☠️🤮🏴‍☠️TRUMP REGIME’S MINDLESS CRUELTY, XENOPHOBIA, MALICIOUS INCOMPETENCE, SHAFTED 60,000 MIGRANTS!

Dan Kowalski reports on LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/district-court-approves-settlement-in-lawsuit-challenging-immigration-agency-s-unlawful-rejection-of-over-sixty-thousand-humanitarian-applications

District Court Approves Settlement in Lawsuit Challenging Immigration Agency’s Unlawful Rejection of Over Sixty Thousand Humanitarian Applications

NILA, NWIRP, July 20, 2021

“Today, a federal district court judge in Oakland, California, approved a final settlement in the case of Vangala v. USCIS, providing relief to over sixty thousand applicants for humanitarian immigration benefits. The lawsuit, filed on November 19, 2020, against U.S. Citizenship and Immigration Services (USCIS), challenged an agency policy adopted under the Trump administration specifically targeting humanitarian benefits for survivors of domestic violence and human trafficking and asylum seekers. Under the policy, USCIS rejected applications that left any question in the application unanswered, even where the question was not applicable—for example where the applicant failed to include a response for middle name because they have no middle name. Additionally, USCIS rejected applications where the applicant wrote “none” or “not applicable” instead of “N/A.”

The lawsuit was filed by Northwest Immigrant Rights Project (NWIRP), the National Immigration Litigation Alliance (NILA), and the Van Der Hout law firm, on behalf of three applicants who sought to represent a nationwide class of individuals whose applications were rejected under the policy. They alleged that the policy was nothing more than a pretextual basis for denying applicants the opportunity to obtain humanitarian benefits provided by Congress.

On December 22, 2020, the agency agreed to suspend the policy, and the parties then entered settlement discussions to address the tens of thousands of applications that USCIS previously rejected. The U.S. district court adopted and approved the final settlement agreement on July 20, 2021.

Under the settlement agreement, USCIS will accept the original submission date of the more than sixty thousand applications it has identified as having been rejected under the policy. USCIS will send notices to these applicants explaining the steps they can take to ensure that their applications for humanitarian benefits are recorded as having been filed as of the date they were originally submitted. Without this relief, these applicants not only would suffer the delays caused by USCIS’ rejection of their applications, but many applicants or their family members would be rendered ineligible because they were unable to file the required forms by timelines specified in the statute.

In addition, the settlement agreement prevents the agency from adopting a similar rejection policy with respect to other immigration forms unless authorized by statute or lawfully implemented through regulations.

“It was an outrageous policy clearly aimed to impede individuals from obtaining the humanitarian benefits that Congress has provided,” said Matt Adams, Legal Director for NWIRP. “It aptly demonstrates the Trump administrations’ utter disregard of the law.”

“USCIS’ rejection policy served no legitimate purpose,” said Mary Kenney, Deputy Director for NILA. “Tens of thousands of applicants will now, finally, be able to move forward with applications that the agency should have accepted in 2020.”

The settlement agreement is here and order approving the settlement agreement can be found here.

#####

Media contacts:

Trina Realmuto, National Immigration Litigation Alliance

(617) 819-4447; trina@immigrationlitigation.org

Matt Adams, Northwest Immigrant Rights Project

(206) 957-8611; matt@nwirp.org”

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

Cruelty, stupidity, illegality, wasting Government resources! So, what else is new about the Trump kakistocracy’s immigration policies and procedures? Wonder why all immigration agencies are running out of control backlogs? Don’t blame the victims — the migrants exercising their legal rights!

In direct contravention of the intent of Congress in structuring DHS so that the “customer services” to migrants and their families would be separate, and no longer subordinate to, immigration enforcement, the Trump kakistocracy turned USCIS into a semi-useless branch of their corrupt, yet inept, White Nationalist enforcement agenda. So incompetent and inappropriate were Trump’s actions that his lackeys managed to “repurpose” USCIS, once one of the few self-sustaining independently funded agencies within Government, into a deficit promoting, bankrupt, money pit.

And, it was a cesspool that failed miserably in its primary mission of serving those seeking legal immigration status, their families, and their employers. A primary reason why the Biden Administration is having difficulties with immigration and human rights is the illegal eradication by the Trump regime of the U.S. legal immigration system, particularly our refugee and asylum systems.

That leaves those suffering from persecution and torture in need of legal protection with no choice but to use the “extralegal system.” Far from their stunningly false claim to have “enhanced” immigration enforcement, the GOP nativists have also destroyed rational, practical, targeted enforcement with their nonsense. Don’t let them get away with blaming the Biden Administration and the victims of their cruel and often illegal behavior which produced the results that many of us predicted!

The next time you hear Ted Cruz, Tom Cotton, or some other GOP nativist restrictionist disingenuously blabbering on about “rewarding lawbreakers” or “doing it the right way,” remember that largely because of them and the Trump regime, America has no functional immigration system for refugees, asylees, or any other type of legal immigrants, nor do we have a functioning Immigration Court system!

🇺🇸Due Process Forever!

PWS

07-23-21

⚖️🧑🏽‍⚖️☹️GARLAND’S 10 NEW IJ APPOINTMENTS CONTINUE TO HEAVILY FAVOR GOVERNMENT OVER PRIVATE PRACTICE, CLINICS, ACADEMIA — Only 3 Came Directly From Private Practice — Biden Administration “Disses” Progressive Immigration/Human Rights Experts Who Helped Put Them In Office!

https://www.justice.gov/eoir/page/file/1412741/download

NOTICE

U.S. Department of Justice

Executive Office for Immigration Review

Office of Policy

5107 Leesburg Pike

Falls Church, Virginia 22041

Contact: Communications and Legislative Affairs Division

Phone: 703-305-0289 Fax: 703-605-0365

PAO.EOIR@usdoj.gov @DOJ_EOIR www.justice.gov/eoir

July 16, 2021

EOIR Announces 10 New Immigration Judges

FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced 10 new Immigration Judges (IJs), including one Assistant Chief Immigration Judge (ACIJ). ACIJs are responsible for overseeing the operations of their assigned immigration courts. In addition to their management responsibilities, they will hear cases. IJs preside in formal judicial hearings and make decisions that are final, unless formally appealed.

After a thorough application process, Attorney General Merrick B. Garland appointed Megan R. Jackler, Justin S. Dinsdale, Alexander H. Lee, Loi L. McCleskey, Edwin E. Pieters, Artie R. Pobjecky, Jodie A. Schwab, Kenneth S. Sogabe, Lydia G. Tamez, and Romaine L. White to their new positions.

Biographical information follows:

Megan R. Jackler, Assistant Chief Immigration Judge, New Orleans Immigration Court

Megan R. Jackler was appointed as an Assistant Chief Immigration Judge to begin supervisory immigration court duties and hearing cases in July 2021. Judge Jackler earned a Bachelor of Arts in 2003 from Barnard College and a Juris Doctor in 2008 from the American University Washington College of Law. From 2009 to 2021, she served as a U.S. Navy Judge Advocate, in the following locations: Norfolk, Virginia; Pearl Harbor, Hawaii; Gulfport, Mississippi; Mazar- e-Sharif, Afghanistan; and Yokosuka, Japan. From 2003 to 2005, she was a Litigation Paralegal with Davis Polk & Wardwell LLP, in New York. Judge Jackler is a member of the District of Columbia Bar, New Jersey State Bar, New York State Bar, and Virginia State Bar.

Justin S. Dinsdale, Immigration Judge, Houston – Greenspoint Park Immigration Court

Justin S. Dinsdale was appointed as an Immigration Judge to begin hearing cases in July 2021. Judge Dinsdale earned a Bachelor of Arts in 2000 from Texas Christian University and a Juris Doctorate in 2004 from South Texas College of Law Houston. From 2015 to 2021, he served as an Assistant U.S. Attorney with the U.S. Attorney’s Office for the Southern District of Texas, in Brownsville. From 2011 to 2015, he was in private practice with the Law Office of Justin S. Dinsdale, in Brownsville. From 2008 to 2010, he was an Associate Attorney with Rodriguez, Colvin, Chaney & Saenz LLP, in Brownsville. From 2004 to 2008, he served as an Assistant District Attorney with the Cameron County District Attorney’s Office, in Brownsville. Judge Dinsdale is a member of the Idaho State Bar and the State Bar of Texas.

Communications and Legislative Affairs Division

EOIR Announces 10 New Immigration Judges

Page 2

Alexander H. Lee, Immigration Judge, Houston – Greenspoint Park Immigration Court

Alexander H. Lee was appointed as an Immigration Judge to begin hearing cases in July 2021. Judge Lee earned a Bachelor of Arts in 1997 from Kenyon College and a Juris Doctor in 2002 from Chicago-Kent College of Law. From 2017 to 2021, he served as an Assistant Chief Counsel, Office of the Principal Legal Advisor, Immigration and Customs Enforcement, Department of Homeland Security, in Pearsall and San Antonio, Texas. From 2011 to 2017, he served as a Staff Attorney for the Washington State Department of Health, in Tumwater, Washington. From 2005 to 2011, he was in private practice in Olympia, Washington. Judge Lee is a member of the Washington State Bar.

Loi L. McCleskey, Immigration Judge, San Francisco Immigration Court

Loi L. McCleskey was appointed as an Immigration Judge to begin hearing cases in July 2021. Judge McCleskey earned a Bachelor of Arts in 1996 from Capital University and a Juris Doctor in 1999 from Capital University Law School. From 2013 to 2021, she served as an Administrative Hearing Officer Supervisor; from 2011 to 2013, Senior Administrative Hearing Officer; and from 2003 to 2011, Administrative Hearing Officer for the State of Ohio in Columbus. From 2000 to 2003, she was in private practice in Columbus. Judge McCleskey is a member of the Ohio State Bar.

Edwin E. Pieters, Immigration Judge, New York – Federal Plaza Immigration Court

Edwin E. Pieters was appointed as an Immigration Judge to begin hearing cases in July 2021. Judge Pieters earned a Bachelor of Science in 1987 from State University of New York at New Paltz; a Master of Political Science/Governmental Law in 1992 from City University of New York at Brooklyn College; a Master of Public Administration in 2000 from City University of New York at Baruch College; a Juris Doctorate in 2002 from the City University of New York Law School at Queens College; and a Master of Law in 2005 from the State University of New York at Buffalo Law School. From 2018 to 2021, he served as a Hearing Officer for the New York City Office of Administrative Trials and Hearings. From 2006 to 2017, he served as an Assistant District Attorney at the Kings County District Attorney’s Office, in Brooklyn. Judge Pieters is a member of the New York State Bar.

Artie R. Pobjecky, Immigration Judge, Houston – Greenspoint Park Immigration Court

Artie R. Pobjecky was appointed as an Immigration Judge to begin hearing cases in July 2021. Judge Pobjecky earned a Bachelor of Arts in 1997 from the University of Central Florida and a Juris Doctor in 2001 from Baylor University School of Law. From 2007 to 2021, she was a Partner with Pobjecky & Pobjecky LLP, in Winter Haven, Florida. From 2015 to 2017, she served as Chair of the American Immigration Lawyers Association, Central Florida Chapter. From 2002 to 2007, she was an Associate Attorney with J. David Pobjecky PA, in Winter Haven. Judge Pobjecky is a member of the Florida Bar, Pennsylvania Bar, and the State Bar of Texas.

