Category: Biden Administration

🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️

Circus
This appears to be Judge Garland’s vision of “justice” for migrants and people of color @ Bailey’s Crossroads. Isn’t it time to put the past behind us and move forward with housecleaning and reforms at EOIR? Ask Judge Garland “What are you thinking, man?” Is this YOUR vision of due process and expert “judging?” — Public Realm

https://media.ca11.uscourts.gov/opinions/pub/files/201912019.pdf

Thamotar v. U.S. Att’y Gen., 11th Cir., 06-17-21, Published

PANEL: WILSON, JILL PRYOR and LAGOA, Circuit Judges.

OPINION: JILL PRYOR, Circuit Judge

KEY QUOTE:

Visavakumar Thamotar, a Sri Lankan citizen of Tamil ethnicity, seeks review of the Board of Immigration Appeals’ (“BIA”) order affirming an Immigration Judge’s discretionary denial of his application for asylum and grant of withholding of removal. Mr. Thamotar argues that because removal was withheld, federal regulation 8 C.F.R. § 1208.16(e)1 required reconsideration of his asylum claim, which the Immigration Judge and BIA failed to give. We agree with Mr. Thamotar that the agency failed to conduct the proper reconsideration. When an asylum applicant is denied asylum but granted withholding of removal, 8 C.F.R.

§ 1208.16(e) requires reconsideration anew of the discretionary denial of asylum, including addressing reasonable alternatives available to the petitioner for family reunification.2 And where the Immigration Judge has failed to do so, the BIA must remand for the Immigration Judge to conduct the required reconsideration.

Here, the Immigration Judge failed to reconsider Mr. Thamotar’s asylum claim under § 1208.16(e). The BIA’s failure to remand on this issue was therefore

1 Mr. Thamotar refers to both 8 C.F.R. §§ 208.16(e) and 1208.16(e) in his briefing. The two provisions are identical in substance, but § 1208.16(e) specifically applies to the BIA (and Immigration Judges) because of the enactment of the Homeland Security Act of 2002, Pub. L. No. 107-296, tit. IV, subtits. D, E, F, 116 Stat. 2135, 2192 (Nov. 25, 2002) (as amended), and the promulgation of final rule 68 Fed. Reg. 9823, effective February 28, 2003. 68 Fed. Reg. 9823, 9824–25, 9834 (Feb. 28, 2003); see Huang v. INS, 436 F.3d 89, 90 n.1 (2d Cir. 2006) (discussing this legislative history). For consistency, we will refer only to 8 C.F.R. § 1208.16(e).

2 Because we vacate the BIA’s order on this ground, we do not address Mr. Thamotar’s additional challenges to the order, which included that the BIA erred by affirming the Immigration Judge’s adverse credibility determination, which he contends was not supported by substantial evidence, and relying on his method of entry into the United States when affirming the Immigration Judge’s decision.

 2

USCA11 Case: 19-12019 Date Filed: 06/17/2021 Page: 3 of 32

manifestly contrary to law and an abuse of discretion. It is clear that neither the Immigration Judge nor the BIA conducted the proper reconsideration because the record contained no information about Mr. Thamotar’s ability to reunite with his family, information that the agency must review under § 1208.16(e). Thus, the BIA should have remanded the case for further factfinding. We grant the petition, vacate the BIA’s order, and remand to the BIA with instructions to remand to the Immigration Judge for reconsideration of the discretionary denial of asylum.

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

Lots of work for a bogus asylum denial by EOIR! And the utter nonsense isn’t over! Just a “remand” to give EOIR  yet another chance to deny for specious reasons (as they have already done twice). This  idiocy will continue until Judge Garland replaces the BIA with real judges who will properly, fairly, and timely apply the law and regulations! 

The poor analysis of the IJ, mindlessly affirmed by the BIA, failed to come anywhere close to the “most egregious adverse factors” requirement of the BIA’s own precedent in Matter of Kasinga, 21 I&N Dec. 357, 367 (BIA 1996):

A grant of asylum to an eligible applicant is discretionary. The final issue is whether the applicant merits a favorable exercise of discretion. The danger of persecution will outweigh all but the most egregious adverse factors. Matter of Pula, 19 I&N Dec. 467, 474 (BIA 1987). 

Get this, folks! The IJ and the BIA both found that meeting the higher standard for withholding of deportation based on probability of persecution somehow was an “adverse factor” that outweighed family separation! That’s right, an “adverse factor!”  

I can’t imagine how this gang of so-called “judges, got through law school and admitted to the bar! Maybe “imposters” took their exams for them! THIS is the best American justice has to offer? If not, why are they making life or death decisions and imposing potential permanent family separation on refugees?

Notwithstanding the assembly line climate and lackadaisical approach to law in Garland’s Immigration “Courts,” these are NOT TRAFFIC COURTS! They are more like “death penalty courts” or “courts of last resort” and those humans appearing before them and their representatives deserve better. 

Judge Garland and his team should hypothesize that this type of inferior justice were being meted out in life or death cases to THEIR FAMILY MEMBERS AND LOVED ONES — actual human beings, NOT “just migrants” who, according to Garland’s EOIR, appear to exist in a twilight zone beneath the rest of humanity. That’s what the ongoing “Dred Scottification of the other” still being permitted and  promoted by Garland at DOJ is all about!

A fitting celebration of the first Federal Juneteenth Holiday would have been to remove the entire BIA so that they can no longer inflict “Dred Scottification” on migrants of color, their families, their friends, and their communities, among others! Symbolism is only effective if followed by action. And, so far, Garland’s actions on wiping out the “vestiges of Dred Scott at Justice” have fallen woefully short!

This raises serious, unaddressed questions of why such weakly qualified individuals are on the bench in the first place when there are many immigration experts out there who can and would do better. Much better! And it wouldn’t take them years and multiple hearings, appeals, and trips to the Circuit to grant asylum. 

This isn’t a “deep” case except that it represents the “deep dodo” 💩 at EOIR, the stench of which is fouling our entire justice system and shaking the foundations of our democracy! This case is about following the Code of Federal Regulations, properly applying precedent, and fairly treating asylum seekers. It’s “Law 101” — things L-1s would have to know to get to L-2! I can’t begin to think what the paper would look like like if one of my students gave me this kind of garbage on a final exam. Fortunately, to date, nobody ever has!

Nor is this a Circuit renowned for critical analysis or holding the Government to a high standards in immigration cases. Indeed, the Eleventh Circuit itself bears some responsibility for this mess! They are well aware of the anti-asylum bias and poor decision-making emanating from the Atlanta Immigration Court, within their jurisdiction, and have chosen to ignore it. See, e.g., https://immigrationcourtside.com/2019/04/22/11th-circuit-judge-adelberto-jose-jordan-outs-the-atlanta-immigration-court-for-equal-protection-charade-in-a-dissenting-opinion-in-my-view-ms-diaz-r/

Those who want a more complete run down of the ongoing “Atlanta disgrace” — a cancer on our justice system — should just go to the “Atlanta Immigration Court” tab on immigrationcourtside.com. There is more than enough compiled to have triggered an investigation, removals from office, and corrective action in a functioning Government! And my collection is just “the tip of the iceberg” on what has been written about the disgraceful, systemic denial of fairness, impartiality, and justice in Atlanta!

And, why was OIL defending this ridiculous mess in the first place? It’s a “comedy” of errors, questionable ethics, and amateurish legal work that the DOJ should be ashamed of and which Garland should end — NOW! No wonder this ridiculous national embarrassment has created an unnecessary 1.3 million case backlog that continues to grow under Garland! 

Don’t let Garland or anyone else in the Administration tell you that this self-created backlog justifies a truncation of due process or more “bogus attempts to expedite” asylum cases. NO! What it requires is for Garland to bring in real judges and experts from the private/NGO sector to fix the Immigration Courts so they comply with due process and fundamental fairness!

Judge Garland, “come on man!” These deadly robed clowns and their “defenders” represent YOU — “the top legal officer in our Executive Branch!” YOU have a responsibility to the American people (NOT just the failed DOJ or the President) to “get out the big hook” and “yank” these anti-due process, anti-immigrant, anti-asylum, anti-racial-justice clowns 🤡 off YOUR bench and replace them with competence and fairness. A little (now missing) diversity wouldn’t hurt either! It’s called fulfilling the promises made by Biden and Harris during the election!

It’s not going to improve until Garland replaces the BIA with qualified judges, hires only Immigration Judges who know how to fairly adjudicate asylum cases, (with outstanding public reputations for fairness, scholarship, timeliness, teamwork, and respect), and AAG Vanita Gupta brings in better leadership at OIL to put an end to this tragic, totally unnecessary, disgracefully wasteful abuse of our Federal Judicial system and the resulting human carnage! 

NDPA warriors, don’t be fooled or lured into complacency by this week’s long overdue positive developments in A-B- and L-E-A- — things that experts said should have been done by Judge Garland on “Day 1.” Keep showing your total dis-satisfaction and disgust with the glacial pace of reform at DOJ and the myriad of highly unqualified “judges” still being allowed to continue to inflict racial injustice and “worst imaginable practices” on vulnerable individuals (and their lawyers) who are entitled to due process and justice — not a continuing deadly ☠️ clown 🤡 show! Keep letting Garland, Monaco, Gupta, Clarke, Biden, Harris, Congress, the Article IIIs, and the American people know that “The EOIR Clown Show Has Got To Go!” NOW! There will be neither racial justice nor equal justice for all in America (wake up, Vanita Gupta and Kristen Clarke) while Garland operates his “star chamber courts” at EOIR!

Star Chamber Justice
Hi, Judge Garland! This is how “justice” is administered in the 11th Circuit Immigration Cours and at the Bailey’s Crossroads’ Tower. Glad you like it! I guess the screams of the innocent can’t be heard across the river! Not even sure why you would need a law school degree to be “judges” in your EOIR star chambers. It’s really just about dehumanization, degradation, and “productivity!”  — Public realm

🇺🇸Due Process Forever! Garland’s “Asylum Free Zones,” Never!

PWS

06-19-21

Related posts:

  1. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  2. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮
  3. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  4. 🇺🇸⚖️🗽HON. JEFFREY S. CHASE: UNETHICAL, 🏴‍☠️WHITE NATIONALIST,⚰️ MISOGYNIST 🤮“WAR CRIMINAL” ☠️JEFFREY ROSEN TAKES COWARDLY🐓 PARTING SHOT AT REFUGEE🦸🏻 WOMEN! — DOJ Clean-Out, 🧹🪠🧻Fumigation, & Restaffing With Ethical Attorneys Can’t Begin Soon Enough!

👍🏼UNHCR welcomes US decision to restore protections from gang and domestic violence

 
UNHCR welcomes US decision to restore protections from gang and domestic violence

UNHCR, the UN Refugee Agency, welcomes the U.S. government’s decision announced 16 June to reverse legal rulings introduced several years ago that effectively made people forced to flee life-threatening domestic and gang violence in their home countries ineligible from being able to seek safety in the United States.

“These rulings have put the lives of vulnerable people at risk,” said Matthew Reynolds, UNHCR Representative to the United States and the Caribbean, after the U.S. Justice Department announced that the legal rulings known as Matter of A-B- and Matter of L-E-A- had been vacated in their entirety.

“Today’s decisions will give survivors fleeing these types of violence a better chance of finding safety in the United States and being treated with the basic compassion and dignity that every single person deserves. UNHCR welcomes this important humanitarian step,” Reynolds said.

UNHCR, he added, also welcomes the U.S. administration’s commitment to bringing its asylum system into line with international standards and specifically to writing new rules on determining membership of a “particular social group,” one of five grounds spelled out in the 1951 Refugee Convention defining who is entitled to international protection as a refugee.

“In keeping with international standards, a simple and broad definition of ‘particular social group’ is an essential part of a fair and efficient asylum system,” Reynolds said, adding that UNHCR stands ready and willing to support the asylum review and rulemaking process in any way requested by the U.S. government.

ENDS 

This Press Release is available here.
pastedGraphic.png

 

UNHCR, the UN Refugee Agency: 70 years protecting people forced to flee.
—

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

The unethical and illegal “bogus precedents” issued by Sessions and Barr have cost lives! Much of the damage done to date is irreparable. So is the continuing damage resulting from the Biden Administration’s failure to reopen ports of entry to legal asylum seekers.

🆘A functioning asylum system at ports of entry, establishing a viable refugee program in or in the region of the Northern Triangle, and a wholly reformed, due process oriented EOIR with real judges who understand how to fairly and efficiently evaluate and grant asylum under the very generous standard enunciated by the BIA in Matter of Mogharrabi but never in fact uniformly applied in practice will reduce the number of individuals crossing the border between ports of entry to seek refuge. We also need the help of NGOs in providing representation to those arriving and resettlement assistance for those “screened in” for hearings. 

Right now, we have no legal asylum system at our border despite very clear statutory language commanding it. That’s a BIG problem that must be addressed immediately! Clearly, the Biden Administration must cooperate with and seek help from human rights experts now outside Government including the UNHCR. 

As I’ve said before many times, expert human rights leadership needs to be brought into their Biden Administration to “kick some tail,” eradicate incompetence and bias, and fix EOIR and the asylum system. 

The NDPA needs to keep the pressure building for more immediate, common sense reforms to our asylum system and a legitimate EOIR of experts who function independently from DHS enforcement and politicos.

🇺🇸⚖️Due Process Forever!

PWS

06-17-21

Related posts:

  1. 🇺🇸🗽⚖️GEORGE W. BUSH INSTITUTE REPORT: GENDER VIOLENCE ☠️⚰️DRIVES CONTINUING REFUGEE FLOW TO U.S. — Dishonesty Of Sessions’s Misogynistic Attack In Matter Of A-B- 🤮 Exposed Again! — Yet, Garland Fails To Take Action To End Misogyny, Anti-Asylum Culture @ EOIR, Even As He Also Fails To Insist On The Restoration Of The Rule Of Law @ Our Borders! —  WHY?🤯
  2. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  3. NDPA STALWART JASON “THE ASYLUMIST” DZUBOW 🌟 QUOTED IN AP ARTICLE ABOUT REPEAL OF A-B- & L-E-A-!
  4. 🇺🇸⚖️🗽HON. JEFFREY S. CHASE: UNETHICAL, 🏴‍☠️WHITE NATIONALIST,⚰️ MISOGYNIST 🤮“WAR CRIMINAL” ☠️JEFFREY ROSEN TAKES COWARDLY🐓 PARTING SHOT AT REFUGEE🦸🏻 WOMEN! — DOJ Clean-Out, 🧹🪠🧻Fumigation, & Restaffing With Ethical Attorneys Can’t Begin Soon Enough!

🤯THIS IS THE “CHANGE” PROGRESSIVES VOTED FOR? — 🏴‍☠️ GARLAND DEFENDS UNCONSTITUTIONAL IMMIGRATION DETENTION AS LOSSES CONTINUE TO MOUNT — U.S. Judge In N.D. Cal. Unimpressed With Biden Administration’s Continued Intransigence!

Judah Lakin
Judah Larkin
Partner, Lakin & Wille
Oakland, CA
PHOTO: Larkin & Wille

Subject: [fedcourtlitigation] Habeas Win on Post-Preap Constitutional Challenge to 236(c)

 

Dear All:

 

We wanted to share an exciting decision we received on Friday from Judge Freeman in the Northern District of California on Friday granting our client a bond hearing.

 

We, together with our co-counsel Jenny Zhao and Monica Ramsy from Asian Americans Advancing Justice—Asian Law Caucus, and Scott Mossman, brought a habeas challenging mandatory detention under 1226(c) for an individual who was arrested by ICE in the community, 6 years after he finished his criminal sentence. Our client is an LPR with an aggravated felony conviction (drug trafficking). We asked for the local ICE office to follow the Johnson memo and release him, but they refused. We elevated it to headquarters and they likewise refused.

