities under the Johnson Memorandum or by their Chief Counsel. The presumed priority categories are:

1. NationalSecurity.Noncitizens.4 whohaveengagedinoraresuspectedof

3 Matter ofS-M-J-, 21 l&N Dec. 722, 727 (BIA 1997) (en bane). In remarks delivered at the Second Annual Conference of United States Attorneys more than 80 years ago, Attorney General Robert H. Jackson said, “[n]othing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor. Your positions are ofsuch independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just Although the government technically loses its case, it has really won ifjustice has been done.” Robert H. Jackson, The Federal Prosecutor, 24 J. AM. JUD. Soc’Y 18, 18-19 (1940).

4 Consistent with ICE guidance, this memorandum uses the word “noncitizen” to refer to individuals described in section 10l(a)(3) ofthe Immigration and Nationality Act (INA). See Memorandum from Tae Johnson, ICE Acting Director, Updated Terminologyfor Communications and Materials (Apr. 19, 2021). OPLA attorneys should familiarize themselves with this ICE guidance and use the appropriate terminology set forth therein when engaged in outreach efforts, drafting internal documents, and communicating with stakeholders, partners, and the general

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ten-orism or espionage or terrorism-related or espionage-related activities, or whose apprehension, arrest, or custody, is otherwise necessary to protect the national security ofthe United States..5

2. Border Security. Noncitizens who were apprehended at the border or a port ofentry while attempting to unlawfully enter the United States on or after November 1, 2020, or who were not physically present in the United States before November 1, 2020.

3. Public Safety. Noncitizens who have been convicted of an “aggravated felony,” as that term is defined in section 101(a)(43) of the Immigration and Nationality Act (INA), or who have been convicted ofan offense for which an element was active pa1ticipation in a criminal street gang, as defined in

18 U.S.C. § 52 l(a), or who are not younger than 16 years of age and intentionally participated in an organized criminal gang or transnational criminal organization to further the illegal activity ofthe gang or transnational criminal organization; and are determined to pose a threat to public safety.6

Neither the presumed priorities nor the guidance regarding other priority cases subject to preapproval are intended to require or prohibit taking or maintaining a civil immigration enforcement or removal action against any individual noncitizen. Rather, OPLA attorneys are expected to exercise their discretion thoughtfully, consistent with ICE’s important national security, border security, and public safety mission. Civil immigration enforcement and removal efforts involving a noncitizen whose case fits within the three areas just listed are presumed to be a justified allocation ofICE’s limited resources. Enforcement and removal efforts may also be

justified in other cases, under appropriate circumstances. 7 Prioritization of finite agency

public. Formal legal terminology (e.g., “alien,” “alienage”) should continue to be used by OPLA attorneys when appearing before judicial and quasi-judicial tribunals, and when quoting or citing to sources of legal authority or other official documents like immigration forms.

5 For purposes of the national security presumed enforcement priority, the tenns “terrorism or espionage” and “terrorism-related or espionage-related activities” should be applied consistent with (I) the definitions of”terrorist activity” and “engage in terrorist activity” in section 212(a)(3)(B)(iii)-(iv) of the INA, and (2) the manner in which the term “espionage” is generally applied in the immigration laws. In evaluating whether a noncitizen’s “apprehension, arrest, and/or custody, or removal is otherwise necessary to protect” national security, officers and agents should determine whether a noncitizen poses a threat to United States sovereignty, territorial integrity, national interests, or institutions. General criminal activity does not amount to a national security threat.

6 In evaluating whether a noncitizen currently “pose[s] a threat to public safety,” consideration should be given to the extensiveness, seriousness, and recency ofthe criminal activity, as well as to mitigating factors, including, but not limited to, personal and family circumstances, health and medical factors, ties to the community, evidence of rehabilitation, and whether the individual has potential immigration relief available. See Johnson Memorandum at 5.

7 As reflected in the Johnson Memorandum, Field Office Director (FOD) or Special Agent in Charge (SAC) approval is generally required in advance ofcivil immigration enforcement or removal actions taken by ICE officers and agents in cases other than presumed priority cases. Where exigent circumstances and public safety concerns make it impracticable to obtain pre-approval for an at-large enforcement action (e.g., where a noncitizen poses an imminent threat to life or an imminent substantial threat to property), approval should be requested within 24 hours following the action. See Johnson Memorandum at 6.

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resources is a consideration in all civil immigration enforcement and removal decisions, including but not limited to the following:

• Deciding whether to issue a detainer, or whether to assume custody of a noncitizen subject to a previously issued detainer;

• Deciding whether to issue, reissue, serve, file, or cancel a Notice to Appear (NTA);

• Deciding whether to focus resources only on administrative violations or conduct;

• Deciding whether to stop, question, or arrest a noncitizen for an administrative violation of the civil immigration laws;

• Deciding whether to detain or release from custody subject to conditions or on the individual’s own recognizance;

• Deciding whether to settle, dismiss, oppose or join in a motion on a case, narrow the issues in dispute through stipulation, or pursue appeal in removal proceedings;

• Deciding when and under what circumstances to execute final orders of removal; and

• Deciding whether to grant defe1Ted action or parole.

This non-exhaustive list ofcivil immigration enforcement and removal decisions identifies opportunities at every stage ofthe process to ensure the most just, fair, and legally appropriate outcome, whether that outcome is a grant of relief, an order of removal, or an exercise of discretion that allows the noncitizen to pursue immigration benefits outside the context of removal proceedings. This memorandum provides interim guidance regarding the following enforcement decisions within OPLA’s purview: filing or canceling an NTA; moving to administratively close or continue proceedings; moving to dismiss proceedings; pursuing appeal;

joining in a motion to grant reliefor to reopen or remand removal proceedings and entering stipulations; and taking a position in bond proceedings, as discussed below..8 While discretion may be exercised at any stage of the process and changed circumstances for an individual denied prosecutorial discretion at one stage may warrant reconsideration at a later stage, discretion generally should be exercised at the earliest point possible, once relevant facts have been established to properly inform the decision.

8 While resources should be allocated to the presumed priorities enumerated above, “nothing in [the Interim M]emorandum prohibits the apprehension or detention ofindividuals unlawfully in the United States who are not identified as priorities herein.” Interim Memorandum at 3. See also Johnson Memorandum at 3 (“[J]t is vitally important to note that the interim priorities do not require or prohibit the atTest, detention, or removal ofany noncitizen.”); Maher Memorandum at 3 (“Neither the presumed priorities nor the guidance regarding other priority cases subject to preapproval are intended to require or prohibit taking or maintaining a civil immigration enforcement action against an individual noncitizen.”). OPLA may dedicate its resources to pursuing enforcement action against a noncitizen who does not fall into one of the presumed enforcement priorities where the FOD or SAC has approved taking enforcement action in the case, where the NTA-issuing agency has exercised its own discretion to prioritize the noncitizen for enforcement under the Interim Memorandum, or where the ChiefCounsel, in their discretion, decides that OPLA resources should be committed to the case.

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This memorandum is intended to provide guidance pending completion ofthe DHS-wide comprehensive review of civil immigration enforcement and removal policies and practices contemplated in the Interim Memorandum. To that end, additional guidance will be fo1thcoming.

II. Prosecutorial Discretion

OPLA will continue to fulfill its statutory responsibility as DHS’s representative before the Executive Office for Immigration Review (EOIR) with respect to exclusion, deportation, and removal proceedings. See 6 U.S.C. § 252(c). In that capacity, prosecutorial discretion plays an important role in OPLA’s enforcement decision making. The following general guidance on prosecutorial discretion should inform how OPLA attorneys apply the enforcement priorities of DHS and ICE.

OPLA attorneys may exercise prosecutorial discretion in proceedings before EOIR, subject to direction from their chain ofcommand and applicable guidance from DHS. In exercising such discretion, OPLA attorneys will adhere to the enduring principles that apply to all o f their activities: upholding the rule oflaw; discharging duties ethically in accordance with the law and professional standards of conduct; following the guidelines and strategic directives of senior leadership; and exercising considered judgment and doing justice in individual cases, consistent with DHS and ICE priorities.

Prosecutorial discretion is the longstanding authority o f an agency charged with enforcing the law to decide where to focus its resources and whether or how to enforce, or not to enforce, the law against an individual. In the context of OPLA’s role in the administration and enforcement of the immigration laws, prosecutorial discretion arises at different stages of the removal process, takes different forms, and applies to a variety ofdeterminations. As the Supreme Court explained more than two decades ago when discussing the removal process, “[a]t each stage the Executive has discretion to abandon the endeavor . . . .”.9

OPLA’s policy is to exercise prosecutorial discretion in a manner that furthers the security ofthe United States and the faithful and just execution ofthe immigration laws, consistent with DHS’s and ICE’s enforcement and removal priorities. While prosecutorial discretion is not a formal program or benefit offered by OPLA, OPLA attorneys are empowered to exercise prosecutorial discretion in their assigned duties consistent with this guidance. Among other decisions, the exercise of discretion also generally includes whether to assign an attorney to represent the department in a particular case. See 8 C.F.R. § 1240.2(b) (creating expectation that DHS will assign counsel to cases involving mental competency, noncitizen minors, and contested removability, but that otherwise, “in his or her discretion, whenever he or she deems such assignment necessary or advantageous, the General Counsel may assign a [DHS] attorney to any other case at any stage of the proceeding”) (emphasis added). OPLA Chief Counsel are permitted to exercise this discretion on my behalf, in appropriate consultation with their chain of command.

In determining whether to exercise prosecutorial discretion, OPLA should consider relevant aggravating and mitigating factors. Relevant mitigating factors may include a noncitizen’s length

9 Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 47 1, 483-84 ( 1999). FOR OFFICIAL USE ONLY

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of residence in the United States; service in the U.S. military; family or community ties in the United States; circumstances ofarrival in the United States and the manner oftheir entry; prior immigration history; current immigration status (where lawful permanent resident (LPR) status generally warrants greater consideration, but not to the exclusion ofother noncitizens depending on the totality ofthe circumstances); work history in the United States; pursuit or completion of education in the United States; status as a victim, witness, or plaintiff in civil or criminal proceedings; whether the individual has potential immigration relief available; contributions to the community; and any compelling humanitarian factors, including poor health, age, pregnancy, status as a child, or status as a primary caregiver ofa seriously ill relative in the United States. Relevant aggravating factors may include criminal history, participation in persecution or other human rights violations, extensiveness and seriousness ofprior immigration violations (e.g., noncompliance with conditions of release, prior illegal entries, removals by ICE), and fraud or material misrepresentation. Where a criminal history exists, OPLA should consider the extensiveness, seriousness, and recency ofthe criminal activity, as well as any indicia of rehabilitation; extenuating circumstances involving the offense or conviction; the time and length ofsentence imposed and served, ifany; the age ofthe noncitizen at the time the crime was committed; the length oftime since the offense or conviction occurred; and whether subsequent criminal activity supports a determination that the noncitizen poses a threat to public safety. These factors are not intended to be dispositive or exhaustive. Discretion should be exercised on a case-by-case basis considering the totality ofthe circumstances.

Requests for prosecutorial discretion may be made in accordance with the instructions provided in Section IX of this guidance. Where a request for prosecutorial discretion is made, the OPLA attorney handling the case must document that request in PLAnet, identifying the requester and the substance of the request and uploading any supporting documentation consistent with standard operating procedures (SOPs). 10 Based on my experience working with you over the past few months, I believe strongly in the professionalism, legal skill, and judgment of OPLA’s attorneys, working through their supervisors to advise our clients and manage an enormous workload with limited resources. I trust and expect that all OPLA field attorneys, under the leadership ofourChiefCounsel, will work strenuously to ensure the timely and appropriate exercise ofdiscretion in meritorious removal cases. That being said, given the tremendous importance of achieving just and correct outcomes on these issues, it is entirely pe1missible for any OPLA attorney to raise prosecutorial discretion decisions through their chain ofcommand to OPLA headquaiters (HQ) for additional review or discussion.

Appropriate exercises ofprosecutorial discretion are in the mutual interest of both the person benefitting from the exercise ofdiscretion and the government itself. This mutual interest is no less significant because a noncitizen does not affirmatively request prosecutorial discretion. In the absence of an affirmative request for prosecutorial discretion by a noncitizen or a noncitizen’s representative, OPLA attorneys should nonetheless examine the cases to which they are assigned to determine independently whether a favorable exercise ofdiscretion may be

10 If the case involves classified information, the OPLA attorney must transmit such information only in accordance with the DHS Office ofthe ChiefSecurity Officer Publication, Safeguarding Classified & Sensitive But Unclassified Information Reference Pamphlet (Feb. 2012, or as updated), and all other applicable policies governing the handling ofclassified information.

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appropriate. This affirmative duty to evaluate assigned cases is central to an OPLA attorney’s job. Chief Counsel should include in their local SOPs ways to address these cases including how

OPLA attorneys should document their affirmative consideration ofprosecutorial discretion in PLAnet.

III. Notices to Appear

When a legally sufficient, appropriately documented NTA has been issued by a DHS component consistent with the component’s issuing and enforcement guidelines, 11 it will generally be filed with the immigration court and proceedings litigated to completion unless the Chief Counsel exercises prosecutorial discretion based on their assessment of the case. 12 As prosecutorial discretion is expected to be exercised at all stages of the enforcement process and at the earliest moment practicable, it may be appropriate for the Chief Counsel to conclude that a legally

sufficient, a ro riatel documented administrative immi ration case warrants non-filin of an

NTA_ (b)(S) (b)(5)

(b)(S) Where an NTA is issued but not filed with the immigration court pursuant to this section, OPLA should document the reasoning for this position in PLAnet and the OPLA Field Location should work with its local Enforcement and Removal Operations (ERO) Field Office to cancel the NTA and inform the noncitizen of the cancellation. 13

IV. Administrative Closure and Continuance of Proceedings

In the past, OPLA had broad authority to exercise prosecutorial discretion by agreeing to

administrative closure of cases by EOIR. However, due to conflicting court of appeals decisions

11 This includes NTAs submitted to OPLA by ICE operational components as well as U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP) for review. “Appropriately documented” in this context means that, in OPLA’s litigation judgment, sufficient information has been provided by the NTA-issuing component to carry any DHS burden of proof. See INA§ 240(c), 8 C.F.R. § 1240.8.

12 Separate and apart from the enforcement priority framework outlined in the Interim Memorandum and Johnson Memorandum, certain noncitizens have an established right to be placed into removal proceedings. See, e.g., 8 C.F.R. §§ 208. l4(c)(l) (requiring referral for removal proceedings ofa removable noncitizen whose affirmative asylum application is not granted by USCIS); 216.4(d)(2) (requiring NTA issuance to noncitizen whose joint petition to remove conditional basis ofLPR status is denied by USCIS); 216.S(f) (same; USCIS denial ofapplication for waiver of the joint petition requirement). In other cases, USCIS may issue an NTA on a discretionary basis to a noncitizen who wishes to pursue immigration benefits before the immigration court. Although such cases do not fall within the priority framework, absent an affirmative request by the noncitizen prior to the merits hearing for the favorable exercise of prosecutorial discretion to dismiss removal proceedings, OPLA attorneys should generally litigate them to completion. If such noncitizens are ordered removed, requests for prosecutorial discretion would then most properly be made to ERO for evaluation in accordance with the Department’s and ICE’s stated priorities.

13 The NTA cancellation regulation vests immigration officers who have the authority to issue NTAs with the authority to also cancel them. 8 C.F.R. § 239.2(a). The regulation expresses a preference for certain NTAs to be cancelled by the same officer who issued them “unless it is impracticable” to do so. Id. § 239.2(b). Given the enormous size ofthe EOIR docket, current OPLA staffing levels, and complexities associated with routing any significant number ofNTAs back to specific issuing officers stationed around the country, it would be impracticable to require OPLA attorneys to do so. By contrast, the local ERO Field Offices with which OPLA Field Locations routinely interact are well suited to assist with this function promptly and efficiently.

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on the validity ofMatter ofCastro-Tum, 27 I&N Dec. 271 (A.G. 2018) (limiting administrative closure by EOIR adjudicators to circumstances where a previous regulation or judicially approved settlement expressly authorizes such an action), the availability ofadministrative closure as a form ofprosecutorial discretion for ICE and a tool ofdocket management for EOIR is limited in certain jurisdictions for certain types of cases. 14 Nevertheless, OPLA retains authority to handle pending cases on EOIR’s docket by deciding whether to agree to a continuance for “good cause shown” under 8 C.F.R. § 1003.29, see also Matter ofL-A-B-R-, I&N Dec. 405 (A.G. 2018) (interpreting this regulation), and whether to seek, oppose, or join in a motion for dismissal of proceedings pursuant to 8 C.F.R. § 1239.2(c).

The presumed priorities outlined above will be a significant factor informing the position that OPLA attorneys take in response to continuance motions made by noncitizens in removal proceedings. Indeed, given the comprehensive review of immigration enforcement and removal policies and practices directed by Section A ofthe Interim Memorandum, OPLA attorneys are authorized to take the general position that “good cause” exists in cases in which noncitizens who fall outside the presumed priorities seek to have their cases continued to await the outcome of that comprehensive review. 15 Continuing cases in these circumstances may conserve OPLA resources in cases where the ultimate arrest, detention, and removal of a noncitizen are unlikely. Accordingly, while immigration judges (Us) will make case-by-case assessments whether continuance motions are supported by “good cause shown” under 8 C.F.R. § 1003.29, and OPLA attorneys should assess each continuance motion on its own terms, in the absence ofserious aggravating factors, the fact that a noncitizen is not a presumed priority should weigh heavily in favor of not opposing the noncitizen’s motion. Before opposing a continuance in such cases, OPLA attorneys should confer with their supervisors. The reason for opposing the motion should also be documented in PLAnet.

V. Dismissal of Proceedings

With approximately 1.3 million cases on the immigration courts’ dockets nationwide, and the varied procedural postures of such cases, including many set for future merits hearings on re.lief or protection from removal, OPLA will cover, at a later date and in a comprehensive fashion, how to address the potential dismissal ofproceedings consistent with its limited resources and DHS and ICE guidance. The size ofthe court backlog and extraordinary delays in completing cases impede the interests ofjustice for both the government and respondents alike and underminepublicconfidenceinthis importantpillaroftheadministrationofthenation’s

14 Compare Hernandez-Serrano v. Barr, 981 F.3d 459 (6th Cir. 2020) (agreeing with Castro-Tum), with Arcos Sanchez, 2021 WL I774965, — F.3d — (3d Cir. 2021) (rejecting Castro-Tum and finding that EOIR regulations giving broad case management authority to its adjudicators includes administrative closure authority), Meza Morales v. Barr, 973 F.3d 656 (7th Cir. 2020) (Coney Barrett, J.) (same), and Romero v. Barr, 937 F.3d 282 (4th Cir. 2019) (same). Notwithstanding this variation in circuit law, administrative closure remains available under Castro-Tum for T and V nonimmigrant visa applicants. See 8 C.F.R. §§ I214.2(a) (expressly allowing for administrative closure for noncitizens seeking to apply for T nonimmigrant status), 1214.3 (same; V nonimmigrant status).

15 This does not imply that “good cause” cannot exist in cases ofnoncitizens who fall into the presumed priority categories or are otherwise a civil immigration enforcement or removal priority. OPLA attorneys retain discretion to, as appropriate, agree to continuances in such cases.