Jodie A. Schwab, Immigration Judge, Houston – Greenspoint Park Immigration Court

Jodie A. Schwab was appointed as an Immigration Judge to begin hearing cases in July 2021. Judge Schwab earned a Bachelor of Arts in 1990 from the University of Texas at San Antonio and a Juris Doctor in 1993 from St. Mary’s University School of Law. From 2018 to 2021, she served as an Assistant Chief Counsel, Office of the Principal Legal Advisor, Immigration and Customs Enforcement, Department of Homeland Security, in Houston. From 2017 to 2018, she was Senior Counsel with Greer, Herz & Adams LLP, in League City, Texas. From 2006 to 2017,

Communications and Legislative Affairs Division

EOIR Announces 10 New Immigration Judges

Page 3

she served as a Law Clerk to the Honorable Magistrate Judge John Froeschner, with the U.S. District Courts, Southern District of Texas. From 2005 to 2006, she served as a Deputy Attorney General, California Office of the Attorney General, in Sacramento, California. From 2004 to 2005, she was a Litigation Attorney for a Staff Counsel Office with Farmers Insurance Exchange, in Stockton, California. From 1994 to 2003, she was Counsel at United Services Automobile Association, in San Antonio. Judge Schwab is a member of the State Bar of California and State Bar of Texas.

Kenneth S. Sogabe, Immigration Judge, Seattle Immigration Court

Kenneth S. Sogabe was appointed as an Immigration Judge to begin hearing cases in July 2021. Judge Sogabe earned a Bachelor of Arts in 1995 and a Master of Arts in 1996, both from San Francisco State University, and a Juris Doctor in 2001 from Golden Gate University School of Law. From 2018 to 2021, he served as Associate General Counsel, Office of General Counsel, Department of Defense Education Activity, in Okinawa, Japan. From 2014 to 2018, he served as an Attorney Advisor, Office of Chief Counsel, Customs and Border Protection, DHS, in San Francisco. From 2007 to 2014, he served as a Staff Attorney for the U.S. Court of Appeals for the Ninth Circuit, in San Francisco. From 2001 to 2006, he served as an Assistant Chief Counsel, Office of the Principal Legal Advisor, Immigration and Customs Enforcement, Department of Homeland Security (DHS), in San Francisco. Judge Sogabe is a member of the State Bar of California.

Lydia G. Tamez, Immigration Judge, Houston – Greenspoint Park Immigration Court

Lydia G. Tamez was appointed as an Immigration Judge to begin hearing cases in July 2021. Judge Tamez earned a Bachelor of Arts in 1981 from Yale University and a Juris Doctor in 1985 from Yale Law School. From 2019 to 2021, she served as an Associate Judge for the City of Houston Municipal Courts. From 2016 to 2021, she was in private practice in Houston. From 2015 to 2016, she was a Counselor at Law with Graves and Graves LLP, in Houston. From 2012 to 2015, she was a Partner with Foster LLP, in Houston. From 2003 to 2011, she was an Associate General Counsel; from 1999 to 2003, a Senior Attorney; and from 1995 to 1999, an Attorney for Legal and Corporate Affairs, with Microsoft Corporation, in Redmond, Washington. From 1986 to 1995, she was an Attorney for Tindall and Foster PC, in Houston. Judge Tamez is a member of the State Bar of Texas and the Washington State Bar.

Romaine L. White, Immigration Judge, Houston – Greenspoint Park Immigration Court

Romaine L. White was appointed as an Immigration Judge to begin hearing cases in July 2021. Judge White earned a Bachelor of Arts in 1983 from the University of Virginia and a Juris Doctor in 1986 from the University of Georgia School of Law. From 2012 to 2021, she served as an Administrative Law Judge for the Louisiana Division of Administrative Law, in New Orleans. From 2004 to 2021, and previously from 1999 to 2001, she was a sole practitioner with the Law Office of Romaine L. White LLC, in Houma, Louisiana. From 2001 to 2006, she served as an Assistant Parish Attorney for the Terrebonne Parish Consolidated Government, in Houma. From 2001 to 2004, she was an Associate Attorney with McNabb and Associates, in Houma. From 1997 to 1998, she served as Deputy General Counsel for the State Bar of Georgia, in Atlanta. From 1991 to 1997, she served as a Senior Assistant City Attorney for the City of Atlanta. From 1986 to 1991, she was an Associate Attorney with Griffin, Cochrane, & Marshall, in Atlanta. Judge White is a member of the State Bar of Georgia and the Louisiana State Bar. Communications and Legislative Affairs Division

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

The three appointments from private practice include Judge Linda G. Tamez of Houston who appears to have served as a Municipal Judge in Houston while in private practice from 2019-21. Similarly, Judge Romaine L. White of Houston Greenspoint appears to have maintained a private practice while serving as a Louisiana State ALJ from 2012-21.

The sole new IJ to list AILA experience is Judge Artie J. Pobjecky of the Houston Greenspoint Immigration Court, who served as Chair of the AILA, Central Florida Chapter, from 2015-2017. She is also the only new appointee who appears to have been working primarily in the private practice of immigration law at the time of her appointment.

Several other appointees did have some type of private sector experiences, although they were serving in various government positions at the time of appointment. None, however, stood out as having much, if any, experience representing individuals in Immigration Court in this broken and dysfunctional system.

It’s super critical for NDPA members to 1) keep applying en masse for these jobs, and 2) let your extreme dis-satisfaction with Garland’s tone-deaf, one sided appointments to the Immigration Courts be known to the Biden Administration.

We need to keep attacking until the walls of anti-expert, anti-advocate, anti-private-sector, anti-diversity bias that has been “baked into” the DOJ IJ and BIA selection process for the better part of several decades is finally broken and excellence and practical scholarship in immigration, human rights, and due process finally break through and prevail. Also, continuing to pummel the Garland EOIR’s substandard work product in the Article IIIs will keep illustrating the point that something has got to change here!

In the meantime, keep pushing Congress for an independent Immigration Court that will be free of the DOJ bureaucracy and will require a merit-based selection system with input from “outside experts!”

🇺🇸Due Process Forever! Status quo, never!

PWS

07-19-21

⚖️9TH CIR.’S PROGRESSIVES TAKE IT ON THE NOSE FROM CONSERVATIVE COLLEAGUES & SUPREMES — Dissent Matters — Immigration Among Key Supremes’ Reversals

https://www.latimes.com/politics/story/2021-07-13/with-trump-appointees-9th-circuit-suffers-another-year-of-reversals-at-supreme-court

David G. Savage & Maura Dolan report in the LA Times:

. . . .

“There is still a large cohort of liberal judges” on the 9th Circuit, said Ed Whelan, a conservative legal analyst in Washington, “but there are now many conservative appointees who are vigilant in calling them out.”

In total, 47 judges sit on the 9th Circuit — 24 appointed by Republicans going back to President Nixon, and 23 named by Democrats starting with President Carter.

Many of those judges work part time. Of the full-time jurists, 16 are Democratic and 13 are Republican appointees.

The size of the circuit — the nation’s largest — partly explains why its cases are often subject to Supreme Court review.

“The 9th Circuit is so vastly larger than any other circuit that it is inevitable they are going to take more 9th Circuit cases,” said Erwin Chemerinsky, dean of UC Berkeley’s law school.

Although this year’s 9th Circuit reversal rate was unusually high, the high court in fact overturned 80% of all the cases it reviewed, Chemerinsky noted.

Moreover, only a tiny percentage of appellate decisions are reviewed by the Supreme Court. Typically, the 9th Circuit hands down about 13,000 rulings a year.

Chemerinsky noted the Supreme Court overturned several 9th Circuit cases on immigration and habeas corpus, the legal vehicle for releasing someone from detention. “The 9th Circuit is historically more liberal on immigration and habeas cases,” he said.

Some reversals occurred in cases that were not ideological, however: The high court overturned a 9th Circuit decision by Republican appointees on what constitutes a robocall.

Though the Supreme Court split along ideological lines on property rights, voting rights and conservative donor cases from the 9th Circuit, the justices were unanimous in reversing the 9th Circuit in several immigration cases.

On June 1, they overturned a unique 9th Circuit rule set by the late liberal Judge Stephen Reinhardt. Over nearly 20 years, he had written that the testimony of a person seeking asylum based on a fear of persecution must be “deemed credible” unless an immigration judge made an “explicit” finding that they were not to be believed.

In one of his last opinions, Reinhardt approved of asylum for Ming Dai, a Chinese citizen who arrived in the U.S. on a tourist visa and applied for refugee status for himself and his family. He said they were fleeing China’s forced abortion policy.

Only later did immigration authorities learn that his wife and daughter had returned to China because they had good jobs and schooling there, but the husband had no job to return to.

An immigration judge had set out the full story and denied the asylum application, only to be be reversed in a 2-1 ruling by a 9th Circuit panel. The panel cited Reinhardt’s rule and noted that although evidence emerged casting doubt on Dai’s claims, there had been no “explicit” finding by an immigration judge so his story had to be accepted.

“Over the years, our circuit has manufactured misguided rules regarding the credibility of political asylum seekers,” Senior Judge Stephen S. Trott wrote in dissent. Later, 11 other appellate judges joined dissents arguing for scrapping this rule.

Last fall, Trump administration lawyers cited those dissents and urged the Supreme Court to hear the case. They noted the importance of the 9th Circuit in asylum cases. Because of its liberal reputation, “the 9th Circuit actually entertains more petitions for review than all of the other circuits combined,” the lawyers said.

In overturning the appeals court in a 9-0 ruling, Justice Neil M. Gorsuch began by noting that “at least 12 members of the 9th Circuit have objected to this judge-made rule.”

Justice Sonia Sotomayor delivered another 9-0 ruling holding that an immigrant arrested for an “unlawful entry” after having been deported years ago may not contest the basis of his original deportation. The 9th Circuit had said such a defendant may argue his deportation was “fundamentally unfair,” but “the statute does not permit such an exception,” Sotomayor said in U.S. vs. Palomar-Santiago.

The high court’s furthest-reaching immigration ruling did not originate with the 9th Circuit, but it nonetheless overturned a 9th Circuit decision.

At issue was whether the more than 400,000 immigrants who had been living and working in the U.S. under temporary protected status were eligible for long-term green cards. The Philadelphia-based 3rd Circuit said no, rejecting a green card for a Salvadoran couple who had entered the country illegally in the 1990s and had lived and worked in New Jersey ever since.

The 9th Circuit had taken the opposite view; Trump lawyers cited this split as a reason the high court should take up the New Jersey case. On June 7, Justice Elena Kagan spoke for the high court in ruling that the 3rd Circuit was right and the 9th Circuit wrong. To obtain lawful permanent status, the immigration law first “requires a lawful admission,” she said in Sanchez vs. Majorkas.

The 9th Circuit’s sole affirmance came in a significant case: By a 9-0 vote in NCAA vs. Alston, the justices agreed with the 9th Circuit that college sports authorities could be sued under antitrust laws for conspiring to make billions of dollars while insisting the star athletes go unpaid.

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

Read the complete article at the link.

This confirms the importance of the Biden Administration getting more progressive voices on Federal Courts at all levels, including the Immigration Courts!

First, not all important cases go to the Supremes, and those that do often take years to get there and be resolved. In the meantime, the rulings of BIA and the Circuits are often the “final word.”

Even at the individual Immigration Judge level, only a small minority of cases are appealed. So the difference between progressive expert judges committed to due process, fundamental fairness, and humane practical interpretations and judges appointed because of a belief that they would “go along to get along” with DHS Enforcement is huge — basically life or death for many asylum seekers, other migrants, and their families (often U.S. citizens or LPRs).

Second, even where outvoted, progressive judges can often provide much more cogent, understandable, and practical alternatives to “knee jerk restrictionist/nativist” interpretations. Not only are these “better interpretations” often picked up and successfully argued and expanded by advocates, but they often expose shallow, specious reasoning by restrictionists and serve as “signposts to a better future” even if it sometimes takes years or even decades for the system to catch up. Also, dissents can prompt remedial legislation or needed oversight.

Indeed a number of the “Gang of Five” dissents from the “Schmidt-era BIA,” which basically cost us our jobs, still look very “spot on” decades later — particularly as Circuits continue to expose the intellectual dishonesty and corner-cutting sloppiness of far too many EOIR decisions in “life or death” matters!