 

As a result, we brought an as-applied constitutional challenge to his detention without a bond hearing—a claim which was expressly left open by the Supreme Court in Preap. He had been detained for about 6 weeks at the time we filed the habeas, so it is a non-prolonged detention case.

 

Judge Freeman applied the Mathews framework and granted our TRO motion, concluding that the Constitution requires a bond hearing in this case. The bond hearing is scheduled for this week, pursuant to the TRO order, so we are optimistic he will be free soon. We’re also hopeful that this case can be used by others as we continue to work to dismantle mandatory detention.

 

The TRO decision is attached and is available at: Perera v. Jennings, No. 21-CV-04136-BLF, 2021 WL 2400981 (N.D. Cal. June 11, 2021).

Judah Lakin (he/him/his/Él)

Attorney at Law | Lakin & Wille LLP

Here’s a copy of Judge Freeman’s decision, basically a “primer” on Matthews v. Eldridge due process and its blatant violation under immigration bureaucracies of Administrations of both parties.

 

Judge Freeman’s Order

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

Seems like “Con Law 101” to me! So, how come it’s “above Garland’s pay grade?” 

Many congrats to Judah and all others involved to this effort!

🇺🇸⚖️🗽Due Process Forever!

PWS

06-16-21

Related posts:

  1. ☹️HE BEAT THE GOVERNMENT TWICE IN COURT — But, After Three Years In Jail Without Being Charged With Any Crime, Omar Ameen Still Can’t Get A Bond From Garland’s Courts —  How Can A System Where The Prosecutor Makes The Rules & Picks The Judges, Mostly From The Ranks Of Former Prosecutors, Provide The “Fair & Impartial Judging” Required By Due Process?
  2. ☠️⚰️👎🏽BIDEN ADMINISTRATION EMBRACES “NEW AMERICAN GULAG” — SUPREMES LIKELY TO HELP THEM OUT!🤮
  3. WE KNOW THAT SESSIONS, WHITAKER, & BARR HAVE TURNED THE DOJ INTO A LEGAL, MORAL, PROFESSIONAL, & ETHICAL CESSPOOL — Some Federal Judges Are Beginning To Take Notice: “To say the least, it is disappointing that [DOJ] counsel, after consulting with other counsel including ‘prosecutors and appellate attorneys’ in this District’s United States Attorney’s office, submitted a legal memorandum to the Court that failed to acknowledge contrary case law that did not support its position.”
  4. 🏴‍☠️“BIZARRO COURTS” — THE CONSTITUTION APPLIES TO ALL PERSONS IN THE U.S., YET ICE & THEIR “PARTNERS” AT EOIR HAVE ESTABLISHED A CONSTITUTION-FREE “COURT SYSTEM” THAT OPERATES BEYOND THE LAW & MORALITY IN A LEGAL NEVER-NEVER LAND 🧚‍♂️ — How Do They Get Away With It Under The Noses Of Congress & Article III Courts? — An Outrageous Story of Gross 🤮 Institutional & Personal Failures & Ethical Lapses Across All Three Branches of Our Federal Government ☠️👎🏻!

THE GIBSON REPORT — 06-14-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Circuit Judge Robert Katzmann, Tireless Supporter Of Representation For Migrants, Dies At 68; OPLA Will Join Some Niz-Perez Motions; Supremes Nix Reckless Intent As Sufficient For Crime of Violence; Biden Administration Continues To Ignore Plight Of Refugee Women,☠️⚰️🤮 & Many Other Important Items This Week!

Elizabeth Gibson
Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

ALERTS

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

 

EOIR Status Overview & EOIR Court Status Map/List

EOIR plans to resume non-detained hearings on July 6, 2021 at all remaining immigration courts. Attorneys have reported seeing non-detained cases advanced or continued with less than 30 days’ notice before the individual hearing, so check your EOIR portal.

 

Prosecutorial Discretion and the ICE Office of the Principal Legal Advisor (OPLA)

New York City ICE-OPLA-NYC-PD@ice.dhs.gov

Varick  ICE-OPLA-NYC-VRK-PD@ice.dhs.gov

And in case you need a refresher on PD: NIP/NLG: What is the new Prosecutorial Discretion (“PD”) memo?

 

Vermont Service Center Address Change: Effective June 14, 2021.

 

OPLA NY Varick Address Change (not reflected on OPLA website yet)

Office of the Principal Legal Advisor

U.S. DHS/ICE

201 Varick Street, Suite 738

New York, NY 10014

Phone: 212-367-6334

Duty Attorney: OPLA-NY-VARICK-DutyAttorney@ice.dhs.gov

Reception window: weekdays 8:30am – 12:00pm.  In-person, hard-copy service of documents will only be accepted at the window for detained cases pending at the Varick Street Immigration Court.

eService: For detained and non-detained cases pending before the Varick Street Immigration Court, you must use the “Varick Street NYC” location.   For cases pending before the Immigration Courts at 26 Federal Plaza and 290 Broadway, you must use the “New York City” location.  Beginning July 6, 2021, documents submitted with the wrong location designation will be rejected.

 

TOP NEWS

Judge Robert A. Katzmann
Judge Robert A. Katzmann (1954-2021)
Second Circuit Court of Appeals
PHOTO: US Courts.com

Robert Katzmann, U.S. Judge With Reach Beyond the Bench, Dies at 68

NYT: “Almost single-handedly he convinced the organized bar to provide free quality representation for thousands of needy immigrants,” said Jed S. Rakoff, a senior U.S. District Court Judge. “No judge ever took a broader view of the role of a judge in promoting justice in our society, or was more successful in turning those views into practical accomplishment.”

 

New York gave every detained immigrant a lawyer. It could serve as a national model.

Vox: While details of the plan are short, [Biden] has asked the Justice Department to restart its access to justice work, which was on hiatus during the Trump administration, and convened a roundtable of civil legal aid organizations to advise him. But the Biden administration need not look far for potential solutions: The New York Immigrant Family Unity Project, a first-of-its-kind program that provides publicly funded lawyers to every detained or incarcerated immigrant in the state, offers a helpful model.

 

Biden Regulatory Playbook Revives More Active Government

Bloomberg: The Justice Department and Department of Homeland Security plan to propose new criteria for asylum-seekers as part of Biden’s broader goal to retool the nation’s immigration system. The Department of Homeland Security will draft ways to strengthen protections for undocumented individuals brought to the U.S. illegally as children, under the program known as Deferred Action for Childhood Arrivals (DACA). See also Aaron Reichlin-Melnick’s Twitter thread summarizing the agenda.

 

U.S. to expand work permits for immigrants who are crime victims

Reuters: A new U.S. immigration policy announced on Monday will expand access to work permits and deportation relief to some immigrants who are crime victims while their visa cases are pending.

 

Central American women are fleeing domestic violence amid a pandemic. Few find refuge in U.S.

WaPo: Though President Biden quickly signed several executive orders to roll back some of President Donald Trump’s most draconian policies — including one that sent asylum seekers back to Mexico to await their court hearings — a number of other restrictive measures and rulings that directly affect domestic violence survivors remain in place.

 

Immigration judges decide who gets into the U.S. They say they’re overworked and under political pressure.

NBC: Among the judges’ concerns, as described to NBC News: There aren’t enough of them, they need more support staff, and they’ve felt political pressure from their bosses at the Justice Department.

 

US closes Trump-era office for victims of immigrant crime

AP: VOICE will be replaced by The Victims Engagement and Services Line, which will combine longstanding existing services, such as methods for people to report abuse and mistreatment in immigration detention centers and a notification system for lawyers and others with a vested interest in immigration cases.

 

U.S. reunites only seven immigrant children with parents since Feb

Reuters: An effort by U.S. President Joe Biden to reunite migrant families separated by the previous administration is moving slowly, with only seven children reunited with parents by a task force launched in February, according to a U.S. Department of Homeland Security (DHS) report released on Tuesday. Another 29 families are set to be reunited in the coming weeks, the report said.

 

New data shows that fewer migrant children arrived alone at the southern border last month.

NYT: There was a slight increase in the number of border crossings, encounters and apprehensions overall during the same time period, a sign that the record surge of migrants trying to get into the country this spring could be starting to stabilize.

 

Panic attacks highlight stress at shelters for migrant kids

WaPo: As of May 31, nearly 9,000 children were kept at unlicensed sites, compared with 7,200 at licensed shelters, court filings by the U.S. government said. While the unlicensed facilities were running at near capacity in May, the licensed facilities were only about half full, according to a report filed by the agency tasked with the children’s care.

 

Fewer migrant families being expelled at border under Title 42, but critics still push for its end

WaPo: U.S. Customs and Border Protection apprehension numbers for May released recently show the share of families — about 20 percent — being expelled under Title 42 continued to decline. Although the overall number of families reaching the Southwest border declined as well, the data shows that eight out of 10 families that Border Patrol encountered were released into the country and allowed to pursue immigration cases.

 

Harris defends telling migrants ‘do not come,’ not visiting US-Mexico border

ABC: Her trip to meet with Guatemalan and Mexican leaders is part of a two-track approach to the issue, senior administration officials have said, of “stemming the flow” of migration in the near term and establishing a “strategic partnership” with Mexico and Northern Triangle countries “to enhance prosperity, combat corruption and strengthen the rule of law” in the longer term.

 

LITIGATION/CASELAW/RULES/MEMOS

 

SCOTUS Holds Recklessness Insufficient for Crime of Violence

ImmProf: It’s one of those wonky SCOTUS plurality opinions. Justice Kagan announces the judgement of the court and gets three justices (Sotomayor, Kennedy, and Gorsuch) to sign onto her opinion, which focuses on the statutory phrase “against the person of another.” Justice Thomas concurs, agreeing in the judgment that Borden’s conviction doesn’t qualify as a violent felony, though he focuses on different statutory language: “use of physical force.”

 

El Salvador Crime Not Basis For Relief, 5th Circ. Says

Law360: The Fifth Circuit declined to review a Salvadoran man’s appeal for humanitarian deportation relief Wednesday, finding that immigration judges had rightfully denied his claims after he failed to show he was a member of a persecuted group.

 

CA5 Denaturalizes Former Salvadoran Military Officer: USA V. Vasquez

LexisNexis: Arnoldo Antonio Vasquez, a former Salvadorian military officer, was a naturalized American citizen. Based on his role in extrajudicial killings and a subsequent cover-up occurring during armed conflict in El Salvador, the government sought to revoke his citizenship, that is, to denaturalize him.

 

CA8 Upholds Denial of Asylum to Honduran Petitioner After Finding Her PSG of Family Membership Was Not a Central Reason for Threats

The court held that the Honduran petitioner did not face past persecution based on her membership in a particular social group (PSG) consisting of her family; rather, the court found she was targeted because she owned land that once belonged to her father. (Padilla-Franco v. Garland, 6/2/21) AILA Doc. No. 21060736

 

CA8 Upholds BIA’s Conclusion That There Was “Reason to Believe” Petitioner Was Involved in Illicit Drug Trafficking

Applying the “reason to believe” standard under INA §212(a)(2)(C), the court held that substantial evidence supported the BIA’s conclusion that there was probable cause to believe that petitioner was involved in illicit drug trafficking and was thus inadmissible. (Rojas v. Garland, 5/27/21) AILA Doc. No. 21060735

 

CA9 Says Government May Parole Returning LPR into U.S. Without Proving He or She Meets an INA §101(a)(13)(C) Exception

The court held that the government is not required to prove that a returning lawful permanent resident (LPR) meets an exception under INA §101(a)(13)(C) before it can parole the returning LPR into the United States for prosecution under INA §212(d)(5). (Vazquez Romero v. Garland, 5/28/21) AILA Doc. No. 21060737

 

CA11 Finds Salvadoran Petitioner Whose Family Was Targeted by Gang Failed to Satisfy Nexus Requirement for Asylum

Denying the petition for review, the court held that the Salvadoran petitioner was ineligible for asylum, because the gang that targeted her family had done so only as a means to the end of obtaining funds, not because of any animus against her family. (Sanchez-Castro v. Att’y Gen., 6/1/21) AILA Doc. No. 21060738

 

BIA Issues Ruling on Changed Circumstances Exception to the One-Year Filing Bar for Asylum Applications

The BIA ruled that a mere continuation of an activity in the United States that is substantially similar to the activity from which an initial claim of past persecution is alleged cannot establish changed circumstances under INA §208(a)(2)(D). Matter of D-G-C-, 28 I&N Dec. 297 (BIA 2021) AILA Doc. No. 21060899

 

Feds Tell 1st Circ. Not To Wipe ICE Courthouse Arrest Ruling

Law360: The First Circuit should stand by its decision to wipe a lower court ruling that blocked federal immigration authorities from making arrests in and around Massachusetts courthouses, despite the Biden administration’s order curbing many such arrests, the federal government argued Thursday.

 

DHS Hit With Suit Over Spousal Visa Processing Delay

Law360: A lawful permanent resident of the U.S. sued the Department of Homeland Security in Maryland federal court Wednesday, claiming an unreasonable delay in processing his wife’s spousal visa application, which he says has not been acted on since it was filed in January 2020.

 

USCIS Issues Three Policy Updates to “Improve Immigration Services”

USCIS issued three policy updates in the Policy Manual to clarify the expedited processing, improve RFE and NOID guidance, and increase the validity period for initial and renewal EADs for certain pending adjustment of status applications. AILA Doc. No. 21060934

 

USCIS Issues Updated Policy Guidance on Criteria for Expedite Requests

USCIS updated policy guidance in its Policy Manual regarding the criteria used to determine whether a case warrants expedited treatment. AILA Doc. No. 21060936

 

USCIS Issues Policy Update to Better Protect Victims of Crime (U Visa Petitioners)

USCIS: USCIS is updating the USCIS Policy Manual to implement a new process, referred to as Bona Fide Determination, which will give victims of crime in the United States access to employment authorization sooner, providing them with stability and better equipping them to cooperate with and assist law enforcement investigations and prosecutions.

 

USCIS Launches ‘History’ Tab for Policy Manual

USCIS: USCIS has made historical versions of the USCIS Policy Manual available to the public. These historical versions will reflect the pertinent policy in effect on a particular date and are being provided for research and reference purposes only. Users can find the historical versions under the “History” tab within the Policy Manual chapters. However, this tab will only reflect historical changes moving forward. For historical versions before June 11, you can visit the Internet Archive.

 

ICE Provides Interim Litigation Position Regarding Motions to Reopen in Light of Niz-Chavez v. Garland

ICE provided interim guidance on motions to reopen in light of SCOTUS’s decision in Niz-Chavez v. Garland, stating that some noncitizens may now be eligible for cancellation of removal. Until 11/16/21, ICE attorneys will presumptively exercise prosecutorial discretion for these individuals. AILA Doc. No. 21061030

 

ICE Provides Guidance on Submitting Prosecutorial Discretion Requests to OPLA

ICE provided guidance on submitting a prosecutorial discretion request to OPLA including a listing of relevant email addresses that can be used when submitting a request to OPLA field locations. AILA Doc. No. 21061430

 

EOIR Issues Guidance After DHS Issued Updated Enforcement Priorities and Initiatives

EOIR issued a memo that provides EOIR policies regarding the effect of DHS’s updated enforcement priorities and initiatives. Memo is effective as of 6/11/21. AILA Doc. No. 21061133

 

EOIR Cancellation Of Policy Memorandum 21-10 And Information On EOIR Fees And Fee Waivers

EOIR: As part of EOIR’s ongoing efforts to improve operations and review existing policy memoranda, the following Policy Memorandum (PM) is rescinded: 1.PM 21-10, Fees.