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immigration laws. In advance of future guidance, cases that generally will merit dismissal in the absence of serious aggravating factors include:

I. MilitaryServiceMembersorImmediateRelativesThereof16

A favorable exercise of prosecutorial discretion (i.e., concurrence with or non-opposition to a motion for dismissal ofproceedings without prejudice) generally will be appropriate if a noncitizen or immediate relative is a current or former member (honorably discharged) of the Armed Forces, including the U.S. Army, Air Force, Navy, Marine Corps, Coast Guard, and Space Force, or a member of a reserve component of the Anned Forces or National Guard, particularly if the individual may qualify for U.S. citizenship under sections 328 or 329 ofthe I N A . _1 1

2. Individuals Likely to be Granted Temporary or Permanent Relief

When a noncitizen has a viable avenue available to regularize their immigration status outside of removal proceedings, whether through temporary or pennanent relief, it generally will be appropriate to move to dismiss such proceedings without prejudice so that the noncitizen can pursue that relief before the appropriate adjudicatory body. 18 This may be appropriate where, for instance, the noncitizen is the beneficiary of an approved Form 1-130, Petition for Alien Relative, and appears prima facie eligible for either adjustment of status under INA section 245 or an immigrant visa through consular processing abroad, including in conjunction with a provisional waiver of unlawful presence under 8 C.F.R. § 212.7(e), immediately or in the near future; appears prima facie eligible to register for Temporary Protected Status (TPS);.19 or is a child who appears prima facie eligible to pursue special immigrant juvenile status under INA section 101(a)(27) and 8 C.F.R. § 204.11. In such a circumstance, the exercise of prosecutorial discretion itselfcan help to promote the integrity ofour immigration system by enhancing the ability of certain noncitizens to come into compliance with our immigration laws.

3. Compelling Humanitarian Factors

The favorable exercise ofprosecutorial discretion- including agreeing to dismissal of proceedings without prejudice-generally will be appropriate when compelling humanitarian factors become apparent during NTA review or litigation of the case. While some factors will weigh more heavily than others, this can include cases where, for instance, the noncitizen has a serious health condition, is elderly, pregnant, or a minor; is the primary caregiver to, or has an

16 See Email from Kenneth Padilla, DPLA, Field Legal Operations, to all OPLA attorneys, Refresher Guidance Regarding United States Veterans and Military Service Members in Removal (Nov. 18, 2019).

17

citizenship. See ICE Directive 16001 .2, Investigating the Potential U S. Citizenship o fIndividuals Encountered by

Relatedly, OPLA attorneys must continue to follow ICE guidance related to the evaluation of claims to U.S. ICE (Nov. 10, 2015).

18 DHS regulations expressly contemplate joint motions to tenninate removal proceedings in appropriate cases in which the noncitizen is seeking to apply for U nonimmigrant status. See 8 C.F.R. § 214.14(c)(I)(i).

19 Stipulation to TPS in such cases may also be an option, in the exercise ofdiscretion. Cf Matter ofD-A-C-, 27 I & N . D e c . 5 7 5 ( B I A 2 0 I 9 ) ( d i s c u s s i n g d i s c r e t i o n a r y a u t h o r i t y o f I J s t o g r a n t T P S ) ; S e c t i o n V I I , i n fr a .

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immediate family or household member who is, known to be suffering from serious physical or mental illness; is a victim ofdomestic violence, human trafficking, or other serious crime;.20 came to the United States as a young child and has since lived in the United States continuously; or is party to significant collateral civil litigation (e.g., family court proceedings, non-frivolous civil rights or labor claims).

4. Significant Law Enforcement or Other Governmental Interest

Where a noncitizen is a cooperating witness or confidential informant or is otherwise significantly assisting state or federal law enforcement, it may be appropriate in certain cases to agree to the dismissal ofproceedings without prejudice. “Law enforcement” in this context includes not only conventional criminal law enforcement, but also enforcement of labor and civil rights laws. In exercising discretion related to law enforcement equities, OPLA attorneys should be guided by the perspectives of the relevant investigating agency components (e.g., the Office ofInspector General, Office for Civil Rights and Civil Libe1ties, Depa1tmentofJustice Immigrant and Employee Rights Section, Department of Labor, National Labor Relations Board, Equal Employment Opportunity Commission, other federal agencies, ERO, Homeland Security Investigations, and any relevant state counterparts). Additionally, such law enforcement entities may have tools at their disposal that OPLA does not, including stays of removal, deferred action, T and U nonimmigrant status law enforcement certification, and requests for S nonimmigrant classification. In any event, national security, border security, and public safety are paramount in deciding whether to continue litigating removal proceedings.

5. Long-TermLawfulPermanentResidents

A favorable exercise of prosecutorial discretion should also be considered for LPRs who have resided in the United States for many years, paiticularly when they acquired their LPR status at a young age and have demonstrated close family and community ties. Dismissal ofsuch cases that do not present serious aggravating factors will allow the noncitizen to maintain a lawful immigration status and conserve finite government resources.

When OPLA agrees to dismissal of removal proceedings as an exercise ofprosecutorial discretion in the categories above, the reasoning for this position should be recorded in PLAnet.

VI. Pursuing Appeal

In our immigration system, DHS initiates removal proceedings while IJs and the Board of Immigration Appeals (BIA) exercise the Attorney General’s delegated authority to adjudicate issues ofremovability and reliefand protection from removal. OPLA attorneys continue to possess the discretion to take legally viable appeals ofIJ decisions and make appropriate legal arguments in response to noncitizen appeals and motions..2 1 Appellate advocacy should generally

20 See generally ICE Directive No. 10076.1, Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs (June 17,2011).

21 OPLAheadquartersdivisionsshouldcontinuetocoordinatewithimpactedDHSOfficeoftheGeneralCounsel (OGC) headquarters and component counsel offices when preparing briefs and motions in significant litigation.

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focus on priority cases- national security, border security, and public safety. Of course, other considerations, such as significant aggravating and mitigating factors and the need to seek clarity on an important legal issue, are appropriate for OPLA attorneys to take into account, consistent with direction from their respective Chief Counsel.

Consistent with any local guidance issued by their respective Chief Counsel,.22 OPLA attorneys may waive appeal in a case that is not a priority. OPLA attorneys may also decline to appeal where there is little likelihood ofsuccess before the BIA. While OPLA attorneys may reserve appeal to ensure the articulation ofa fully reasoned decision by an IJ to help inform whether the appeal should ultimately be perfected, OPLA attorneys may also waive appeal, where appropriate, in the interest ofjudicial efficiency and in recognition of limited resources.

OPLA Field Locations generally coordinate appellate advocacy before the BIA with the Immigration Law and Practice Division (ILPD)..23 OPLA Field Locations and ILPD should continue to work together, along with any other relevant OPLA HQ divisions, to craft strong and nationally consistent appellate work product. Again, in committing OPLA resources to perfecting appeal and drafting appellate pleadings, Field Locations and ILPD should focus their efforts on presumed priority cases. Furthermore, to ensure efficiency in litigation, OPLA attorneys should generally limit briefing schedule extension requests before the BIA and should not request briefing extensions in detained matters without prior approval from a supervisor. However, it is permissible to agree to briefing extension requests filed by non-detained noncitizens whose cases are not presumed priorities.

VII. Joining in Motions for Relief and Motions to Reopen and Entering Stipulations

In order to conserve resources and expedite resolution of a case- as well as where doing so would fulfill the duty to do justice and achieve the best outcome- OPLA attorneys have the discretion to join motions for relief (oral or written), consistent with any local guidance issued by their respective Chief Counsel. An OPLA attorney should be satisfied that the noncitizen qualifies for the reliefsought under law and merits reliefas a matter ofdiscretion or qualifies

22 ChiefCounsel should review existing local practice guidance to ensure that it confonns to current interim enforcement priorities and amend such guidance where necessary. Similarly, any new local practice guidance should conform to this memorandum and the presumed priorities.

23 See Gwendolyn Keyes Fleming, Promoting Excellence in OPLA ‘s Advocacy Before the Board o fimmigration Appeals (Feb. 22, 2016); Email Message from Kenneth Padilla and Adam Loiacono, Final Rule – Appella..t.,e,,.,..,,,,._ _,

Procedures and Decisional Finality in Immif!ration Proceedinf!s; Administrative Closure (Jan. 22, 2021).l(b)(S) b)(S)

(b)(S) IFurther, special procedures apply in the context ofnational security and human rights violator cases. See Email Message from Rjah Ramlogan, OPLA Supplemental Guidance on the Proper Handling ofNational Security and Human Rights Violator Cases (May 28, 2015), as supplemented and modified by OPLA Memorandum, Proper Handling o f OPLA National Security (NS) Cases (May 21, 2015) and OPLA Memorandum, Proper Handling ofOPLA Human Rights Violator (HRV) Cases (May 2I, 20I5).

FOR OFFICIAL USE ONLY

OPLA Guidance Regarding Civil Immigration Enforcement and Removal Policies and Priorities Page 12of13

24

under law for protection from removal when agreeing to such motions.. Such decisions to join

in motions should be made in a manner that facilitates the efficient operation ofOPLA Field Locations in immigration court. The same applies with respect to narrowing disputed issues through stipulation in order to promote fair and efficient proceedings.

OPLA intends to address in future.guidance when to join in motions to reopen cases with final removal orders. In the meantime, OPLA should continue addressing requests for joint motions to reopen on a case-by-case basis, giving favorable consideration to cases that are not priorities and where dismissal would be considered under Section V, supra.

VIII. Bond Proceedings

OPLA attorneys appearing before EOIR in bond proceedings must follow binding federal and administrative case law regarding the standards for custody redeterminations. 25 OPLA attorneys should also make appropriate legal and factual arguments to ensure that DHS’s interests, enforcement priorities, and custody authority are defended. In particular, in bond proceedings OPLA attorneys should give due regard to custody determinations made by an authorized immigration officer pursuant to 8 C.F.R. § 236. l(c)(8), while not relinquishing the OPLA attorney’s own responsibility to consider and appropriately apply the factors and considerations set forth in the Interim Memorandum, the Johnson Memorandum, the Maher Memorandum, and this guidance. Where a noncitizen produces new information that credibly mitigates flight risk or danger concerns, OPLA attorneys have discretion to agree or stipulate to a bond amount or other conditions of release with a noncitizen or their representative, and to waive appeal of an IJ’s order redetermining the conditions ofrelease in such cases..26

24 See, e.g., INA §§ 208 (asylum), 240A(a) (cancellation of removal for certain pennanent residents), 240A(b) (cancellation of removal and adjustment of status for certain nonpermanent residents), 240B (voluntary departure), 245 (adjustment ofstatus), 249 (registry). Additionally, OPLA attorneys represent DHS in cases where noncitizens apply for withholding of removal under INA section 241(b)(3) and protection under the regulations implementing U.S. obligations under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). See, e.g. , 8 C.F.R. §§ 1208.16-.18. Withholding and CAT protection both impose significant burdens ofproof(i.e., qualifying mistreatment must be “more likely than not” to occur). When a noncitizen moves to reopen their proceedings to pursue such non-discretionary protection, and the motion is supported by evidence that strongly suggests the noncitizen will be able to meet their burden, OPLA attorneys should ordinarily not oppose reopening and can also consider joining in such motions, as resources permit

25 See, e.g., Matter ofR-A-V-P-, 27 l&N Dec. 803, 804-05 (BIA 2020) (assessing whether respondent had met burden to demonstrate that he did not pose a risk of flight in INA section 236(a) discretionary detention case); Matter ofSiniausl«is, 27 I&N Dec. 207 (BIA 2018) (addressing interplay between flight risk and dangerousness considerations in INA section 236(a) discretionary detention case involving recidivist drunk driver); Matter of Kotliar, 24 l&N Dec. 124 (BIA 2007) (discussing general parameters of INA section 236(c) mandatory detention).

26 DHS and EOIR regulations recognize that, as a prerequisite for even being considered for discretionary release by an ICE officer under INA section 236(a), a noncitizen “must demonstrate to the satisfaction ofthe officer that such release would not pose a danger to property or persons, and that the [noncitizen] is likely to appear for any future proceeding.” 8 C.F.R. §§ 236.1(c)(8), 1236.l(c)(S) (emphasis added). Additionally, prior to agreeing to non monetary conditions of release, OPLA attorneys should consult with their local ERO Field Offices to ensure that such conditions are practicable (e.g., GPS monitoring, travel restrictions).

FOR OFFICIAL USE ONLY

OPLA Guidance Regarding Civil Immigration Enforcement and Removal Policies and Priorities Page 13 of13

IJ custody redetermination decisions that are factually or legally erroneous are subject to appeal to the BIA. Decisions on whether to appeal or to continue to prosecute an appeal should be guided by the presumed priorities and the sound use of finite resources. See Section VI, supra. It may also be appropriate for an OPLA Field Location to seek a discretionary or automatic stay under 8 C.F.R. § 1003.l 9(i) in conjunction with a DHS bond appeal, particularly where issues of public safety are implicated. OPLA Field Locations should work closely with ILPD and other relevant OPLA HQ divisions to identify instances where use ofthis authority may be warranted..27

IX. Responding to Inquiries

Each OPLA Field Location should maintain email inboxes dedicated to receiving inquiries related to this memorandum, including requests for OPLA to favorably exercise its discretion, and socialize the existence and use ofthese mailboxes with their respective local immigration bars including non-governmental organizations assisting or representing noncitizens before EOIR. OPLA Field Locations and sub-offices should strive to be as responsive to such inquiries as resources permit.

X. Oversight and Monitoring

This memorandum serves as interim guidance, and OPLA’s experience operating under this guidance will inform the development of subsequent guidance aligning with the outcome of the comprehensive review directed by the Interim Memorandum. It is therefore critical that prosecutorial discretion decision-making information be promptly and accurately documented in PLAnet and that SOPs be implemented to ensure consistent PLAnet recordkeeping. Field Legal Operations (FLO) should issue such SOPs within two weeks ofthis memorandum. FLO’s regular review ofPLAnet and the SOPs will form the basis ofrecommendations on process improvements, if and as necessary.

Official Use Disclaimer

This memorandum, which may contain legally privileged information, is intended For Official Use Only. It is intended solely to provide internal direction to OPLA attorneys and staff regarding the implementation of Executive Orders and DHS guidance. It is not intended to, does not, and may not be relied upon to create or confer any right or benefit, substantive or procedural, enforceable at law or equity by any individual or other party, including in removal proceedings or other litigation involving DHS, ICE, or the United States, or in any other form or manner whatsoever. Likewise, this guidance does not and is not intended to place any limitations on DHS’s otherwise lawful enforcement of the immigration laws or DHS’s litigation

prerogatives.

27 Existing OPLA guidance on automatic and discretionary stays remains in effect. See, e.g., Barry O’Melinn, Revised Proceduresfor Automatic Stay ofCustody Decisions by Immigration Judges (Oct. 26, 2006).

FOR OFFICIAL USE ONLY

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https://www.opn.ca6.uscourts.gov/opinions.pdf/

21a0127p-06.pdf

Garcia-DeLeon v. Garland, 6th Cir., 06-11-21, published

PANEL: MOORE, CLAY, and STRANCH, Circuit Judges.

KEY QUOTE:

Here, we squarely confront this question and conclude that 8 C.F.R. § 212.7(e)(4)(iii), in conjunction with 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii), provides IJs and the BIA the authority for administrative closure to permit noncitizens to apply for and receive provisional unlawful presence waivers. Administrative closure is “appropriate and necessary” in this circumstance for the disposition of Garcia’s immigration case. Absent administrative closure, Garcia and other noncitizens in removal proceedings who are seeking permanent residency would be unable to apply for a provisional unlawful presence waiver despite the authorizing regulation.

Permitting administrative closure for the limited purpose of allowing noncitizens to apply for provisional unlawful presence waivers pursuant to 8 C.F.R. § 212.7(e)(4)(iii) will not lead to non-adjudication of immigration cases. Thus, the concern raised in Hernandez-Serrano that a general authority to grant administrative closure results in non-adjudication of immigration cases is not present. Administrative closure for the purpose of applying for a provisional unlawful presence waiver “bring[s] an end to the removal process” and permits “the non-citizen [to] voluntarily depart the U.S. for an immigrant visa appointment abroad.” Pet. Br. at 14. Generally, a noncitizen will, upon USCIS’s approval of their provisional unlawful presence waiver, seek to recalendar and terminate their removal proceedings. See, e.g., Romero, 937 F.3d at 287 (“Romero advised that if his case were administratively closed, then once the waiver had been approved, he intended to move to re-calendar and terminate removal proceedings so that he could then go through the consular process in Honduras.”); see also Ariel Brown, Immigr. Legal Res. Ctr., I-601A Provisional Waiver: Process, Updates, and Pitfalls to Avoid, at 7 (June 2019), https://www.ilrc.org/sites/default/files/resources/i- 601a_process._updates._and_pitfalls_to_avoid_june_2019.pdf (advising noncitizens to move to recalendar and then terminate their removal proceedings upon approval of their provisional unlawful presence waiver or upon receiving their immigrant visa).

**********

After five months, John Trasvina is the first Biden Administration senior official in to take any responsible, practical steps to deal with the out of control Immigration Court backlog of 1.3 million that continues to grow under Garland’s flailing non-leadership at DOJ. But, he can’t do it by himself.

Without some progressive reforms at EOIR (and I’m NOT talking about an ill-thought-out uncoordinated “Dedicated Docket” or putting more Barr picks on the already compromised Immigration Bench, both of which are likely to build backlog and further reduce quality from its already “sub-basement levels”), the backlog and systemic denials of due process in Garland’s failed Immigration Courts will continue to grow.

That means some new progressive leadership at EOIR and some progressive judges at both the trial and appellate levels. Judges who know how to “leverage” PD with recalcitrant attorneys on both sides.

It also requires an immediate recession by Garland of Sessions’s abominable precedent Matter of Castro-Tum that has been panned by experts and rejected, at least in some form, by every Circuit that has considered it. Additionally, as a practitioner just reminded me, it will depend on whether Trasvina has the will, status, and power to force compliance on what are likely to be some resistant ICE Chief Counsels and Field Office Directors. In the past, local DHS officials have sometimes simply ignored or undermined PD policies with which they disagreed. So, stay tuned!

The quote from the Trasvina memo in the headline above comes from Matter of S-M-J-, 21 l&N Dec. 722, 727 (BIA 1997) (en banc), a leading “Schmidt BIA” case! Compare this with the White Nationalist absurdist nonsense put out by Sessions about prosecuting every case, no matter how absurd, marginal, or counterproductive, to a conclusion. Sessions spewed forth total, unadulterated BS! 💩

No, and I mean NO, other law enforcement agency in America (save the Trump DHS) operates in such an irresponsible, dishonest, and unrealistic manner! Particularly one whose bad policies and lack of self-restraint helped build a largely unnecessary backlog of 1.3 million cases. Indeed, according to the latest TRAC report, a simply astounding 96% of pending Immigration Court cases involve individuals without criminal charges! https://trac.syr.edu/immigration/quickfacts/?category=eoir. This suggests that with competent leadership at DOJ and EOIR the backlog could be, and already should have been, dramatically slashed without adversely affecting ICE’s legitimate enforcement priorities!

“The government wins when justice is done.” Wow! What a novel idea! Sounds like something right out of one of my old speeches to newly-hired INS prosecutors when I was the Deputy General Counsel at INS.