Obviously, Trump McConnell and the right-wing activist organizations they parroted and enabled have had an immediate, large-scale, largely negative, effect on American Justice — from the Supremes all the way down to the Immigration Courts. It’s essential that the Biden Administration fight back with courageous, well-qualified, progressive “practical scholars” at all levels of the Federal Judiciary. Judges with the guts and integrity to expose and push back against the stilted, often anti-democracy, far right agenda of too many of the Trump-McConnell appointees.

In this respect, creating a progressive “model judiciary” to supersede the godawful, dysfunctional mess at EOIR should be the “low hanging fruit.” In practical terms, it also will help reduce backlog, raise the level of Immigration Court practice, and hold DHS accountable to the rule of law. It should also be a model for what a better progressive Article III Judiciary could and should look like, all the way up to the Supremes!

🇺🇸🗽🧑🏽‍⚖️Due Process Forever!

PWS

07-19-21

⚖️YET ANOTHER “WAKEUP CALL” FOR JUDGE GARLAND, AS 3RD CIR. CASTIGATES THE “HASTE MAKES WASTE, FORM CHECKER, DEPORTATION ASSEMBLY LINE CULTURE” @ EOIR! — “We cannot allow an IJ or the BIA to dispense with an adequate explanation of a final decision merely to facilitate or accommodate administrative expediency.”

EYORE — “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca3-on-something-to-review—valarezo-tirado-v-a-g

Dan Kowalski reports for LexisNexis Immigration Community:

CA3 on “Something to Review” – Valarezo-Tirado v. A.G.

Valarezo-Tirado v. A.G.

“We have previously granted a petition for review in which the alleged basis for the BIA’s denial of relief was that “the evidence is insufficient” and “the arguments made by the [government] on appeal . . . are persua[sive]” because we could not “perform meaningful review of [such an] order.” Here, we have even less to work with. … The most fundamental notion of due process must include an opportunity for meaningful judicial review. We reiterate that “judicial review necessarily requires something to review and, if the agency provides only its result without an explanation of the underlying fact finding and analysis, a court is unable to provide judicial review.” The required review is simply not possible when we are provided with nothing more than the kind of one-line checklist that is relied upon here. We cannot allow an IJ or the BIA to dispense with an adequate explanation of a final decision merely to facilitate or accommodate administrative expediency. Since “the [IJ]’s failure of explanation makes it impossible for us to review its rationale, we [will] grant [Valarezo-Tirado’s] petition for review, vacate the [IJ’s] order, and remand the matter to [the IJ] for further proceedings consistent with this opinion.” … A 2019 study found that “on average each [immigration] judge currently has an active pending caseload of over two thousand cases.” Nevertheless, we cannot allow incredibly difficult logistics to give license to IJs to skirt their responsibilities. This includes the obligation to inform the petitioner of the reasons for the IJ’s decision and provide an adequate explanation of the decision that does not require us to parse through the testimony in search of evidence that supports it. A two-sentence recitation on a bullet-point form will rarely, if ever, provide sufficient reasoning for a decision. A decision, such as the one here, that does not refer to record evidence will never suffice. Because, here, the IJ’s decision was not supported by substantial evidence, we will vacate the decision and order and remand to the IJ for proceedings consistent with this opinion.”

[Hats off to pro bono publico counsel Robert D. Helfand and Charles W. Stotter!]

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

Hey, Jeff “Gonzo Apocalypto” Sessions said it: “Volume is critical. It just is.” For him, and then Barr, it was “all about numbers,” never about quality, fairness, or judicial independence!

SESSIONS USES SPEECH TO U.S. IMMIGRATION JUDGES TO SPREAD LIES, MOUNT ALL OUT ATTACK ON US ASYLUM LAW AND INTERNATIONAL PROTECTION LAWS – Targets Most Vulnerable Refugee Women Of Color For Latest Round Of Legal Abuses – Orders Judges To Prejudge Applications In Accordance With His Rewrite Of Law – It’s “Kangaroo Court” – The Only Question Now Is Whether Congress & Article III’s Will Let Him Get Away With Latest Perversion Of Justice @ Justice!

Interestingly, this was a “reasonable fear review” proceeding following “reinstatement” of a removal order. Even before the Trump kakistocracy, Immigration Judges once were told that there was no need for a reasoned decision because their actions were “non-reviewable” by the BIA or the Circuits. Later, in the Obama Administration, as some Circuits took an interest in these cases, judges were encouraged by EOIR HQ to enter brief decisions so that OIL could defend them on appeal, if their “no jurisdiction to review” argument failed.

There is a serious defect in a system that provides no meaningful review or appellate direction in cases with life or death consequences. Obviously, this is a system focused on something other than fairness, scholarship, quality, and justice!

After years of being told (even forced, through bogus “production quotas’) to “cut corners” and “move ‘em out” by their political “handlers” at the DOJ, neither EOIR “management” nor the current BIA is capable of providing the bold leadership, progressive “fair but efficient” scholarship and direction, quality control, and positive precedents and systemic changes necessary to insure that EOIR’s “once and future vision” of “through teamwork and innovation, becoming the world’s best tribunals guaranteeing fairness and due process for ALL” is finally realized. After four years or intentional degradation and movement in exactly the OPPOSITE direction by Sessions, Barr, and their “Miller Lite” cronies and toadies, it’s time for a change!

Obviously, the due-process-denying and demeaning (to both IJs and those seeking justice) “production quotas” and equally bureaucratic and bogus “performance work plans” should already have been revoked by Garland. They could replaced with a meaningful system of appellate supervision and judicial professional responsibility and training modeled on that of “real courts.” For example, check out the system used by the DC Court system to maintain professionalism, provide constructive feedback, and make recommendations for tenure decisions on judges, with both public and peer participation.

As the Third Circuit points out, high volume is not an excuse for sloppy work and denial of due process! The backlog can be slashed and justice restored, and even improved, while maintaining high standards of quality and implementing and enforcing best practices. EOIR indeed could become a “model progressive court system.” But, it’s going to take a new team of progressive judges and qualified progressive Administrators, folks with experience in the “horrors of today’s Immigration (not) Courts” and an unswerving commitment to due process and best practices to get the job done!

🇺🇸Due Process Forever!

PWS

07-16-21

JUDGE HANEN (SD TX) THROWS DACA BACK INTO DOUBT! — Says Original Program Illegal, Bars New Apps, But Rules Gov. Can’t Pull The Rug Out From Under Those Currently Protected, For Now!

https://reut.rs/36VDoK9

Mica Rosenberg reports for Reuters:

NEW YORK, July 16 (Reuters) – A U.S. federal judge in Texas on Friday blocked new applications to a program that protects immigrants who were brought to the United States as children from deportation but said the hundreds of thousands of people already enrolled would not be affected until further court rulings.

U.S. District Judge Andrew Hanen sided with a group of states suing to end the Deferred Action for Childhood Arrivals (DACA) program, arguing it was illegally created by former President Barack Obama in 2012.

Hanen found the program violated the Administrative Procedure Act (APA) when it was created but said that since there were so many people currently enrolled in the program – nearly 650,000 – his ruling would be temporarily stayed for their cases until further court rulings in the case.

“To be clear,” the judge said, the order does not require the government to take “any immigration, deportation or criminal action against any DACA recipient.”

. . . .

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

Read the rest of Mica’s article at the link.

The obvious solution is legislation. But, the GOP is likely to oppose any reasonable proposal, and the Dems might not have the votes to “go it alone.”

Stay tuned!

PWS

07-16-21

☠️🤮⚰️DUE PROCESS MOCKED: UNDUE POLITICAL INFLUENCE IN IMMIGRATION COURT LEADS TO IMPROPER DENIAL OF LIFE-SAVING PROTECTION TO KIDS! — “Political influence from the executive branch combined with local environmental pressures can affect how immigration judges rule. Most importantly, these influences can lead to some children not receiving asylum when they might otherwise be entitled to it.”

Unaccompanied immigrant minors wait on July 2, 2019 in Los Ebanos, Texas to be transported to a U.S. Border Patrol processing center after entering the U.S. to seek political asylum. John Moore/Getty Images

US immigration judges considering asylum for unaccompanied minors are ‘significantly influenced’ by politics

July 13, 2021 8.30am EDT

Authors

Daniel Braaten Associate professor of Political Science, Texas Lutheran University

Claire Nolasco Braaten Associate Professor, Criminology, Texas A&M-San Antonio

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The news over the past months has been saturated with stories about another “surge” of unaccompanied minors crossing the southern border of the U.S.

In March 2021, the number of unaccompanied minors apprehended in the U.S. reached an all-time monthly high of 18,890. This surpassed the previous monthly high of 11,681 in May 2019.

One question not addressed in many of these stories is: How many of these children actually receive asylum and are allowed to stay in the country?

The people who make those decisions are immigration judges. Their decisions are supposed to be based on whether these children have fears of being persecuted in their home countries and whether these fears are realistic.

But our research examining the period from early October 2013 until the end of September 2017 shows that these judges were influenced by factors outside of the case. Political factors such as ideology, political party of the president who appointed them and who was president at the time they decided the case significantly influenced whether these children were allowed to stay in the country.

Aside from political factors, immigration judges are also influenced by local contexts, such as unemployment levels, the number of uninsured children and size of Latino population in the places where they work.

Unaccompanied minors and asylum

Under U.S. law, an unaccompanied minor is a child under 18 years old who does not have lawful immigration status and no parent or legal guardian in the country who can provide care or custody.

Unaccompanied minors cannot be refused entry or removed from the country without legal process because of the 1993 Supreme Court case Reno v. Flores. In 2008, new legislation allowed asylum officers to grant these children asylum at the U.S. border. If the asylum officer denies asylum to the minor, the minor may request asylum before an immigration judge.

Because immigration judges are not appointed under Article III of the Constitution, as federal judges are, they have less independence than those federal judges. According to current Justice Department rules, immigration judges are appointed by the attorney general and they act as his or her delegates.

Political pressure

In order to learn what factors affect the grant of relief to unaccompanied minors, we obtained data on their asylum applications from Oct. 2, 2013 to Sept. 29, 2017, covering over 10,000 cases from 280 different judges in 46 counties and 27 states.

Only 327 of the unaccompanied minors actually received asylum; 2,867 were deported and 455 chose to voluntarily leave.

An additional 6,645 children were allowed to stay in the country. Of those, 3,589 had their case administratively closed, which allows judges to suspend the case indefinitely without hearing and deciding on it. The remaining 3,056 had their case terminated, which means that the case against the child was dismissed.

The fate of unaccompanied minors entering the US

A review of about 10,000 asylum applications for unaccompanied minors from October 2, 2013 to September 29, 2017 found the majority of the minors were allowed to stay (in green), most because a judge either dismissed or indefinitely suspended the case against them. Only 327 were granted asylum.

Bar charts grouped to show significantly more unaccompanied minors were allowed to stay.

2,000 cases

2,867

455

3,589

3,056

327

Removed

Voluntarily Departed

Administrative Closure

Case dismissed

Received asylum

Chart: The Conversation/CC-BY-ND Source: Daniel Braaten and Claire Nolasco Braaten Get the data

We ran a statistical analysis of political factors that may influence immigration judges’ decision: judicial ideology, political party of the appointing president and whether the decision was made before or during the Trump administration.

Following previous research on immigration judge’s ideology, we determined a judge’s ideology by considering their prior work experiences. Based on this research, we determined that some experiences, such as working for immigration agencies, are associated with more conservative views on immigration and asylum issues.

Conversely, work experiences in an immigration or non-immigration-related nonprofit or academia are associated with more liberal views. Our analysis showed that immigration judges with more liberal judicial ideology were more likely to rule in favor of granting asylum to these children.