 

RESOURCES

 

·         AILA: Client Flyer: How a Bill Becomes a Law

·         AILA: Client Flyer: The Nonimmigrant Visa Waiver Process

·         AILA: Sample Motion to Stay or Recall the Mandate at Court of Appeals

·         Amnesty: USA and Mexico deporting thousands of unaccompanied migrant children into harm’s way

·         ASISTA: Updated Practice Alert Regarding Certain U and T After-Acquired Cases

·         CLINIC: TPS Burma – Initial Application Checklist

·         CRS: Formal Removal Proceedings: An Introduction

·         ILRC: Applying for Adjustment of Status Through VAWA

·         NIP/NLG: What is the new Prosecutorial Discretion (“PD”) memo?

·         NIP/NLG: Settling FTCA Litigation for Immigration Relief

 

EVENTS

 

 

ImmProf

 

Monday, June 14, 2021

·         Immigration influences on “In the Heights,” by AK Sandoval-Strausz

·         At the Movies: In the Heights (2021)

·         With a backlog of over 1.3 million cases, the 500 immigration judges in the US feel overburdened and pressured to deport

·         Immigration Article of the Day: The DACA decision: Department of Homeland Security v. Regents of the University of California and its implications by Brian Wolfman

Sunday, June 13, 2021

·         FAIR’s take on “Amnesty” — a classroom tool?

·         Rethinking the US Legal Immigration System

·         Immigrant Article of the Day: Missing Immigrants in the Rhetoric of Sanctuary by Ava (formerly Andrew) Ayers

Saturday, June 12, 2021

·         Your Playlist: Diana Jones

·         Immigration Law and FOIA webinar

·         Immigration Article of the Day: Labor Citizenship for the Twenty-First Century by Michael Sullivan

Friday, June 11, 2021

·         From The Bookshelves: The Book of Rosy by Rosayra Pablo Cruz & Julie Schwietert Collazo

·         Immigration Article of the Day: The Case for Chevron Deference to Immigration Adjudications by Patrick J. Glen

·         House Democrats push Garland for immigration court reforms

Thursday, June 10, 2021

·         RIP Judge Robert A. Katzmann (2d Circuit)

·         Book Review of Adam Cox and Cristina Rodriguez’s book, The President and Immigration (2020)

·         Breaking News: SCOTUS Holds Recklessness Insufficient for Crime of Violence

·         Guest Post Jude Joffe-Block on Driving While Brown

·         President Biden wants to expand immigrants’ access to legal representation

Wednesday, June 9, 2021

·         Center for Migration Studies Webinar on new report: making citizenship an organizing principle of US immigration

Tuesday, June 8, 2021

·         Netflix’s Army of the Dead: “U.S. Constitutional Law — Not In Effect”

·         VP Harris Speaks on Migration in Mexico City

·         Progess Report Released on Reuniting Migrant Familes

·         VP Harris to Guatemalan Asylum Seekers: “Do Not Come”

Monday, June 7, 2021

·         Children Thrive Action Network: I ❤️ My Immigrant Family, a video celebration

·         Prosecutorial Discretion in the Biden Administration

·         Virtual Book Event (June 14): Driving While Brown: Sheriff Joe Arpaio versus the Latino Resistance

·         Job Announcement: Fellow @ UCLA Center for Immigration Law and Policy

·         Job Announcement: Cornell Legal Fellow, Farmworker Legal Assistance Clinic

·         Supreme Court Rules Against TPS Recipient in Adjustment Case

·         Student Is Denied High School Diploma for Wearing Mexican Flag

·         VP Harris to Visit Guatemala, Mexico to Discuss Migration, Human Trafficking, Corruption

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

Thanks, Elizabeth! 

I note that Judge Robert A. Katzmann spoke at several of our Immigration Judge Conferences and also attended a Georgetown Law Judicial seminar on inconsistency in asylum adjudication that I participated in as an Immigration Judge. He was instrumental in creating both the Immigrant Justice Corps and the NYC representation program for migrants.

Notably, Liz Gibson, of “The Gibson Report,” one of my former Georgetown Law students was also selected by Judge Katzmann and other experts for the super-competitive Immigrant Justice Corps! And we can see what a difference Liz is making every day!

Those of us committed to due process and fundamental fairness mourn Judge Katzmann’s passing. His enlightened,  humane, and compassionate leadership will be missed. 

Lots of important information for practitioners here. It illustrates that while ICE and USCIS are moving forward with some modest, long overdue due process and “best practices” reforms, EOIR under Garland continues to lag behind.

This week’s disclosures about the deep problems at the Trump DOJ, which have not been effectively addressed, show that under Garland the DOJ isn’t inclined to fix even the most obvious defects at Justice until they are exposed by outside groups and the public pressure grows. At a time when the DOJ needs bold, proactive progressive leadership, Garland’s “reactive” style of management and lack of aggressive progressive leadership continues to erode confidence in our justice system. 

As illustrated by last week’s NBC Nightly News report on dysfunction, polarization, and lack of due process and fundamental fairness at EOIR, the ongoing disaster in our Immigration Courts actually dwarfs all of the other problems at the DOJ. And, it certainly adversely affects more human lives and American communities.

Due process, human rights, and racial justice advocates and experts should not trust Garland and his team to fix EOIR before it’s too late. In the first place, he currently has nobody on his “team” with the Immigration Court experience and the progressive expertise to get the job done! 

So it’s going to take more aggressive litigation, more demands to Congress for Article I, more op-eds, more front page articles and news reports, more calls and letters to the White House, and more “creative disruption” to force Garland’s hand on EOIR reform.

Additionally, rather remarkably, and contravening the Biden Administration’s pledge of honoring diversity, the DOJ has done nothing on its own to recruit or attract a diverse group of expert progressive judges. Indeed, Garland actively undermined the effort with an outrageous “17-judge giveaway” to the disgraced Billy Barr. This week’s revelations showed just how ridiculous was Garland’s inappropriate “deference” to Barr-selected, non-progressive, non-diverse judges!

Therefore, it’s absolutely critical that the rest of us keep beating the drum and encouraging the “best and brightest” progressive immigration experts to apply for judicial and executive positions at EOIR. In particular, the immigration judiciary lacks representation by talented Latina and Latino judges with experience representing asylum applicants and other migrants. 

They are out there, for sure! But EOIR’s aggressively anti-Hispanic, often misogynist culture, the anti-Hispanic “jurisprudence” churned out by Sessions, Barr, and the BIA, and the demeaning and “dumbing down” of the Immigration Judge jobs to be nothing more than glorified “deportation clerks” has effectively discouraged the folks we need on the bench from applying. And, posting for short periods on “USA JOBS” is not a serious effort at recruiting from the outside or creating a more representative pool of applicants. 

NAIJ is doing some of the “diversity outreach” that that should be DOJ’s job. But, they need help! Another reason why Garland’s failure to restore NAIJ as the representative of Immigration Judges is highly problematic! These things should be “no brainless” under a Dem Administration. Instead, at Garland’s DOJ, it’s like pulling teeth!

A number of minority attorneys have told me that they felt unwelcome at the “Trump EOIR” or thought that they couldn’t function independently and effectively in a culture that obviously demeaned and dehumanized people of color. 

We can’t force positive, progressive change in the toxic culture at EOIR without getting “agents of change” and judicial role models from currently underrepresented communities on the inside, where they belong. Also, those who actually have represented individuals in Immigration Court have both organizational skills beyond those of many government bureaucrats and practical problem solving ability that simply isn’t promoted or recognized within the inefficient “top-down” EOIR bureaucracy. 

So, members of the NDPA, get those EOIR applications in there! Garland is tone deaf to the necessity and the opportunity for a progressive judiciary at EOIR that he squanders every day with his lackadaisical non-leadership. So, as is often the case with Dem Administrations, you’re going to have to take the initiative, break down the the doors of bias and incompetence at EOIR, and create the progressive judiciary of the future with or without Garland’s support! 

EOIR is going to have trouble continuing to keep the “best and brightest” progressives out of the Immigration Judiciary. Don’t wait for change to come to you — not going to happen under Garland! Be an agent of aggressive, progressive change! Take the due process/racial justice revolution to the halls of justice @ Justice!

🇺🇸Due Process Forever!

PWS

06-16-21

Related posts:

  1. THE GIBSON REPORT— 01-02-22 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Garland’s Aimless Docket Reshuffling (“ADR”) Squeezes Refugees On Both Ends Of His Ludicrous Backlog, As Those Patiently Waiting Given Court Dates Nearly A Decade In The Future, While Recent Arrivals Mindlessly Rocketed To The “Front Of The Line” Struggle To Find Lawyers & Prepare Cases — Plus Other New Year News From The Dystopian World Of U.S. Immigration!
  2. THE GIBSON REPORT — 02-14-21💝 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Mandatory E-Filing @ EOIR Starts & Lots Of Other “Interesting Stuff!”  — CMS Study Shows How Garland Is Ignoring the “Low Hanging Fruit” On His Out of Control EOIR Backlog! ☹️
  3. ⭐️⭐️⭐️⭐️⭐️⚖️🗽🇺🇸FORMER DEPUTY AG DON AYER, JUDGE MIMI TSANKOV AMONG “HEADLINERS” AT TIMELY UPCOMING NY CITY BAR ASSN. EVENT: “Rule of Law Forum – Preserving the Rule of Law in an Age of Disruption” — Register Now, Right Here!
  4. THE GIBSON REPORT — 05-17-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Continuing To Highlight Garland’s Tone-Deaf Failure To Bring Justice, Due Process, Progressive Expertise To EOIR! — Hey Progressives & Due Process Advocates, Had Enough Of His “Amateur Night At The Bijou” Approach To EOIR? — Get Mad, Make Your Voices Heard, Demand Change, Demand Better! — Much Better!

EOIR ISSUES TOOTHLESS 😶 GUIDANCE ON ICE PROSECUTORIAL DISCRETION — Obvious Problem — Failure To Repeal Sessions’s Abominable ☠️ Matter of Castro-Tum — Remains Unaddressed In Garland’s Failed “Courts” That Aren’t “Courts” At All By Any Reasonable Measure!🤡

EYORE
“Come on, Judge Garland! Repeal Matter of Castro-Tum already! Gimme a break! Stop issuing weak-kneed policy memos and give me some qualified, expert, progressive leadership! It’s not rocket science!” “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

 

https://www.justice.gov/eoir/book/file/1403401/download

 To: From: Date:

PURPOSE:

OWNER: AUTHORITY: CANCELLATION:

I. Introduction

Provides EOIR policies regarding the effect of Department of Homeland Security enforcement priorities and initiatives.

Office of the Director 8 C.F.R. § 1003.0(b) None.

OOD PM 21-25

Effective: June 11, 2021

All Immigration Court Personnel & Board of Immigration Appeals Personnel Jean King, Acting Director

June 11, 2021

EFFECT OF DEPARTMENT OF HOMELAND SECURITY ENFORCEMENT PRIORITIES

        President Biden issued Executive Order 13993 on January 20, 2021, and directed relevant agencies to take appropriate action to review and “reset the policies and practices for enforcing civil immigration laws to align enforcement” with the Administration’s priorities “to protect national and border security, address the humanitarian challenges at the southern border, and ensure public health and safety.” Exec. Order No. 13993, 86 Fed. Reg. 7,051 (Jan. 20, 2021).

Accordingly, the Department of Homeland Security (DHS) has issued a number of memoranda and guidance documents regarding its enforcement priorities and framework for the exercise of prosecutorial discretion.1 Those memoranda establish the DHS general enforcement and removal priorities as three categories of cases of noncitizens who present risks to (1) national security, (2) border security, and (3) public safety.2

1 See, e.g., Memorandum from John D. Tasviña, Principal Legal Advisor, ICE, Office of the Principal Legal Advisor (OPLA), to All OPLA Att’ys, Interim Guidance to OPLA Att’ys Regarding Civil Immigr. Enf’t and Removal Policies and Priorities (May 27, 2021), available at https://www.ice.gov/doclib/about/offices/opla/OPLA- immigration-enforcement_interim-guidance.pdf; Memorandum from Tae D. Johnson, Acting Dir., ICE, to All ICE Emps., Interim Guidance: Civil Immigr. Enf’t and Removal Priorities (Feb. 18, 2021), available at https://www.ice.gov/doclib/news/releases/2021/021821_civil-immigration-enforcement_interim-guidance.pdf.

2 These DHS memoranda and DHS priorities do not change EOIR’s current adjudication priorities, which remain in effect. See, e.g., PM 21-23, Dedicated Docket (May 28, 2021); Exec. Office for Immigr. Rev. Mem., Case Priorities and Immigration Court Performance Measures (Jan. 2018).

    1

Through individualized review of pending cases, DHS, U.S. Immigration and Customs Enforcement (ICE), attorneys will be determining which cases are enforcement priorities and which are not. Overall, these memoranda explain that DHS will exercise discretion based on individual circumstances and pursue these priorities at all stages of the enforcement process. This includes a wide range of enforcement decisions involving proceedings before EOIR, such as deciding whether to issue, reissue, serve, file, or cancel Notices to Appear; to oppose or join respondents’ motions to continue or to reopen; to request that proceedings be terminated or dismissed; to pursue an appeal before the Board of Immigration Appeals (BIA); and to agree or stipulate to bond amounts or other conditions of release. Accordingly, these memoranda are likely to affect many cases currently pending on the immigration courts’ and BIA’s dockets.

II. Role of the EOIR Adjudicator

The role of the immigration court and the BIA, like all other tribunals, is to resolve disputes. Cf. 8 C.F.R. §§ 1003.1(d) (“The Board shall resolve the questions before it in a manner that is timely, impartial, and consistent with the Act and regulations.”), 1003.10(b) (“In all cases, immigration judges shall seek to resolve the questions before them in a timely and impartial manner consistent with the Act and regulations.”) (emphasis added). At the present time, there are over 1.3 million combined cases pending before the immigration courts3 and the BIA.4 In light of the DHS memoranda, it is imperative that EOIR’s adjudicators use adjudication resources to resolve questions before them in cases that remain in dispute.

A. Immigration Court

Immigration judges should be prepared to inquire, on the record, of the parties appearing before them at scheduled hearings as to whether the case remains a removal priority for ICE and whether ICE intends to exercise some form of prosecutorial discretion, for example by requesting that the case be terminated or dismissed, by stipulating to eligibility for relief, or, where permitted by case law, by agreeing to the administrative closure of the case.5 The judge should ask the respondent or his or her representative for the respondent’s position on these matters, and take that position into account, before taking any action.

In addition, immigration judges are encouraged to use all docketing tools available to them to ensure the fair and timely resolution of cases before them.

3 Exec. Office for Immigr. Rev., Adjudication Statistics: Pending Cases, New Cases, and Total Completions, Apr. 19, 2021, available at https://www.justice.gov/eoir/page/file/1242166/download.

4 Exec. Office for Immigr. Rev., Adjudication Statistics: Case Appeals Filed, Completed, and Pending, Apr. 19, 2021, available at https://www.justice.gov/eoir/page/file/1248501/download.

5 Administrative closure is currently permitted in the Third, Fourth, and Seventh Circuits. See Arcos Sanchez v. Att’y Gen. U.S.A., 997 F.3d 113 (3d Cir. 2021); Meza Morales v. Barr, 973 F.3d 656 (7th Cir. 2020); Romero v. Barr, 937 F.3d 282 (4th Cir. 2019). Administrative closure is currently permitted in the Sixth Circuit, but only to allow respondents to apply with U.S. Citizenship and Immigration Services for provisional unlawful presence waivers. See Garcia-DeLeon v. Garland, __ F.3d __, 2021 WL 2310055 (6th Cir., June 4, 2021). Administrative closure is not currently permitted in the other circuits. See Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018).