Probably, no coincidence that BIA Appellate Judge Michael J. Heilman, who wrote S-M-J-, once worked with me at INS General Counsel (although, as the record will show, by the time we both became “independent appellate judges” at a BIA that for a brief time functioned more like a “real court of independent experts” — as opposed to the current “deportation railroad” — our views often diverged).

The 3rd, 4th, 6th, and 7th Circuits have rejected Sessions’s, malicious, racist, incorrect and idiotic, backlog-building decision in Castro-Tum. At the time of the Trasvina memo it appeared that the 6th Circuit was “trending in favor of” Castro-Tum, but the more recent 6th Circuit case featured above emphatically rejects Castro-Tum as applied to those seeking “provisional waivers.”

So, the 6th is a little confusing. As I read it, there is no Administrative Closing for those approved for SIJS status and waiting for numbers. But, Administrative Closing is available for a “provisional waiver.” This doesn’t make any sense to me. But, what really doesn’t make sense is the unnecessary confusion caused by Garland’s failure to act and his continuation of improper White Nationalist, anti-due process, “worst practices” instituted by his Trumpist predecessors.

To my knowledge, no Circuit has endorsed Castro-Tum in its entirety. Yet, Garland inexplicably and mindlessly has neither vacated Castro-Tum nor has he directed OIL to stop defending this legally incorrect, backlog-building, due-process-killing “Sessions-Miller” bogus “precedent.” “Part IV” of the Trasvina memo describes the unnecessary confusion and potential for more “Aimless Docket Reshuffling” caused by Garland’s failure to rescind Castro-Tum and reinstate “Administrative Closing” as an essential docket management (and due process) tool in Immigration Court.

Trasvina “gets it” (at least so far). Garland, Monaco, Gupta, Clarke, not so much! Maybe Trasvina should have been the AG!

As a practitioner recently put it: “Repubs are bold, Dems are wimps when it comes to EOIR!” To date, Garland, Monaco, Gupta, and Clarke seem determined to follow in the footsteps of their ineffective predecessors! If they don’t get smarter, braver, bolder, and much more aggressively progressive, they will continue to fail American democracy in our hour of great need!

🇺🇸🗽⚖️Due Process Forever!

PWS

06-05-21

🇺🇸🗽⚖️GEORGE W. BUSH INSTITUTE REPORT: GENDER VIOLENCE ☠️⚰️DRIVES CONTINUING REFUGEE FLOW TO U.S. — Dishonesty Of Sessions’s Misogynistic Attack In Matter Of A-B- 🤮 Exposed Again! — Yet, Garland Fails To Take Action To End Misogyny, Anti-Asylum Culture @ EOIR, Even As He Also Fails To Insist On The Restoration Of The Rule Of Law @ Our Borders! — WHY?🤯

Gender Violence in Central America — Gender Violence continues to to be endemic in Latin America! Yet, shockingly, its victims, refugee women of color, can expect little protection in Garland’s Immigration Courts still applying Jeff Sessions’s inaccurate, misogynistic precedent in Matter of A-B- and continuing to be staffed by too many “judges” selected or promoted by the Trump Administration because of their perceived willingness to support anti-asylum policies targeting many women of color! Recently Garland outraged progressives by appointing 17 “Miller/Barr Holdovers” to powerful, life or death, Immigration Judge positions while eschewing better-qualified progressive experts from the private sector who could bring diversity and gender and racial justice to his dysfunctional Immigration “Courts!”
PHOTO: UNHCR website

https://www.dallasnews.com/opinion/commentary/2021/06/03/abuse-of-women-and-children-at-root-of-immigration-crisis/

Abused women at border — Migrant women carry children in the rain at an intake area after turning themselves in upon crossing the U.S.-Mexico border, late Tuesday, May 11, 2021, in La Joya, Texas. The U.S. government continues to report large numbers of migrants crossing the U.S.-Mexico border with an increase in adult crossers. But families and unaccompanied children are still arriving in dramatic numbers despite the weather changing in the Rio Grande Valley registering hotter days and nights. (AP Photo/Gregory Bull)(Gregory Bull)

By Natalie Gonnella-Platts and Jenny Villatoro In the Dallas Morning News:

When U.S. Border Patrol found him in the Texas desert, 10-year-old Wilton was crying, “they abandoned me.” Exhausted and alone, his image went viral — a poignant visual of the struggle faced by thousands seeking safety.

But Wilton’s story actually began in Nicaragua when his mother, Meylin, wasn’t able to get legal protection from an abusive partner. Mother and son fled to the United States, seeking asylum, but were expelled under a public health rule and sent to Mexico, where they were kidnapped, according to an account in El Pais. Meylin’s brother in Miami could pay only half the ransom — enough for Wilton alone to be released.

Although Meylin was ultimately released and reunited with her son, the tale that led to Wilton’s arrival at the border as an unaccompanied minor isn’t unique. It illustrates the fact that gender-based violence, revictimization and lack of justice affect children, families and communities thousands of miles away. It also highlights the importance of a safe and legal pathway into the United States for survivors of gender-based violence and other asylum-seekers. For many, arriving at the U.S. border seeking asylum is the only legal pathway available.

Immigration reform in the United States is essential to assuring that we have a secure and efficient border, a system flexible enough to handle changes in migrant flows, and the capacity to treat each migrant with dignity. But more needs to be done in the migrants’ home countries, too, so that they are not forced to flee for their safety in the first place.

Any comprehensive plan on Central America and immigration reform should address gender inequity and gender-based violence.

They are not siloed issues to acknowledge only when horrific stories of femicide and human trafficking force us to pay attention. Rather, they are deeply entangled with broader challenges of corruption and poverty. Proposed solutions shouldn’t overlook the impact of gender-based violence on migrant flows, economic development, education and health.

Fourteen of the 25 most dangerous places for women are in the Western Hemisphere, including countries within Central America. Patriarchy and gang violence subject women and girls to abhorrent actions of abuse and control.

Honduras and El Salvador saw some of the highest incidences of femicide within Latin America in 2019, at rates of 6.2 and 3.3 per 100,000, respectively. In Guatemala, adolescent girls are at a high risk of being “disappeared,” with 8 out of every 10,000 girls between the ages of 15 and 17 reported missing each year.

COVID 19-related lockdowns are being exploited by gangs looking to strengthen control: El Salvador alone has seen a 70% increase in gender-based violence since the beginning of the pandemic. And lockdowns have forced vulnerable individuals to stay in close proximity to their perpetrators. Guatemala, Honduras and El Salvador reported an increase in intrafamily violence, with El Salvador reporting an increase in intrafamily femicides as well.

Justice systems and access to services need to be strengthened to ensure adequate protection for all under the law. Legal protections often are inhibited by weak institutions, corruption and a culture of impunity toward perpetrators.

According to a 2017 national survey, two-thirds of Salvadoran women over the age of 15 have experienced violence, but only 6% have ever reported it. While laws against child marriage exist across the region, in some countries about 1 in 3 young women are in a union before age 18. Post-trauma support and efforts that inform Central American women of their rights and agency are critical interventions that could help women like Meylin.

Females have been disproportionately affected by the devastating impact of hurricanes Eta and Iota, but the status of women and girls is chronically overlooked in response efforts, exacerbating the risk of violence.

Women and girls must be seen and heard. Greater focus on gender and age-disaggregated data collection and in tracking the effectiveness and efficiency of legal systems is crucial. And women and their lived experiences need to be more fully represented at all leadership levels.

Finally, direct outreach to local communities should be a priority for U.S. government and private sector-led programs. This includes resource and capacity support for advocates and organizations that serve as lifelines for those affected by violence, often at great personal risk. Engagement with men and boys is equally imperative.

How can anyone be expected to thrive when her day-to-day priority is simply to survive? The United States needs to recognize that gender-based violence and gender inequity drive migration.

Immigration reform must include strategies to address the root causes of migration from Central America in effective and lasting ways to prevent situations like Wilton’s and Meylin’s. Women and girls must be front and center in these solutions.

Natalie Gonnella-Platts serves as the director of the Women’s Initiative at the George W. Bush Institute.

Jenny Villatoro is an associate for the George W. Bush Institute-SMU Economic Growth Initiative.

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

“Deterrents” and illegally abusing asylum seekers DON’T WORK! It’s not that difficult a concept. Indeed, these misguided attempts at deterrence have been failing consistently under Administrations of both parties for the past four decades. One would think that an “enlightened nation” would try a different approach rather than simply repeating the costly failures of the past in various forms.

What we need are functioning refugee and asylum systems, led and staffed by progressive experts, operating from INSIDE Government, that will grant status to qualified refugee women in a fair and timely manner and set favorable precedents even while separately addressing the endemic problems in the “refugee-sending countries.” Of course, it will result in more legal immigration of refugees and asylum seekers to the U.S. That’s a good thing for both us and those individuals, not something to be feared or unlawfully and dishonestly “deterred!”

With stagnating population growth, we should welcome and facilitate legal immigration of courageous, talented, dedicated refugee women from all countries and their children through the refugee, asylum, and a much more robust legal immigration system!

Thanks to NDPA warrior-queen Debi Sanders for sending in this item. This report should be great evidence for those litigating to halt the Garland misogyny mess at EOIR and, sadly, to some extent in U.S. Courts of Appeals that have chosen to sweep both reality of what’s happening in the Northern Triangle and the patent unconstitutionality of a system governed by bogus precedents entered or promoted by AG’s affiliated with DHS Enforcement who also packed and reshaped the immigration “judiciary” in the image of nativist restrictionists! However, compelling as it is, the report only adds to the existing body of documentation of the dishonest approach by Administrations of both parties to Latin American asylum claims, particularly those of women and children.

For Pete’s sake, first and second year law students know that the EOIR travesty is unconstitutional! Why are life-tenured Article III Judges covering it up? Hopefully, history will take note of their mal-performance on the bench! These guys are life-tenured! So, what’s their excuse for not upholding the Constitution against clear Congressional and Executive abuses?

Hard for me to say this. But, former President George W. Bush is doing more for human rights, gender rights, civil rights, and immigrants rights’ than Garland or anyone else at the Biden DOJ! At least he speaks out publicly for the humanity and contributions of migrants and for their fair and generous treatment, which is more than any member of the Biden Administration has done as they continue to mistake softening the rhetoric with taking firm action to reverse White Nationalist policies and replace them with readily achievable progressive ones.

Meanwhile, despite pleas from nearly every expert, progressive, human rights, immigrants’ rights, and gender rights group in the U.S., Garland continues to allow Sessions’s wrong, toxic, and misogynistic decision in Matter of A-B – to remain in place and threaten the lives of female refugees while ignoring the misogynistic, anti-asylum, culture inculcated by Sessions and Barr at EOIR that continues to flourish and daily dish out abuse to migrants and their representatives without meaningful consequences.

Judge Merrick Garland — “ . . . while this guy continues to apply misogynistic precedents, eschew progressive experts, recycle failed ‘Aimless Docket Reshuffling’ gimmicks, and allow the Trump-era anti-asylum culture to continue to flourish at EOIR and DOJ?” Attorney General Merrick B. Garland
Official White House Photo
Public Realm

What, indeed, is someone like AAG Vanita Gupta doing with herself at Garland’s anti-progressive, and anti-due-process mess at DOJ? Why are folks like her and Assistant Attorney General Kristen Clarke there in the first place if they aren’t going to stand up to Garland’s tone-deaf, inept approach to gender rights, human rights, and racial justice @ EOIR? How, on earth, do you lead a “Civil Rights Division” while turning a blind eye to grotesque violations of civil and human rights going on daily in your “Boss’s” wholly owned “court” system that functions like no “real court” in America? What’s DAG Lisa Monaco doing presiding over a gender disaster at EOIR? It’s straight out of “Jim Crow!”

James “Jim” Crow
Symbol of American Racism, still right at home at Garland’s EOIR!

Woman Tortured — “She struggled madly in the torturing Ray” — “Do Garland, Monaco, Gupta, & Clarke work in ‘sound-proofed offices’ where they can’t hear our tortured screams and moans? What’s wrong with those guys? We’re suffering and dying while they are fiddling and diddling!”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

And, I wouldn’t say that Vice President Harris is looking very good either, as she “swallows the whistle” on notorious scofflaw human rights violations that she was well aware of from her time in the Senate! Doesn’t anyone in the Biden Administration have the backbone to speak up for human rights, human decency, and restoring the rule of law? Is it REALLY our position that following the Constitution, our statutory laws, and the international treaties to which we are party is beyond the capabilities of the U.S. Government? If so, what, may I ask, is the difference between us an any third world dictatorship where laws have no meaning?

Vice President Kamala Harris — Vice President Kamala D. Harris. “Our first African-American, AAPI, child of immigrants VEEP seems curiously deaf and indifferent to the gross abuses being heaped on migrants and women of color at EOIR and at our Souther Border! What’s her excuse for turning her back on the progressive, human rights, gender equality groups that helped put her in office. Why is she remaining silent as Garland continues to appoint Billy Barr’s hand-selected non-progressive, non-diverse Immigration Judges to a life-determining “judiciary” that the Biden Administration wholly controls? How can you create a progressive, diverse, Article III Judiciary that will promote racial equity when you’re unwilling to apply those values and selection criteria to a huge judiciary that you actually control? What message are you sending to ‘next generation progressive attorneys of color’ when you allow Garland to ignore them in favor of lesser qualified candidates? Why aren’t you out there actively recruiting more attorneys of color and other underrepresented groups for the Immigration Judiciary rather than allowing Garland to use same-old, same old bogus “USA Jobs Phantom recruitments?” Lots of unanswered questions here!
Vice President of the United States
(Official Senate Photo)

I can’t figure it out! But, I do know that Garland’s lousy stewardship at EOIR, failure to speak out for fundamental fairness, usher in progressive changes, and restore due process @ EOIR has reached “crisis proportions” affecting our entire justice system and threatening democracy!

Hopefully, progressive advocacy, human rights, and civil rights groups will keep up the pressure and demands for long, long, long overdue and readily achievable changes at EOIR: in leadership, precedents, culture, and administration of justice! (Get this: Garland just created yet another bogus “Dedicated Docket” without a functional e-filing system to make it work! That’s “Aimless Docket Reshuffling 101,” as anyone who has actually had to deal with the mess in his Immigration Courts could tell him. But, he’s apparently not interested!) Right now, it’s an unmitigated “disaster zone” continuing to spiral downward!

There is a direct link between the “Dred Scottification of the other” that Garland countenances at EOIR and the overall failure of our justice system to deal effectively with institutionalized racism! The U.S. has a long, disreputable history of treating women and persons of color as “non persons” under the Constitution. Much of it traces to our immigration laws where “the others” are routinely dehumanized, stereotyped, demonized, and abused by those who falsely claim to be furthering the “rule of law!” We will NOT achieve racial justice for all in America until we deal with the festering wounds intentionally inflicted on women, children, and people of color in our immigration system, at EOIR, and illegally continuing at our borders!

By choice, Garland now “owns” the misogynistic, anti-due-process, anti-asylum disaster @ EOIR. Make him deal with it in a constructive way!

🇺🇸🗽⚖️🧑🏽‍⚖️Due Process Forever! Garland’s continued tolerance of misogyny and the anti-due-process, anti-asylum culture at EOIR, NEVER! Stop Garland’s continuing misogynistic nonsense before more refugee women and people of color needlessly die! What’s it going to take finally to get some “real justice @ Justice?”

PWS

06-05-21

⚖️🌟🗽NDPA SUPERSTARS, PRACTICAL EXPERT PROFESSORS LINDSAY M. HARRIS AND SARAH R. SHERMAN-STOKES SCORE BIDEN ADMINISTRATION’S CONTINUED RELIANCE ON BOGUS 🏴‍☠️ TRUMP-ERA, WHITE NATIONALIST COVID-19 RESTRICTIONS TO RETURN REFUGEES TO DANGER & DEATH @ SOUTHERN BORDER!☠️🤮⚰️

https://apple.news/A9hXjuI8xTQ6Zle8aVf4Dgg

Lindsay and Sarah write in USA Today:

. . . .

However, despite advice from public health experts and condemnation by UNHCR, expulsions under Title 42 continue and the human cost has been devastating. Though refugees come from countries all over the world, the Department of Homeland Security expels them to Mexico, just on the other side of the border.

Reports by Human Rights First document the terrifying realities they face once there: kidnappings, violence, sexual assault, extortion and even murder in border towns where criminal gangs and cartels prey on recently expelled children and families. Just this spring, a 4-year-old Honduran boy and his asylum-seeking mother were kidnapped in Nuevo Laredo immediately after they were expelled under Title 42.

Expulsions don’t just impact migrants from Mexico and Central America. Despite the recent designation of temporary protected status for Haitian migrants within the United States, the Biden administration has sent plane after plane of asylum-seeking families back to Haiti, with some Haitians being expelled to Mexico. The UndocuBlack Network and the Haitian Bridge Alliance, for example, document a Haitian woman expelled to Mexico with her three-day-old baby, where she will face extreme anti-Black discrimination and be at risk of violence and homelessness.

Just the start: Biden will no longer detain migrants at two county jails. That’s good but not enough.

Public health has often been used as a pretext for restrictionist immigration policies. Beginning as early as 1793, when Haitians were blamed for bringing yellow fever to Philadelphia, nativism and xenophobia have long merged with concerns about public health to exclude immigrants and refugees. These concerns were not justified by science then, and they certainly are not justified now.

. . . .

Lindsay M. Harris (@Prof_LMHarris) is associate professor and director of the Immigration and Human Rights Clinic at the University of the District of Columbia’s Law School. Sarah Sherman-Stokes (@sshermanstokes) is clinical associate professor and associate director of the Immigrants’ Rights and Human Trafficking Program at Boston University School of Law.

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

Read the rest of the USA Today op-ed at the link!

Thanks, my friends, for speaking out about the continuing outrages perpetrated by the Biden Administration at our Southern Border. So many, many “practical experts” out here in the “real world,” like Lindsay and Sarah, who would be heads and shoulders above current immigration “leadership” at DHS, DOJ, and EOIR and who would bring “real, qualified, expert judging” to the BIA and the Immigration Courts.

The Biden Administration’s failure to actively recruit, attract, and promptly bring on board the “best and the brightest” that American law has to offer for these critical jobs (which do NOT require Senate confirmation) is a disgrace! Betcha Stephen Miller could tell them how to do it! But, curiously, the Biden Immigration Team seems to think that alienating the best progressive minds in the business, the folks who helped them get elected and can fix their immigration problems, is smart politics and great public policy! Go figure!

Suspending the rule of law and international treaty obligations is never “OK” and it’s not something to be “studied.” “Gee whiz, should we comply with the law or continue to violate it; should we continue to send people to possible kidnapping, rape, torture, extortion, and/or death with no process or should we give them fair hearings; should we continue unqualified Trump hacks in key positions and keep defending illegal policies or should we hire qualified experts from the NDPA to restore and promote due process?” These are the “questions” that folks like Garland, Mayorkas, and their “spear carriers” are being paid to “study” while innocent humans are daily being abused and dying in the “real world” that these Biden Cabinet officers appear to have absented themselves from? Gimme a break!

We need an end to the deadly nonsense at DHS, DOJ, and EOIR NOW! Keep the outrage, the op-eds, the law suits, and the exposure and documenting of Mayorkas’s and Garland’s illegal, immoral, and incompetent actions coming until we get change and our Government delivers on the Constitutionally-required promise of due process, equal protection, and racial justice for all persons!