Judges’ ideology can influence asylum decisions

Immigration judges who are more liberal tended to allow unaccompanied children to stay in the U.S. more often, compared to more conservative judges. Ideology was determined from each judge’s prior work and ranges from 1-11, most conservative to most liberal.

Area chart showing how children allowed to stay rose with more liberal judges.

1

2

3

4

5

6

7

8

9

10

11

0

50

100%

Likelihood unaccompanied minor is allowed to stay

Data from 2013-2017

Chart: The Conversation/CC-BY-ND Source: Daniel Braaten and Claire Nolasco Braaten Get the data

We also found that judges who were appointed by a Democratic attorney general were more likely to rule in favor of the minors.

Political party of attorney general who appointed the judge

Immigration judges appointed by Democrats were more likely to allow unaccompanied minors seeking asylum to stay in the U.S. than those appointed by Republicans.

Bar charts showing judges appointed by Democrats were more like to allow unaccompanied children to stay in the U.S., but GOP-appointed numbers were also above 62%.

Republican

62.9%

Democratic

69.5%

Data from 2013-2017

Chart: The Conversation/CC-BY-ND Source: Daniel Braaten and Claire Nolasco Braaten Get the data

Finally, statistical analysis showed that immigration judges were less likely to grant relief during the eight months of the Trump administration compared to the last three years of the Obama administration.

President at the time the case was decided

Immigration judges were more likely to allow unaccompanied minors seeking asylum to stay in the U.S. during the Obama administration than during the Trump administration.

Trump

54%

Obama

67.7%

Data from 2013-2017

Chart: The Conversation/CC-BY-ND Source: Daniel Braaten and Claire Nolasco Braaten Get the data

Why did politics and judges’ ideology play into their decisions?

We believe it’s because immigration judges are subject to political pressure from the president, indirectly, because they are appointed by the attorney general, who is also a presidential appointee and carries out the president’s policies and wishes.

Local environment

Pressure from the executive branch was not the only factor we concluded had influenced whether these children got to stay in the U.S. or were turned away. Aside from political and ideological values, judges may also have been influenced by their local contexts.

For example, we found that immigration judges in places with more Latinos were more likely to let these children stay. Conversely, immigration judges in states with lots of poor children were less likely to let these children stay than judges in states with relatively fewer poor kids.

Latino population in the county

In counties with larger Latino populations, judges were more likely to allow unaccompanied minors seeking asylum to stay in the U.S. The horizontal axis shows the percentage of the county’s population that is Latino.

20% Latino

40

60

80

0

20

40

60

80

100% likelihood unaccompanied minor is allowed to stay

Data from 2013-2017

Chart: The Conversation/CC-BY-ND Source: Daniel Braaten and Claire Nolasco Braaten Get the data

Asylum decisions can be life-or-death matters. Although immigration judges consider the requirements of asylum law, they are also influenced by nonlegal factors when making decisions.

Political influence from the executive branch combined with local environmental pressures can affect how immigration judges rule. Most importantly, these influences can lead to some children not receiving asylum when they might otherwise be entitled to it.

[The Conversation’s Politics + Society editors pick need-to-know stories. Sign up for Politics Weekly.]

Immigration

Asylum

US Supreme Court

Borders

Donald Trump

Obama administration

Unaccompanied minors

Trump administration

Political influence

President Barack Obama

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Republished under Creative Commons license.

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Go to this link for the original article with pictures and graphs: https://theconversation.com/us-immigration-judges-considering-asylum-for-unaccompanied-minors-are-significantly-influenced-by-politics-160071

This article confirms two things I have said over and over:

Garland’s failure, to date, to replace the BIA with better qualified progressive judges with expertise gained by representing asylum seekers; plus
His “giveaway” of 17 critical Immigration Judge positions to those selected by “Billy the Bigot” Barr under badly flawed procedures;

will unquestionably cost some children and other refugees their lives. Immigration Judge positions are life or death — we need an Attorney General who treats them that way!

Immigration Judge appointments, particularly those at the appellate (BIA level), need to be treated by Democratic Administrations with the same care, seriousness, and strategy as Article III judicial appointments, perhaps more! Few Article III Judges, including the Supremes, affect more lives and have a bigger impact on America’s future than Immigration Judges.

The last two GOP Administrations “got” the negative power for destruction and dehumanization inherent in a “captive” court system that actively pursues misguided nativist policies and receives only sporadic supervision and attention from the Article IIIs. By contrast, the Obama Administration failed to “mine EOIR’s potential” for progressive due process advancements and building a corps of dynamic, courageous progressive judges.

So far, while perhaps exceeding the passively inept approach of the Obama Administration, the Biden Administration has also failed to achieve the radical, yet logical and obvious, reforms and decisive personnel actions necessary to undo the damage caused by the White Nationalist xenophobia of the Trump kakistocracy.

The Immigration Courts have the potential to become “model progressive courts” that could lead the way to better practices and more constitutionally and legally sound jurisprudence throughout the Federal Judiciary. Whether the Biden Administration grasps and acts boldly on that potential, or squanders it as past Democratic Administrations have done, remains to be seen.

But, that question is far from “academic.” The survival of our democratic republic is likely to depend to a great extent on whether the Biden Administration can bring in the progressive experts who finally will “get EOIR right!”

🇺🇸Due Process Forever!

PWS

07-16-21

😎👍YES! IN A HUGE WIN FOR DUE PROCESS, EFFICIENCY, JUDICIAL INDEPENDENCE, & SANE GOVERNMENT, AG GARLAND OVERRULES SESSIONS’S IDIOTIC MATTER OF CASTRO-TUM PRECEDENT & RESTORES IJs’ AUTHORITY TO ADMINISTRATIVELY CLOSE CASES — Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021)

Judge Merrick Garland — Atorney General Merrick B. Garland
Official White House Photo
Public Realm

The Attorney General has issued a decision in Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021).

(1) Matter of Castro‑Tum, 27 I&N Dec. 271 (A.G. 2018), is overruled in its entirety.

(2) While rulemaking proceeds and except when a court of appeals has held otherwise, immigration judges and the Board should apply the standard for administrative closure set out in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W‑Y‑U‑, 27 I&N Dec. 17 (BIA 2017).

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

Sessions’s Castro-Tum abomination had to be one of the stupidest and most maliciously incompetent aspects of his White Nationalist, anti-asylum, anti-due-process agenda! Not surprisingly, that decision and the illegal attempt to convert it into a regulation have mostly been losers in the Article III Courts.

Hats 🎩 off to Judge Garland for doing the right thing (even if it did take longer than some of us thought it should)! This also ties in perfectly with the recent common sense restoration of enforcement priorities and prosecutorial discretion at ICE by OPLA head John Trasvina! https://immigrationcourtside.com/category/department-of-homeland-security/immigration-customs-enforcement-ice/office-of-principal-legal-adviser-opla/john-d-trasvina/

After four years of virtually unrelenting illegality, mismanagement, and outright idiocy at DHS and DOJ, that has caused “Aimless Docket Reshuffling” and generated ever-mushrooming court backlogs, finally some much-needed and long overdue teamwork and reasonability in restoring to Immigration Judges and the parties the necessary tools for rational, cooperative docket management. Presumably, the hundreds of thousands of cases “waiting in the wings” to be “re-docketed” pursuant to “Sessions’s folly” can now remain administratively closed or be “re-closed” and removed from the EOIR docket!

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

Along those same lines, “Sir Jeffrey” Chase reports some more good news:

More Good News!

Ms. A-B- (i.e. the respondent in Matter of A-B-) was granted asylum yesterday.The BIA granted pursuant to a joint motion from DHS and respondent’s counsel to grant asylum.

It took far too long, but justice prevailed.

Best, Jeff

That’s the type of cooperative action among the parties and EOIR that, if repeated on a larger scale, could restore functionality and some semblance of justice to our broken Immigration Courts!

Also, many congrats to my friend Karen Musalo and her team at the Center for Gender and Refugee Studies at Hastings Law for their outstanding, persistent, and ultimately successful defense of Ms. A-B- against Sessions’s misogynistic “war on asylum seekers of color.”

It’s a telling commentary that finally getting the law back to where it was in 2016, “pre-Sessions,” now seems like a major victory! Just think of what might have been accomplished if all the effort expended on combatting the Trump immigration kakistocracy’s illegality, nonsense, and wasteful gimmicks had instead been devoted to advancing and promoting due process and fundamental fairness for all persons in America!

🇺🇸Due Process Forever!

PWS

07-15-21

⚖️5TH CIRCUIT BELATEDLY “OUTS” IJ AGNELIS REESE (NOW RETIRED) FOR 99.5% ASYLUM DENIAL RECORD — “We find it likely that a ‘reasonable man, were he to know all the circumstances, would harbor doubts about the judge’s impartiality.’” Inexplicably Garland & Co. Let Other “Asylum Deniers Club” Members Continue to Wreak Havoc On Asylum Seekers, Their Lawyers, & The Entire U.S. Justice System!🤮

“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color — As asylum seekers and their fearless advocates suffer and the Immigration “Courts” disintegrate, there appears to be no end to “Garland’s Miller-Lite Happy Hour” @ DOJ!

Dan Kowalski Reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/rare-ca5-stay-grant-singh-v-garland#

Rare CA5 Stay Grant: Singh v. Garland

Singh v. Garland

“Daljinder Singh applied for asylum and protection under the Convention Against Torture, claiming that he feared persecution in India based on his membership in the Akali Dal Amritsar (“Mann Party”), a Sikh-dominated political party. The presiding immigration judge (“IJ”) denied his application, finding Singh not credible. The Board of Immigration Appeals (“BIA”) dismissed Singh’s appeal. Singh filed a petition for review and moved for a stay of removal. We granted Singh an emergency stay of removal pending further order. We now grant Singh a stay pending review of his petition. … Singh raises two principal arguments in his petition for review. First, he contends that the IJ’s near total denial rate for asylum applications reflected a bias and violated Singh’s due process rights. Second, he challenges the BIA’s conclusion that the IJ adhered to the procedural safeguards the BIA adopted in Matter of R-K-K-, applicable when an IJ relies on inter-proceeding similarities for an adverse credibility determination. We conclude that Singh has made the requisite showing that he is likely to succeed on the merits of both claims. … The IJ here [Agnelis Reese] denied relief to asylum seekers in 203 of the 204 cases she presided over from 2014 to 2019, a denial rate of 99.5%. … … Given the accounts of multiple witnesses to the attacks on Singh, medical records, images of the attacks on his father, and witness testimony regarding the BJP’s continued pursuit of Singh, Singh has made the requisite showing that the totality of the evidence does not support the IJ’s credibility determination. The appearance of bias painted by the denial of 203 of 204 asylum applications and the IJ’s adverse-credibility determination, informed by her noncompliance with the procedural safeguards of Matter of R-K-K-, are here interlaced. We do not suggest that a high percentage of denials is sufficient to avoid an IJ’s otherwise valid credibility determinations. Indeed, patterns in applicants’ presentations are likely and may necessarily result in a higher denial rate if the shared basis for relief is inadequate. But here, the incredibly high denial rate, when coupled with the IJ’s noncompliance with Matter of R-K-K-, presents a substantial likelihood that Singh will be entitled to relief upon full consideration by a merits panel. … Accordingly, we GRANT Singh’s motion for a stay pending review of his petition.”

[Hats way off to Peter Rogers!]

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

So, if the 5th Circuit and a “reasonable man” could figure out this isn’t “justice,” by any stretch of the imagination, why on earth 1) can’t Garland do likewise, and 2) does he continue to have his lawyers defend this disgraceful nonsense and waste of taxpayer money? Reese has previously been “featured” in Courtside for her “Kafkaesque” approach to “justice” for asylum seekers. Several years ago, I spoke at a Louisiana State Bar CLE event where attorney after attorney shared their “horror stories” about Reese. Yet, she managed to last for more than two decades over four different Administrations, two Democratic and two Republican.