   2

B. Board of Immigration Appeals

Appellate immigration judges should be prepared to review and adjudicate motions from DHS regarding prosecutorial discretion. In addition, appellate immigration judges may solicit supplemental briefing from the parties regarding whether the case remains a removal priority for ICE or whether the parties intend to seek or exercise some form of prosecutorial discretion. See 8 C.F.R. § 1003.1(e)(9) (“[T]he Board may rule, in the exercise of its discretion . . . , on any issue, argument, or claim not raised by the parties, and the Board may solicit supplemental briefing from the parties on the issues to be considered before rendering a decision.”).

III. Conclusion

EOIR expects the parameters of the new DHS memoranda to focus DHS resources on cases that meet the DHS-determined priorities. All EOIR adjudicators are encouraged to use docketing practices that ensure respondents receive fair and timely adjudications, and act consistently with the role of the immigration courts and the BIA in resolving disputes. That includes disposing of cases as appropriate, based on the specific circumstances of the individual matter, with consideration of ICE’s determinations that 1) a case does not fit within the Secretary’s enforcement priorities, and 2) accordingly, pursuit is no longer in the best interest of the Government. If you have any questions, please contact your Assistant Chief Immigration Judge or the Chief Appellate Immigration Judge.

Nothing in this PM is intended to replace independent research, the application of case law and regulations to individual cases, or the decisional independence of immigration judges and appellate immigration judges as defined in 8 C.F.R. §§ 1003.1(d)(1)(ii), 1003.10.

3

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

“In addition, immigration judges are encouraged to use all docketing tools available to them to ensure the fair and timely resolution of cases before them.”

Unfortunately, the primary “docketing tool” — Administrative Closing — is largely UNAVAILABLE to most Immigration Judges outside the 3rd, 4th, 7th, and (sort of) 6th Circuits. Rather than fix this on “day one” by vacating Matter of Castro-Tum — as recommended by almost all immigration experts — Garland’s inaction has resulted in continuing unnecessary confusion and inefficiency in his dysfunctional “court” system sporting an astounding, continually growing, largely unnecessary 1.3 million plus case backlog! Come on, man!!

Under OPLA’s John Trasvina, ICE is actually taking more aggressive and sensible action to restore due process, sanity, and docket control in Immigration Court than EOIR has under Garland! What sense does that make? 

Due Process Forever! Happy Flag Day!🇺🇸

PWS

06-14-21

Related posts:

  1. TRASVINA RESTORES “PD” @ ICE; 6TH CIR. REJECTS CASTRO-TUM! BUT GARLAND’S FAILURES @ EOIR CONTINUE TO HAMPER BIDEN ADMINISTRATION, CAUSE CONFUSION, INCREASE BACKLOGS!  — “In performing their duties, including through implementation of this memorandum, OPLA attorneys should remain mindful that ‘[i]mmigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done.’” 
  2. 😎👍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)
  3. THE GIBSON REPORT — 02-14-21💝 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Mandatory E-Filing @ EOIR Starts & Lots Of Other “Interesting Stuff!”  — CMS Study Shows How Garland Is Ignoring the “Low Hanging Fruit” On His Out of Control EOIR Backlog! ☹️
  4. IMMIGRATION COURTS: After Two Years Of Trump Administration Anti-Immigrant Shenanigans At EOIR, The Backlog Has Mushroomed To 975,298, Morale Has Hit Rock Bottom, & Due Process Is Mocked Every Day — There Is A Solution, But Will Our Republic Survive Enough To Reach It?

🗽⚖️LEADING GENDER JUSTICE NGO RIPS HARRIS’S TONE-DEAF “DIE WHERE YOU ARE, WE DON’T CARE” MESSAGE TO NORTHERN TRIANGLE REFUGEES! — Whatever Happened To Biden Administration’s Promise To Restore The Rule of Law @ The Border? — US Is The Problem — USG Lawlessness, Dishonest, Wasteful Policies Go Unchecked By Biden, Harris, Garland, Mayorkas!

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

Dear colleagues,

Please find below and online CGRS’s bilingual statement in response to Vice President Harris’ remarks in Guatemala earlier this week.

—

*en español abajo*

FOR IMMEDIATE RELEASE

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

CGRS Urges V.P. Harris to Reject Short-Sighted Policies that Endanger Central Americans

San Francisco, CA (June 10, 2021) – This week Vice President Kamala Harris visited Guatemala and Mexico, meeting with government and civil society leaders to discuss issues of corruption, violence, and poverty. During a Monday press conference with Guatemalan president Alejandro Giammattei, Harris offered a callous and woefully misguided message to Central Americans. “I want to be clear to folks in the region who are thinking about making that dangerous trek to the United States-Mexico border,” Harris said. “Do not come. The United States will continue to enforce our laws … If you come to our border, you will be turned back.” These remarks reflect a deep misunderstanding of our laws and of the conditions forcing people to seek asylum at our border. The Center for Gender & Refugee Studies (CGRS) urges the vice president and the Biden-Harris administration to do better.

For people fleeing Central America it is no secret that the voyage north is dangerous, and that they will likely face hostility at the U.S. border. Yet thousands continue to make the treacherous journey because widespread violence, poverty, and disasters in their home countries leave them no other option. Vice President Harris and the Biden-Harris administration should understand this: People flee home because their lives, and the lives of their children, depend on it. The administration’s advice that Central Americans, Haitians, and others escaping grave dangers simply “not come” – as if they have any choice in the matter – is cruel and wildly out of touch. Moreover “enforcing our laws” should mean upholding the right to seek asylum, which is enshrined in both U.S. and international law. Turning people away without the slightest concern for the dangers they’ll face, as the Biden-Harris administration has continued to do under the illegal Title 42 policy, is a blatant violation of our laws.

“Our country has played a direct role in the dangerous conditions that plague Central America by bolstering oppressive regimes and contributing to the violence and instability driving refugee flight from the region,” CGRS Manager of Regional Initiatives Felipe Navarro Lux said today. “Instead of taking responsibility and addressing the harm we have caused, the United States time and time again has doubled down on ineffective and draconian policies that punish Central Americans and other refugees for seeking U.S. protection. We have a legal and moral obligation to do better.”

Our immigration and foreign policies should seek not to suppress migration, but to expand safe and orderly pathways to refugee protection and, in the long term, to make the region safer, so that migration is increasingly an option, rather than a necessity, for Central Americans. We can do so by:

  • Encouraging transparent and accountable governments that uphold the rights of their residents: The United States should stand with Central American civil society organizations (CSOs) working for change – not abusive or authoritarian governments – to combat corruption, advance the rule of law, and promote respect for human rights, particularly for vulnerable groups including youth, women, Indigenous, Black, and LGBTQ+ people.
  • Prioritizing humanitarian protection over deterrence. Pressuring countries in the region to increase migration enforcement and militarize their borders only forces people seeking protection to make more dangerous journeys, exposing them to increased human rights violations.
  • Expanding and developing new pathways for migrants and asylum seekers: We should expand protections those fleeing persecution, increase opportunities for family reunification, and address the needs of those displaced by climate change.
  • Designating Temporary Protected Status (TPS) for Guatemala, and re-designating TPS for Honduras, El Salvador, and Nicaragua: TPS allows immigrant communities in the United States to live and work without fear of deportation, and to send remittances to family members in their home countries still recovering from the effects of back-to-back hurricanes and the COVID-19 pandemic.

Click here to read CGRS’s recommendations for expanding access to protections for refugees and migrants in Central America and Mexico, with Centro de los Derechos del Migrante, Inc., Church World Service, Instituto para las Mujeres en la Migración, AC (IMUMI), Kids in Need of Defense (KIND), Latin America Working Group Education Fund (LAWGEF), Washington Office on Latin America, and Women’s Refugee Commission.

—

CGRS urge a la vicepresidente Harris rechazar políticas miopes que ponen en peligro a los centroamericanos

San Francisco, CA (10 de junio de 2021) – Esta semana la vicepresidente Kamala Harris visitó Guatemala y México, reuniéndose con líderes de los gobiernos y la sociedad civil para discutir asuntos de corrupción, violencia, y pobreza. Durante una rueda de prensa junto con el presidente guatemalteco Alejandro Giammattei, Harris leofreció un mensaje cruel y tristemente equivocado a los centroamericanos. “Quiero ser clara con las personas en la región que están pensando en hacer el peligroso viaje a la frontera de Estados Unidos-México”, dijo Harris. “No vengan. Estados Unidos hará cumplir sus leyes… Si vienen a nuestra frontera, serán regresados”. Estas palabras relejan un profundo desconocimiento de nuestra legislación y de las condiciones que obligan a las personas a pedir asilo en nuestra frontera. El Centro de Estudios de Género y Refugiados (CGRS por sus siglas en inglés) urge a la vicepresidenta y al gobierno Biden-Harris a realizar un mejor trabajo.

Para las personas que huyen de Centroamérica no es un secreto que el viaje al norte es peligroso, y que muy seguramente serán recibidos con hostilidad en la frontera de EE. UU. Aun así, miles continúan migrando porque la violencia, pobreza, y desastres en sus países de origen no les dejan otra opción. La vicepresidente Harris y el gobierno Biden-Harris deben entender esto: Las personas huyen de sus hogares porque sus vidas, y las vidas de sus hijos, dependen de ello. El consejo que este gobierno le da a los centroamericanos, haitianos, y otros que escapan de graves peligros cuando les dice que “no vengan” – como si fuera una opción – es cruel y se aleja de la realidad. Mas aún, “hacer cumplir nuestras leyes” debería significar proteger el derecho a solicitar asilo, el cual se encuentra consagrado en la ley nacional e internacional. Retornar a personas en la frontera sin la menor preocupación por los peligros que puedan enfrentar, como el gobierno Biden-Harris continúa haciendo bajo la ilegal política del “Título 42”, es una violación descarada de nuestras leyes.

“Al apoyar gobiernos opresivos y contribuir a la violencia e inestabilidad en Centroamérica, nuestro país ha jugado un papel directo en la creación de los peligros que obligan a miles a huir”, dijo Felipe Navarro-Lux, Gerente de Iniciativas Regionales de CGRS. “En vez de asumir nuestra responsabilidad y aminorar el daño que hemos causado, una y otra vez Estados Unidos ha implementado políticas ineficientes y draconianas que castigan a los centroamericanos y otros refugiados por buscar protección en este país. Es hora de cumplir nuestras obligaciones legales y morales.”

En vez de buscar suprimir la migración, nuestras políticas exteriores y migratorias se deben enfocar en crear y ampliar opciones seguras y ordenadas de acceso a protección para refugiados y, a largo plazo, mejorar las condiciones en la región para que la migración sea cada vez más una opción, y no una necesidad, para los centroamericanos. Podemos hacer esto al:

  • Promover gobiernos que respeten los derechos de todos sus residentes, urgiendo transparencia y rendición de cuentas: Estados Unidos debe apoyar a las organizaciones de la sociedad civil que trabajan para efectuar cambios – y no a gobiernos corruptos y autoritarios – para combatir la corrupción, reforzar el estado de derecho, y promover el respeto por los derechos humanos, particularmente para la juventud, mujeres, personas indígenas, negras y LGBTQ+.
  • Priorizar la protección humanitaria sobre la disuasión migratoria. Presionar a los países de la región a aumentar sus controles migratorios y militarizar sus fronteras solo obliga a las personas que buscan protección a tomar caminos más peligrosos, exponiéndolas a mayores violaciones de derechos humanos.
  • Ampliar y desarrollar nuevas oportunidades para migrantes y solicitantes de asilo: Debemos ofrecer más opciones para aquellos que huyen de la persecución, aumentar las oportunidades de reunificación familiar, y atender las necesidades de aquellos desplazados por el cambio climático.
  • Designar Estatus de Protección Temporal (TPS, por sus siglas en inglés) para Guatemala, y re-designar TPS para Honduras, El Salvador, y Nicaragua: Con TPS, las comunidades inmigrantes en Estados Unidos pueden vivir y trabajar sin temor a ser deportadas, y enviar remesas a sus familias en sus países de origen, los cuales aún están sintiendo los devastadores efectos de huracanes y la pandemia COVID-19.

Haga click aquí para leer recomendaciones para ampliar el acceso a protección para refugiados y migrantes en Centro América y México, desarrolladas por CGRS, Centro de los Derechos del Migrante, Inc., Church World Service, Instituto para las Mujeres en la Migración, AC (IMUMI), Kids in Need of Defense (KIND), Latin America Working Group Education Fund (LAWGEF), Washington Office on Latin America, y Women’s Refugee Commission.

Brianna Krong | Communications and Advocacy Coordinator

Center for Gender and Refugee Studies

200 McAllister Street | San Francisco, CA 94102

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

krongbrianna@uchastings.edu

Pronouns: she/her/hers

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Request Assistance or Report an Outcome in Your Asylum Case

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Casey might ask:

Casey Stengel
“Can’t anyone here play this game?”
PHOTO: Rudi Reit
Creative Commons

When it comes to the Biden Administration on human rights, racial justice, gender justice, due process, immigration, border strategy, and cleaning up corruption, unhappily the answer is “No!” 

🇺🇸🗽Due ProcessForever!

PWS

06-10-21

Related posts:

  1. GARLAND/MAYORKAS UNILATERAL “IN YOUR FACE” 🤮 ASYLUM POLICIES CONTINUE TO INFLAME, OUTRAGE, PROGRESSIVE OPPOSITION! — More Haste Makes Waste “Special Asylum Dockets,” Continuation Of “Miller Lite” Racist/Misogynist Anti-Asylum Policies, Unqualified Judges, Likely To Deny Due Process, Create Aimless Docket Reshuffling, Increase Backlogs — Congress Needs To Remove Immigration Courts From Garland’s Dysfunctional DOJ — Now!
  2. 🇺🇸🗽⚖️GEORGE W. BUSH INSTITUTE REPORT: GENDER VIOLENCE ☠️⚰️DRIVES CONTINUING REFUGEE FLOW TO U.S. — Dishonesty Of Sessions’s Misogynistic Attack In Matter Of A-B- 🤮 Exposed Again! — Yet, Garland Fails To Take Action To End Misogyny, Anti-Asylum Culture @ EOIR, Even As He Also Fails To Insist On The Restoration Of The Rule Of Law @ Our Borders! —  WHY?🤯
  3. 🇺🇸🏴‍☠️RACE IN AMERICA: CARRIE ROSENBAUM “GETS IT,” EVEN AS MAYORKAS, GARLAND, HARRIS & THE OTHER BIDEN HYPOCRITES PRETEND NOT TO:  “Immigration reform, and a more robust application of the Equal Protection doctrine to all those inside the country, and at our borders, is necessary to move towards meaningfully dismantling systemic racism.”
  4. ⚠️🚸V.P. HARRIS IS GOING TO THE BORDER: SHE SHOULD TALK WITH THE REAL VICTIMS OF HER GOVERNMENT’S, ILLEGAL, WRONG-HEADED, IMMORAL, AND INEFFECTIVE BORDER DETERRENCE POLICIES — Avoid The CBP “Dog & Pony Show,” & The GOP’s Cowardly “Gunboat Cruz” — Cross Over The Border, View The Human Rights Catastrophe We Have Created, Understand People Have A Right To Seek Legal Refuge, & Fix The Legal Asylum System At Ports Of Entry & Immigration Courts With Humane, Practical Experts! — “The vice president seems to have bought into the… I can’t use another word, but the nativist party line, that somehow these immigrants are the cause of the problem when, in fact, they’re the victims of multiple problems in many cases.” — Stop Blaming, Shaming, & Dehumanizing The Victims & Start Fixing Our Asylum System & Solving The Problems That Force Them To Migrate!