🇺🇸⚖️🗽Due Process Forever! The Garland/Mayorkas “Miller Lite Nonsense” at the border, never!

PWS

06-04-21

🗽⚖️🇺🇸LEE GELERNT @ ACLU SAYS BIDEN ADMINISTRATION “cannot farm out the asylum system.” Yet, That Appears To Be Largely What They Are Doing Under New, Previously Unpublicized Program!

https://apnews.com/article/only-on-ap-united-nations-donald-trump-immigration-health-98d4da6cb6f2999787c3fcd3579de695?utm_source=Sailthru&utm_medium=email&utm_campaign=June4_MorningWire&utm_term=Morning%20Wire%20Subscribers

Elliott Spagat
Reporter
Associated Press

Elliot Spagot and Julie Watson report for AP:

SAN DIEGO (AP) — The Biden administration has quietly tasked six humanitarian groups with recommending which migrants should be allowed to stay in the U.S. instead of being rapidly expelled from the country under federal pandemic-related powers that block people from seeking asylum.

The groups will determine who is most vulnerable in Mexico, and their criteria has not been made public. It comes as large numbers of people are crossing the southern border and as the government faces intensifying pressure to lift the public health powers instituted by former President Donald Trump and kept in place by President Joe Biden during the coronavirus pandemic.

Several members of the consortium spoke to The Associated Press about the criteria and provided details of the system that have not been previously reported. The government is aiming to admit to the country up to 250 asylum-seekers a day who are referred by the groups and is agreeing to that system only until July 31. By then, the consortium hopes the Biden administration will have lifted the public health rules, though the government has not committed to that.

So far, a total of nearly 800 asylum-seekers have been let in since May 3, and members of the consortium say there is already more demand than they can meet.

The groups have not been publicly identified except for the International Rescue Committee, a global relief organization. The others are London-based Save the Children; two U.S.-based organizations, HIAS and Kids in Need of Defense; and two Mexico-based organizations, Asylum Access and the Institute for Women in Migration, according to two people with direct knowledge who spoke on condition of anonymity because the information was not intended for public release.

Asylum Access, which provides services to people seeing asylum in Mexico, characterized its role as minimal.

The effort started in El Paso, Texas, and is expanding to Nogales, Arizona.

A similar but separate mechanism led by the American Civil Liberties Union began in late March and allows 35 families a day into the United States at places along the border. It has no end date.

The twin tracks are described by participating organizations as an imperfect transition from so-called Title 42 authority, named for a section of an obscure 1944 public health law that Trump used in March 2020 to effectively end asylum at the Mexican border. With COVID-19 vaccination rates rising, Biden is finding it increasingly difficult to justify the expulsions on public health grounds and faces demands to end it from the U.N. refugee agency and members of his own party and administration.

. . . .

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

Read the full article at the link.

Well, I’ll give them this. “Farming out” the asylum system to these NGO experts is better than the Trump approach. The Trump regime “outsourced” the American asylum system to Mexico, El Salvador, Honduras, and Guatemala.

The common denominators among those countries is that the are all notorious for human rights abuses, corrupt government, dysfunctional legal systems, and lack of any semblance of a fair, functioning asylum adjudication system. Additionally, all are major senders of asylum seekers to America.

But, the Biden Administration’s “under the counter” approach is still fundamentally wrong! It’s yet another “haste makes waste gimmick” that lacks transparency, clear standards, accountability, and most of all, operates outside of any legal framework!

That’s a recipe for arbitrariness, abuse, and unfairness. Even if the system were to produce decent results, the lack of transparency robs it of credibility. It’s therefore likely to be attacked by both advocates and restrictionists while being panned in the press — a self-created “worst case” scenario of the type Dem Administrations seem to specialize in when it comes to immigration and human rights!

The solution here is to do what many of us have been recommending since the day the election results became final. That is, bring in outside experts to USCIS to lead and revitalize the Asylum Officer screening program and bring in real judges, largely from the outside, — progressive practical experts in asylum law committed to human rights and due process — to EOIR to establish legitimate precedents and insure fair, humane, and uniform treatment of asylum seekers.

It’s possible, indeed probable, that the U.S. representatives of some of the NGOs involved would be among the best experts to do this — leading human rights authorities like Mark Hatfield at HIAS, Wendy Young at KIND, and Wendy Wylegala, also of KIND are obvious choices.

So, put them and other practical experts like Professor Karen Musalo (Center for Gender & Refugee Studies), Eleanor Acer (Human Rights First), Professor Stephen Legomsky (former USCIS Chief Counsel), Associate Dean Jaya Ramji Nogales (Temple Law), Judge Ilyce Shugall (Round Table), Dean Kevin Johnson (UC Davis), Michelle Mendez (CLINIC), Professor Lenni Benson (Safe Passage Project), Professor Ingrid Eagly (UCLA Law), Laura Lynch (NILC), Professor Stephen Yale Loehr (Cornell Law), Jason Dzubow (The Asylumist), Professor Debi Anker (Harvard Law), Professor Michele Pistone (VIISTA/Villanova Law), and others like them on the payroll at USCIS and EOIR and let them fix the asylum system!

Experts like this could, if properly empowered, in relatively short order, establish a system that is legal, constitutional, fair, generous, humane, practical, efficient, and that complies with all of our international obligations. In other words, a “model system” that would serve the best interests of humanity and our nation!

The current opaque, chaotic, arbitrary mess at our Southern Border (essentially the Biden Administration’s version of “Hunger Games”) serves nobody’s interests excepts cartels and smugglers. It’s also likely to kill record numbers of asylum seekers unless fixed, NOW! https://www.washingtonpost.com/national-security/summer-migrant-deaths-southern-border/2021/06/03/a03d7bb8-c3a6-11eb-8c34-f8095f2dc445_story.html

Bringing in the experts seems like an outstanding, “no brainer” alternative to the godawful, dysfunctional, disgraceful mess that the Trump kakistocracy left at USCIS and EOIR, much of which continues to ramble on, further off the rails all the time, under Mayorkas and Garland. The Biden Administration can’t, and won’t, get the job done on asylum and racial justice without radical, yet logical and badly needed, personnel and leadership changes at USCIS and EOIR!

🇺🇸🗽⚖️🧑🏽‍⚖️Due Process Forever!

PWS

06-04-21

😎WIN ONE, LOSE ONE☹️: 9TH CIR. ANNIHILATES MATTER OF ARMENDAREZ-MENDEZ (SUA SPONTE REOPENING), WHILE 11TH CIR. WOODENLY ENDORSES 👎🏻 MATTER OF L-E-A- (NEXUS)!☠️⚰️

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-departure-bar-sua-sponte-reopening-balerio-rubalcaba-v-garland#

CA9 on Departure Bar, Sua Sponte Reopening: Balerio Rubalcaba v. Garland

Balerio Rubalcaba v. Garland

“This case presents the question whether the departure bar limits an IJ’s ability to reopen immigration proceedings sua sponte. We have jurisdiction to review questions of law under 8 U.S.C. § 1252(a)(2)(D), and we conclude that the departure bar does not apply in the context of sua sponte reopening. That is, an IJ’s discretion to reopen a case on his or her own motion is not limited by the fact that a noncitizen has previously been removed or has departed from the United States. Therefore, we grant the petition for review.”

[Hats off to Elsa Martinez!]

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

https://media.ca11.uscourts.gov/opinions/pub/files/201915091.pdf

KELLY SANCHEZ-CASTRO,

versus

U.S. ATTORNEY GENERAL,

________________________

Petition for Review of a Decision of the Board of Immigration Appeals _______________________

(June 1, 2021)

Petitioner,

Respondent.

Before WILLIAM PRYOR, Chief Judge, LUCK and ED CARNES, Circuit Judges.

WILLIAM PRYOR, Chief Judge:

Kelly Sanchez-Castro, a native of El Salvador, petitions for our review after

she unsuccessfully sought relief from removal because a gang targeted her family based on the assumption that her father’s work in the United States made it

USCA11 Case: 19-15091 Date Filed: 06/01/2021 Page: 2 of 15

wealthy. The Board of Immigration Appeals denied her applications for asylum, withholding of removal, and protection under the Convention Against Torture, and substantial evidence supports its decision. Sanchez-Castro is ineligible for asylum and withholding of removal because the gang that targeted her family did so only as a means to the end of obtaining funds, not because of any animus against her family. And she is ineligible for protection under the Convention Against Torture because she has not established that any harm she will suffer if returned to her home country will come with at least the acquiescence of a government official. We deny Sanchez-Castro’s petition for review.

. . . .

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

To reach its incorrect and life-threatening endorsement of the BIA’s misconstruction of the nexus requirements (throwing out the normal rules of causation to achieve an anti-asylum-seeker result) the 11th Circuit panel eschewed a much better and more intellectually honest approach by the 4th Circuit in Hernandez-Avalos v. Lynch, 784 F.3d 944, 950 (4th Cir. 2015).

Notwithstanding Chief Judge Pryor’s cavalier attitude about sending Ms. Castro-Sanchez back to possible death or dismemberment at the hands of gangs who operate with relative impunity in El Salvador, these are not “academic exercises.” They are serious life or death matters involving bad law produced by a (non) “court” (the BIA) controlled by a law enforcement official (the Attorney General) that is not comprised of judges who are recognized experts in asylum and immigration laws and has over recent history construed the law against immigrants at almost every opportunity!

These two cases show the difference between this panel of the 9th Circuit that takes judicial review and what’s at stake seriously and the “indifferent to humanity” rubber-stamp approach applied by the 11th Circuit panel. We need better judges, progressives with expertise in due process, human rights, immigration, and racial justice at every level of our Federal Judiciary — from the Immigration Courts to the Supremes! Circuits like the 5th and the 11th with long and disgraceful records of relative indifference to the rights and lives of migrants, mostly those of color, are long, long overdue for infusion of better qualified progressive “practical scholars” and advocates.

That makes the progressive outrage over Garland’s totally inappropriate “giveaway” of Immigration Judge positions he controls to Barr-selected, non progressive, candidates who applied under a flawed recruitment process designed to discourage diversity and exclude the best qualified expert candidates from the private sector, along with his failure to address skewed anti-asylum-seeker precedents like L-E-A- and A-B– all the more understandable! It also makes changes that will put more expert, progressive, due-process oriented judges who have experience representing individuals in court all the more urgent!

Cases like this wouldn’t get into the “Article III Life or Death Lottery” if Garland had dealt promptly and properly with L-E-A-, A-B-, and other Trump-era, anti-asylum, anti-migrant, anti-due-process, misogynist precedents!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever! Tell the Biden Administration that we need progressives, not more “regressives,” on the Federal Bench, starting with the Immigration Courts! End abusive judging by a non-diverse Federal Judiciary!

PWS

06-04-21

🤯NEEDED LIKE A HOLE IN THE HEAD: Garland Seeks Insider For Bloated, Bogus “Office of Policy” @ EOIR — Tell Him, The White House, & Congress We Need Better, Diverse, Progressive Judges From “Outside,” NOT More Insider Bureaucrats For Unwieldy & Unnecessary Trump-Era Bureaucracy!🤮

Star Chamber Justice — “Here at the EOIR Office of Policy, we’re always thinking of innovative methods to help our partners at DHS Enforcement!”
”Justice” Star Chamber
Style

The latest from Garland’s failed EOIR:

Attorney Advisor

05/26/2021 09:40 AM EDT

Executive Office for Immigration Review (EOIR)
Office of Policy, Immigration Law Division
Falls Church, Virginia
Announcement #: EOIR-21-0039
Application Deadline: June 8, 2021

The Attorney Advisor provides technical legal advice on the development and implementation of agency-wide policies for all agency functions.

Area of Consideration:

This position is open to Federal Employees.

Duties include but are not limited to the following:

Drafts and conducts legal reviews of draft regulations, policy directives, and a variety of non-adjudicatory operations.

Performs comprehensive research regarding newly enacted statutes, proposed Federal legislation and regulations, DOJ regulations, and policy statements; prepares legal memoranda necessary as related to such research.

Provides sound recommendations in response to a wide range of questions of immigration law and policy involved in the operations of the Agency and the effect of such operations on other activities, Government agencies, industry, and the general public.

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

This exchange of comments received at “Courtside” says it all:

Q: Why would this be limited to Federal Employees?

A: No idea. But it doesn’t seem as if they are planning to dismantle McHenry’s Office of Policy. Courts don’t have Offices of Policy to my knowledge.

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

No, real “courts” don’t have this bureaucratic nonsense created specifically to suppress judicial independence and to create political influence on what is supposed to be independent, expert judging. It also fed the nonsensical Barr attempt to pass off Immigration Judges (basically reduced to the status of “deportation clerks on an assembly line” under Trump) as “policy officials” to “bust” their union (NAIJ) and keep it from exposing abuses and fighting for judicial independence from political meddling.

I’ve written elsewhere about Garland’s unwillingness to hold Barr and Sessions accountable for their misdeeds. https://immigrationcourtside.com/2021/05/29/dean-erwin-chemerinsky-garlands-failures-justice-go-beyond-immigration-attempting-to-cover-up-your-predecessors-dishonesty-ethical-lapses-possible-criminal-miscondu/

FULL DISCLOSURE: I am a retired member of the NAIJ.

“Real courts” might have “Chief Judges,” basically “first among equals” who handle administrative tasks on behalf of their colleagues in addition to performing daily judicial duties. They DON”T have a plethora of “Chiefs, Deputy Chiefs, Chiefs of Staff, Directors, Deputy Directors, Associate Directors, Assistant Chiefs, Unit Chiefs, Executive Assistants, Office Heads, and “Counsel to” many of the foregoing.

As many of us pointed out to the Biden Transition Team, Garland should have “lost” the “bureaucratic, Vatican-style, hierarchical, wasteful, ineffective, bloated bureaucracy” @ EOIR and replaced it with “leaner, progressive, expert judicial leadership” who would:

See that qualified progressive expert judges were appointed on a merit basis;
Replace the BIA with qualified, progressive, “practical scholar” judges to provide uniform legal guidance and enforce due process;
Change the hiring criteria and recruiting practices to encourage diversity and more applicants from the private sector;
Get a functioning e-filing system and other basic professional support for judges and the public in place;
Fend off attempts by politicos at the DOJ, DHS, and White House to interfere with judicial independence once qualified progressive judges are in place at EOIR.

If there is any “legal policy” to be made, that’s the job of the BIA, once comprised of practical experts in due process, immigration, and human rights.

If there are “administrative policies” that need to be instituted to improve due process and efficiency, those should be developed by an “Immigration Judicial Conference” composed of sitting judges, BIA Judges, and perhaps Circuit Court Judges, with meaningful dialogue and input from the private sector and the DHS.

Support functions should be coordinated by a lean, professional “Administrative Office” patterned on the “Administrative Office for U.S. Courts” that serves the Article III Judiciary.

There should also be a transparent system, with public members and judges, to handle ethics and conduct complaints about judges.

Additionally, a training function with some model judicial training should be part of the structure.

There is absolutely no need for all the current ridiculous “quotas, ratings, supervision, policy memos, performance work plans, adjudication centers, and other bureaucratic nonsense” that eat up resources without furthering the mission of guaranteeing fairness and due process for all.

Bureaucrats are incapable of phasing out bureaucracy and replacing it with something better. That’s why every day that Garland dawdles in getting in the progressive talent from outside Government necessary to reform EOIR, ditch the bureaucracy, and turn it into a functioning, progressive, model court system is a “killer” — both figuratively and literally!

If there is a single “ask” I would have of Judge Garland, it’s for him to stop thinking like the DOJ bureaucrat he once was and start acting like an independent Federal Judge (which he also once was) constructing a completely new progressive court system designed to be the “world’s best!”

That’s NOT going to happen by mindlessly and wastefully hiring more “insider Attorney Advisors” for a bogus and unnecessary “Office of Policy!”

🇺🇸⚖️🗽Due Process Forever!

PWS

05-30-21

GARLAND/MAYORKAS UNILATERAL “IN YOUR FACE” 🤮 ASYLUM POLICIES CONTINUE TO INFLAME, OUTRAGE, PROGRESSIVE OPPOSITION! — More Haste Makes Waste “Special Asylum Dockets,” Continuation Of “Miller Lite” Racist/Misogynist Anti-Asylum Policies, Unqualified Judges, Likely To Deny Due Process, Create Aimless Docket Reshuffling, Increase Backlogs — Congress Needs To Remove Immigration Courts From Garland’s Dysfunctional DOJ — Now!

Here’s yet another “big middle finger” 🖕 to progressives and experts from Garland and Mayorkas:

U.S. DEPARTMENT OF HOMELAND SECURITY

Office of Public Affairs

DHS and DOJ Announce Dedicated Docket Process for More Efficient Immigration Hearings

WASHINGTON – Today, Secretary of Homeland Security Alejandro N. Mayorkas and Attorney General Merrick B. Garland announced a new Dedicated Docket process to more expeditiously and fairly make decisions in immigration cases of families who arrive between ports of entry at the Southwest Border. This new process should significantly decrease the amount of time it takes for migrants to have their cases adjudicated while still providing fair hearings for families seeking asylum at the border.

“Families arriving at the border who are placed in immigration proceedings should have their cases decided in an orderly, efficient, and fair manner,” said Secretary of Homeland Security Alejandro N. Mayorkas. “Families who have recently arrived should not languish in a multi-year backlog; today’s announcement is an important step for both justice and border security.”

“The mission of the Department of Justice’s immigration courts is to decide the cases that come before them promptly and fairly,” said Attorney General Merrick B. Garland. “This new program for certain newly arriving families will help achieve that critically important goal.”

Under this new process, certain recently arrived families may be placed on the Dedicated Docket. Families may qualify if they are apprehended between ports of entry on or after Friday, May 28, 2021, placed in removal proceedings, and enrolled in Alternatives to Detention (ATD). DHS, in partnership with the Department of Justice (DOJ) Executive Office for Immigration Review (EOIR), will make available information services to help families understand the immigration system and refer families to pro bono legal service providers for possible representation.

EOIR has identified immigration courts in 10 cities with established communities of legal services providers and available judges to handle the cases. The designated cities are Denver, Detroit, El Paso, Los Angeles, Miami, Newark, New York City, San Diego, San Francisco, and Seattle.

Under the Dedicated Docket, EOIR’s immigration judges will work generally to issue a decision within 300 days of the initial master calendar hearing, subject to the unique circumstances of each case including allowing time for families to seek representation where needed. While the goal of this process is to decide cases expeditiously, fairness will not be compromised.

# # #

U.S. Department of Homeland Security
www.dhs.gov

Here are “statements in opposition” from the National Immigrant Justice Center and Human Rights First:

https://immigrantjustice.org/press-releases/bidens-return-failed-immigration-court-rocket-docket-will-deprive-asylum-seekers

https://www.humanrightsfirst.org/press-release/human-rights-first-concerned-biden-plan-risks-new-rocket-dockets-when-it-should-end#.YLEQ7NuEm7k.twitter

Here’s the “statement of outrage and solidarity in opposition from the experts at the Center for Gender and Refugee Studies at Hastings Law:

FOR IMMEDIATE RELEASE

Media Contact: Brianna Krong, (415) 581-8835, krongbrianna@uchastings.edu

CGRS Concerned Biden Policies Will Undermine Fairness, Endanger Refugee Families

San Francisco, CA (May 28, 2021) – The Center for Gender & Refugee Studies (CGRS) is deeply concerned by today’s announcement that the Biden administration will begin fast-tracking asylum cases for certain families seeking refuge. By establishing a “dedicated docket” for asylum-seeking families, the administration will sacrifice fairness in the name of speed, adopting a misguided approach that under both the Obama and Trumpadministrations contributed to record backlogs in the immigration system, eroded due process, and endangered lives. Instead of reviving the failed policies of past administrations, the Biden administration should swiftly end cruel and illegal Trump-era policies and fully restore safe asylum processing at the southern border.