Thankfully for American justice, Judge Reese retired in 2020, after more than two decades of abusing asylum seekers and disgracing the Immigration Courts! But, she was by no means the only unqualified Immigration Judge who helped create disgraceful and illegal “Asylum Free Zones” in Immigration Courtrooms throughout America.

A number of members of the “Asylum Denial Club” remain on the bench @ EOIR. Outrageously, some of them were even “rewarded” with appointments to the BIA by the previous Administration!

Rather than swiftly moving to replace the BiA and then commencing a thorough, long overdue “housecleaning” of unqualified judges and managers at EOIR, Garland, Monaco, Gupta, and Clarke have dawdled as asylum seekers continue to be abused, mistreated, denied due process, and justice mocked at EOIR. A civil rights/racial injustice/due process crisis of gargantuan proportions is going on right under their noses, and they have done very little to acknowledge or address it!

Not to mention that under Garland’s lackadaisical leadership the Immigration Courts continue to build unnecessary backlog at “Trumpian” rates. It’s not like experts haven’t brought the grotesque injustices and defects of EOIR to the attention of the Biden Administration and Garland!

One might ask just what Garland and his top lieutenants are doing to earn their pay? The answer is “not much” to date from a progressive standpoint!

Experts and advocates should be “raising hell” with the Biden Administration about the deficient due process and racial justice leadership at the DOJ! American justice deserves better! Much better!

And, the other Circuit Courts (particularly the 11th Circuit) that have looked the other way at the biased decision-making and other unconstitutional travesties of justice going on in Immigration Court on a regular basis don’t look so good either!

🇺🇸Due Process Forever!

PWS

07-14-21

THE GIBSON REPORT — 07-12-21 — Compiled By Elizabeth Gibson Esquire, NY Legal Assistance Group

ALERTS

Note: Policies are rapidly changing, so please verify information with the government and colleagues.

EOIR Non-detained Reopening

With courts reopening, please be aware that mask and courtroom policies may vary by judge/court. Judges have voted to require masks at 26 Federal Plaza, but this is not always the case at the other NY courts.

NY non-detained does have WebEx capabilities, but use is up to the discretion of the judge and be aware that bandwidth may be low.

Just a quick reminder that the NY Immigration Court home page has the wrong links to the standing orders, but you can find the correct links on the operational status page.

For courts that reopened last week, don’t forget that email filing will no longer be allowed as of September 4, 2021.

The attorney entrance to 26 Federal Plaza remains closed. Allow sufficient time to enter by the main security line.

Prosecutorial Discretion

See OPLA NYC instructions attached.

Despite the stated requirement for a certificate of good conduct for PD with OPLA NYC, it sounds like this is most relevant in cases where termination is being requested and there have not been biometrics taken.

NY no longer allows remote notarization: New York’s State of Emergency expired on June 24, 2021. The Executive Order authorizing remote notarization is no longer active. Notary publics can no longer perform notary services remotely.

TOP NEWS

Biden Will End Detention for Most Pregnant and Postpartum Undocumented Immigrants

NYT: Since 2016, ICE has arrested undocumented pregnant immigrants more than 4,000 times, according to internal government data shared with The Times.

‘Traumatizing and abusive’: Immigrants reveal personal toll of ankle monitors

Guardian: The news comes amid an effort by the Biden administration to boost the use of the monitors as an alternative to putting people in brick-and mortar prisons as they await the outcome of their immigration cases.

As migrants arrive from more nations, their paths to U.S. border diverge, new data show

WaPo: While social media and word-of-mouth play a role in channeling some migrants toward certain crossing points, smuggling organizations are taking advantage of uneven enforcement policies to convert sections of the U.S. border into designated entry lanes for specific nationalities and demographic groups.

States Plan to Deploy National Guard, Police to US-Mexico Border

VOA: In recent weeks, states including Arkansas, Florida, Iowa, Nebraska, Ohio, South Dakota and Wisconsin have announced plans to deploy National Guard troops or law enforcement personnel along the southern border. See also Almost 150 guards are staffing an empty Texas prison as state officials work on Gov. Greg Abbott’s plan to use it for immigrants.

The Trump administration used an early, unreported program to separate migrant families along a remote stretch of the border

WaPo: In May 2017, Border Patrol agents in Yuma, Ariz., began implementing a program known as the Criminal Consequence Initiative, which allowed for the prosecution of first-time border crossers, including parents who entered the United States with their children and were separated from them.

Settlement reached over free immigration detention hotline

AP: Immigrant advocates say they have reached a settlement with the U.S. government so they can keep operating a free hotline that lets detained immigrants report concerns about custody conditions.

Virus cases are surging at crowded immigration detention centers in the U.S.

NYT: As their populations swell nearly to prepandemic levels, U.S. immigration detention centers are reporting major surges in coronavirus infections among detainees.

LITIGATION/CASELAW/RULES/MEMOS

CA1 Says BIA Erred in Not Considering Individualized Hardship When It Reversed IJ’s Grant of Adjustment Application

The court held that the BIA erred in reversing the IJ’s grant of petitioner’s adjustment of status application, finding that it was required to consider in an individualized manner the hardship he might suffer if he were required to return to El Salvador. (Perez-Trujillo v. Garland, 6/28/21) AILA Doc. No. 21070734

CA2 Says Burden-Shifting Framework for Late-Filed Appeals Imposed by BIA in Matter of J.M. Acosta Is Unreasonable

The court concluded that the BIA’s interpretation of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) to require a noncitizen pursuing a late-filed appeal to make a merits-based showing at the notice stage is unreasonable. (Brathwaite v. Garland, 7/1/21) AILA Doc. No. 21070933

CA4 Upholds Asylum Denial to Honduran Petitioner Convicted of Unlawful Wounding in Virginia

The court held that petitioner was ineligible for asylum based upon his conviction for unlawful wounding in Virginia, and found that the BIA did not err in denying his claims for withholding of removal or Convention Against Torture (CAT) protection. (Moreno-Osorio v. Garland, 6/23/21) AILA Doc. No. 21070736

CA5 Finds It Has Jurisdiction to Determine What Constitutes “Exceptional and Extremely Unusual Hardship”

The court held it had jurisdiction to review the agency’s determination that events that would befall the petitioner’s U.S.-citizen children if he were removed would not amount to “exceptional and extremely unusual hardship” as Congress intended the phrase. (Guerrero Trejo v. Garland, 7/2/21) AILA Doc. No. 21070938

CA5 Finds That Petitioner’s Conviction in Texas Fell Within BIA’s Definition of “Crime of Child Abuse”

Where the IJ ordered the petitioner removed due to his conviction for online solicitation of a minor in Texas, the court held that the BIA did not err in determining that his conviction was a removable offense under INA §237(a)(2)(E)(i) for a crime of child abuse. (Adeeko v. Garland, 7/1/21) AILA Doc. No. 21070934

6th Circ. Revives Honduran Mother And Son’s Bid For Asylum

Law360: The Sixth Circuit has given a Honduran mother and her son another chance to seek asylum in the U.S., saying the Board of Immigration Appeals must take another look at her petition in light of changes in policy under the new administration.

CA7 Says Petitioner Forfeited Objection to Defect in NTA by Not Bringing It to Attention of IJ During Removal Proceeding

The court found that petitioner forfeited any objection to the deficiency in his Notice to Appear (NTA) by not timely raising it in the removal proceeding, and that he had not shown cause for forfeiture nor prejudice resulting from the defect in the NTA. (Mejia-Padilla v. Garland, 6/29/21) AILA Doc. No. 21070832

CA7 Says BIA Erred by Requiring Petitioner to Show Prejudice from His Defective NTA

Where petitioner received a procedurally defective Notice to Appear (NTA) for his removal proceedings and made a timely objection, the court held that BIA erred in finding he was not entitled to relief unless he could demonstrate prejudice from the NTA. (Avila de la Rosa v. Garland, 6/24/21) AILA Doc. No. 21070738

CA7 Holds That Illinois Burglary Statute Is Not Divisible

The court held that the BIA erred by applying the modified categorical approach to determine that the petitioner’s two Illinois convictions for burglary were removable offenses under federal law, finding that the Illinois burglary statute is not divisible. (Parzych v. Garland, 6/28/21) AILA Doc. No. 21070830

CA8 Upholds BIA’s Conclusion That Petitioner Could Reasonably Relocate Within Guatemala to Avoid Vigilante Group

Upholding the denial of withholding of removal, the court found that petitioner had failed to establish membership in a particular social group, and that BIA did not err in determining he could reasonably relocate in Guatemala to avoid a vigilante group. (Bautista-Bautista v. Garland, 7/6/21) AILA Doc. No. 21070940

CA9 Reverses Denial of Voluntary Departure Where NTA Lacked Date-and-Time Information

The court held that petitioner’s Notice to Appear (NTA)—which lacked the time and date of his removal proceedings—did not terminate his period of physical presence in the United States, and thus BIA erred in finding him ineligible for voluntary departure. (Posos-Sanchez v. Garland, 7/7/21) AILA Doc. No. 21071231

CA9 to Rehear En Banc Case Involving Illegal Reentry Under INA §241(a)(5)

The court ordered rehearing en banc and vacated its prior decision in Tomczyk v. Garland, which held that the act of reentering illegally under INA §241(a)(5) requires some form of misconduct by a noncitizen rather than merely the status of inadmissibility. (Tomczyk v. Garland, 7/6/21) AILA Doc. No. 21071230

CA9 Applies Circumstance-Specific Approach to Find That Amount of Marijuana in Petitioner’s Possession Exceeded 30 Grams

The court held that the circumstance-specific approach applies to the 30-gram limit of INA §237(a)(2)(B)(i)’s personal-use exception, and that the circumstances of the case established that the amount of marijuana in the petitioner’s possession exceeded 30 grams. (Bogle v. Garland, 6/23/21) AILA Doc. No. 21070834

CA9 Remands Where IJ Failed to Consider Favorable Factors in Denying Voluntary Departure to Petitioner

The court held that the IJ had failed to evaluate the factors weighing in favor of granting voluntary departure to the petitioner, and thus granted in part the petition for review and remanded to the BIA. (Zamorano v. Garland, 6/25/21) AILA Doc. No. 21070833

CA9 Upholds District Court Order Requiring DHS to Stop Detaining Certain Minors in Hotels for More Than Three Days

The court affirmed the district court’s order requiring DHS to apply the 1997 Flores Settlement Agreement to certain minors detained in hotels for more than a few days pending their expulsion from the United States under the CDC’s Title 42 order. (Flores v. Garland, 6/30/21) AILA Doc. No. 21070632

USCIS Settles Fight Over Blank Space Application Rejections

Law360: U.S. Citizenship and Immigration Services has reached a tentative deal with three individuals whose applications for immigration benefits were rejected because they left fields empty, a settlement that could affect thousands of individuals.

Feds Buck Asylum-Seekers’ Requests For Waitlists

Law360: The Biden administration bucked asylum-seekers’ request that it retrieve waitlists of migrants who weren’t immediately allowed to enter the U.S., telling a California federal court that the request goes beyond their claims against the policy of “metering.”

Texas Sheriffs Seek To Force More ICE Arrests

Law360: A group of Texas sheriffs and a law enforcement nonprofit asked a federal judge for a sweeping block on current immigration policy, requesting a five-part injunction that would increase immigration detention and force authorities to arrest more migrants.