⚔️⚔️🛡ROUND TABLE SALLIES FORTH AGAIN AS 9TH VACATES GARLAND BIA’S PRECEDENT IN MATTER OF K-S-E-, 27 I&N Dec. 818 (BIA 2020) (misconstruing “firm resettlement” in effort to punish, harm asylum seekers)

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

Hon. “Sir Jeffrey” Chase reports:

Hi all:We filed an amicus brief in the attached case (drafted for us by Sullivan Cromwell) challenging the BIA’s precedent decision in Matter of K-S-E- before the 9th Circuit. K-S-E- held that firm resettlement can be found based on the availability of permanent residence in a third country, regardless of the asylum seeker’s unwillingness to pursue such status.

The 9th Cir. yesterday vacated the Board precedent and remanded for the Board to further consider the firm resettlement issue, inter alia.

Best, Jeff

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To quote one of my esteemed Round Table colleagues:  

Excellent news!  Should an ethnic Korean from China or Japan be forced to accept an offer of firm resettlement from North Korea?  To quote our President, “C’mon, man!”

“C’mon, man,” indeed! For Garland’s BIA it’s just a question of “what can we do to screw asylum seekers today!”  The level of absurdity, irrationality, and/or illegality is largely irrelevant. 

It’s not like Sessions and Barr had any concern for the law. The BIA knew there would be no meaningful consequences as long as they carried out the White Nationalist anti-immigrant agenda of the Trump regime!

But, you could say much the same about Garland! There was more than ample evidence and documentation of anti-asylum bias and deficient decision making to replace of the BIA with “real judges” from among progressive experts on the day Garland was sworn in as AG. 

Yet, three months later, nothing much has changed and the assault on asylum seekers and justice at Garland’s EOIR continues largely unabated. Indeed, Garland’s totally inappropriate, due process damaging, appointment of yet more (17) “Barr-picked judges” has further aggravated the problem to a simply astounding degree! It’s like you’re behind by three touchdowns in the fourth quarter and your so-called “head coach” awards your opponents 17 more points for no particular reason! What on earth is going on in Garland’s head? 

Real judges on a “Reform BIA”  from the ranks of progressive experts would have Matter of K-S-E-, Matter of A-B-, Matter of L-E-A-, Matter of Castro-Tum and a host of other Trumpist garbage “sorted” in no time and the now-dysfunctional EOIR system back on track to due process and functionality. What’s glaringly missing is any semblance of awareness, urgency, and competent progressive leadership from Garland and those surrounding him!

🇺🇸Due Process Forever! 

PWS

06-11-21

Related posts:

  1. 🛡⚔️BATTLING THE KAKISTOCRACY: KNIGHTESSES & KNIGHTS OF THE ROUND TABLE, NDPA PRO BONO REGIMENT FROM SULLIVAN & CROMWELL CONTEST DEFEATED REGIME’S CONTINUING TYRANNY AT COURT! — Latest 9th Circuit Amicus Brief Highlights Due Process Requirements For Developing Record In Immigration Courts! — PLUS “SATURDAY BONUS” — Time For The NDPA To Stand Up & Demand A Primary Leadership Role In Reforming EOIR & The Totally Corrupt Immigration Bureaucracy! — “Just Say No” To “Same Old, Same Old” By The Characters Who Sowed The Seeds Of Past Failures & Opened The Door For Miller & Co! ☠️🏴‍☠️🤮⚰️👎🏻
  2. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  3. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮
  4. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️

WE NEED MORE WORK VISAS & A LONG-OVERDUE REVISION OF CATEGORIES, SAYS “NEW AMERICAN ECONOMY” STUDY & IMMIGRATION EXPERT PROFESSOR STEPHEN YALE-LOEHR OF CORNELL LAW! — Hannah Miao Reports For CNBC

Hannah Miao
Hannah Miao
Reporter, CNBC
PHOTO: CNBC

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/posts/expert-business-visa-categories-outmoded

From Dan Kowalski @ LexisNexis Immigration Community:

Expert: Business Visa Categories Outmoded

Hannah Miao, CNBC, June 10, 2021

“We have not revamped our legal immigration categories, including business immigration, since 1990. Some of those categories are out of alignment with our needs in the United States today,” said Stephen Yale-Loehr, an immigration law professor at Cornell Law School, who was not involved with the NAE study.  “The pandemic has exacerbated those inconsistencies because people who are desperately needed to restart various businesses have been unable to enter the United States,” Yale-Loehr said.”

pastedGraphic.png

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We should be expanding legal immigration opportunities in all three categories that currently feed our “green card system:”

  • Family visas;
  • Work visas; and
  • Refugee and asylum admissions.

We have seen during the pandemic that “essential workers” we depend upon and whose presence enriches our society and helps us build for a better future come in all types of statuses, including so-called “undocumented.” Those coming in the family, refugee, and asylum categories contribute valuable job skills, experiences, and enrichment to our society just as much, and in some cases, even more than those whose visas are based on work skills. We need to draw on and expand all three categories.

My Georgetown Law Immigration and Refugee Policy students did their own research and pointed these things out in our class just this week. They “get it!” But, our current Government immigration policy makers, not so much!

Again, to state the obvious, the Biden Administration is “missing the boat” by not restarting our asylum system at the border, running it in an appropriately generous and fair manner with experts, and expanding and getting our refugee programs functioning again. Many of those with skills we need and can use are literally “dying to get in” while we ignore both their humanity and our collective best interests.

Progressive legislative reforms to our legal immigration system are long, long overdue. But, we already have the legal authority to run far more robust and fairer legal refugee and asylum systems that would benefit America and the world, a well as saving lives and ending the ongoing squandering of Government resources on failed, illegal, cruel, and counterproductive “enforcement schemes.” 

Progressive experts with the needed skill sets to fix the migration problems are out here. Obviously, Professor Yale-Loehr is just one of many. Yet, for the most part, the Biden Administration ignores their expertise and turns a deaf ear to their solutions. Doesn’t make sense to me!

Unfortunately, we appear to appear to lack the will, imagination, courage, and most of all progressive expertise in the Executive Branch to use currently available tools and legal authorities to fix migration problems.

My students continually give me hope that the next generations will provide enlightened leadership and build a more just society and a better world for the future. But, in the meantime, my generation continues to squander opportunities for improvement. There will be a cost, of that I’m sure! 

🇺🇸⚖️🗽Due Process Forever!

PWS

06-11-21

Related posts:

  1. 🇺🇸🗽👍🏼😎MAKING AMERICA BETTER, FINALLY: “Mr. Biden has laid out an immigration program that would genuinely put America first.” (WashPost) — No Wonder GOP Anti-American White Nationalists Like Tom Cotton Are Apoplectic & Spouting Their Racist, White Elitist Nonsense!
  2. ⚖️🗽🛡RECOGNIZING WOMEN REFUGEES: Professor Karen Musalo @ ImmigrationProf Blog — Don’t Add A “6th Protected Ground” To The Statute; Get Some Better-Qualified Judges 🧑🏽‍⚖️ Who Will Respect & Follow Existing Law To Protect Those Already Covered, But Wrongfully Denied Refuge By Bad Judging & Restrictionist Policies!
  3. 🤯👎🏽MORE CIRCUIT REJECTS FOR GARLAND & PRELOGAR — 1st & 3rd Cirs “Just Say No” To DOJ’s Ill-Advised Positions On “Theft Offense” & Derivative Citizenship!  — It’s Part Of A Larger Leadership Failure @ Garland’s Broken DOJ!
  4. NOLAN’S LATEST IN THE HILL: “Undocumented immigrants shouldn’t replace legal ones”

⚖️HOPEFUL SIGN ON ARTICLE 1? — At Oversight Hearing, Garland Expresses Modest Endorsement Of Judicial Independence & Open Mind On Article 1 — “As independent as possible,” whatever that means.

Judge Merrick Garland
Attorney General Merrick B. Garland — “Is he open to Article I? It would be nice to think so, but still plenty of reason to be skeptical about his intent for EOIR!’
Official White House Photo
Public Realm

Here’s the audio:

https://www.appropriations.senate.gov/hearings/a-review-of-the-presidents-fiscal-year-2022-funding-request-for-the-us-department-of-justice

The relevant remarks are at 1:59.

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While it’s always good to be optimistic, to date, “as independent as possible” has meant “as independent as four years of White Nationalist weaponization and meddling from Trump, Miller, Sessions, Barr, Whitaker, Hamilton, McHenry, et al, left them.” That’s NOT independent at all! Quite the OPPOSITE. In many ways there is less judicial independence and more political interference at EOIR now than there was when it was located within the “Legacy INS” before EOIR was created in 1983.

I personally will believe it to the extent that it’s reflected in actions. That means things like vacating restrictive anti-immigrant precedents, restoring asylum for gender-based violence, re-instituting and encouraging Administrative Closing, slashing the backlog by working with parties to remove the vast majority of “non-priority” cases that could be handled in alternative ways, installing e-filing, eliminating bogus “performance work plans,” repudiating “production quotas,” replacing Trump’s BIA with better-qualified judges, revising judicial recruiting and hiring practices to attract more diverse expert candidates from the private/NGO sector, considering stakeholders’ views and recommendations on important policies BEFORE announcing them, establishing a transparent complaint and tenure review process involving the private bar, re-establishing a robust asylum system at the border, upgrading judicial training and using “outside DOJ” experts to conduct it, eliminating the unnecessary “Office of POlicy” from the bloated bureaucracy, hiring experts in judicial management for administrative positions, encouraging written over oral decisions on cases likely to be appealed, expanding the number of judicial law clerks assigned to judges, eliminating agency bureaucracy and redirecting resources to improving local courts and furthering independence, re-recognizing the NAIJ and listening to their suggestions, working cooperatively with the pro bono bar to increase representation, rethinking the overuse of televideo and the presence of “courts” in detention center settings (e.g., prisons in the “New American Gulag”), selecting and retaining only judges who will treat all parties, counsel, and court personnel with respect and professionalism, actively working to overcome the “culture of denial, White Nationalism, and misogyny” that has permeated EOIR over the past four years and still exists, ending docket meddling from Falls Church and DOJ and returning control to local judges, eliminating “Aimless Docket Reshuffling” by politicos and their enablers, reducing the use of single-judge orders at the BIA, selecting expert Appellate Judges for the BIA who will issue some positive as opposed to only negative precedents, refusing to open and closing “courts” located in obscure, out of the way prison locations selected by DHS in large part because of the absence of pro bono lawyers, returning full authority to grant continuances to local judges, no longer referring to DHS (but not respondents’ counsel) as “our partners,” ending the use of derogatory terms and false claims by DOJ officials to Immigration Judges about private lawyers, stopping the intentional manipulation of statistics bv DOJ and EOIR management to further political agendas, ending the “muzzle” on Immigration Judges and encouraging them to participate in public professional activities, promoting best practices rather than institutionalizing worst practices, and again making “through teamwork and and innovation, guaranteeing fairness and due process for all” the absolute touchstone at EOIR, for starters.

To date, NONE of the things on the foregoing list has been accomplished or proposed by Garland and his team. Indeed, a number of his actions, like engaging in “Aimless Docket Reshuffling” by establishing a “Dedicated Docket” for new asylum cases without consulting the stakeholders in advance, and appointing 17 new judges selected by Barr under defective and flawed procedures that discouraged diversity and “disfavored” private sector candidates, are in direct contravention of due process and best practices and serve to discourage, rather than nurture, judicial independence. 

Moreover, as I have previously said, I see no evidence that Garland has hired or reached out to any of the types of progressive experts who could actually implement these reforms necessary to achieve judicial independence and promote due process. You can’t get the job done for judicial independence and due process without a radical personnel shakeup at EOIR! The current group at both DOJ and EOIR just doesn’t cut it, as ever a casual observer could tell Garland. 

So, until I see some ACTUAL progress, beyond mushy rhetoric, color me skeptical about Garland’s plans for EOIR.

🇺🇸🗽⚖️Due Process Forever!

PWS

06-10-21

Related posts:

  1. ⚖️🧑🏽‍⚖️👨🏻‍⚖️🗽COURT REFORM: GW IMMIGRATION CLINIC STUDENTS WEIGH IN ON ARTICLE I — Emphasize Critical Due Process Need To Entirely Remove AG From Decision-Making Process!
  2. 🇺🇸“GOOD MORNING OHIO!” — MY KEYNOTE SPEECH TO AILA THIS MORNING 🗽— AN NDPA CALL TO ACTION! ⚖️— “The EOIR Clown Show Has Got To Go!”🤡👨🏻‍⚖️👎🏻
  3. 🧑🏽‍⚖️👨🏻‍⚖️⚖️BIDEN & WARREN BELIEVE IN A DIVERSE, PROGRESSIVE FEDERAL JUDICIARY — JUDGE GARLAND CONTROLS PERHAPS THE MOST IMPORTANT FEDERAL JUDICIARY NEXT TO THE SUPREMES — So, What’s He Waiting For? — Will He Reverse The Dems’ Maddening Failure To Grasp & Act On The Cosmic Importance & Game Changing Potential Of A Progressive Immigration Court, That Gets Beyond The Often White, Male, Enforcement, “Go Along To Get Along” Stereotypes & Showcases Diverse, Progressive “Practical Scholars,” Many Of Them Women & People Of Color?
  4. 🇺🇸🗽⚖️🧑🏽‍⚖️👍🏼BREAKING — THE NDPA STRIKES BACK WITH VIGOR: 70 Human Rights, Civil Rights, Due Process, Good Government, Immigration, Equal Justice, Racial Justice, Progressive, Gender Justice Organizations Rip Garland, Monaco In Letter Protesting Their Abject Failure To Address Due Process, Racial Justice, Rule Of Law Disaster At EOIR — New, Competent, Diverse, Progressive Leadership & Judges Needed To Counteract 4 Years Of White Nationalism, Biased Hiring, “Malicious Incompetence!” — No More “Miller Lite Unhappy Hour” @ DOJ!

THE GIBSON REPORT — 06-07-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group

Elizabeth Gibson
Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

COVID-19 & Closures

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

 

EOIR Status Overview & EOIR Court Status Map/List:

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

 

Changes to USCIS Mask Policy: Fully vaccinated staff and visitors are not required to wear masks. However, some government buildings may still require masks for all visitors, including 26 Federal Plaza.

 

TOP NEWS

 

Justices deny green cards to noncitizens granted Temporary Protected Status

SCOTUSblog: The court ruled in Sanchez v. Mayorkas that adjustment of status is reserved for those who were inspected at the border and admitted to the United States by an immigration officer, thus disqualifying the majority of those granted Temporary Protected Status.

 

Biden Has Given Prosecutors More Power To Decide Which Immigration Cases To Drop

BuzzFeed: The guidance, written by chief ICE attorney John Trasviña, a President Biden appointee, was sent to prosecutors on May 27 and represents a shift in how the agency pursues deportation orders in immigration court by emphasizing the discretion prosecutors have in court. While it does not require prosecutors to toss cases, it could lead to more immigrants having the ability to push for delays or dismissal of their deportation cases.

 

Biden administration formally ends ‘remain in Mexico’ policy after suspending it earlier this year

CNN: Shortly after President Joe Biden took office, the Department of Homeland Security suspended new enrollments to the program formally known as Migrant Protection Protocols. The department subsequently kicked off the process of gradually allowing asylum seekers previously subject to the program into the US. Between February 19 and May 25, around 11,200 migrants were processed into the US, according to Mayorkas’ memo Tuesday.