Today’s announcement arrives at a time when families seeking asylum face enormous roadblocks to safety and justice. Over four months into its first term, the Biden administration has failed to end myriad Trump-era policies that continue to place refugees at risk of grave violence, and even death. It is shameful that the administration is prioritizing fast-tracked adjudications while continuing to illegally expel asylum seekers to danger under the widelydebunked pretext of the pandemic. So long as the Title 42 policy remains in place, there can be no safe or fair process for asylum seekers.

The Biden administration also has yet to address Trump policies that have gutted protections for people escaping domestic violence and gang brutality, including many of the families impacted by this new policy. Until Attorney General Garlandtakes action to reverse these policies, the asylum system will remain rigged against families fleeing violence in their homes and communities, who will be wrongly denied protection and ordered deported to the very dangers they’ve fled. Rushing adjudications will make it even more difficult for these families to find safety, further undermining any semblance of fairness in the asylum process.

“CGRS and our partners have set forth a clear roadmap for the Biden administration to adjudicate asylum cases in a timely manner and mitigate backlogs, all while improving fairness and protecting due process,” CGRS Legal Director Blaine Bookey said today. “As advocates, we’ve been down this road before. We know policies that rush asylum adjudications fail to keep families and children safe. We implore the administration not to make the mistake of putting speed above justice.”’

Advocates, asylum seekers, and communities are coming together to demand an asylum system that provides every person a safe and fair opportunity to seek protection, with full access to legal representation and community-based support. The Biden administration should put humanity first, reject the cruel policies of the past, and welcome people seeking asylum with dignity.

Brianna Krong | Communications and Advocacy Coordinator

Center for Gender and Refugee Studies

200 McAllister Street | San Francisco, CA 94102

(415) 581-8835 (Phone) | (415) 581-8824 (Fax)

krongbrianna@uchastings.edu
Pronouns: she/her/hers

Twitter| Facebook | Donate

Request Assistance or Report an Outcome in Your Asylum Case

Here are other initial comments from asylum experts:

I don’t think there was any consultation w/ private bar. NGOs are very upset. Biden administration just held a q and a about two hours ago to answer NGO questions but there’s a lot of unknowns remaining.

Lots of NGOs are off today because of the long weekend but many are working to respond to this and the President’s budget.

See NGO press release in response to President’s budget:

For Immediate Release: May 28, 2021

Contact: press@wearehome.us

We Are Home Campaign Deeply Disappointed by Biden’s DHS Budget Request

Calls on Congress to Do Better

Washington, DC —President Biden’s FY 2022 budget, released today, requests $2.7 billion from Congress for ICE detention – almost the same amount enacted by Congress last year under the Trump Administration. It includes funds for 2,500 family detention beds. Alongside recent increases in the number of people jailed by ICE, this budget request is an alarming signal that DHS and the President are not heeding the call of the immigrant justice movement to reduce and ultimately end the federal government’s harmful and unnecessary reliance on incarceration for immigration processing.

In response to the news, Bridgette Gomez, Director of the We Are Home campaign, said:

“We are deeply disappointed to see that DHS plans to continue Trump-era levels of ICE detention. Candidate Biden promised an immigration policy that reflects our highest values as a nation. As president, Biden has repeatedly emphasized his commitment to racial equity. Any plan that doesn’t dramatically shrink ICE’s incarceration system – which mostly jails Black and Brown people – betrays those commitments. We’ll be looking to Congress to do better and cut ICE’s budget significantly.”

In March, We Are Home joined the Defund Hate coalition in calling on Congress to cut funding for ICE and CBP by at least 50 percent.

In February, the campaign sent comprehensive recommendations to DHS to overhaul enforcement and begin to dismantle the detention and deportation machinery that has devastated millions of families, mostly Black and Brown, and squandered billions of taxpayer dollars. These recommendations included policies to cut detention, including 1) a comprehensive file review of all people in ICE custody, with a presumption of release, and 2) an end to the use of private prisons and state and local jails for ICE detention. The urgency to reduce the detained population is even greater during the pandemic, since people in jails and prisons face particular risk of contracting COVID. ICE has no centralized plan to provide vaccines for people in its custody.”

We Are Home is a nationwide campaign to fight for immigrant communities on three fronts: prioritizing and demanding a pathway to citizenship for the 11 million undocumented immigrants in America; a moratorium and overhaul of interior enforcement; and broad affirmative relief from deportation. We Are Home is co-chaired by Community Change/Community Change Action; National Domestic Workers Alliance (NDWA)/Care in Action; Service Employees International Union (SEIU); United Farm Workers/UFW Foundation; and United We Dream.

###

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

The NGOs are quite upset.Note that this comes days after the Fourth Circuit enforced an IJ’s duty to fully develop the record even in represented cases.And yet here is the administration speeding up the assembly line.

In my view, this will lead to more pro se I-589s being filed.And as Sessions vacated Matter of E-F-H-L-, there is now no safeguard in either case law or regs preventing IJs from summarily denying those I-589s for e.g. failing to correctly delineate a PSG.

I can’t for the life of me understand this administration’s determination topreserveTrump’s policies.

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

Quick takes:

Because the system would depend almost entirely on NGOs and pro bono groups to provide counsel, developing policies without consulting those groups or providing grants to increase representation is totally inappropriate, not to mention stupid and insulting;
Special expedited asylum dockets have failed in the last two Administrations, so why try a “proven failure” once again?
Assigning certain Immigration Judges to these “priority dockets” – without first removing non-priority cases from the docket, will result in more “Aimless Docket Reshuffling” and increased backlogs;
As a recent article by respected experts Professor Karen Musalo and Professor Stephen Legomsky shows, the current system has been “gamed against asylum seekers” by both EOIR and DHS; https://www.justsecurity.org/76671/asylum-and-the-three-little-words-that-can-spell-life-or-death/; without radical progressive changes, the new policy will just produce more unfairness;

Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law

Stephen Legomsky — Professor Stephen H. Legomsky
Emeritus Professor of Law. & Former USG Senior Executive
Washington U. Law
PHOTO: Washington U. Law website

The 10 Immigration Courts selected for this project have widely varying asylum denial rates. For example, for the period 2015-20, according to TRAC, El Paso (an “Asylum Free Zone”) had a denial rate of 90% and New York a denial rate of 32%. How can a system including such extremes be “fair?”
As recent litigation has pointed out, Garland’s Immigration Judges are making basic mistakes and failing to develop records in their rush to screw asylum seekers. Without bringing in expert judges and emphasizing fairness, scholarship, record development, and quality above bureaucratic, enforcement related goals, this proposal is going to increase the due process disaster in Garland’s broken “courts;” https://immigrationcourtside.com/2021/05/26/%e2%9a%96%ef%b8%8f%f0%9f%97%bd4th-circuit-blasts-garland-eoirs-indolent-haste-make-waste-denial-centric-asylum-adjudication-in-another-victory-for-round-table-due-proces/
In just a short time, Garland’s outrageous mishandling of the Immigration Courts, and his disdain for expert progressive advice and appointments, shows exactly why Congress must remove these “courts” from the incompetent and biased administration of the DOJ and create an independent U.S. Immigration Court;
Until that happens, progressives and advocates will have to deal with Garland’s “in your face arrogance and ignorance” the same way they dealt with Sessions and Barr — with massive resistance and unending litigation until Garland’s corrupt, incompetent, biased system grinds to a halt.

Turning potential powerful and helpful friends into motivated and committed enemies! Seems pretty stupid to me.

Stephen Miller rightfully made lots of enemies with his racist, neo-Nazi shenanigans. But, he did please and energize his nativist, White Nationalist supporters!

By contrast, Garland has rapidly turned progressive supporters into enemies. But, he won’t get one iota of appreciation or support from Miller and his White Nationalist nativist supporters in the GOP.

Creating policies that are universally opposed or panned. That takes some impressive negative leadership and political idiocy!

🇺🇸Due Process Forever!

PWS

05-29-21

⚖️🗽4TH CIRCUIT BLASTS GARLAND EOIR’S INDOLENT, “HASTE MAKE WASTE,” DENIAL-CENTRIC ASYLUM ADJUDICATION IN ANOTHER VICTORY FOR ROUND TABLE & DUE PROCESS & ANOTHER “WARNING SHOT ACROSS THE BOW” FOR GARLAND’S FAILURE TO INSTITUTE LONG OVERDUE PROGRESSIVE REFORMS AND REPLACE DEFICIENT JUDGES @ EOIR! 🏴‍☠️☠️— Immigration Judges Have A Duty To Develop the Record, Even When It Slows Down EOIR’s “Deportation Railroad” — AREVALO QUINTERO v. GARLAND!

Four Horsemen — BIA Asylum Panel In Action — What are Garland, Monaco, and Gujpta doing to end these atrocities!? So far, nothing!
Albrecht Dürer, Public domain, via Wikimedia Commons

Arevalo Quintero v. Garland, 4th Cir., 05-26-21, published

PANEL:MOTZ, WYNN, and FLOYD, Circuit Judges.

OPINION BY: Judge Wynn

CONCURRING OPINION: Judge Motz

KEY QUOTE:

In our country, few populations are as vulnerable as noncitizens facing removal

proceedings who are unable to secure the assistance of adequate counsel. Yet the consequences they may face are severe: family separation, prolonged detention, and deportation to a country where persecution or even death awaits.

We are acutely conscious of the harsh realities of our immigration system faced by thousands of noncitizens each day. These individuals come to our shores in search of sanctuary and a better life. Many are poor, young, uneducated, or (like Petitioner) all three. Of course, we recognize that immigration policies are primarily a concern for the elected branches. But it is our role, and our highest duty, to ensure that those policies are applied fairly and with full regard to our laws and our Constitution.

With these grave concerns in mind, we hold today that under the Immigration and Nationality Act and, where relevant, the United States’ obligations under the Refugee Convention, immigration judges have a legal duty to fully develop the record, which becomes particularly important in pro se cases. We believe this procedural protection is essential for ensuring fundamental fairness and reasoned decision making in removal proceedings.

Based on our review of the record, we conclude that the immigration judge below failed to fulfill her duty to fully develop the record, thereby depriving Petitioner of a vital statutory protection and a full and fair hearing. In light of this and other errors made by the immigration judge and the Board of Immigration Appeals, we grant the petition, vacate Petitioner’s final order of removal, and remand to the Board of Immigration Appeals with instructions to remand the case to the immigration judge for further fact-finding and reconsideration of Petitioner’s application for withholding of removal and Convention Against Torture relief.

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

How many more of these disasters will it take for Garland to oust the deadwood and the “denial club” from the Immigration Judiciary, make the urgently needed, long overdue progressive reforms, and bring in progressive leaders and judges to restore due process at the totally and disgracefully dysfunctional EOIR? How many more lives will be needlessly be lost or squandered by the unconstitutional parody of a “court” system that Garland is running @ EOIR? What will the cost of his “case of the slows” be to Garland’s reputation and to the Biden Administration? Why is the “EOIR Clown Show”🤡⚰️still engaging in its daily deadly performances more than four months into the Biden Administration?

Also, every additional embarrassing, unprofessional performance like this by EOIR makes Garland’s horrible decision to hire 17 more “less than the best,” non-expert Immigration Judges, who haven’t represented individuals in Immigration Court, look worse and worse! There are lots of experts out there in the NDPA who know asylum law, know how to develop a record fully, and are highly sensitive to the due process needs of asylum seekers and other migrants. The continuation of ignorant, haste make waste, “any reason to get to no” decision making at EOIR, that specifically was encouraged by Sessions and Barr, is totally unnecessary ands highly inappropriate!

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

Here’s more from Round Table leader Hon. “Sir Jeffrey” Chase:

Friends, this is a really great win. In a 62-page published decision, a panel of the Fourth Circuit referenced our amicus brief, adopted many of our arguments, and agreed that an IJ has a duty to develop the record in a pro se withholding/CAT claim.

The court actually granted the withholding of removal claim (see pp. 53-54). It also found that the BIA incorrectly applied Matter of W-Y-C- & H-O-B- to a pro se applicant.

While our brief is mentioned in the body of the decision, if you look at footnote 24, the court especially liked the analogy from our brief (the work of our drafter, Steve Schulman of Akin Gump) comparing a pro se applicant’s attempts to formulate a particular social group to a game of Scrabble in which one of the players “does not speak English and cannot spell;” adding that “without help, the respondent could never win, and can’t even meaningfully participate.”

There are also references to Matter of S-M-J- and the UNHCR Handbook.

I think we can be very proud of this one.

Thanks again to Steve Schulman, who has done such an outstanding job in drafting quite a few of our briefs.

Best, Jeff

Just think of what could be accomplished and the resources that would be conserved if the progressive due process experts were on the INSIDE at EOIR rather than perpetually STUCK ON THE OUTSIDE litigating, writing, lobbying, complaining to get Garland to simply do his job! Not rocket science. But, apparently below Garland’s view and beyond his engagement level from the “ivory tower.”

🇺🇸Due Process Forever!

PWS

05-26-21

⚖️🗽Round Table Adds Voice To Crescendo Of Civil Rights, Human Rights, Racial Justice, Social Justice, Immigrants’ Rights, Good Government Groups Asking Garland For Progressive Due Process Reforms @ Dysfunctional EOIR! — Failure To Vacate Trump-Era “Killer Precedents” Adds To The Injustice & Chaos In Garland’s Disgracefully Failed “Courts!”

Hon. Susan G. Roy
Law Office of Susan G. Roy, LLC
Princeton Junction, NJ
Member, Round Table of Former Immigration Judges

Here’s a link to the letter:

AG Garland letter Precedents FInal

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

Thanks to Round Table “Fearless Knightess” Judge Sue Roy of NJ for spearheading this effort and taking the drafting lead. Now, a private practitioner, Sue is one of the thousands of lawyers and millions of individuals and family members directly affected by the continuing dysfunction at EOIR and Garland’s failure to bring in progressive leadership from the NDPA to make long-overdue “no brainer” reforms @ EOIR.🆘

In an interesting coincidence, the 17 improperly certified precedents from Sessions, Whitaker, and Barr matches the 17 inappropriate and insulting “Miller Lite/Barr Leftover” Immigration Judge appointments that Garland just made!

One thing is for sure: Garland its NOT getting the job done for progressives nor is he restoring due process at EOIR. Instead, the deadly,☠️ disgusting 🤮downward spiral continues every day!

🇺🇸🗽Due Process Forever!

PWS

05-25-21

GARLAND & MAYORKAS DON’T “GET IT” — Who Makes Key Asylum Evaluations, Their Training, & Their “Group Culture” Are “Outcome Determinative” In “Life Or Death” Asylum Decisions — Failing To Recognize The Miller White Nationalist Culture @ DOJ & DHS & Not Bringing In Progressive Experts To Lead, Train, Adjudicate, & Judge Is A Killer, ☠️⚰️ Literally! — “The Biden administration now faces the Herculean task of restructuring our immigration system, not just by walking back Trump policies but also by building new ones that represent a country built on freedom, hope, and asylum. And it starts by properly and fairly listening to our asylum seekers.”

ElizabethL. Silver — Elizabeth L. Silver
American Author & Attorney
PHOTO: By David Zaugh on Elizabeth L. Silver Wevsite

https://lareviewofbooks.org/article/what-does-credible-fear-really-mean/

What Does “Credible Fear” Really Mean?

May 24, 2021 • By Elizabeth L. Silver

A FEW MONTHS BEFORE COVID-19 descended, I spent a week in Dilley, Texas, as a volunteer attorney at the South Texas Family Residential Center, which is essentially a holding center, specifically for women and their children. It’s the last stop before expedited removal and the place where many women and children are sent once they’ve claimed fear of persecution for the purpose of applying for asylum, or for those who have also been apprehended internally.

I was working with asylum seekers at the Mexican border port of entry, where people were held without answers for weeks, even months, while they awaited the next step in their asylum claims: the credible fear interview. If asylum seekers, fleeing persecution in their home countries, declare their fear of returning, they are detained as they await this interview, which will determine whether they can proceed to the next step: appearing before an immigration judge to request asylum. The conversation leads to a proverbial thumbs up or down, a trip to a courtroom or the border they just fled. If an asylum officer determines that their story has objective elements of credible fear, they may proceed to the next legal step. Officers essentially check required elements off a list, including what the specific act of persecution is, if the asylum seeker knows the reason why she’s been persecuted, how many times it happened, if she has sought help to remediate it, and more. In other words, asylum seekers’ lives depend on the hour or so answering questions spent either in a small room or, more likely, over the phone with a government official and interpreter.

Right now, our country again faces a critical point in defining our identity: are we in fact a country founded on freedom and designed to welcome those in need? The Biden administration states that it aims to help asylum seekers, but in order to do so we need to reevaluate how we approach asylum at all levels. That begins with reassessing how we determine credible fear.

During my brief time working in Dilley, I helped women prepare for their credible fear interviews. Many asylum seekers might not understand the process, nor necessarily know which details of their stories determine what the United States has deemed credible fear. Asylum is not a guaranteed right, and attorneys are not permitted to help during the interview; thus, preparation is key.

I spoke with a woman who fled five countries to escape her abusive boyfriend. The man followed her from country to country, raping her and threatening her life in each country. No matter where she fled in South and Central America, he followed her. Her five-year-old son, a product of one of these rapes, held her hand during our conversation in the detention center. I spoke with another woman who was threatened by a well-known drug cartel. Through her tears, she could barely communicate to me that they had already killed her brother, taken her money, patrolled the school where she taught, and routinely policed her town, spitting bullets as easily as words. As I interviewed the women, they cradled their young children, who were also visibly traumatized by what they had experienced in their home countries, by their journeys to the United States, and finally by the process to gain safety on this side of the border.

The credible fear interview places the burden of establishing fear on the applicant and is supposed to be non-adversarial, but given the nature of everything that precedes the interview — the lack of representation during the process, the jail-like location in which it takes place, the asylum officer’s constant questions — it feels adversarial. And this is just the first step. If the officer determines that she does have credible fear, the next step is to present her case to an immigration judge in a proper hearing.

. . . .

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

Sadly, and completely unnecessarily and inappropriately, there is nobody in a leadership position at DOJ right now with Elizabeth Silver’s practical insights and understanding of our broken asylum system and how it can be fixed! I’ll bet that neither Garland nor anyone on his senior staff has spent a week at Dilley or any comparable site in the “New American Gulag” trying to represent vulnerable asylum seekers in Garland’s “wholly owned star chamber courts.”

Has Garland even taken the time to observe what’s happening in Dilley, Pearsall, Texas (“home of the Big Peanut”); Jena, Louisiana; Lumpkin, Georgia (“where asylum cases go to die”), or any of the other comparable “courts” (that don’t function like “courts” at all)? Has he ever spoken to asylum applicants and their pro bono lawyers trying to negotiate his fatally flawed and intentionally “user unfriendly” system? Has he gone out and hired progressive “practical scholars” to fill in his “blind spots?”

Schmidt, Richardson, Big Peanut, Pearsall — Round Table Judges John Richardson and I have “seen the Peanut” and lived to tell about it! Pictured here in 2015 with then Pearsall JLC B. Atenis Madico.