ICE and Detainees Reach Settlement Agreement over Implementation of COVID-19 Protocol

The district court released a proposed settlement agreement between ICE and detained immigrants at three detention centers in Florida, in which ICE agreed to implement certain COVID-19 vaccination guidelines and protocol, among other things. (Gayle, et al. v. Meade, et al., 6/28/21) AILA Doc. No. 21070831

ICE Agrees to Continued Use of National Immigration Detention Hotline for At Least Five Years

Freedom for Immigrants (FFI) reached a settlement with ICE, under which ICE agreed to provide uninterrupted access to FFI’s National Immigration Detention Hotline for at least a five-year period and to pay FFI $100,970 in attorneys’ fees. (Freedom for Immigrants v. DHS, 7/1/21) AILA Doc. No. 19121634

DHS Notice on Extension and Redesignation of Yemen for TPS

DHS notice of Temporary Protected Status extension and redesignation of Yemen for 18 months from 9/4/21 through 3/3/23. (86 FR 36295, 7/9/21) AILA Doc. No. 21070932

ICE Issues Updated Guidance in Identifying and Monitoring Pregnant, Postpartum, or Nursing Individuals

ICE issued a directive stating that it should not detain, arrest, or take into custody for an administrative violation individuals known to be pregnant, postpartum, or nursing, unless release is prohibited by law or exceptional circumstances. Guidance effective 7/1/21. AILA Doc. No. 21070930

Practice Alert: DOS Confirms NIEs Automatically Extended for 12 Months

AILA’s DOS Liaison Committee provides an alert concerning member reports received from posts in Europe and confirmed in official guidance from DOS that NIEs issued by DOS in the last 12 months have been automatically extended for 12 months.

RESOURCES

AILA: Public Charge: New Ethical Considerations for Adjustment Cases

AILA: AILA’s Diversity, Equity & Inclusion law student scholarships

CLINIC: For Current Yemeni TPS Holders: How To Deal With Issues or Problems With Your TPS at Work, The Department of Motor Vehicles, and Elsewhere

CLINIC: Program Closure Considerations – Practice Advisory

CLINIC: Liberian Refugee Immigration Fairness: FAQs for Legal Practitioners

CRS: Reinstatement of Removal: An Introduction

HRF: Disorderly and Inhumane: Biden Administration Continues to Expel Asylum Seekers to Danger While U.S. Border Communities Stand Ready to Welcome

IDP: ICE Knows that You’re In DOCCS. What Happens Next?

IDP: Immigration Cyber Prisons and Twitter Storm Today

ILRC: Overview of the New U Nonimmigrant (“U Visa”) Bona Fide Determination

ILRC: Sanchez v. Mayorkas: TPS and Adjustment after the Supreme Court’s Decision

EVENTS

7/13/21 Hot Topics in U Visa Adjudication: What Is it to U’s?

7/14/21 The CIS Ombudsman’s Webinar Series: 2021 AnnualReport

7/14/21 Adjustment of Status for Refugees and Asylees

7/14/21 Turning Off Your “Lawyer Brain” on Downtime

7/15/21 Using litigation to end statelessness

7/15/21 Build Bridges, Not Walls: A Journey to a World Without Borders

7/15/21 Hot Topics in Crimmigration: The Modified Categorical Approach and State Decriminalization and Reclassification Statutes

7/15/21 Overview of Removal Proceedings in Immigration Court

7/16/21 Review of Attorney General Decisions and BIA on Asylum In Effect and Practice Tips

7/16/21 Niz-Chavez-What To Know Before The 7.28.21 Deadline

7/18/21 Prosecutorial Discretion in Removal Proceedings

7/21/21 Travel Issues, Termination and Naturalization for Refugees and Asylees

7/21/21 The ethics of dual representation (child and guardian) in SIJS practice

7/21/21 Ethical Considerations for Immigration Law

7/21/21 Litigation Updates: Implications for Survivor Representation

7/21/21 Matter of A–B– and Matter of L–E–A– Have Been Vacated: Now What?

7/21/21 Supporting Unaccompanied Children in the U.S. Communities Where They Live

7/22/21 PLI: Defending Immigration Removal Proceedings 2021

7/22/21 Factual Development in Asylum, Withholding of Removal & Convention Against Torture Claims

7/22/21 Overview of Relief From Removal

7/22/21 Handling Backlogs and Cases “Stuck” at the Consulates

7/23/21 Research Resources for Paralegals

7/26/21 Understanding Parole

7/28/21 Reading the Tea Leaves: What Can We Expect From the Biden Administration Pertaining to Asylum? (Live Roundtable)

7/29/21 Counseling Your Client About Exposure to Enforcement

7/29/21 Immigration Court Nightmares: Bad Facts, Difficult Judges, Inconsistencies, and Unwilling Witnesses

8/12/21 Conducting Country Conditions Research to Support Asylum, Withholding of Removal, and Convention Against Torture Claims

8/12/21 Adjustment Exceptions that Feel Like Magic

8/17/21 2021 AILA Paralegals Virtual Conference

8/18/21-8/20/21 CLINIC and NITA’s “Advocacy in Immigration Matters” Training

8/19/21 2021 AILA Asylum Virtual Conference

8/31/21 Hot Topics in Marriage-Based Adjustment of Status

9/15/21 Legal Remedies for Immigrant Survivors: Introductory Seminar Series – Part III: Getting Survivors & Their Families to the Finish Line

9/23/21 Representing Children in Immigration Matters 2021: Effective Advocacy and Best Practices

ImmProf

Monday, July 12, 2021

Symposium Issue: Unwanted Citizens of EU Member States and Their Forced Returns within the European Union

Citizenship tests required in K-12 schools

Sunday, July 11, 2021

Your Playlist: Ana Tijoux (with Roja y Negro)

Guest Post: Minyao Wang, The BIA’s Ruling in Matter of D-G-C- and Chinese Asylum Applications

Saturday, July 10, 2021

Now Streaming: The Indian Detective (Netflix)

Border Patrol Officer Rescues Migrant, Heat Makes Border Crossings Especially Dangerous

Friday, July 9, 2021

Conference Announcement: CSLSA Registration Now Open

ICE issues new policy on pregnant, postpartum, nursing individuals

AILA Diversity, Equity, and Inclusion Scholarships for Law Students–Applications Due July 30, 2021

Equal Access to Green cards for Legal Employment (EAGLE) Act of 2021

“Alien” or “Noncitizen”: Appeals Court Judges Disagree on Proper Term in Cancellation of Removal Case

Thursday, July 8, 2021

Good, But Vague, News About Afghan Interpreters

Blanks in visa applications no longer grounds for rejecting humanitarian benefits

Biden Administration to Take Steps to Assist Deported Veterans

Wednesday, July 7, 2021

The Deets on Britain’s New Asylum Bill

From the Bookshelves: The Politics of Patronage Lawyers, Philanthropy, and the Mexican American Legal Defense and Educational Fund by Benjamin Márquez

A Positive Immigration Agenda for Racial Justice

Tuesday, July 6, 2021

U.S. Mayors Want Refugees; WaPo Breaks Down Why

Arturo O’Farrill’s “Fandango at the Wall” Transcends Borders

Monday, July 5, 2021

Afghan Interpreters Face Terror in Wake of US Troop Withdrawal

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

Thanks, Elizabeth.

PWS

07-13-21

🏴‍☠️☠️🤮CRUELTY, UNCONSTITUTIONALITY, COVER-UPS, UNACCOUNTABILITY MARKED TRUMP’S IMMIGRATION KAKISTOCRACY — Victims Suffer, “Perps” Walk Free!

Sessions in a cage — Jeff Sessions’ Cage by J.D. Crowe, Alabama Media Group/AL.com
Republished under license

https://www.washingtonpost.com/world/2021/07/09/trump-separated-families-yuma-2017/

Kevin Sieff reports @ WashPost:

. . . .

Some of the parents separated under the Yuma program still remain apart from their children four years later. Others are missing — lawyers and advocates have been unable to locate them since they were deported alone. The children separated in Yuma in 2017 were as young as 10 months old, according to government data.

The new information shows the difficulty of accounting for aspects of the Trump administration’s immigration policy, an ever-changing series of measures aimed at stopping migrants from crossing the border. Even the impact of family separation — perhaps the most scrutinized U.S. immigration policy of the last half-century — is not fully understood.

[They were one of the first families separated at the border. Two and a half years later, they’re still apart.]

Though the formal period in which the Trump Administration’s “zero tolerance” policy was implemented spanned only April to June 2018, it’s now clear that separations began roughly a year before that along some stretches of the border. More than 5,600 families were separated between mid-2017 and mid-2018, according to the Department of Homeland Security. The Biden administration is investigating whether more previously unregistered separations might have occurred earlier in Trump’s term.

. . . .

The ACLU, which was given access to government data through a court order, has catalogued cases that hint at the policy’s global impact.

In August of 2017, for example, a father from Tajikistan was separated from his 4-year-old daughter. In October of 2017, a mother from Romania was separated from her 6-year-old son. In April of 2018, three siblings from Nigeria — 12, 14 and 16 years old — were separated from their dad. In December 2017, a two year old boy from Brazil was separated from his father.

“We know from the documents provided in the litigation that families separated by the Trump administration came not just from Central America but all over the world,” said Lee Gelernt, the lead attorney on the ACLU’s family separation litigation. “Which will make the process of putting this all back together that much more difficult.”

Maria Sachetti and Nick Miroff contributed to this report.

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

Disturbingly, the harm is irreparable in many cases, the Biden Administration has continued the illegal suspension of asylum laws at the border while also failing to effectively address the continuing unconstitutional mess in Garland’s dysfunctional Immigration “Courts” that aren’t courts at all!

🇺🇸Due Process Forever!

PWS

07-12-21

⚖️🇺🇸BIDEN ADMINISTRATION DOES THE RIGHT THING FOR DEPORTED VETS!

https://thehill.com/policy/national-security/561612-biden-administration-seeks-reversal-for-deported-veterans

Rebecca Beitsch reports for The Hill:

The Biden administration plans to track down veterans who have been deported as part of an effort to provide a pathway to citizenship along with access to Veterans Affairs benefits.

A late Friday announcement from the Department of Homeland Security said the move is part of a broader plan to “avoid future unjust removals” of noncitizen military service members, many of whom are eligible to naturalize due to their military service.

“We are committed to bringing back military service members, veterans, and their immediate family members who were unjustly removed and ensuring they receive the benefits to which they may be entitled,” Homeland Security Secretary Alejandro Mayorkas said in a release.

The effort directs a trio of DHS agencies — U.S. Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP) — to “review the cases of individuals whose removals failed to live up to our highest values.”

. . . .

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

Read the rest of Rebecca’s report at the link.

A welcome change to be sure!

🇺🇸Due Process Forever!

PWS

07-09-21

THE GIBSON REPORT — 07-05-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group

ALERTS

Note: Policies are rapidly changing, so please verify information with the government and colleagues.

EOIR Status Overview

EOIR plans to resume non-detained hearings July 6, 2021 at all remaining immigration courts.

TOP NEWS

Federal Informants Are Often Promised Visas. They Rarely Materialize.

Intercept: But data that Gershel was able to obtain for his report suggests that bad faith isn’t the primary problem. The S visa system itself is broken. Getting an S visa, an interagency process that requires an application from the Justice Department and then approvals by agencies under the Department of Homeland Security, can take up to a decade — a laborious process that dissuades officials at the FBI, the Drug Enforcement Administration, the Bureau of Alcohol, Tobacco, Firearms and Explosives, and other agencies from even applying for them. Making S visas even less appealing, the law requires that federal agencies monitor the applicant until the process is complete.

Biden administration formally launches effort to return deported veterans to U.S.

WaPo: The Biden administration unveiled plans Friday to bring hundreds, possibly thousands, of deported veterans and their immediate family members back to the United States, saying their removal “failed to live up to our highest values.”

U.S. looks into having 3 Central Asian states take in at-risk Afghans -sources

Reuters: They said Washington is in talks with Kazakhstan, Tajikistan and Uzbekistan about letting in the at-risk Afghan citizens. Two of the sources were U.S. officials and all requested anonymity.