 

The false promises of more immigration enforcement

Vox: [R]esearch shows that the threat of detention and deportation in the US doesn’t dissuade migrants from making the journey to the southern border, especially if they are victims of violence and may be seeking to escape the “devil they know” in their home countries.

 

Biden Wants Mexico To Do More To Stop Immigrants Trying To Cross The US Border

BuzzFeed: Ahead of a planned visit by Vice President Kamala Harris, the Biden administration wants Mexico to send back more immigrants turned around by the US, take back additional families expelled by border agents, and do more to prevent Mexican airports from being used as pit stops for migration routes, according to government documents obtained by BuzzFeed News.

 

Docs Show ICE Didn’t Track Consent For Alleged Sterilization

Law360: Advocacy groups on Thursday released records acquired through a Freedom of Information Act lawsuit that showed failures in oversight by U.S. Immigration and Customs Enforcement of its medical personnel at a Georgia detention center, which is at the center of allegations of medical abuses and forced gynecological procedures.

 

Biden has quietly deployed an app for asylum seekers. Privacy experts are worried

LATimes: In recent weeks, U.S. border officials have taken an unprecedented step, quietly deploying a new app, CBP One, which relies on controversial facial recognition, geolocation and cloud technology to collect, process and store sensitive information on asylum seekers before they enter the United States, according to three privacy-impact assessments conducted by the Homeland Security Department and experts who reviewed them for The Times. See also US Border Officers Are Collecting DNA From Asylum-Seekers Even Though They Don’t Have Criminal Records.

 

Texas is seeking to evict migrant children from state shelters.

NYT: Gov. Greg Abbott of Texas has instructed state officials to end contracts with the Biden administration for shelters in the state that hold migrant children and teenagers who have been arriving alone, in record numbers, to the southwest border.

 

LITIGATION/CASELAW/RULES/MEMOS

 

Supreme Court Says TPS Is Not an Admission

The Supreme Court issued a unanimous decision, holding that a TPS recipient who entered the United States unlawfully is not eligible under §1255 for LPR status merely by dint of his TPS. (Sanchez et ux. v. Mayorkas, 6/7/21) AILA Doc. No. 21060799

 

Matter of D-G-C-, 28 I&N Dec. 297 (BIA 2021)

BIA: The mere continuation of an activity in the United States that is substantially similar to the activity from which an initial claim of past persecution is alleged and that does not significantly increase the risk of future harm is insufficient to establish “changed circumstances” to excuse an untimely asylum application within the meaning of section 208(a)(2)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a)(2)(D) (2018).

 

CA1 Upholds Denial of Cancellation of Removal to Ecuadorian Petitioner with Two Young Children

Posted 6/1/2021

The court held that the BIA did not err when it found that the petitioner, who had a 12-year-old son and a five-year-old daughter, had not met his burden to show that his removal would result in exceptional and extremely unusual hardship to his family. (Tacuri-Tacuri v. Garland, 5/24/21)

AILA Doc. No. 21060138

 

CA3 Rejects Government’s Attempt to Invoke Fugitive Disentitlement Doctrine, But Upholds Denial of Withholding of Removal

Posted 6/1/2021

The court held that the government’s evidence of petitioner’s fugitive status was insufficiently probative to justify discretionary dismissal of his petition, but found that BIA did not err in denying petitioner’s withholding of removal application. (Galeas Figueroa v. Att’y Gen., 5/19/21)

AILA Doc. No. 21060140

 

CA4 Finds That EAJA Does Not Apply to Habeas Applicants Seeking Release from Civil Detention

The court held that the Equal Access to Justice Act (EAJA) does not apply to a habeas proceeding seeking release from civil detention, and thus affirmed the district court’s order denying the petitioner attorney’s fees under the Act. (Obando-Segura v. Garland, 5/28/21) AILA Doc. No. 21060734

 

CA5 Says Conviction for Conspiracy to Commit Money Laundering Is an Aggravated Felony Under INA §101(a)(43)(D)

The court held that the petitioner’s conviction for conspiracy to commit money laundering plainly constituted an aggravated felony under INA §101(a)(43)(D), and that the remainder of the petitioner’s claims were either meritless or unexhausted. (Maniar v. Garland, 5/20/21) AILA Doc. No. 21060434

 

CA5 Says Attorney General Interpreted INA §208(b)(2)(A)(iv) in Matter of A-H- Correctly as a Matter of Law

Where the government had ordered petitioner removed after he threatened to commit an act of terrorism, the court held that the Attorney General had interpreted INA §208(b)(2)(A)(iv) correctly, and thus that the government had lawfully terminated his asylum status. (Mirza v. Garland, 5/12/21) AILA Doc. No. 21060432

 

CA5 Finds Plea Agreement That Lacked Judge’s Signature Could Serve as Clear and Convincing Evidence of a Conviction

The court held that the petitioner had failed to show that the IJ or the BIA had violated a statutorily imposed evidentiary requirement in finding that the plea agreement form proved the existence of a forgery conviction by clear and convincing evidence. (Nguyen v. Garland, 5/12/21) AILA Doc. No. 21060430

 

CA6 Rejects Castro-Tum: Garcia-DeLeon V. Garland

LexisNexis: Garcia-DeLeon v. Garland “We conclude that 8 C.F.R. § 212.7(e)(4)(iii), in conjunction with 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii), gives IJs and the BIA the authority for administrative closure to permit noncitizens to apply for and receive provisional unlawful presence waivers.

 

CA9 Affirms Denial of Deferral of Removal to Jamaican Petitioner Who Claimed She Suffered Physical Abuse by Former Domestic Partner

Upholding the BIA’s denial of deferral of removal under the Convention Against Torture (CAT), the court held that the record did not compel a finding that it was more likely than not that the petitioner would suffer future torture if she returned to Jamaica. (Dawson v. Garland, 5/26/21) AILA Doc. No. 21060732

 

CA9 Finds Nunc Pro Tunc Order Did Not Retroactively Establish Naturalized Parent’s Sole Legal Custody Under Former INA §321(a)

The court held that where it has not been proven that a custody order was entered in error, a nunc pro tunc order cannot retroactively establish a naturalized parent’s sole legal custody for purposes of derivative citizenship under former INA §321(a). (Padilla Carino v. Garland, 5/18/21) AILA Doc. No. 21060731

 

CA9 Says Exceptional Circumstances Warrant Reopening of In Absentia Removal Orders of Salvadoran Mother and Child

The court held that exceptional circumstances warranted reopening of in absentia removal orders entered against a mother and her minor child due to the mother’s failure to appear, where the mother suffered from memory problems and was illiterate. (Hernandez-Galand v. Garland, 5/12/21) AILA Doc. No. 21060438

 

9th Circ. Says Judges Can Reopen Deported Immigrant Cases

The Ninth Circuit on Wednesday held that immigration judges can reopen the cases of immigrants who have been removed from the U.S. or who voluntarily left, reversing a Board of Immigration Appeals decision that held that the “departure bar” in immigration law blocked those reopenings.

 

9th Circ. Will Rehear Split Political Asylum Denial Ruling

Law360: The Ninth Circuit has agreed to reconsider en banc the denial of a Bangladeshi citizen’s asylum application based on alleged politically motivated threats against his family following a dissent from the panel decision citing evidentiary failures in the initial immigration court finding.

 

DOJ Asked To Pull Case That Busted Immigration Judge Union

Law360: A group of House Democrats asked the U.S. Department of Justice to withdraw a Trump administration petition that led the Federal Labor Relations Authority to rule immigration judges are managers who cannot unionize, saying the ruling broadly threatens federal employees’ union rights.

 

DHS Says Wolf Had Power To Issue Asylum Work Permit Regs

Law360: The U.S. Department of Homeland Security asked a Maryland federal court to preserve Trump-era regulations restricting asylum-seeker work permits, saying the official who created the policies had the legal authority to do so despite several courts calling that authority into question.

 

NJ Counties Fight Immigrant Info-Sharing Curb At 3rd Circ.

Two New Jersey counties urged the Third Circuit on Thursday to strike down New Jersey Attorney General Gurbir S. Grewal’s order that county and local law enforcement officers must restrict information they share with immigration authorities, arguing that it obstructs federal law.

 

ICE Issues Interim Guidance Regarding Civil Immigration Enforcement and Removal Policies and Priorities

ICE issued interim guidance to all OPLA attorneys to guide them in appropriately executing interim civil immigration enforcement and removal priorities and exercising prosecutorial discretion. AILA Doc. No. 21060499

 

DHS Terminates the Migrant Protection Protocols Program

DHS announced that after review of the Migrant Protection Protocols (MPP) program, the Secretary of Homeland Security made a determination that MPP be terminated. This announcement does not impact this phased entry strategy into the United States of certain individuals enrolled in MPP. AILA Doc. No. 21060141

 

USCIS Announces Pilot Program for Credit Card Payments Using Form G-1450 When Filing Form I-485

USCIS announced a pilot program for accepting credit card payments using Form G-1450, Authorization for Credit Card Transactions, for U nonimmigrants filing Form I-485. The pilot program began on May 3 and is limited to the Nebraska Service Center. AILA Doc. No. 21060200

 

RESOURCES

 

 

EVENTS

 

 

ImmProf

 

Monday, June 7, 2021

·         Supreme Court Rules Against TPS Recipient in Adjustment Case

·         Student Is Denied High School Diploma for Wearing Mexican Flag

·         VP Harris to Visit Guatemala, Mexico to Discuss Migration, Human Trafficking, Corruption

Sunday, June 6, 2021

·         New Interim Guidance re: Immigration Enforcement

·         Does Increased Enforcement Deter Migrants?

Saturday, June 5, 2021

·         Biden Administration Adopting Immigration Changes

Friday, June 4, 2021

·         Teaching the Categorical Approach: The Cute Kittens Method

·         New Issue of Daedalus on Immigration, Nativism & Race in the United States

·         AP Report: U.S. government has groups to pick asylum-seekers to allow into the United States

Thursday, June 3, 2021

·         Congressional Research Service Report on Immigration Consequences of Criminal Activity

·         The Equal Access to Green Cards for Legal Employment (EAGLE) Act of 2021

Wednesday, June 2, 2021

·         June is immigrant heritage month; June 21 world refugee day

·         Slowing U.S. Population Growth Could Prompt New Pressure for Immigration Reform

·         Will VP Kamala Harris take the lead on immigration?

·         Few Former Immigration Lawyers in Congress

Tuesday, June 1, 2021

·         Termination of the Migrant Protection Protocols (Remain in Mexico) Program

·         Supreme Court Rules for U.S. Government in Asylum Credibility Case

Monday, May 31, 2021

·         UK Orchestrating Rapid Relocation of Afghan Interpreters & Their Families

·         Ironic tribute to MAVNI on Memorial Day

·         2021 Annual Pre-AILA Crimes & Immigration Seminar

 

 

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

Thanks, Elizabeth!

Item #3 makes an essential point that experts have long recognized and that undermines the assumptions on which many of the failed Trump and Biden immigration policies are based: U.S. enforcement policies have little or no effect on forced migrants’ decisions to leave their homes. 

Indeed, as immigration experts have told the Administration, to little apparent avail, “forced migration” is exactly what it says it is: migration resulting from forces in home countries that are largely beyond the immediate control of either the migrants or the U.S. Government. 

That doesn’t mean we shouldn’t understand and constructively address the root causes of human migration. Of course we should! 

But, such systemic changes will take time and will have only marginal effects, if any, on current migration patterns. And, harsh, cruel enforcement and illegal border closures will continue to waste resources while squandering any remaining moral leadership authority we have on migration issues following four years of unrelenting illegal and immoral behavior by the Trump regime!

Vox: [R]esearch shows that the threat of detention and deportation in the US doesn’t dissuade migrants from making the journey to the southern border, especially if they are victims of violence and may be seeking to escape the “devil they know” in their home countries.

I just watched a TV news report in which law enforcement officials and reporters hypothesized the higher walls had caused smugglers to use more dangerous methods such as maritime entries, that, in turn, kill more migrants. Is that how we measure “success?” And, even killing a few more migrants won’t have a material effect on departures or overall illegal entries.

Why not encourage individuals to apply for refuge from abroad or at legal ports of entry where they will be treated fairly and humanely by officials and judges actually qualified to administer asylum and protection laws? Why not structure our legal immigration system around the “market realities” of human migration and “push, pull factors” rather than continuously swimming against the tides of migration? Why not put experts who understand the realities of human migration in charge of our policies and courts, rather than politicos who look only for the expedient, while all too often eschewing the intelligent?

🇺🇸Due Process Forever!

PWS

06-10-21

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🏴‍☠️PERSECUTED TRANSGENDER INDIVIDUAL DIES ⚰️IN EL SALVADOR WHILE HARRIS, GARLAND, & MAYORKAS FAIL TO RE-ESTABLISH LEGAL ASYLUM SYSTEM, MAKE LONG OVERDUE REFORMS!☠️ — VEEP Apparently Can’t Grasp Why Refugees Refuse To Stay In Countries Where They Are Likely To Be Persecuted & Die — The “Easily Fixable” Part Of The Problem Is NOT Thousands Of Miles Away In Foreign Countries, But With Garland’s & Mayorkas’s Inexcusable Failures To Act On Progressive Reforms Of Our Existing Legal System For Asylum Seekers!

Grim Reaper
“This Dude loves the ‘Miller Lite’ approach to asylum by Garland and Mayorkas, as well as Harris’s latest tone-deaf ‘victim shaming.’” Keeps him (as well as human smugglers) in business! Reaper Image: Hernan Fednan, Creative Commons License

 

https://edition.pagesuite.com/popovers/dynamic_article_popover.aspx?guid=25ce5cef-76d6-4701-9193-3d887d407397&v=sdk

Marcos Aleman reports or AP  in the LA Times:

SAN MIGUEL, El Salvador — Rejected by her family, Zashy Zuley del Cid Velásquez fled her coastal village in 2014, the first of a series of forced displacements across El Salvador. She had hoped that in the larger city of San Miguel she could live as a transgender woman without discrimination and violence, but there she was threatened by a gang.

She moved away from San Miguel, then back again in a series of forced moves until the 27-year-old was shot to death April 25, sending shock waves through the close-knit LGBTQ community in San Miguel, the largest city in eastern El Salvador.

“Zashy was desperate; her family didn’t want her … and the gangsters had threatened her,” said Venus Nolasco, director of the San Miguel LGBTQ collective Pearls of the East. “She knew they were going to kill her. She wanted to flee the country, go to the United States, but they killed her with a shot through her lung.”

One day after Del Cid’s slaying, U.S. Vice President Kamala Harris identified anti-LGBTQ violence in Central America as one of the root causes of migration in the region during a virtual meeting with the president of neighboring Guatemala, Alejandro Giammattei. She is visiting Guatemala and Mexico this week.

Transgender migrants were present in the Central American caravans that attempted to reach the United States border in recent years, fleeing harassment, gang extortion, violence and police indifference to crimes against them. Even in those large migrant movements, they say they faced harassment.

Things had been rough during Del Cid’s first stint in San Miguel. She had been living in a neighborhood where, as in many parts of the country, the MS-13 gang was the ultimate local authority. Gang members began to harass her, then brutally beat her, breaking her arm in 2015, Nolasco said.

“They warned her to leave, but she didn’t listen,” Nolasco said.

Del Cid moved in with Nolasco in the same neighborhood. One day, the gang grabbed Del Cid again.

“They took her, they wanted to kill her,” Nolasco said. “I begged them not to kill her, to let her go and she would leave the neighborhood.”