That says loads about AG Merrick Garland — none of it good! “Ignorance,” “intransigence,” and “good enough for government work” are not acceptable approaches for the Biden Administration! Yet that’s exactly what Garland has “delivered” on immigration, human rights, racial justice, and gender equity during his first three months at “Justice.”

Of course it’s adversarial! Totally, these days!

The White Nationalist racists in the Trump regime like Miller, “Gonzo” Sessions, “Wolfman,” “Cooch Cooch,” and “Billy the Bigot” hated asylum seekers, people of color, and women and “biased out” the system and selection processes accordingly. Heck, in clear violation of the statute, Trump even replaced USCIS Asylum Officers with totally unqualified Border Patrol Agents to insure denial of even the most compelling claims!

Sessions bogusly bellyached about too many individuals passing “credible fear.” To the contrary, this was totally appropriate, given the “super generous” standards that are supposed to be applied at the “access to the system gateway.” The real systemic problem was in the historically poor performance of the Immigration Courts on asylum grants that got immeasurably worse under Sessions and Barr. (And has remained beyond horrible under Garland’s non-existent “leadership!”)

As almost all legitimate human rights experts would confirm, the “high rejection rate” later in Immigration Court results from far, far, far too many unqualified, non-expert, improperly selected, poorly trained, Immigration “Judges” — at both the trial and appellate levels — operating in a “culture of institutionalized racism, misogyny, and default denial” rather than the generous atmosphere and culture required by the Supremes in INS v. Cardoza-Fonseca but never truly implemented at EOIR.

“Herculean” although the task might appear, there are thousands of well-qualified immigration and human rights experts, most of them in the private sector right now, who could solve this problem and establish due process, fundamental fairness, real asylum expertise, and the rule of law in short order. But, Garland and Mayorkas have failed to remove the deadwood and the Trump/Miller holdovers and have not brought in the expert problem solvers to get this currently deadly, defective, illegal, and blatantly unconstitutional system under control. Additionally, qualified, expert Immigration Judges, REAL independent, courageous Federal Judges, not “go along to get along “bureaucratic retreads,” could also train and effectively supervise the Asylum Officer Corps, rather than woodenly and often ignorantly “rubber stamping” defective denials of “credible fear.”

Incredibly, Garland aggravated this festering problem “right off the bat” by improperly hiring 17 new, non-expert, not judicial quality Immigration Judges from flawed recruitments, skewed lists, and bogus recommendations developed by “Billy the Bigot” Barr! What an amazing lack of awareness and “open dissing” of humane progressive values and commitment to quality in Government!

Does this group represent the type of diverse, progressive candidates that President Biden would nominate for Article III Judgeships? OF COURSE NOT! Then, what possible excuse is there for “gifting” them some of the most powerful and important Federal Judgeships — those with probably more “life or death” authority and discretion over individuals than even the Supremes? No excuse whatsoever!

Our asylum system is totally “fixable.” Immediate improvements can be made and noticeable systemic changes could and should be in place before the end of this year! But, not the way that Garland and Mayorkas are going about it! The deadwood needs to go NOW, and be replaced with expert, progressive leadership, judges, and adjudicators!

🇺🇸Due Process Forever!

PWS

05-25-21

🏴‍☠️🤮☠️⚰️👎🏻STILL SCOFFLAWS AFTER ALL THESE MONTHS: UNHCR SPEAKS OUT AS BIDEN, HARRIS, GARLAND, MAYORKAS CONTINUE TRUMP-MILLER POLICIES OF ILLEGAL, IMMORAL, UNNECESSARY RETURN OF ASYLUM SEEKERS WITH NO DUE PROCESS UNDER BOGUS TITLE 42 RATIONALE! — Ever Wonder Why Racial & Gender Justice & Equity Are Mirages In Today’s America? — Look No Further Than The “Dred Scottification” Of “The Other” @ DOJ & DHS On Display Every Day!

“Floaters” — “Floaters — How The World’s Richest Country Responds To Asylum Seekers”
EDS NOTE: GRAPHIC CONTENT – “Can we really be proud of this ‘policy?’ Is spineless complicity in wrongdoing really ‘enlightened policy?’ What’s the purpose of an Attorney General who lacks the courage and backbone to stand up and demand immediate reinstitution of Constitutional standards and the rule of law at the border? How do we propose to put a woman or man on Mars when we can’t institute a basic asylum system?” (AP Photo/Julia Le Duc)

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/posts/unhcr-calls-for-end-to-cdc-title-42-blockade

UNHCR Calls for End to CDC Title 42 Blockade

UNHCR, May 20, 2021, Statement attributable to UN High Commissioner for Refugees Filippo Grandi

“I appeal to the government of the United States to swiftly lift the public health-related asylum restrictions that remain in effect at the border and to restore access to asylum for the people whose lives depend on it, in line with international legal and human rights obligations.

I welcome the US government’s plans for much needed reform and capacity building to manage border processes and the positive steps that have been taken to exempt unaccompanied children and some families in situations of acute vulnerability from these severe restrictions. A system which allows a small number of asylum seekers to be admitted daily, however, carries with it a number of risks, and is not an adequate response. There is an urgent need to take further steps to provide access at ports of entry which remain closed to most asylum-seekers owing to the Title 42 public health order by the US Centers for Disease Control and Prevention (CDC), in place since March last year.

The Title 42 order has resulted in the expulsions of hundreds of thousands of people to Mexico or their countries of origin, denying their access to asylum procedures. Guaranteed access to safe territory and the prohibition of pushbacks of asylum-seekers are core precepts of the 1951 Refugee Convention and refugee law, which governments are required to uphold to protect the rights and lives of refugees. The expulsions have also had serious humanitarian consequences in northern Mexico.

We at UNHCR, the UN Refugee Agency, have maintained since the start of the pandemic that protecting public health and protecting access to asylum, a fundamental human right, are fully compatible. At the height of the public health emergency, many countries put in place protocols such as health screening, testing and quarantine measures, to simultaneously protect both public health and the right to seek asylum.

I encourage the US administration to continue its work to strengthen its asylum system and diversify safe pathways so asylum-seekers are not forced to resort to dangerous crossings facilitated by smugglers.

For our part, UNHCR stands ready to support the implementation of such a decision.”

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

The suffering of migrants continues as does the indifference of Biden officials to racial and gender injustice. Such tone deafness and spinelessness doesn’t bode well for voting rights, police reform, criminal law reform, pay equity, health care, or any other civil rights/social justice initiatives from the Biden Administration!

The Biden folks can’t keep relying on the crimes against humanity by Trump as an excuse for continuing them! Not rocket science — but it should be the number one national priority now that COVID-19 seems to be getting under control and the economy is rebounding.

We aren’t gong to solve the centuries-old problems in the Middle East tomorrow! But, we could and should begin fixing our broken and dysfunctional immigration system and Immigration Courts today (actually should have been underway since Day 1 of the Biden Administration)!

🇺🇸Due Process Forever!

PWS

05-24-21

⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮

Dan Kowalski forwards these two 2d Circuit reversals on basic “bread and butter” issues: 1) mental competency (BIA unable or unwilling to follow own precedent); 2) credibility; 3) corroboration; 4) consideration of testimony and evidence:

https://www.ca2.uscourts.gov/decisions/isysquery/85d225f1-0b15-44a9-8890-80f9027d12b5/3/doc/18-1083_so.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/85d225f1-0b15-44a9-8890-80f9027d12b5/3/hilite/

https://www.ca2.uscourts.gov/decisions/isysquery/57161a21-b70c-4b36-9a38-ff6a88d12453/14/doc/19-1370_so.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/57161a21-b70c-4b36-9a38-ff6a88d12453/14/hilite/

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

These aren’t “cases of first impression,” “Circuit splits,” complex questions involving state law, unusual Constitutional issues, or difficult applications of treaties or international law. No, these are the “basics” of fair, competent adjudication in Immigration Court. Things most law students would get correct that IJs and BIA Appellate Judges are getting wrong on a daily basis in their “race to deny.”

Don’t kid yourself! For every one of these “caught and outed” by Circuit Courts, dozens are wrongly railroaded out of America because they are unrepresented, can’t afford to pursue judicial review in the Article IIIs, or are duressed and demoralized by unconstitutional detention and other coercive methods applied by the “unethical partnership” between EOIR and ICE enforcement.

Others have the misfortune to be in the 5th Circuit, the 11th Circuit, or draw Circuit panels who are happy to “keep,the line moving” by indolently “rubber stamping” EOIR’s “Dred Scottification” of “the other.” After all, dead or deported (or both) migrants can’t complain and don’t exercise any societal power! “Dead/deported men or women don’t talk.”☠️⚰️ But, members of the NDPA will preserve and tell their stories of unnecessary human suffering and degradation for them! We will insure that Garland, Monaco, Gupta, and others in the Biden Administration who ignored their desperate moans and tortured screams in their time of direst need are held accountable!🤮

Unfortunately, these decisions are unpublished. They should be published! It’s critically important that the daily gross miscarriages of justice @ EOIR be publicly documented, citable as precedent, and serve as a permanent record of perhaps the most unconstitutional and corrupt episode in modern American legal history.

It’s also essential to keep the pressure on Garland and his so far feckless lieutenants to fix the problem:

Remove the Trump/Miller holdovers @ EOIR;
Prune out the “go along to get along” deadwood;
Rescind the improper hiring of 17 “Billy the Bigot” judicial selections (including the one absurdist selection by “AG for a Day Monty Python” — talk about a “poke in the eyes with a sharp stick” to progressives);
Bring in top notch progressive practical scholars as leaders and REAL judges at both the appellate and trial levels of EOIR – NOW;
Make the “no brainer” changes to eradicate Trump-era unethical, xenophobic “precedents” and inane “rules” and establish due process and fundamental fairness, including, of course, racial and gender equity in decision making.

So far, Garland has pretended that the “Culture of Denial” flourishing under his nose at HIS EOIR doesn’t exist! It does exist — big time — and it continues to get worse, threaten more lives, and squander more resources every day!

Due process (not to mention simple human decency) requires bold, immediate ACTION. Garland’s continued dawdling and inaction raises the issue of what is the purpose of an Attorney General who allows his “delegees” (basically Stephen Miller’s “judges”) to violate due process every day! There is no more important issue facing the DOJ today. Garland’s silence and inaction raise serious questions about his suitability to serve as the American public’s top lawyer!

🗽⚖️🧑🏽‍⚖️Due Process Forever!

PWS

05-24-21

🏴‍☠️👎🏽🤮PARODY OF JUSTICE @ “JUSTICE” — EOIR’s ETHICAL WASTELAND EXPOSED BY FOIA: The Only “Surprise” Here Is Garland’s Failure To “Clean House” @ EOIR, Remove Unethical Lawyers @ DOJ, & Demand Accountability For Ethically Challenged DHS Attorneys!🦨

EYORE — “Eyore In Distress” — Ethics have long been “on vacation” at EOIR. Sitting judges are muzzled from speaking publicly and can be disciplined for minor transgressions. But, some judges accused of serious misconduct get away scott free under an intentionally opaque process that operates without public input or oversight. Meanwhile DOJ politicos and EOIR Senior Execs operate in open violation of 5th Amendment Due Process and the most basic conflict of interest requirements. The end result is that individuals systematically are denied the “fair and impartial adjudicator” that our Constitution requires!
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

Kangaroos — “Let’s hop on over to ICE and see what our “partner” Kent Frederick wants us to do today to help out our masters at DHS enforcement!”
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Hon. “Sir Jeffrey” Chase reports to the Round Table:

From: Frederick, Kent

Sent: Friday, June 01, 2018 12:59 PM

To: Weil, Jack (EOIR)

Subject: Matter of Castro-Tum/ IJMorley

Dear Judge Weil:

Just for reference, here is the portion of the decision that 1.1Morley violated:

Matter of Castro-Tum, 27 l&N Dec. 271 (AG 2018), which explicitly directed the matter be remanded “to the Board with instructions to remand to the Immigration Judge to issue a new Notice of Hearing within 14 days of the date of this order. If the respondent again fails to appear, the Immigration Judge should proceed according to 8 U.S.C. §

1229a(b)(5).”) Matter of Castro-Tum, 27 l&N Dec_ at 294. Moreover, the Attorney General explicitly rejected the option to terminate or continue this matter on remand if Castro-Tum again failed to appear. Castro-Tum,27l&N Dec.at291 n.12 (“DHS adequately alleged that it provided sufficient notice because the Notice to Appear informed the respondent of all statutorily required information about the proceedings…. DHS also adequately alleged that the form of the notice was sufficient. DHS personally served the Notice to Appear on the respondent and mailed the Notice of Hearing to the address the respondent repeatedly provided the government.”(internal citations omitted)).

Kent J. Frederick

Chief Counsel

Office of the Chief Counsel

U.S. Deportment of Homeland Security immigration and Customs Enforcement 900 Market Street, (b)(6).(b)(7)(C) Philadelphia, PA 19107

(267) 479 —___(2_622_479-3456 (fax)

(b)(6),(b)(7XC)

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

Thanks to Judge Sue Roy for forwarding this:

[Above] please find a redacted email obtained through a FOIA request by private attorney Matthew Hoppock. It is a private email between Kent Frederick, the ICE District Counsel in Philadelphia, and Jack Weil, who at the time was the Philadelphia court’s ACIJ. Although the first part of the email is redacted, in the second part, the ICE District Counsel provides Jack with the basis that led to removing Castro-Tum from the case’s proper IJ, Steve Morley.

It should be noted that this is not a motion with service on opposing counsel; this is a private email between ICE and the ACIJ about the handling of a particular case.

While the Chief Immigration Judge should be taking steps to prohibit these types of communications, it bears noting that the present Chief Immigration Judge is the former Atlanta ICE District Counsel.

Best, Jeff

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

Thanks to NDPA warrior Matthew Hoppock for once again having the perseverance to use the FOIA to document and “out” misconduct @ DOJ, EOIR, and DHS! What’s the purpose of an “appeals process” if DHS can just raise its dis-satisfaction with legal issues to their “partners” in EOIR “administration” and ask them to take action? For the record, Judge Morley eventually was removed from the case and replaced with an Assistant Chief Immigration Judge who carried out Sessions’s wishes.

I think this is EXACTLY the type of misconduct that “Gonzo” Sessions intended to promote when he unethically exhorted “his judges” to “partner with DHS” to deny due process, target refugee women for abuse, torture, and death, and speed up removals. (However, because Sessions’s undeniable maliciousness was accompanied by mind-boggling and resource squandering incompetence, the overall result was to exponentially increase backlogs while institutionalizing injustice, unethically endangering the lives of migrants, and falsely smearing the professional reputations of their attorneys.)

Sessions, unethically acting as a “quasi-judicial official,” in violation of every ethical rule of judicial disqualification for overt bias, prejudgement, lack of impartiality (every case in which “Gonzo” Sessions participated is a grotesque violation of this — a man whose overt racism once led HIS OWN PARTY to find him unqualified for a Federal Judgeship!), appearance of conflict, and actual conflict of interest, unleashed a torrent of gross unethical behavior at DOJ and DHS. But, there were plenty of lawyers already “on the payroll” who were perfectly happy to engage in unethical conduct in support of the Trump kakistocracy’s White Nationalist, racist, xenophobic, misogynist agenda.

I’ll let the various comments I have received speak for themselves:

When I was an IJ . . . I complained about this practice to Chief IJ Creppy at an open forum at the IJ conference involving an ex parte complaint Frederick had lodged against . . . . Creppy just brushed it off as interagency cooperation.

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

At the least, these two should be referred to their state bars for disciplinary proceedings for engaging in impermissible ex parte communication.

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

WOW! This is crazy.

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

Wow! Just WOW! We always knew it was happening, but this is pretty blatant evidence!

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

Utterly unacceptable! It may seem ludicrous or petty, but it is far more than an objectionable practice. It optimizes a fundamental violation of due process that is routinely accepted and even expected.

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

Shameful, what happened to the appeal process Mr. Fredrick!

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

Is anyone really surprised?

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

Disappointed, but not surprised.

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

And has been happening ever since I started practicing in the mid-eighties. I agree it is totally unacceptable.

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

Jack has been nothing but a profound disappointment. I’m sure you all remember his arrogant and almost insane boast that he. could teach constitutional law to a child respondent. This email is both unethical and stupid: what kind of intellect allows for this response to him to put in writing? I never expect much from an ICE official, but I am always go smacked when a judge acts like a Watergate miscreant.

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

Completely shameful, but not surprising. We frequently suspected this kind of thing went on.

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

The conduct of “Gonzo” Sessions, then-Director McHenry (still on the EOIR payroll, although thankfully removed from participation in the Immigration Courts), and the EOIR and DOJ officials involved in this sorry incident is reprehensible.

BUT, HERE’S THE REAL PROBLEM: AG Merrick Garland, a respected Article III Judge and one-time Supreme Court nominee, was appointed by President Biden supposedly to clean up the ungodly mess at Justice left by the Trump kakistocracy. He isn’t getting the job done! Not even close!

EOIR requires immediate due process reforms, competent administration, a complete “housecleaning,” and, most of all, progressive leadership by “practical scholars.”

Yet, after three months in office Garland has nary lifted a finger to institute even rudimentary progressive reforms to restore due process at EOIR. Things are just as bad in our disgracefully dysfunctional Immigration Courts as they were on Jan. 20, 2021, in some cases even worse!

Beyond this indolence, Garland outrageously affirmatively appointed 17 non-expert, non-diverse, non-progressive “judges” who were recruited and hand-picked by Billy Barr. Along with Gonzo Sessions, Barr is one of the most unethical, unqualified, un-indicted (yet) AGs in American history. Garland’s lack of awareness, absence of immigration expertise, disrespect for progressive “practical scholars,” and trashing of humane values is super-damaging to our nation!

Of course, nobody can be an “expert” in every legal subject. But, the job of an effective leader is to pick folks who are experts to manage and staff these areas. I don’t see that type of expertise at today’s DOJ or EOIR Headquarters (although there are some well-qualified progressive Immigration Judges on local courts who could have been immediately detailed to EOIR HQ to stabilize the out of control situation).

Garland presides over a massive, deadly, systemic failure and chaotic “Clown Show” 🤡 @ EOIR that threatens the entire U.S. Justice system. I’ve actually known excellent Immigration Judges who have been suspended, docked pay, or threatened with removal for ex parte communications far, far, far less serious than that described above.

How do we teach ethics to an upcoming generation of lawyers when AG Garland and his senior managers are unwilling to hold accountable those who participated in the Trump White Nationalist kakistocracy @ Justice?

Team Garland daily mocks justice by not instituting standards that require demonstrated subject matter expertise, unswerving commitment to due process, fundamental fairness, and a record of ethical behavior from those appointed to, and continuing to serve in, Immigration Judgeships.

Under Garland, EOIR is a life threatening, democracy destroying “disaster zone.” “Team Garland’s” inexcusable failure to appoint qualified progressive experts and to undertake the “no brainer” immediate reforms essential to get the EOIR system back on track has, sadly, become a major problem for the Biden Administration and our nation.

It’s all so unnecessary, so aggravating, so damaging to humanity and American democracy. It’s even worse because the “complicit culprits” are folks (Biden appointees) who were “supposed to know better” and had the incredible, unprecedented advantages of potentially drawing on years of exceptionally high quality research, overwhelming documentation, smart, creative, practical recommendations, and extraordinarily qualified progressive “practical scholars and advocates” ready to solve problems from “inside Government.”