US will close 4 emergency shelters for migrant children

AP: Four of the large-scale shelters will remain open, including one that has faced criticism from immigrant advocates at Fort Bliss Army Base in El Paso, Texas, she said. Others are in Albion, Michigan; Pecos, Texas; and Pomona, California, she said.

Supreme Court rules against immigrants claiming safety fears after deportation

WaPo: Alito said Congress had good reason to be more restrictive with those who came back into the country after being deported. “Aliens who reentered the country illegally after removal have demonstrated a willingness to violate the terms of a removal order, and they therefore may be less likely to comply with the reinstated order” that they leave, he said.

Republicans go all-in on immigration as a political weapon

Politico: With Donald Trump and a dozen House Republicans joining Abbott on the border on Wednesday, the GOP is loudly signaling its conviction that immigration will be a potent political weapon ahead of the midterm elections and presidential primary in 2024.

House Budget Trims ICE Funding, Ends Local Deputy Program

Law360: The House Appropriations Commission has released its homeland security budget for 2022, and it slashes U.S. Customs and Border Protection spending by $927 million, shaves ICE’s budget down a hair and cuts a controversial program that allowed local law enforcement to be deputized as immigration officials.

LITIGATION/CASELAW/RULES/MEMOS

Supreme Court Rules That Detained Noncitizens in Withholding-Only Proceedings Are Not Entitled to Individualized Bond Hearings

The U.S. Supreme Court held that INA §241, not INA §236, governs the detention of noncitizens subject to reinstated orders of removal, meaning that such noncitizens are not entitled to a bond hearing while they pursue withholding of removal. (Johnson, et al. v. Guzman Chavez, et al., 6/29/21) AILA Doc. No. 21062935

Immigration in the Supreme Court, 2020 Term

ImmProf: The U.S. government prevailed in four of the five cases, an 80 percent success rate. This rate was higher than that seen in recent Terms.

SCOTUS Grants Cert in Patel v. Garland

The U.S. Supreme Court granted a petition for writ of certiorari in Patel v. Garland to decide whether INA § 242(a)(2)(B)(i) “preserves the jurisdiction of federal courts to review a nondiscretionary determination that a noncitizen is ineligible for certain types of discretionary relief.” AILA Doc. No. 21070132

Flores settlement applies to minors detained amid pandemic – 9th Circ

Reuters: A U.S. appeals court on Wednesday said a longstanding settlement agreement requiring the government to detain minors who enter the U.S. illegally in licensed facilities rather than hotels applies to children who came to the country during the COVID-19 pandemic.

CA2 on Finality of Convictions

PLS: Today, the Second Circuit issued a landmark decision in Brathwaite v. Garland, a case filed by PLS, finding that the Board of Immigration Appeals (BIA’s) imposition of a presumption of finality to state criminal convictions that were under appellate review was arbitrary and unreasonable.

4th Circ. Upholds Illegal Reentry Law’s Constitutionality

Law360: The Fourth Circuit has affirmed the constitutionality of a federal illegal reentry law, dismissing a Honduran immigrant’s claim that it unlawfully allows an administrative agency, rather than a jury, to establish an element of a crime and incorporates the facts supporting a removal order.

5th Circ. Revives Honduran’s Asylum Bid Over Threats

Law360: The Fifth Circuit has sent an appeal by a Honduran asylum-seeker back to the Board of Immigration Appeals, saying the BIA needs to get the immigration judge in the case to clarify an “ambiguous” statement that the man is “likely” to be killed by cops in an order denying asylum.

CA4 Remands Claims for Asylum and Related Relief of 15-Year-Old Salvadoran Who Was Threatened by MS-13 Gang

On rehearing en banc, the court held that where a petitioner is a child at the time of the alleged persecution, IJs and the BIA must take the child’s age into account in analyzing past persecution and fear of future persecution for purposes of asylum. (Portillo-Flores v. Garland, 6/29/21) AILA Doc. No. 21063030

CA11 Finds BIA Failed to Properly Reconsider Discretionary Denial of Asylum Under 8 CFR §1208.16(e)

The court held that when an applicant is discretionarily denied asylum but granted withholding of removal and the IJ fails to reconsider its discretionary denial of asylum, the BIA must remand for the IJ to conduct this required reconsideration. (Thamotar v. Att’y Gen., 6/17/21) AILA Doc. No. 21062832

D.C. Circuit Affirms Dismissal of Claims by Detained Mothers and Children Challenging Credible Fear Regulations

The D.C. Circuit Court affirmed the district court’s determination that the IIRAIRA barred its review of 10 of the 11 alleged policies, because either the policy was unwritten or the challenges to it were untimely. (M.M.V., et al. v. Garland, et al., 6/18/21) AILA Doc. No. 19092532

BIA Finds IJs May Exercise Discretion to Rescind In Absentia Removal Orders

The BIA rescinded the absentia order of removal, after finding that an IJ, who has properly entered an in absentia order of removal, has the authority to determine whether a late arrival constitutes “exceptional circumstances.” Matter of S-L-H- & L-B-L- 28 I&N Dec. 318 (BIA 2021) AILA Doc. No. 21070137

Challenge to the Biden Administration’s Interim Enforcement Priorities Dismissed Without Prejudice

The district court denied Arizona and Montana’s request for preliminary injunction and dismissed the case without prejudice. (State of Arizona, et al., v. DHS, et al., 6/30/21)

ILA Doc. No. 21063099

ACLU Files First Lawsuit Against Biden Admin Over Transportation of Migrants by ICE

Newsweek: The first-ever lawsuit against President Joe Biden’s administration by the American Civil Liberties Union (ACLU) was filed Wednesday over long-distance transportation of detained migrants by Immigration and Customs Enforcement (ICE).

Tech Group Says Schools’ OPT Support ‘Nakedly Political’

Law360: A technology union has urged the D.C. Circuit to bar over 150 colleges and universities from having a say in its lawsuit challenging work permit extensions for foreign graduates, saying that the schools’ arguments are purely political.

DHS releases Interagency Strategy for Promoting Naturalization

USCIS: U.S. Citizenship and Immigration Services released the Interagency Strategy for Promoting Naturalization (PDF, 3.77 MB), a whole-of-government approach to breaking down barriers to U.S. citizenship and promoting naturalization to all who are eligible, as outlined in President Biden’s Executive Order 14012.

ACTIONS

Take Action: Urge the Administration to Rescind Policies that Restrict Entry to the U.S. and Address the DOS Backlogs and Delays

Take Action: Congress Needs to Stop Feeding the Immigration Detention Machine

Sign-on Letter Urging Members of Congress to Co-sponsor the Improving Opportunities for New Americans Act

Racial Justice and Immigrant Rights Leaders Launch “Until We’re Free” Table to Mobilize Against Biden’s Border and Enforcement Policies

Sign On to Support Call for Transparency in NYC ICE Field Office

RESOURCES

AILA: Practice Pointer: AG Garland Precedential Decisions in Matter of A-B- and Matter of L-E-A

AILA: Practice Advisory: Strategies and Considerations in the Wake of Niz-Chavez v. Garland

AILA: Update: Summary of Examples Following Reports of USCIS Waiving the In-Person Interview Requirement

AILA: Withdrawal of Representation in Immigration Practice

AILA: Overcoming Secondary Trauma in Immigration Practice

Asylos

Nigeria: Yoruba Christian Priests (AFR2021-02)

Dominican Republic: The Situation of Women in the Country and Domestic Violence (AME2021-06)

Sudan: Unaccompanied Eritrean Minors (MEN2021-06)

CLINIC: Practice Advisory: Stays of Removal

CLINIC: USCIS Policy Manual Updates on Naturalization and False Claims to Citizenship and Unlawful Voting

CLINIC: Supreme Court Rules Grant of TPS Not an Admission

CLINIC: Supreme Court Addresses Asylum Credibility in Garland v. Dai

CLINIC: Bona Fide U Status Petitioners to be Given Deferred Action and EADs

CLINIC: Biden Administration Announces New Prosecutorial Discretion Policy

CRS: Primer on U.S. Immigration Policy

CRS: Asylum Eligibility for Applicants Fleeing Gang and Domestic Violence: Recent Developments

CRS: Increasing Numbers of Unaccompanied Alien Children at the Southwest Border

DMRS: Unredacted documents related to the Migrant Protection Protocols

GAO: ICE Efforts to Address COVID-19 in Detention Facilities

ILRC: Special Considerations when Screening Youth for T Visa Eligibility

Legal Aid: U Visa EAD FAQ

LSNYC Practice Advisory on continuances: fifth edition

NIP/NLG: Practice Advisory: Strategies and Considerations in the Wake of Niz-Chavez v. Garland

EVENTS

7/7/21-7/21/21 Webinar Series: Navigating Refugee and Asylee Issues

7/8/21-7/29/21 Webinar Series: Overview of Removal Proceedings and Orders of Removal

7/9/21 FOIA Requests with DHS

7/15/21 Using litigation to end statelessness

7/15/21 Build Bridges, Not Walls: A Journey to a World Without Borders

7/15/21 Hot Topics in Crimmigration: The Modified Categorical Approach and State Decriminalization and Reclassification Statutes

7/16/21 Review of Attorney General Decisions and BIA on Asylum In Effect and Practice Tips

7/18/21 Prosecutorial Discretion in Removal Proceedings

7/21/21 The ethics of dual representation (child and guardian) in SIJS practice

7/21/21 Ethical Considerations for Immigration Law

7/21/21 Litigation Updates: Implications for Survivor Representation

7/22/21 PLI: Defending Immigration Removal Proceedings 2021

7/26/21 Understanding Parole

9/23/21 Representing Children in Immigration Matters 2021: Effective Advocacy and Best Practices

ImmProf

Monday, July 5, 2021

Republicans eyeing White House take hard line on immigration

What a Reagan-era law can teach Democrats about legalizing undocumented immigrants

Sunday, July 4, 2021

The Immigrant History Behind Nathan’s Hot Dog Eating Contest

From the Bookshelves: End of the Myth

Happy Independence Day!

Immigration Doesn’t Just Mean Coming To America. These 4 Books Are Good Reminders.

Saturday, July 3, 2021

Europe’s Latest Migrant Border Dispute is Between Belarus, Lithuania

Friday, July 2, 2021

Biden’s interagency strategy for promoting naturalization

From The Bookshelves: The Book of Unknown Americans by Cristina Henríquez

Capitol rioter accompanied members of Congress on trip to US-Mexico border

Los Jornaleros del norte “Sabor a mi”

Citizenship Studies special issue (vol 25, issue 02): Decarceral Futures: Bridging Migrant and Prison Justice towards an Abolitionist Future

The structural racism of our immigration system

Thursday, July 1, 2021

Your Playlist: María del Pilar

Strategies and Considerations in the Wake of Niz-Chavez v. Garland

Happy July 4: USCIS to Celebrate Independence Day with Naturalization Ceremonies Across the Country

From the Bookshelves: Immigration Matters: Movements, Visions, and Strategies for a Progressive Future (2021). Editors, Ruth Milkman, Deepak Bhargava, Penny Lewis

Immigration Article of the Day: Attacking Democracy Through Immigration Workplace Raids by Bill Ong Hing

TED-Ed Video: Professor Robert Chang Explains the Chinese Exclusion Act

ACLU Files First Immigration Lawsuit Against Biden Administration

Trump pans Biden’s immigration policies during trip to southern border

Wednesday, June 30, 2021

The EOIR is Hiring

The false promises of more immigration enforcement

Ninth Circuit Leaves Flores Settlement Intact

Immigration Article of the Day: Remand and Dialogue in Administrative Law by Christopher J. Walker and James Saywell

Tuesday, June 29, 2021

Civil Immigration Suits Continue to Rise

Immigration in the Supreme Court, 2020 Term

Analysis of Johnson v. Guzman Chavez by Gabriel Chin

Supreme Court Decides Immigrant Detention Case

Podcast: Migrations: A World on the Move

Immigration Article of the Day: Estimating the Economic Impact of the 2021 Dream Act by Ike Brannon and M. Kevin McGee

Monday, June 28, 2021

National Association of Immigration Judges

Supreme Court Grants Certiorari in Judicial Review/Adjustment of Status Case

Immigration Article of the Day: Terrorism and the Inherent Right to Self-Defense in Immigration Law by Faiza W. Sayed

Nolan Rappaport: “Border crisis deepens as governors assert control”

Immigration and Customs Enforcement’s #Pride tweet conceals a violent history

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

Thanks for keeping us up to date, Liz! 😎👍🏼

PWS

07-06-21

🤮🏴‍☠️👎🏽RACE-BASED CHILD ABUSE & SEXUAL ABUSE OF KIDS MUST STOP — Demand An End To Scofflaw Behavior By Our Government!