Del Cid moved back to her hometown, but her family rejected her again. She tried to please them, but she couldn’t, Nolasco said. Del Cid joined a church, got a girlfriend and had a baby girl, but could not maintain that life, she said.

She returned to San Miguel, where initially things seemed to go better. In 2020, Del Cid received humanitarian and housing support from COMCAVIS TRANS, a national LGBTQ rights organization, and the United Nations High Commissioner for Refugees.

Del Cid rented a home and opened a beauty salon there. She hired another woman to help her and was participating in an entrepreneurship program. She was preparing a business proposal to move the salon into its own space.

But Del Cid was shot in the back walking alone at night down the street. Passersby tried to help her and took her to a hospital, where she died. So far, police have made no arrests, and Nolasco believes that like other hate crimes in the country, “it will be forgotten; they’re not interested in what happens to us.”

Laura Almirall, UNHCR representative in El Salvador, said Del Cid’s killing frightened her community and saddened everyone who knew her.

“She was excited about her new plans and her new life. And unfortunately and tragically, everything came to an end,” she said.

Nolasco said that in San Miguel, some 70 miles east of the capital, the transgender community endures constant harassment from intolerant residents and gangs. They have rocks thrown at them, are beaten and are victims of extortion. If they go to police to make a report, they are insulted and demeaned. “Don’t come here to claim rights, because there are no rights for you,” police tell them, Nolasco said.

. . . .

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

Read the rest of the article at the link. 

Despite some legal nonsense from EOIR and sometimes from uninformed Circuit Judges who have never represented asylum seekers and know little of actual conditions in the Northern Triangle, neither El Salvador nor the other Northern Triangle governments are “willing and able” to protect most individuals suffering gender-based and other forms of persecution. Decisions claiming otherwise are, in most cases, legally wrong and disingenuous to boot.

The U.S. asylum system needs expert Asylum Officers at DHS and progressive expert Immigration Judges at EOIR. Babbling (misleadingly) about “sealed borders” won’t take the place of telling Garland and Mayorkas to stop screwing around, bring in progressive experts, and fix the U.S. asylum system before more die! V.P. Harris could have taken the first necessary step toward “fixing the Southern Border” without even leaving DC.

How are we going to promote the rule of law in other nations when we ourselves are unwilling to exhibit honesty and follow the law with respect to the most vulnerable in the world seeking legal refuge at our borders?

🇺🇸Due Process Forever!

PWS 

06-09-21

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VICE PRESIDENT HARRIS THINKS RULE OF LAW DOESN’T APPLY TO RICH NATION THAT ILLEGALLY TURNS DESPERATE REFUGEES AWAY, SUGGESTS GUATEMALANS SHOULD DIE IN PLACE! — “Deterrence Statement” Won’t Stop Migration, Won’t Appease Nativist-Restrictionists, But Will Cost Her Support From Human Rights Progressives Who Helped Elect Her!  — There Will Be No Workable Solutions At Our Southern Border Without a Functional, Robust Legal Asylum System That Complies With Due Process!

Vice President Kamala Harris
Vice President Kamala D. Harris
Vice President of the United States — She thinks that laws are for others and that platitudes solve problems.
(Official Senate Photo)

VICE PRESIDENT HARRIS THINKS RULE OF LAW DOESN’T APPLY TO  RICH NATION THAT ILLEGALLY TURNS DESPERATE REFUGEES AWAY, SUGGESTS GUATEMALANS SHOULD DIE IN PLACE! — “Deterrence Statement” Won’t Stop Migration, Won’t Appease Nativist-Restrictionists, But Will Cost Her Support From Human Rights Progressives Who Helped Elect Her!  — There Will Be No Workable Solutions At Our Southern Border Without a Functional, Robust Legal Asylum System That Complies With Due Process!

By Paul Wickham Schmidt

Courtside Exclusive

June 9, 2021

Every individual, regardless of status, has a legal right to apply for asylum at our border. This law was enacted on 1980 to carry out our legal obligations under the U.N. Convention and Protocol on the Status of Refugees, to which we have been party since 1968. 

Right now, the U.S. has neither a legal asylum system operating at ports of entry nor does it have a functioning refugee program in Central America. Borders were illegally closed and legal immigration avenues were suspended by the White Nationalist Trump Administration on various pretexts involving false narratives about COVID, labor market impact, and national security, among others. At one point Trump even made the absurdist claim that America is “full!”

The Biden Administration has peddled rhetoric about re-establishing legal immigration. But, to date they have neither re-established the rule of law for asylum seekers at our Southern Border nor have they instituted an operational refugee program for Central America. 

How bogus is the Biden/Harris continuation of the COVID facade for closing the border? Well, I didn’t hear much mention from Harris in Guatemala of COVID as a reason not to come or any promise to restore the legal asylum system once the “fake COVID emergency” is resolved.

So, there is no legal way for those in Guatemala and other countries to seek refuge in the U.S. Ignoring requests from experts and humanitarian NGOs, the Biden Administration has also stubbornly failed to repeal biased “precedents” from the Trump DOJ designed to make it difficult for refugees fleeing Latin America, particularly women, to qualify for legal protection despite the fact that their lives and safety will be in danger if returned. 

Our scofflaw actions actually leave refugees needing protection no choice but to cross the border surreptitiously. We have suspended the rule of law for legal asylum seekers, while dishonestly claiming that they, not we, are the “law breakers.” After nearly 50 years in and sometimes out of the immigration bureaucracy, I know bureaucratic doublespeak when I hear it.

Remarkably, Vice President Harris seems to have cribbed her public statements on Guatemalan asylum from Gauleiter Stephen Miller. Even more astoundingly, Miller’s influence on the Biden Administration’s failing immigration policies, particularly at Garland’s dysfunctional EOIR, continues to far exceed that of the diverse coalition of progressive experts, human rights advocates, and civil rights leaders who helped elect Biden and Harris! Talk about disrespect and being taken for granted!

In other words, America has totally “welched” on our legal and moral obligations to refugees and asylum seekers. Yet, incredibly, Harris warns them to stay in places where their lives and safety are in immediate danger, rather than taking a calculated risk of finding safety in the United States.

Since the U.S. no longer has a rule of law for asylum seekers or refugees, this usually means trying to enter with the aid of paid smugglers who offer them something the U.S. is unwilling to provide — a realistic possibility of refuge in time to save their lives! It’s certainly “not rocket science!” But, disturbingly, it appears to be above Harris’s pay grade!

As smugglers point out, the possibility of getting to the interior of the U.S., and there finding “do it yourself” refuge in our intentionally-created and often exploited “underground population,” actually far exceeds the chance of being granted asylum, even when we had a “somewhat” functioning asylum system. That’s largely because our law has long been improperly politically “gamed” (by Administrations of both parties) against asylum seekers from Central America. 

So, nobody actually knows how many would qualify for asylum under a fair and unbiased system. We’ve never had the moral courage to set up such a procedure. Instead, we have used imprisonments, family separations, racist rhetoric, criminal prosecutions, and skewed legal denials from “captive courts” tilted in favor of DHS enforcement as “deterrents” to desperate refugees from our own Hemisphere.

Our nation fears complying with our own laws! Not much of a “profile in courage” here!

The Vice President concedes that the “in place” assistance she is offering to individuals in some of the world’s most corrupt and lawless countries is unlikely to have any impact for years to come. And, that’s assuming that the Biden Administration’s aid plan is better than those that have failed in the past, which it well might be. It certainly will be better than the insane cruelty and improper “enforcement only” efforts of the Trump Administration.

She is correct that most, but not all, Guatemalans would prefer to live in Guatemala if that were possible. But, the problem she insists on “papering over” is that survival in Guatemala currently is not reasonably likely for many Guatemalans. Unless and until Congress creates a more realistic legal immigration system, there is simply no realistic opportunity for many Guatemalans other than to apply for asylum at the border. 

While asylum law would not cover them all, a proper interpretation and application through a re-established and meaningfully reformed system, overseen by expert judges (currently eschewed by Garland’s dysfunctional Immigration Courts) could admit many more legally and timely than the current non-existent system or past ones intentionally skewed against asylum seekers in a futile, improper attempt to use the legal process as a “deterrent.” It would also encourage and motivate asylum seekers to apply at legal ports of entry rather than crossing surreptitiously.

Yet Harris’s “clear message” (of non-hope) to the oppressed people in the Northern Triangle is for them to “die in place,” while awaiting long-term solutions that might or might not ever happen. Meanwhile, the world’s richest nation lacks the will and determination to re-establish a legal asylum screening and adjudication system at our Southern Border. 

Harris also wants the desperate masses “yearning to breath free” to know that the beacon of freedom no longer burns in America. We think it would be better if they died where they are, largely out of our sight and out of our mind.

We resent their efforts at survival, forcing us listen to their screams at our border for help that we prefer to deny (in violation of our legal obligations). We are bothered by the stench of the dead and annoyed by the news media’s incessant reporting on the Administration’s continuing failures of legality and humanity. Better (for us, not them) if they don’t come.

It’s an interesting “lesson” on racial and immigrant justice, as well as gender justice, from a Vice President who apparently prefers “inspiring” future generations to taking the tough, courageous moral and legal stands necessary to preserve and protect the current ones!

The Vice President might be correct on the rudiments of a better and more realistic long-term migration and economic plan for the Northern Triangle. But, her failure to recognize the essential first step of making the existing legal asylum asylum system work, and her unwillingness to tell Garland and Mayorkas to stop the foot-dragging and start complying with our laws and our Constitution, will doom her efforts long before they could ever have any positive impact.

The Southern Border is a big challenge. The solution has eluded all of Harris’s male predecessors, including her current boss, for the last half-century. 

It requires an end to “Milleresque” platitudes and an honest recognition of the human realities of forced migration. It cries out for a strong knowledgeable leader who will re-establish the legal asylum system already in the law, insist that for the first time in our history it be operated by experts with robust humanitarian protection goals, real progressive expert judges, and full constitutional due process. It demands an end to the mindless dehumanization and demeaning of asylum seekers and recognition that those granted asylum are legal immigrants, a source of strength, and a benefit to our nation, not a phenomenon to be demonized and feared.

It requires a robust refugee program in the Northern Triangle that takes the pressure off the border asylum system until needed changes in the legal immigration system can be pushed through Congress and the longer-term improvements in infrastructure and governance in the Northern Triangle take effect.

It also requires a leader with the comprehensive knowledge and moral courage to defend robust legal refugee and asylum systems and more legal immigration from the onslaught of racially-charged, myth-based attacks from White Nationalists and nativists that are sure to follow. She would also have to deal with pushback from an entrenched immigration bureaucracy and weak leadership from Garland and others who have continued to feed the problems rather than solve them.

Unfortunately for Vice President Harris, our nation, and, most of all, the forced migrants whose lives and humanity are on the line every day, right now the job appears to be bigger than the person.

🇺🇸Due Process Forever!

PWS

06-09-21

`

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AS TOTALLY DYSFUNCTIONAL IMMIGRATION COURTS 👎🏽 CONTINUE THEIR DESCENT INTO THE ABYSS, 80 EXPERTS AND ORGANIZATIONS ASK GARLAND TO UNDO BARR’S ILLEGAL “BANISHMENT” OF THE NATIONAL ASSOCIATION OF IMMIGRATION JUDGES (“NAIJ”)🧑🏽‍⚖️

Judge Amiena Khan is the executive vice president of the National Association of Immigration Judges (NAIJ)
Judge Amiena Khan, President National Association of Immigration Judges (NAIJ)

June 7, 2021

The Honorable Merrick Garland Attorney General

U.S. Department of Justice Washington, DC 20500

RE: Department of Justice Should Support the National Association of Immigration Judges and Withdraw the Petition to Decertify its Union

Dear Attorney General Garland,

We, the undersigned unions, organizations, immigration law professors and scholars, and other immigration court stakeholders call your attention to the urgent need to preserve and protect the National Association of Immigration Judges (NAIJ) and support collective bargaining by Department of Justice (DOJ) career civil servants. We are heartened by President Biden’s announcements on January 22, 2021, that both overturned his predecessor’s policies limiting employee rights to collectively bargain and also implement a wide-ranging policy to protect, empower, and rebuild the career federal workforce. President Biden’s announcements specifically encourage union organizing and collective bargaining.1

After four relentless years of union-busting, decisive leadership is needed to refortify the federal workforce. NAIJ and its 500+ bargaining unit members—immigration judges who are DOJ attorney employees—are in need of protection right now! NAIJ has been the collective bargaining representative for immigration judges since 1979. Yet, in 2019, the Trump administration filed a petition to strip immigration judges of their statutory right to be represented by a union and decertify NAIJ.

The Trump administration targeted NAIJ in retaliation for NAIJ’s criticism of both the unreasonable working conditions that DOJ managers imposed on its members and the sweeping curtailment of due process rights in immigration court.

While the decertification attempt was initially and thoroughly rejected in a decision by a career employee of the Federal Labor Relations Authority (FLRA), the decision was abruptly reversed

1 Executive Order 14003, on Protecting the Federal Workforce. 1

 

 in a politically-motivated decision by the FLRA. That FLRA decision ignored the detailed fact-finding of the career employee and reversed long-standing FLRA precedent that 20 years earlier had found that immigration judges were not in a position to influence agency policy.

The FLRA decision is devoid of any reasoned analysis and creates an extremely dangerous precedent for professional workers throughout the federal government. Future administrations could wield this decision like a sword to preclude other professional employees such as physicians, scientists, engineers, and others from unionizing. Indeed, this ill-conceived anti-union precedent could have devastating repercussions for decades to come.

At this moment, a motion to reconsider is currently pending at the FLRA, and we call on the DOJ to withdraw its opposition to that motion, withdraw its decertification petition, and take all steps to restore collective bargaining rights for NAIJ members. President Biden has committed to restoring labor unions and fair working conditions for federal employees. We ask the DOJ to do its part in supporting that objective by taking all necessary actions to ensure that the NAIJ remains a union so that it can continue to represent its members in support of fair working conditions. Doing so will be a service to Immigration Court stakeholders and the public at large.