But, they can’t solve the problems solely “from the outside.” It takes an unrelenting combination of progressive experts pushing from the outside and receptive progressive judges and officials on the inside to make the radical changes necessary to save our nation!

Garland’s disrespectful, indolent, and tone deaf treatment of migrants, progressives, and simple human dignity, as well as his gross misunderstanding and diminution of what continues to drive racial and social injustice in America, will certainly come back to haunt the Biden Administration!

Let me reiterate: There will be neither racial justice nor social justice in America as long as our Immigration Courts operate as White Nationalist enforcers of “Dred Scottification of the other.” Immigration/human rights are where “the rubber meets the road” for racial and social justice in America! Immigrants’ rights are human rights, are civil rights, are constitutional rights! As MLK, Jr., said “Injustice anywhere is a threat to justice everywhere!”

🇺🇸🇺🇸⚖️🗽Due Process Forever!

PWS

05-22-21

🏴‍☠️🤮INJUSTICE @ JUSTICE: MORE PROGRESSIVE NGOS JOIN PROTEST OF CONTINUATION OF “MILLER LITE” REGULATIONS, BAD PRECEDENTS, FAILURE TO REPLACE TRUMP HOLDOVER MANAGERS, JUDGES @ EOIR — 100 Organizations Send Letter To Garland, Monaco, Gupta Requesting Action To Repeal Outrageous, Anti-Due-Process Fee Increases — Stakeholders & Individuals Face Newly Bloated Fees 💸 For The Worst Level Of “Customer Service” 🤡 In American Justice Today!

Still on “our” public payroll, still in charge of immigration and racial justice policy @ the Department of “Justice.” Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

May 21, 2021

The Honorable Merrick Garland Attorney General of the United States United States Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530-0001

The Honorable Vanita Gupta Associate Attorney General

United States Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530-0001

The Honorable Lisa Monaco

Deputy Attorney General of the United States United States Department of Justice

950 Pennsylvania Avenue NW

Washington, DC 20530-0001

The Honorable Jean King

Acting Director

Executive Office for Immigration Review 5107 Leesburg Pike, 18th Floor

Falls Church, Virginia 22041

Re: Request to Repeal EOIR Rule Imposing Draconian Fee Increases for Critical Immigration Filings

Dear Attorney General Garland, Deputy Attorney General Monaco, Associate Attorney General Gupta, and Acting Director King:

The undersigned are refugee and immigrants’ rights advocacy organizations, legal services providers, law school professors, and providers of other services and supports for unaccompanied children, adults, and families in proceedings before the Immigration Courts or the Board of Immigration Appeals (BIA or Board).1 We write to address the EOIR Fees Rule, finalized by the Department of Justice (DOJ) and Executive Office for Immigration Review (EOIR) in the waning days of the previous administration, which adopts a harsh new fee schedule for applications, motions, and appeals in Immigration Court and BIA proceedings.2

The EOIR Fees Rule is in every way contrary to the principles of our nation’s legal system and to the Biden-Harris Administration’s commitment to improving the operation of the Immigration Courts and protecting the vulnerable individuals who appear before them.3 We understand that this Rule is among the anti-immigrant and anti-refugee rules under review pursuant to the February 2, 2021 Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.4 We urge DOJ and EOIR to take the steps necessary to repeal the EOIR Fees Rule and ensure that any further rulemaking involving fees in EOIR proceedings adheres to the principle that no person be denied due process

1 As you are aware, the Executive Office for Immigration Review, within the Department of Justice, oversees the Immigration Courts and the Board of Immigration Appeals and sets the policies governing these adjudicative bodies.

2 Department of Justice and Executive Office for Immigration Review; Fee Review, 85 Fed. Reg. 82750 (Dec. 18, 2020).

3 The White House has issued several Executive Orders and proposed legislation, the U.S. Citizenship Act of 2021, that convey the Biden Administration’s transformative vision and commitment to building a 21st century immigration system that welcomes immigrants and refugees and keeps families together. See, e.g., The White House, Fact Sheet: President Biden Sends Immigration Bill to Congress as Part of His Commitment to Modernize our Immigration System (Jan. 20, 2021).

4 Executive Order 14012, 86 Fed. Reg. 8277, 8277-80 (Feb. 5, 2021).

May 21, 2021 Page 2

or access to asylum and other congressionally-authorized protection from deportation based on inability to pay.

Overview: The EOIR Fees Rule Creates Unacceptable Barriers to Justice

The EOIR Fees Rule imposes excessive fees on already vulnerable noncitizens—many of them unrepresented—seeking to defend their liberty, and often their lives, in proceedings before the Immigration Courts and the BIA. The new fees apply to the filing of applications, appeals, and motions that are integral to due process and to access to humanitarian protection and relief from deportation that Congress intended be available to those who are eligible. They include, for example, a nearly 9-fold increase to file an administrative appeal, which is a prerequisite to federal court review.

The new fees erect an insurmountable barrier to justice. The consequences of this impeded access are severe. Long-time immigrants face permanent exile from the country they consider home and permanent separation from loved ones, who oftentimes are U.S. citizens or lawful permanent residents. For those fleeing persecution or torture, a financial barrier to humanitarian protection can mean death. Those who will suffer a wrongful deportation as a result of the EOIR Fees Rule thus face the gravest impact, but the harm for those left behind will also be devastating.5

The gravity of the harms posed by the EOIR Fees Rule has not been felt, but that is only because a federal district court issued a nationwide preliminary injunction stopping nearly all of the new fees from taking effect.6 The threat nevertheless remains until the EOIR Fees Rule is formally vacated by the court or a new rulemaking rights the course.

A fundamental value of our nation’s system of laws is that access to justice and basic liberty not hinge on one’s wealth or lack thereof. Repeal of the EOIR Fees Rule is critical to restoring trust in the nation’s legal immigration system and ensuring that no person is deprived of a full and

5 Numerous studies have documented a range of harms flowing from deportation-forced family separations, including income, housing, and nutritional instability, trauma, and poor health and education outcomes. In view of these and other harms, the District of Columbia and the States of California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, and Washington filed an amicus curiae brief, available at https://bit.ly/3whOiEH, in support of litigation challenging the EOIR Fees Rule. As other studies have shown, these harms fall disproportionately to those who are unrepresented in their proceedings and to their families because not having counsel substantially decreases the likelihood of prevailing in removal proceedings. See, e.g., Ingrid Eagly & Steven Shafe, American Immigration Council, Access to Counsel in Immigration Court (Sept. 28, 2016), https://bit.ly/3uKOj3z. As noted here and in comments opposing the EOIR Fees Rule, the new fees will diminish access to counsel.

6 Catholic Legal Immigration Network, Inc. v. Executive Office of Immigration Review, No. 20-CV- 03812, — F. Supp. 3d –, 2021 WL 184359 (D.D.C. Jan. 18, 2021) (Mehta, J.). In enjoining the new fees, the Court focused on the failure of DOJ and EOIR, under the prior administration, to consider the EOIR Fees Rule’s impact on legal services providers and the diminished access to counsel that would result for indigent adults, families, and unaccompanied children in proceedings before EOIR. See id. As discussed further below, the Rule’s promulgation violated the Administrative Procedure Act’s substantive and procedural requirements for rulemaking in a host of additional ways.

May 21, 2021 Page 3

fair day in court based on an inability to pay. Indeed, given the nature of the proceedings at issue here, the attachment of fees itself ought to be questioned in the first instance. And if fees are to be required at all, they should be returned to their previous level or lower, and be coupled with a principled, transparent fee waiver process that ensures there is access to justice, without unduly burdening legal services providers and adjudicators.

The Trump Administration’s EOIR Fees Rule: Unprecedented Increases for Appeals, Motions, Applications for Relief from Removal; a New Mandatory Asylum Application Fee; Violations of the Administrative Procedure Act; and Disregard for Access to Justice

A. The Fees Rule Imposed Radical Multi-Fold Fee Increases for Critical Filings.

The EOIR Fees Rule dramatically increased fees to file appeals, motions to reopen or reconsider, and applications for cancellation of removal or suspension of deportation. The Rule increased nearly 9-fold the fee for appealing removal orders to the BIA (from $110 to $975), raised more than 8-fold the cost of motions to the BIA to reopen or reconsider (from $110 to $895), increased fees more than 5-fold to appeal certain DHS decisions to the BIA (from $110 to $595), and more than tripled the fees to apply for cancellation of removal (from $100 to $305 for cancellation of removal for lawful permanent residents (LPRs) or suspension of deportation and from $100 to $360 for non-LPR cancellation). With the exception of the fee to file a motion to reopen or reconsider (increased over 30%) before an Immigration Judge, every increase substantially exceeded the rate of inflation for the period of time since the fees were last adjusted.7

B. The Fees Rule Added an Unprecedented, Non-Waivable, Defensive Asylum Fee.

The EOIR Fees Rule also for the first time ever imposed a fee to file an asylum application before the Immigration Court. DOJ and EOIR attributed imposition of this mandatory, non- waivable asylum application fee to the Department of Homeland Security’s adoption of such a fee for affirmative asylum applications submitted to U.S. Citizenship and Immigration Services (USCIS). But in fact it was an independent, voluntary decision on the part of DOJ and EOIR to require the fee for the very different context of defensive asylum application filings.

DOJ and EOIR adopted this fee without examining the notable differences in the circumstances of those who can apply affirmatively for asylum and those who must apply defensively in Immigration Court proceedings—including that proceedings before the Asylum Office are non-adversarial and affirmative asylum applicants may have other lawful immigration status at the time of filing whereas defensive asylum applicants frequently are detained, have often only recently arrived in the United States with just the clothes on their backs, and lack work authorization at the time of filing. DOJ and EOIR also made no assessment of the impact that a mandatory fee would be expected to have on access to asylum and related humanitarian protection.

7 See Executive Office for Immigration Review; Fee Review, 85 Fed. Reg. 11866, 11870 (Feb. 28, 2020).

May 21, 2021 Page 4

C. Promulgation of the EOIR Fees Rule Violated the Administrative Procedure Act.

The rulemaking that led to these fee increases violated the letter and spirit of Administrative Procedure Act by preventing meaningful notice and comment by the public. For the entire comment period, DOJ and EOIR withheld the data and much of the methodology for the study on which they based the proposed fee increases. The agency also failed to disclose the data it possessed regarding fee waivers and provided no information addressing the expected impact that fee increases would have on an already problematic fee waiver system. The inadequate record hindered public comment by depriving the public of crucial information relating to the putative basis for the EOIR Fees Rule.

Additionally, the comment period was limited to 30 days, during the onset of the COVID- 19 pandemic-driven lockdown in the United States that forced businesses, courts, government agencies, nonprofit services providers, schools, and daycare providers to close their doors and to move to a new world of remote work. The comment period was not extended despite repeated requests for more time.

The public’s ability to meaningfully comment on the impact of the proposed fee increases was also hobbled because DOJ and EOIR waited until the comment period closed before announcing a series of interrelated rulemakings that would exacerbate the impact of the fee increases.8

Finally, the agency issued the final rule without adequately addressing the concerns raised in the comments that were filed about how the proposed rules would lock low-income individuals out of court because of the inadequacy of EOIR’s fee waiver practices and deprive them of legal representation by devastating the legal services providers on whom they rely.

D. The EOIR Fees Rule Violates the Biden Administration’s Stated Values and Fundamental Principles of Fairness, Access, and Due Process.

The most serious flaws of the EOIR Fees Rule include the following.

1. Requiring noncitizens to bear nearly the full cost of adjudications in adversarial proceedings reverses decades of agency policy and defies legal norms.

EOIR is an appropriated agency, not one that is fee-based. Nonetheless, in a sharp departure from decades-long policy, the EOIR Fees Rule employed an “activity-based” or “cost recovery” model that assigned to respondents in removal proceedings the dollar value of nearly all of the staff time involved in processing, adjudicating, and transmitting Immigration Judge and BIA

8 See, e.g., Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 Fed. Reg. 36,264 (June 15, 2020); Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, 85 Fed. Reg. 52,491 (Aug. 26, 2020); Procedures for Asylum and Withholding of Removal, 85 Fed. Reg. 59,692 (Sept. 23, 2020); see also Centro Legal de la Raza v. EOIR, No. 21-CV-00463-SI, 2021 WL 916804, at *26 (N.D. Cal. Mar. 10, 2021) (noting serious concerns with staggered, piecemeal rulemaking by EOIR, including the EOIR Fees Rule).

May 21, 2021 Page 5

decisions on motions, appeals, and applications for cancellation of removal or suspension of deportation.9

EOIR is an adjudicative body. Nearly all the proceedings before it are adversarial and initiated and prosecuted by the Government. We are aware of no judicial or quasi-judicial adversarial proceedings in which any party—let alone the one whose liberty is at stake—bears nearly the entire cost of the court staff time involved in adjudicating a motion, an appeal, or an application of the type that is presented in immigration court as a defense to removal.10 The decision to employ a cost recovery model and impose such radical fee increases was a marked and unjustified departure from decades of agency commitment to keeping costs “at less than full recovery recognizing longstanding public policy and the interest served by these processes.”11

2. A new mandatory asylum fee defies the Biden Administration’s commitment to undoing the prior administration’s evisceration of U.S. asylum law and policy.

The decision to adopt an asylum application fee, let alone one that would be mandatory and not waivable, was also an historic and unjustifiable departure from decades-long policy and the practice of nearly every other party to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. A host of concerns were raised when this fee was proposed for affirmative asylum applications.12 As explained above, those concerns apply with even greater force to any fee required for defensive asylum applications, let alone one that is mandatory.

9 The only costs not assigned to respondents under the rule were office overhead, fringe benefits, and certain other costs such as interpreters. The Notice of Proposed Rulemaking noted that such costs could not be included because, for example, they would be incurred in any event for other agency work, do not arise in all cases, and/or are infeasible to calculate because they hinge on decisions such as individual employee benefits selections. See 85 Fed. Reg. at 11870, 11872.

10 Contrasting examples are abundantly available. To name just a few, unlike the heavy fees here, the fee to file a petition for writ of habeas corpus in federal court is only $5, and there is no cost for any level of administrative review of the denial of Social Security benefits. See 28 U.S.C. § 1914(a) (establishing $5 filing fee for writ of habeas corpus); Social Security Administration, The Appeals Process, Publication No. 05-10041 (Jan. 2018), https://www.ssa.gov/pubs/EN-05-10041.pdf (describing the various levels of administrative review and listing no cost for review). There also is no fee to file a motion for reconsideration in federal district court. Under the EOIR Fees Rule, the fee for an appeal to the BIA is nearly double the cost of docketing an appeal before a federal circuit court and more than twice as high as the fees for filing a complaint in federal court. See U.S. Courts, Court of Appeals Miscellaneous Fee Schedule (Oct. 1, 2019), https://bit.ly/3fke1oO ($500 docketing fee for appeals before the federal courts of appeal); U.S. District Court for the District of Columbia, Fee Schedule, https://www.dcd.uscourts.gov/fee-schedule (last visited Mar. 24, 2020) ($400 docketing fee for complaint before the federal district court). None of these tribunals seeks to recover anything approximating the full cost of the staff time needed for their adjudications. That is simply not how the justice system works in this country.

11 Powers and Duties of Service Officers; Availability of Service Records, 51 Fed. Reg. 39993, 39993 (Nov. 4, 1986) (Final Rule amending fee schedule of the former INS and EOIR).

12 See, e.g., 85 Fed. Reg. at 46844 (summarizing commenters’ concerns with an affirmative asylum application fee).

May 21, 2021 Page 6

3. The EOIR Fees Rule placed undue reliance on EOIR’s inadequate fee waiver process.

In response to the obvious concerns about the unaffordability of multi-fold increases in fees that many respondents could not afford even at their previous level, DOJ and EOIR pointed to the “possibility” of a fee waiver as protection for indigent respondents.13 The wholesale reliance on this “possibility” was another fundamental flaw of the rulemaking. As evidence in the record made clear, fee waivers were an inadequate safety valve even before promulgation of markedly higher fees.14 Of particular note, there are no clear standards for fee waiver eligibility, and the decision to grant or deny a fee waiver request is entirely discretionary.15 Not surprisingly, fee waiver requests are inconsistently adjudicated, as DOJ and EOIR have themselves admitted.16

4. Fee increases and the increased need for fee waivers harm legal services providers and undermine access to counsel.

Immigration court respondents who have legal representation are substantially more likely to succeed at every stage of their proceedings. But many cannot afford counsel. As comments opposing the EOIR Fees Rule explained, the prior administration’s fee increases ensure that even greater numbers will be forced to go without representation.

In promulgating the Fees Rule, DOJ and EOIR failed to consider the harmful impact of fee increases and a new asylum fee on nonprofit legal services providers and the new fees’ adverse impact on low-income respondents’ access to counsel. Among the expected impacts of the Final Rule was an explosion in the need for fee waivers and the corresponding need for fee waiver requests, adding to the time required for each individual case and diminishing the capacity of legal services providers to provide free or low-cost legal representation to those unable to afford counsel. DOJ and EOIR dismissed these concerns, but as the federal district court that enjoined the bulk of EOIR’s new fees found, “the APA required EOIR to acknowledge those concerns and respond to them in a meaningful way, not blithely dismiss them as ‘outside the limited scope of this rulemaking.’”17

13 See, e.g., 85 Fed. Reg. at 11874.

14 See, e.g., 85 Fed. Reg. at 82758.

15 See 8 C.F.R. §§ 1003.8(a)(3), 1003.24(d); see also DOJ, EOIR POLICY MANUAL pt. II, ch. 3, § 3.4(d)

(“When a fee to file an application or motion is required, the Immigration Judge has the discretion to waive the fee upon a showing that the filing party is unable to pay the fee.”) (Jan. 28, 2020), https://www.justice.gov/eoir/eoir-policy-manual/3/4; id. pt. III, ch. 3, § 3.4(c) (“When an appeal or motion normally requires a filing fee, the Board has the discretion to waive that fee upon a showing of economic hardship or incapacity.”) (last updated Dec. 22, 2020), https://www.justice.gov/eoir/eoir-policy-manual/iii/3/4; 85 Fed. Reg. at 82759 (“fee waivers are discretionary by nature”).

16 See, e.g., 85 Fed. Reg. at 82759 (“differences in adjudicatory outcomes are inherent in any system rooted in adjudicator discretion”); see also id. (“Any calculations attempted by the Department to ‘account for’ the effects of fee waiver adjudications in light of the updated fees would be unreliable because fee waivers are discretionary by nature.”).

17 Catholic Legal Immigration Network, Inc. v. EOIR, No. 20-CV-03812, — F. Supp. 3d –, 2021 WL 184359 (D.D.C. Jan. 18, 2021) (quoting 85 Fed. Reg. at 82775).

May 21, 2021 Page 7

5. The EOIR Fees Rule disregards noncitizens’ inability to pay exorbitant fees and the attendant impact on access.

DOJ and EOIR did not undertake their own examination of the impact that fee increases would have on access to due process and justice before the Immigration Courts and the BIA. The Final Rule then failed to heed the substantial concerns that commenters raised in this regard. Indeed, in the Final Rule’s publication, DOJ and EOIR stated that the agency’s authority to set fees was “not restricted by . . . principles of ‘affordability’ or ‘accessibility.’”18

The Final Rule, embodying this lack of regard for affordability and access, has no place in a system of justice.