Crimes Against Humanity — Thomas Cizauskas Crimes against humanity
Creative Commons License — The Biden Administration promised to stop these crimes committed by our Government, but hasn’t.

https://www.newsweek.com/we-fled-honduras-fearing-our-lives-immigration-officers-abused-my-child-opinion-1605760p

Daniel Paz writes in Newsweek:

“Welcome to hell.”

Those were the words I heard from an immigration officer not long after I entered the United States near El Paso, Texas in May 2018. I thought I had just reached safety with Angie, my 7-year-old daughter. I was wrong.

Once we arrived at the border, immigration officers processed me and my daughter at a detention facility, and led us to a crowded cell packed with 50 to 60 other families. It smelled terrible—like urine—and everything was gray. We were so cold. They didn’t even offer us one of the cellophane blankets you see on TV. I had to take my shirt off to wrap it around Angie and keep her warm. I was shivering.

The journey to this point had been excruciatingly painful. Fearing for our lives, we had to make the decision to flee. I had a good life in Honduras. I was a businessman and I owned my own home. I knew it would be hard to leave everything I worked so hard to build behind. Starting a new life in a new country with a different culture wouldn’t be easy. But desperate circumstances called for desperate measures. Hope of reaching a safe place for my family kept me going.

At the detention center, many fathers began hearing rumors that immigration officials were going to take our children away from us. Take them where? Take my daughter? To another cell? A new facility? On the inside I was panicking, but I knew I needed to show strength for my daughter. I needed to be brave and prepare her if the rumors were true. You will contact your grandparents in Ohio, I told Angie.

In the cell, we practiced memorizing their phone numbers, repeating them over and over. To be extra safe, I then wrote the numbers with a ball-point pen on my daughter’s arm, her belly, her foot and on the inside of her jeans hoping she’d have the chance to make a phone call before immigration officials washed off the ink.

Then my nightmare happened. They came to take our children. I witnessed pain, agonizing cries and a deep sense of helplessness. Some of the immigration officers joked as they handcuffed the parents. Others expressed a cruelty I never would have expected. Rather than trying to ease our pain, they were somehow enjoying their power. As if they believed their actions were the right thing to do. I don’t know how anyone believes separating a child from a parent is right.

. . . .

While being transferred to a detention facility for children, an immigration officer sexually abused her. When she fought back, the officer threatened her, saying if she told anyone she would never see her parents again. Then Angie witnessed the same officer sexually abuse two girls who were even younger than her. Angie stayed quiet about the experience even months after we were reunited.

We were reunited after several weeks, though the separation felt eternal. The Angie the U.S. government returned to me is not the same girl they took out of my arms in that detention center. She cannot forget what happened to her. And she wants me to share what happened to her because she is worried the officer who abused her is still an immigration official. We do not know the officer’s name—let alone whether the officer is still working in government.

“What if that officer is still hurting other kids?” Angie asked me.

As a father I want to tell Angie not to worry. That is why I am asking President Joe Biden to act. Reuniting families and making sure they have immigration status in the U.S. is critical—but it is not enough. The government can make a huge difference in the lives of thousands of asylum seekers who are being turned away at the border right now. All asylum seekers should be allowed to seek protection and refuge in the U.S. without fear.

The government must also investigate every allegation of sexual abuse and mistreatment by immigration officers. Those officers must immediately be identified and removed from their positions so they cannot hurt anyone else. President Biden, the Department of Homeland Security and the Department of Justice together have the ability to ensure that families like mine can begin to heal.

It is hell to leave your home and risk everything so your child can be safe. It shouldn’t be hell once you have reached what you thought would be a safe haven.

After entering the United States to seek safety, Daniel Paz and his daughter were separated for several weeks. Paz and his family were reunited in 2018 and have since won asylum. He is a committed advocate for other families who have faced similar trauma.

The views expressed in this article are the writer’s own.

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

Who would have thought that nearly six months into the Biden Administration our Government would still be abusing asylum seekers and ignoring the Constitution, mocking the rule of law, and degrading humanity?

So, how is it that Garland, Monaco, Gupta, and Clarke intend to combat racism and unequal justice in America when they have failed to re-establish the rule of law for asylum seekers at the border and continue to run an unjust and grossly mismanaged “court system” @ EOIR filled with too many “Miller Lite” judges?

Tell the Biden Administration and Judge Garland that we need progressive reforms, now! EOIR would be a great starting place!

🇺🇸Due Process Forever!

PWS

07-06-21

🏴‍☠️☠️⚰️👎🏽DOJ DISCONNECT: Garland Hits Pause Button On Trump/Barr 🤮 Kill-Fest, While Operating “Traffic Courts” That Can Impose The Death Penalty ⚰️ Without Due Process Or Impartial Judges!

In the strangely disingenuous world of Judge Garland’s DOJ:

This is unacceptable treatment of convicted felons:

Death Penalty
By Dave Granlund
Reprinted by license

But, this is “A-OK” treatment of those seeking asylum @ EOIR:

Star Chamber Justice — “Justice”
Star Chamber
Style

Pausing the Trump/Barr Federal killing spree makes sense. In addition to Garland’s “due process concerns,” there is the larger problem that the death penalty is unconstitutional under the 8th Amendment.

One would think that AG Garland’s concern for due process would extend to individuals being railroaded through his broken, biased, dysfunctional, due-process-denying Immigration “Courts” (that aren’t courts at all) who often face removal to places where they face abuse, torture, and/or death. Heck, at the border they are illegally removed without any process at all, as Judge Garland and his lieutenants look the other way. They might pretend not to see what’s happening. But, we see it!

Apparently, in Garland’s system due process is only a requirement for convicted felons, not for vulnerable individuals fighting for their lives in a process intentionally skewed against them. His is a system staffed largely with “Miller-Lite judges” selected by his two immediate predecessors who prided themselves on creating a “due process free zone” at EOIR and “partnering” with DHS Enforcement!

🇺🇸Due Process Forever,

PWS

07-05-21

HISTORY/POLITICS — STRUCTURAL RACISM IS DEEPLY INGRAINED IN OUR IMMIGRATION SYSTEM — “DRED SCOTTIFICATION” IS STILL ALIVE & WELL IN TODAY’S DYSFUNCTIONAL IMMIGRANT “JUSTICE” SYSTEM!

This video short by Julissa Arce, Activist, Writer, and Producer says it all:

https://blog.unidosus.org/2021/07/01/the-structural-racism-of-our-immigration-system/

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

In my Georgetown Law Immigration Law & Policy class, we recently talked about the racist roots of naturalization policy set forth in the Naturalization Act of 1790 with my friend and colleague Professor Cori Alonso Yoder. Obviously, the racism of our “Founding Fathers” went well beyond the institution of slavery.

Professor Cori Alonso Yoder
PHOTO: Google Scholar

Naturalization was a “whites only” proposition that transcended status as free or enslaved. White foreign nationals who had resided here for two years could be citizens. Free African Americans, Native Americans, and other free people of color could not become U.S. Citizens even if they had been born here and lived here for their entire lives. Yup, you don’t have to think too deeply to recognize the overt racism there!

Not to mention that America was literally built on the backs of enslaved African Americans whose free labor also supported a number of the white Founding Fathers, their white families, their often lavish lifestyles, and their sometimes endemic fiscal irresponsibilities. See, e.g., T. Jefferson, drafter of the Declaration of Independence whose estate had to sell off slaves to pay his debts.

No wonder White Supremacists, including many ignorant and dishonest pols, don’t want the truth of our nation’s history taught. The truth isn’t always pretty. And, it often has little to do with the various White Nationalist myths and skewed narratives foisted upon us.

Since those bogus myths exclude or distort the roles of the majority of today’s Americans, the “truth deniers” are going to have a tough time shoving their “whitewashed” version of American history down our throats in the long run! (That’s true, even though the “forces of ignorance, racism, bias, and thought suppression” on the right have been quite active lately and, shamefully, have succeeded in writing some of their racist nonsense into state and local laws). An honest reckoning with our past, including our past mistakes, is necessary for us to move forward into a better future.

One has only to look at Justice Alito’s mythologized version of America set forth in his recent majority opinion suppressing the voting rights of African Americans and other minorities, and to read Justice Kagan’s cogent rebuttal of his legal sophism, to see that “Dred Scott” is still alive at the Supremes! Sad, but true and something we all have to deal with. https://www.thenation.com/article/politics/voting-rights-arizona-court/

It’s not the first time our legal system has refused to carry out the clear mandate of the 15th Amendment against attacks by states trying to suppress the political power of their African-American citizens. One would like to think it will be the last. But, that’s unlikely given the current composition of the Supremes, Congress, and many state legislatures.

There might be no immediate solution for the Supremes, Congress, and state legislatures. The political process simply takes time, and the forces of regression have found and exploited all of the “anti-democratic seams” in our institutions that give them political power beyond their numbers.

However, there is one potentially powerful court system out there that progressives could reform and reconstitute NOW into a judiciary committed to due process, fundamental fairness, best practices, and equal justice for all persons in the United States regardless or race, creed, or status. So far, the Biden Administration and AG Garland have been both tone deaf and remarkably inept at transforming the Immigration Courts into the better judiciary needed for our future! Progressives need to “raise hell” until the Biden Administration fixes the one now-dysfunctional Federal Court system that they actually control!

The future will belong to those unafraid to face the sometimes unattractive realities of our collective past, to respect and honor those who fought through the mistreatment and injustice inflicted upon them, and learn from our history rather than denying or rewriting it! It will also belong to those wise, courageous, and bold enough to take advantage of opportunities for improving American justice that are staring them in the face. So far, Dems have shown themselves not up to the job in the Immigration Courts. Until they are, racial justice and sustained progress in America are likely to remain illusions.

🇺🇸Due Process Forever!

PWS

07-02-21

Dan Kowalski reports on LexisNexis Immigration Community:

🇺🇸Due Process Forever!

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David G. Savage & Maura Dolan report in the LA Times:

🇺🇸🗽🧑🏽‍⚖️Due Process Forever!

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Dan Kowalski reports for LexisNexis Immigration Community:

🇺🇸Due Process Forever!

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Mica Rosenberg reports for Reuters:

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🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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Dan Kowalski Reports for LexisNexis Immigration Community:

🇺🇸Due Process Forever!

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Kevin Sieff reports @ WashPost:

🇺🇸Due Process Forever!

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Rebecca Beitsch reports for The Hill:

🇺🇸Due Process Forever!

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Daniel Paz writes in Newsweek:

Tell the Biden Administration and Judge Garland that we need progressive reforms, now! EOIR would be a great starting place!

🇺🇸Due Process Forever!

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In the strangely disingenuous world of Judge Garland’s DOJ:

This is unacceptable treatment of convicted felons:

But, this is “A-OK” treatment of those seeking asylum @ EOIR:

🇺🇸Due Process Forever,

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This video short by Julissa Arce, Activist, Writer, and Producer says it all:

🇺🇸Due Process Forever!

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