Recommendations

The prior administration undermined the strength and integrity of the Immigration Court system in myriad ways. There is much work to be done to ensure that noncitizens in removal proceedings have fair access to justice and the families of those noncitizens and the entire public see the system has integrity. Repealing the EOIR Fees Rule is not sufficient to achieve this end, but it is a necessary step. Toward this end, we make the following recommendations:

1. The EOIR Fees Rule must be repealed. As outlined above, there is reason to question the imposition of fees on Immigration Court respondents at all given the nature of the proceedings and the liberty interests at stake. At a minimum, fees should be restored to their prior level or be lowered.

2. Such repeal should make explicit the principle—long understood until its upending by the EOIR Fees Rule—that no person should be denied access to the appeals, motions, humanitarian protection or other congressionally-authorized protection or relief from removal, based on an inability to pay.

3. The prior administration’s rulemaking exposed deficiencies in EOIR’s approach to fee waivers that should be rectified. Standards should be clear, adjudications should be consistent, and safeguards should be adopted to account for special circumstances to ensure that no person is prevented from filing necessary applications, motions, or appeals because of cost.

4. Exemptions from any required fees should be codified for particularly vulnerable populations, including asylum applicants, children, those who are detained, those lacking representation, and those who are incompetent or otherwise have disabilities that interfere with their ability to access justice.

18 85 Fed. Reg. at 82754.

May 21, 2021 Page 8

5. EOIR must improve its data collection and analysis, ensure transparency, and provide a clear channel for low-income noncitizens to seek a remedy where denial of a fee waiver precludes the filing of any application, motion, or appeal.

In closing, we thank you for the careful review that is underway and your consideration of the foregoing. We look forward to working with the Biden Administration to bring about a more just approach. For further discussion of the EOIR Fees Rule, please contact Avideh Moussavian at moussavian@nilc.org or Jorge Loweree at jloweree@immcouncil.org.

Respectfully submitted,

African Public Affairs Committee

Ahri Center

Alein Haro, University of California, Berkeley*

American Friends Service Committee

American Gateways

American Immigration Council**

American Immigration Lawyers Association

Americans for Immigrant Justice

America’s Voice

Anita Sinha, American University, Washington College of Law*

Anne Schaufele, International Human Rights Law Clinic, American University Washington

College of Law*

Anti-Defamation League (ADL)

Asian Americans Advancing Justice – Atlanta Asian Americans Advancing Justice – Los Angeles Asian Counseling and Referral Service (ACRS) Asian Law Alliance

Asian Pacific Institute on Gender-Based Violence Asian Resources, Inc

ASISTA

Asylum Seeker Advocacy Project (ASAP) AsylumWorks

Bellevue Program for Survivors of Torture

Black and Brown United in Action

BPSOS Center for Community Advancement Bridges Faith Initiative

Campesinos Sin Fronteras

Capital Area Immigrants’ Rights Coalition

CARE Fund

Carol Bohmer, Dartmouth College*

CASA

May 21, 2021 Page 9

Catholic Charities Dallas

Catholic Charities NY, Immigrant and Refugee Services

Catholic Legal Immigration Network, Inc.***

Causa Oregon

Center for Gender & Refugee Studies

Center for Immigrant Advancement (CIMA)

Center for Victims of Torture

Chaldean Community Foundation

Chicanos Por La Causa, Inc.

Church World Service

Cleveland Jobs with Justice

Coalition for Humane Immigrant Rights (CHIRLA)***

Coalition on Human Needs

Colorado Asylum Center

Community Legal Services in East Palo Alto***

Connecticut Shoreline Indivisible

David B Thronson, Michigan State University College of Law*

Democratic Socialists of America – Coachella Valley

Denise Gilman, University of Texas School of Law*

Desert Support for Asylum Seekers

Education and Leadership Foundation

Elissa Steglich, University of Texas School of Law*

Ellen Forman, LICSW, Massachusetts General Hospital, Social Service Department* Employee Rights Center (ERC)

Esperanza Immigrant Rights Project

Evangelical Lutheran Church in America

First Friends of New Jersey and New York

Florence Immigrant and Refugee Rights Project

Free Migration Project

Freedom Network USA

Geoffrey Heeren, University of Idaho College of Law*

Geoffrey Hoffman, University of Houston Law Center*

Greater Portland Family Promise

Haitian Bridge Alliance

HIAS

¡HICA! Hispanic Interest Coalition of Alabama

Human Rights First

Human Rights Initiative of North Texas

Immigrant Action Alliance

Immigrant Defenders Law Center

Immigrant Legal Advocacy Project

Immigrant Legal Defense

Immigrant Legal Resource Center (ILRC) Immigrant Welcome Center

Immigration Advocates Network Immigration Equality

Immigration Hub

Innovation Law Lab

Interfaith Community for Detained Immigrants

International Refugee Assistance Project (IRAP)

International Rescue Committee

Jaya Ramji-Nogales, Temple University*

Jewish Activists for Immigration Justice of Western MA

Jon Bauer, Asylum and Human Rights Clinic at the University of Connecticut School of Law* Jonathan Weinberg, Wayne State University Law School*

Kate Evans, Duke Immigrant Rights Clinic*

Katie Herbert Meyer, Washington University Immigration Law Clinic*

Kids in Need of Defense (KIND)***

Korean Community Center of the East Bay

La Resistencia

Las Américas Immigrant Advocacy Center

Legal Aid Justice Center

Lincoln United Methodist Church

Louisiana Advocates for Immigrants in Detention

Lutheran Social Services of New York

Lynn Marcus, University of Arizona James E. Rogers College of Law*

M Isabel Medina, Loyola University New Orleans College of Law*

Make the Road Nevada

Make the Road New York

Memphis United Methodist Immigrant Relief

Mexican American Opportunity Foundation (MAOF)

Mi Familia Vota Nevada

Michael Kagan, University of Nevada, Las Vegas, Immigration Clinic*

Michigan Immigrant Rights Center

Migrant Center for Human Rights

Minkwon Center

Mississippi Center for Justice

Mixteco/Indígena Community Organizing Project

National Center for Lesbian Rights

National Health Law Program

National Immigrant Justice Center

National Immigration Forum

National Immigration Law Center**

National Immigration Litigation Alliance

May 21, 2021 Page 10

National Immigration Project (NIP-NLG)

National Network for Immigrant & Refugee Rights

NETWORK Lobby for Catholic Social Justice

New Mexico Immigrant Law Center

New Sanctuary Coalition

New York Immigration Coalition

New York Legal Assistance Group (NYLAG)

North Carolina Asian Americans Together

Northern Illinois Justice for Our Neighbors

Northern Manhattan Improvement Corporation

Northwest Immigrant Rights Project

Oasis Legal Services

OCA-Greater Houston

OneAmerica

PARS Equality Center

PG ChangeMakers Coalition

Philip G. Schrag, Georgetown University*

President and CEO, Self-Help for the Elderly

Prisoners’ Legal Services of New York

Project Blueprint

Project Lifeline

Public Counsel

Public Law Center

Pueblo Sin Fronteras/Familia Latina Unida

Puentes de Cristo, Inc.

Quixote Center

RAICES

Rainbow Beginnings

Refugee Action Network of Illinois

RefugeeOne

Rocky Mountain Immigrant Advocacy Network

SAAVI Michigan

Sanctuary DMV

Sarah H. Paoletti, University of Pennsylvania Carey Law School* Sarah R Sherman Stokes, Boston University School of Law* Saratoga Immigration Coalition

Tahirih Justice Center

Takoma Park Mobilization, Equal Justice Committee

Tania Valdez, University of Denver Sturm College of Law*

The Asylum Program of Arizona

The International Institute of Metropolitan Detroit

The Young Center for Immigrant Children’s Rights

May 21, 2021 Page 11

UndocuBlack Network

Unidos Bridging Community

Unitarian Universalist Service Committee

UNITED SIKHS

UnLocal

UpValley Family Centers

Valeria Gomez, University of Connecticut School of Law* VECINA

Volunteers of Legal Service

W.M. Jewish Activists for Immigration Justice Washington Defender Association

Witness at the Border

* The institutional affiliation listed for identification purposes only.

** The National Immigration Law Center and the American Immigration Council are counsel in Cath. Legal Immigr. Network, Inc. v. Exec. Off. for Immigr. Rev., No. 20-CV-03812 (D.D.C.), which seeks to enjoin the EOIR Fee Rule that is the subject of this letter.

*** Catholic Legal Immigration Network, Inc., Coalition for Humane Immigrant Rights (CHIRLA), Community Legal Services in East Palo Alto, and Kids in Need of Defense (KIND) are plaintiffs in Cath. Legal Immigr. Network, Inc. v. Exec. Off. for Immigr. Rev., No. 20-CV- 03812 (D.D.C.), which seeks to enjoin the EOIR Fee Rule that is the subject of this letter.

cc: Susan Rice, Assistant to the President for Domestic Policy

Esther Olavarria, Deputy Director of the Domestic Policy Council for Immigration

Tyler Moran, Special Assistant to the President for Immigration, Domestic Policy Council Margy O’Herron, Senior Counsel, Office of the Deputy Attorney General, Department of Justice

May 21, 2021 Page 12

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

Thanks to my good friend and NDPA Superstar Laura Lynch over at NILC for reporting and forwarding this!

How many “Team Garland” officials at DOJ does it take to change a light bulb?

A: About the same number as the total of EOIR “managers” over the past two decades who have failed to provide any semblance of an operational, nationwide e-filing system (perhaps this would have been useful during COVID?) for the past 20 years and then had the “chutzpah” to astronomically raise filing fees for the public to cover up and divert attention from DOJ/EOIR’s gross incompetence and contempt for “good government.”

Yeah, these problems were there when Garland arrived. But, his failure for going on three months to take the elementary steps necessary to repeal Trump-era travesties makes him complicit! Rescinding a totally unjustified regulation, panned by progressive groups across the board, would be about a four-hour job for an expert who knew what they were doing. Too bad the basic progressive changes necessary to restore sanity @ EOIR appear to be “above the pay grade” of Team Garland.

Pity us poor American taxpayers! We are still footing the bill for Stephen Miller to continue his work for former President Trump (outrageous🤮). https://www.salon.com/2021/05/18/stephen-miller-and-more-than-15-other-trump-aides-still-getting-paid-by-taxpayers-report_partner/

We also are paying “top dollar (for USG) for Garland, Monaco, and Gupta NOT to undo any of the racist, misogynist White Nationalist policies Miller and his cronies instituted at Justice, NOT to remove all of the unqualified Sessions/Barr/Miller “plants” at EOIR, and, get this, to mindlessly CONTINUE TO HIRE less qualified, non-progressive, non-expert, non-diverse Immigration “Judges” under a totally discredited, biased, anti-diversity process developed under Miller, Sessions, and Barr FOR THE SPECIFIC PURPOSE OF PRODUCING A XENOPHOBIC, ANTI-DUE-PROCESS, ANTI-ASYLUM “JUDICIARY @ EOIR” (doubly outrageous 🤮🤮)!

Let’s be clear about this: Every day that Garland & co. continue to dwaddle over long overdue progressive reforms @ EOIR means innocent lives and futures — futures that will be essential to our national success — are flushed down the toilet by EOIR. 🚽 This human damage is both irresponsible and irreparable! Garland’s inaction and lack of expertise and concern about immigration, human rights, and due process is also a DIRECT INSULT to legions of advocates — all members of the NDPA — who have put their professional lives, as well as in many cases their health and safety, “on the line” to save vulnerable lives and preserve American democracy against the Trump/Miller onslaught! And, this is the “thanks” they get from Garland and others who spent the last few years in the “ivory tower” of the Article III appellate judiciary or otherwise above the fray and out of the line of fire! Simply unacceptable!

Not what we expected nor what we deserved from the Biden Administration and “Team Garland” @ (continuing parody of) “Justice!”

“TEAM GARLAND” TO ASYLUM SEEKERS & THEIR LAWYERS: “OF COURSE, YOU SHOULD PAY MORE, MUCH MUCH MORE, FOR THESE TYPES OF “CUSTOMER SERVICES” FROM EOIR! WHERE ELSE IN THE AMERICAN JUSTICE SYSTEM COULD YOU GET THIS LEVEL OF “RED CAPRET” TREATMENT (CUSTOM DESIGNED BY STEPHEN MILLER HIMSELF):

PWS

05-22-21

🇺🇸🗽⚖️PROGRESSIVE BLOWBACK GROWS AGAINST GARLAND’S IMMIGRATION BLUNDERS — Failure To “Clean House” At Totally Dysfunctional EOIR, Inaction On Basic Due Process, Human Rights Reforms, Appointment Of Trump-Selected Judges Infuriates Biden Supporters, Angers Ethnic Communities — Those Who Fought Trump Regime In The Trenches For Last 4 Years To Save Lives & Preserve American Democracy Not Amused By Garland’s Disrespectful, Dismissive Approach To Human Rights Imperatives!

Suzanne Monyak
Senior Reporter, Immigration
Law360

CQ NEWS

Groups to AG: Immigration courts need new leaders, hiring review

May 19, 2021 – 4:30 p.m. By Suzanne Monyak, CQ

Dozens of human and civil rights organizations called on Attorney General Merrick Garland on Wednesday to overhaul leadership and review hiring decisions at the U.S. immigration court system, raising concerns of politicized hiring under the prior administration.

In a letter obtained by CQ Roll Call, the 70 organizations accused the Trump administration of transforming the immigration courts, housed within the Justice Department’s Executive Office for Immigration Review, “into a conveyor belt for deportation” and of “systematically hiring personnel to carry out President Trump’s anti-immigrant agenda.”

Under the previous administration, EOIR promoted a number of immigration judges with high asylum denial rates, as well as judges with a history of misconduct complaints.

“Critical and urgent personnel changes are needed to rehabilitate the radically transformed immigration court system that continues to cause irreparable harm and suffering for immigrants and their families,” wrote the organizations, which include the American Immigration Lawyers Association, National Immigration Law Center, Human Rights First and others.

In addition to reviewing personnel decisions made under the Trump administration, the advocates urged Garland to “immediately install new leadership to all key posts” and “diversify the immigration judge corps” by hiring more judges with nonprofit backgrounds.

The organizations faulted the Biden administration for following through with the recent hires of 17 immigration judges, announced earlier this month, most of them with backgrounds as criminal prosecutors and Department of Homeland Security lawyers.

“Despite the Biden-Harris administration’s stated commitment to restoring fairness and balance to the immigration courts, the DOJ continues to rely on Trump-era policies and hiring practices that bias the immigration court system towards prosecution,” the groups wrote.

Garland, confirmed to the helm of the Justice Department in March, inherited a slew of policy changes to the immigration court system implemented under the Trump administration, including policies aimed at speeding up case adjudication and tightening asylum eligibility.

CQ Roll Call reported in 2019 that EOIR leaders revised hiring procedures to make it easier to permanently install certain immigration judges to the Board of Immigration Appeals, the courts’ appellate board that has the power to issue precedential rulings shaping immigration law.

DOJ leadership under the former administration also successfully petitioned to dismantle the immigration judges’ union, which critics say further undermines judges’ discretion over their own caseloads.

A group of senators announced last fall that the Government Accountability Office launched an investigation into the Trump administration’s management of the immigration courts, including its response to the COVID-19 pandemic.

Last month, the Justice Department’s inspector general released a report faulting EOIR for poor communication and a lack of transparency when notifying lawyers and employees about pandemic-related court closures and exposure.

Garland, a former appeals court judge, has yet to rescind most of those changes, fueling calls from lawmakers and advocates to step in.

Last week, Sen. Dianne Feinstein, D-Calif., wrote Garland requesting he rescind two decisions issued by former Attorneys General Jeff Sessions and William Barr that make it harder for domestic abuse survivors, and individuals targeted by gangs or others as a result of their family ties, to qualify for asylum.

“This is out of step with our nation’s reputation as a safe haven for those fleeing persecution,” Feinstein wrote.

In January, top Democrats on the House Oversight and Reform Committee also called on Garland to “take all necessary actions” to protect the immigration judges’ union from decertification.

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

Law360 also provided coverage of this issue. https://www.law360.com/articles/1386538/advocates-seek-to-erase-trump-s-immigration-court-legacy

Also, expect a blast from our Round Table soon about the ongoing due process outrage at EOIR and Garland’s failure to address it!

Next firestorm on the horizon for Garland’s inept, tone-deaf immigration team: Anger and outrage stemming from failure to rescind Barr’s illegal and disgraceful “decertification” of IJ Union — the NAIJ. More “Day 1 Stuff” still awaiting action by Garland as the justice system deteriorates under his feet!

FULL DISCLOSURE: I am a retired member of the NAIJ.

Holy cow! It’s not like lots of progressives didn’t tell the Biden Transition Team, Garland, and anyone else who would listen that radical, progressive Immigration Court reform needed to be a “Day 1” priority at Justice to avoid further disaster.

Moreover, as recently pointed out by Dean Erwin Chemerinsky (Berkeley Law) and Professor Michele Goodwin (UC Irvine Law) virtually every aspect of the Trump regime’s attack on American democracy began with and went through the immigration system.https://lawprofessors.typepad.com/immigration/2021/05/immigration-article-of-the-day-michele-goodwin-erwin-chemerinsky-trump-administration-immigration-ra.html

Compromising due process in Immigration Court and weaponizing EOIR were the keys to the Trump regime’s constitutional deconstruction effort. Consequently, it’s insane for Garland or any other member of the Biden Administration to think that economic equality, voting rights, racial justice, eradication of hate crime, job creation or any other major objective will be attained without new progressive leadership and aggressive progressive due process reforms in Immigration Court. Won’t happen!

You can’t promote social justice while running Stephen Miller’s Star Chambers at EOIR with judges hand-selected by “Billy the Bigot Barr” under flawed procedures.

🇺🇸⚖️🗽Due Process Forever!

PWS

05-20-21

Garcia-DeLeon v. Garland, 6th Cir., 06-11-21, published

🇺🇸🗽⚖️Due Process Forever!

Related posts:

By Natalie Gonnella-Platts and Jenny Villatoro In the Dallas Morning News:

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Lindsay and Sarah write in USA Today:

🇺🇸⚖️🗽Due Process Forever! The Garland/Mayorkas “Miller Lite Nonsense” at the border, never!

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Elliot Spagot and Julie Watson report for AP:

🇺🇸🗽⚖️🧑🏽‍⚖️Due Process Forever!

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🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever! Tell the Biden Administration that we need progressives, not more “regressives,” on the Federal Bench, starting with the Immigration Courts! End abusive judging by a non-diverse Federal Judiciary!

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🇺🇸⚖️🗽Due Process Forever!

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Here’s yet another “big middle finger” 🖕 to progressives and experts from Garland and Mayorkas:

Here are “statements in opposition” from the National Immigrant Justice Center and Human Rights First:

Here’s the “statement of outrage and solidarity in opposition from the experts at the Center for Gender and Refugee Studies at Hastings Law:

Here are other initial comments from asylum experts:

Quick takes:

🇺🇸Due Process Forever!

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Here’s more from Round Table leader Hon. “Sir Jeffrey” Chase:

🇺🇸Due Process Forever!

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Here’s a link to the letter:

🇺🇸🗽Due Process Forever!

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🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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Hon. “Sir Jeffrey” Chase reports to the Round Table:

🇺🇸🇺🇸⚖️🗽Due Process Forever!

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