We seek your immediate review and leadership in this matter. Sincerely,

Amiena Khan

Amiena Khan, President

National Association of Immigration Judges

Unions: AFL-CIO

American Federation of Government Employees (AFGE), AFL-CIO American Federation of Government Employees (AFGE), Local 511

American Federation of Government Employees (AFGE), Local 3525

American Federation of State, County & Municipal Employees American Federation of Teachers

Asian Pacific American Labor Alliance, AFL-CIO

Association of Flight Attendants-CWA

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 Communications Workers of America (CWA)

Department for Professional Employees, AFL-CIO

Federal Education Association

International Federation of Professional and Technical Engineers (IFPTE) International Union of Painters and Allied Trades

Labor Council for Latin American Advancement National Association of Government Employees National Education Association

National Federation of Federal Employees National Nurses United

National Treasury Employees Union

National Weather Service Employees Organization Patent Office Professional Association

Service Employees International Union (SEIU) The International Brotherhood of Teamsters UNITE HERE

United Mine Workers of America

United Power Trades Organization

Organizations:

African Services Committee

Alliance for Justice

American Immigration Lawyers Association AsylumWorks

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 Bellevue Program for Survivors of Torture Brooklyn Law School Safe Harbor Project Catholic Labor Network

Catholic Legal Services, Archdiocese of Miami Catholic Legal Immigration Network, Inc. Center for Gender & Refugee Studies

Columbia Law School Immigrants’ Rights Clinic Disciples Immigration Legal Counsel

Florence Immigrant & Refugee Rights Project Immigrant Defenders Law Group

The Legal Aid Society

Migrant Center for Human Rights

Minnesota Interfaith Coalition on Immigration Mississippi Center for Justice

National Immigration Law Center

National Network for Immigrant & Refugee Rights The Right to Immigration Institute

Round Table of Former Immigration Judges

Law Professors and Scholars with Institutional Affiliation for Identification Purposes only:

Sabi Ardalan

Clinical Professor of Law

Harvard Immigration and Refugee Clinical Program Harvard Law School*

Roxana C. Bacon

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 Adjunct Professor of Law Arizona State University* University of Arizona* University of Miami*

David Baluarte

Associate Clinical Professor of Law Washington & Lee University School of Law*

Jon Bauer

Clinical Professor of Law and Richard D. Tulisano ’69 Scholar in Human Rights University of Connecticut School of Law*

Lenni B. Benson

Distinguished Chair of Immigration and Human Rights Law New York Law School*

Matthew Boaz

Professor

Washington & Lee School of Law*

Stacy Caplow

Associate Dean of Experiential Education & Professor of Law Brooklyn Law School*

Rose Cuison-Villazor

Vice Dean and Professor of Law Rutgers Law School*

Ingrid Eagly

Professor of Law

University of California Los Angeles School of Law*

Lauren Gilbert

Professor

St. Thomas University College of Law*

Lindsay M. Harris

Associate Professor & Director, Immigration & Human Rights Clinic University of the District of Columbia, David A. Clarke School of Law*

Katie Herbert Meyer

Associate Professor of Practice and Director of the Immigration Law Clinic Washington University*

Geoffrey Hoffman

Clinical Professor and Immigration Clinic Director

5

 University of Houston Law Center*

Alan Hyde

Distinguished Professor of Law and Sidney Reitman Scholar Rutgers Law School*

Erin Jacobsen

Professor and Director at Vermont Law School’s South Royalton Legal Clinic Vermont Immigrant Assistance

Vermont Law School*

Hiroko Kusuda

Clinic Professor and Director of Immigration Law Section

Loyola University New Orleans College of Law*

Stuart H. Smith Law Clinic and Center for Center for Social Justice

Vanessa Merton

Professor of Law

Immigration Justice Clinic Elizabeth Haub School of Law*

Karen Musalo

Professor and Founding Director, Center for Gender & Refugee Studies and the Refugee and Human Rights Clinic

U.C. Hastings College of the Law*

Lori A. Nessel

Professor

Seton Hall University School of Law*

Michael A. Olivas

Wm B. Bates Distinguished Chair (Emeritus) University of Law Center*

Maria Mercedes Pabon Professor of Law

Loyola University New Orleans*

Carrie Rosenbaum

Lecturer in Legal Studies University of California, Berkeley*

Faiza Sayed

Visiting Professor of Clinical Law and Co-Director Safe Harbor Clinic

6

 Brooklyn Law School*

Gemma Solimene

Clinical Associate Professor of Law Fordham University School of Law*

Elissa Steglich

Clinical Professor and Co-director Immigration Clinic University of Texas School of Law*

Mark E. Steiner

Professor of Law

South Texas College of Law Houston*

Enid Trucios-Haynes Brandeis School of Law University of Louisville*

Irene Scharf

Professor

Immigration Law Clinic University of Massachusetts*

Doug Smith

Lecturer in Legal Studies Brandeis University*

Paul Wickham Schmidt Immigrationcourtside.com

Erica B. Schommer

Clinical Professor of Law

St. Mary’s University School of Law*

Michael J. Wishnie

William O. Douglas Clinical Professor of Law Yale Law School*

*Institutional affiliation for identification purposes only

7

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

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

Thanks to my friend Judge Amiena Khan and the rest of her leadership group at the NAIJ for all they do to fight for due process for individuals in Immigration Court!

To date, Garland and his team have been busy defending Billy Barr’s and Trump’s corruption from legal accountability, appointing Barr’s hand-picked “judges” to their overtly non-progressive judiciary, attempting to intimidate the press (until the White House finally had to intervene), and carrying out pre-existing Stephen Miller inspired precedents and policies. Oh yeah, and engaging in their own mindless unilateral round of “Aimless Docket Reshuffling” (a/k/a yet another designed to fail “Dedicated Docket”) in Immigration Court while continuing to build on the pre-existing 1.3 million case backlog. They have also been occupied with ignoring every progressive and expert suggestion and NOT appointing progressives to leadership and judicial positions. Wow! That’s a very full plate (of unappetizing food)!

So, I’m not holding my breath for a favorable response to the latest request for the injection of some legality, common sense, and decency into EOIR. Nor am I expecting Biden and Harris to honor their commitment to Federal Employee Unions, after watching their performance to date on immigration and human rights. Additionally, given the continuing abysmal performance of EOIR and its ongoing waste and incompetence, I doubt whether they want any “internal critics” speaking truth to power. 

So far, Garland is on course to be “Billy Barr, Jr.” While that might help Barr to avoid legal accountability for his corrupt administration of justice @ Justice, it’s not so good for progressives who would like to see (and once believed they would see) some “justice from Justice” particularly for racial minorities, women, children, asylum seekers, and other migrants. 

They also would like to see at least minimally professional and respectful treatment of those appearing and representing individuals in Immigration Court. While Garland, Monaco, Gupta, and Clarke are all being paid comfortable “top of the line” USG salaries for ignoring long-overdue progressive reforms @ EOIR, many attorneys representing individuals in their “Star Chambers” are operating pro bono or low bono in their attempts to keep Garland’s failing and flailing system afloat. 

Just more reasons why we need an independent Article I Immigration Court to deliver due process, racial, and gender justice to individuals, regardless of status.

Barr Departs
Lowering The Barr by Randall Enos, Easton, CT
Republished By License. Guess Garland forgot to flush!

🇺🇸Due Process Forever!

PWS

06-08-21

 

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  1. 🇺🇸“GOOD MORNING OHIO!” — MY KEYNOTE SPEECH TO AILA THIS MORNING 🗽— AN NDPA CALL TO ACTION! ⚖️— “The EOIR Clown Show Has Got To Go!”🤡👨🏻‍⚖️👎🏻
  2. GARLAND/MAYORKAS UNILATERAL “IN YOUR FACE” 🤮 ASYLUM POLICIES CONTINUE TO INFLAME, OUTRAGE, PROGRESSIVE OPPOSITION! — More Haste Makes Waste “Special Asylum Dockets,” Continuation Of “Miller Lite” Racist/Misogynist Anti-Asylum Policies, Unqualified Judges, Likely To Deny Due Process, Create Aimless Docket Reshuffling, Increase Backlogs — Congress Needs To Remove Immigration Courts From Garland’s Dysfunctional DOJ — Now!
  3. 🇺🇸⚖️🗽NY TIMES EDITORIAL MAKES THE CASE FOR ARTICLE I — “It’s hard to imagine a more glaring conflict of interest than the nation’s top law-enforcement agency running a court system in which it regularly appears as a party.” — Garland’s Abject Failure To Fix EOIR, Bring In Experts Highlighted, As Constitutional Due Process, Ethical, Human Rights, Racial Justice, Gender Equity, Diversity, & Management Farce @ EOIR Continues Under His Disgraceful Lack Of Awareness & Failure Of Courageous, Progressive Leadership!  — Progressives Can’t Remain Silent, Must “Raise Hell” 👹With Biden Administration About Garland’s Lousy Performance @ EOIR, As He Continues To Stack Immigration “Judiciary” With “Miller Lite Holdovers” 🤮 To The Exclusion of Progressive Experts Who Helped Put Biden Administration In Office!
  4. 🇺🇸🗽⚖️🧑🏽‍⚖️👍🏼BREAKING — THE NDPA STRIKES BACK WITH VIGOR: 70 Human Rights, Civil Rights, Due Process, Good Government, Immigration, Equal Justice, Racial Justice, Progressive, Gender Justice Organizations Rip Garland, Monaco In Letter Protesting Their Abject Failure To Address Due Process, Racial Justice, Rule Of Law Disaster At EOIR — New, Competent, Diverse, Progressive Leadership & Judges Needed To Counteract 4 Years Of White Nationalism, Biased Hiring, “Malicious Incompetence!” — No More “Miller Lite Unhappy Hour” @ DOJ!

⚖️NAIJ RESPONDS TO U.N. ON NEED FOR INDEPENDENCE, GENDER DIVERSITY — “[A]chieving judicial independence is essential to ensuring a diversity of opinions and reducing bias in adjudications.”

Honorable Mimi Tsankov
Honorable Mimi Tsankov
U.S. Immigration Judge
Chair, Diversity, Equity, and Inclusion Committee
Co-Chair Gender Diversity, Equity, and Inclusion Subcommittee
National Association of Immigration Judges (“NAIJ”)

Letter to UN Rapporteur

May 28, 2021

VIA EMAIL to SRindependenceJL@ohchr.org

The Honorable Diego García-Sayán

Special Rapporteur on the Independence of Judges and Lawyers United Nations Office of the High Commissioner for Human Rights Palais des Nations

1211 Geneva 10

Switzerland

Dear Honorable García-Sayán,

Thank you for the opportunity to respond to the Questionnaire on Gender Equality in the Judiciary.

I am writing in my capacity as Chair of the Diversity, Equity, and Inclusion Committee of the National Association of Immigration Judges (NAIJ). I am currently seated at the New York Federal Plaza Immigration Court. Hon. Brea Burgie and I co-chair the NAIJ Gender Diversity, Equity, and Inclusion Subcommittee.

Organizational Background

By way of introduction, NAIJ is a non-partisan, non-profit, voluntary association of United States Immigration Judges. Since 1979, the NAIJ has been the recognized representative of Immigration Judges for collective bargaining purposes. Our mission is to promote the independence of Immigration Judges and enhance the professionalism, dignity, and efficiency of the Immigration Courts, which are the trial-level tribunals where removal proceedings initiated by the United States Department of Homeland Security (DHS) are conducted. We work to improve our court system through: educating the public, legal community and media; providing testimony at congressional oversight hearings; and advocating for the integrity and independence of the Immigration Courts and Immigration Court reform. We also seek to improve the Court system and protect the interests of our members, collectively and individually, through dynamic liaison activities with management, formal and informal grievances, and collective bargaining. In addition, we represent Immigration Judges in disciplinary proceedings, seeking to protect judges against unwarranted discipline and to assure that when discipline must be imposed it is imposed in a manner that is fair and serves the public interest.

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The focus of the NAIJ Diversity, Equity, and Inclusion Committee is to identify underrepresented groups of association members and remove or reduce unconscious biases with respect to such underrepresented groups. We facilitate the ongoing and continuing effort to foster a culture and atmosphere of mutual respect and understanding for our judges.

Need for Judicial Independence

Our courts are in need of reform due to unprecedented challenges facing the Immigration Courts and Immigration Judges. This is particularly important, because achieving judicial independence is essential to ensuring a diversity of opinions and reducing bias in adjudications. Immigration Courts have faced structural deficiencies, crushing caseloads and unacceptable backlogs for many years. Many of the “solutions” that have been set forth to address these challenges have in fact exacerbated the problems and undermined the integrity of the Courts, encroached on the independent decision-making authority of the Immigration Judges, and further enlarged the backlogs.

The Immigration Court suffers from an inherent structural defect as it resides in a law enforcement, Executive branch agency – the U.S. Department of Justice (DOJ). The inherent conflict present in pairing the law enforcement mission of the DOJ with the mission of a court of law that mandates independence from all other external pressures, including those of law enforcement priorities, has seriously compromised the very integrity of the Immigration Court system. Immigration Judges make life-changing decisions on whether or not non-citizens are allowed to remain in the United States. Presently, approximately 538 Immigration Judges in the United States are responsible for adjudicating almost 1,300,000 cases. The work is hard. The law is complicated; the labyrinth of rules and regulations require expertise in an arcane field of law. Many of the individuals brought into proceedings do not have attorneys to represent them despite the fact that the DHS is always represented by attorneys because they have no right to appointed counsel. In contrast to our judicial role, we are considered by the DOJ to be government attorneys, fulfilling routine adjudicatory roles in a law enforcement agency. With each new administration, we are harshly reminded of that subordinate role and subjected to the vagaries of the prevailing political winds.

The problems compromising the integrity and proper administration of a court underscore the need to remove the Immigration Court from the political sphere of a law enforcement agency and assure its judicial independence. Since the 1981 Select Commission on Immigration and Refugee Policy, the idea of creating an Article I court, similar to the U.S. Tax Court, has been advanced. Such a structure solves a myriad of problems which now plague our Court: removing a politically accountable Cabinet level policy maker from the helm; separating the decision makers from the parties who appear before them; protecting judges from the cronyism of a too close association with DHS; assuring a transparent funding stream instead of items buried in the budget of a larger agency with competing needs; and eliminating top-heavy agency bureaucracy.

In the last 35 years, a strong consensus has formed supporting this structural change. For years experts debated the wisdom of far-reaching restructuring of the Immigration Court system. Now most Immigration Judges and attorneys agree the long-term solution to the problem is to restructure the Immigration Court system. Examples of those in support include the American Bar Association, the Federal Bar Association, the National Association of Women Judges, and

2

the American Immigration Lawyers Association. These are the recognized legal experts and representatives of the public who appear before us. Their voices deserve to be heeded. To that end, the Federal Bar Association has prepared proposed legislation setting forth the blueprint for the creation of an “Article 1” or independent Immigration Court. This proposal would remove the Immigration Court from the purview of the DOJ to form an independent Court. The legislation would establish a “United States Immigration Court” with responsibility for functions of an adjudicative nature that are currently being performed by the judges and appellate Board members in the Executive Office for Immigration Review.

Questionnaire Response

As of May 19, 2021, there are 538 Immigration Judges (including supervisory Immigration Judges). Of those 313 (or 58.2%) are male and 225 (or 41.8%) are female. Of the 40 Immigration Judges who serve in supervisory/leadership roles, 17 (or 43%) are female. There are 23 Appellate Immigration Judges. In line with international trends where there is more parity for judges overall, but less for high-ranking judicial officers, seven of the Appellate Immigration Judges (or 30%) are female. Currently, EOIR has a female acting agency Director, but the agency has never had a permanent female head. Therefore, while EOIR is approaching gender equality for Immigation Judges overall, there is still a deficit in female leadership at the highest levels.

During the period 2008 – 2013, the agency identified as a clearly articulated strategic objective the hiring of candidates reflecting gender diversity. We are not aware of an updated strategy for addressing this objective. It is our view that when an agency is helmed by largely homogeneous leaders, there is a lack of varied perspectives which inhibits innovation and insights, workers’ morale suffers, the organization becomes less able to attract and retain top talent, fewer diverse career officials are promoted to management positions, and the problem becomes self-perpetuating. This condition also provides fertile ground for implicit bias to take hold and flourish, infiltrating future recruitment, as well as implicating the decisions we render in the individual cases which come before us.

The Biden administration has made diversifying the federal workforce, including at DOJ, a top priority. We are hopeful that more work will be done in the months ahead to support greater gender parity in judicial roles throughout the agency and the Immigration Court. More flexible workplace options are needed, including expanded telework and flexible working hours, which have proven to be workable and effective during the pandemic. As numerous studies have shown, women bear an overwhelming majority of caretaking responsibilities: for children, elderly parents, and family members who need additional care. Ensuring continuation of the flexible policies the Department of Justice adopted during the pandemic would ensure that more women could take roles as Immigration Judges, or stay in that role long-term, and keep a healthy work-life balance.

In regard to promoting female leadership at the highest levels of EOIR, the agency needs to examine the work culture that is rigid rather than flexible in addressing the unexpected needs of employees, and expects individuals to work long hours and be available to work evenings and weekends. This culture excludes many women who may otherwise bring valuable contributions to top-level agency positions.

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We appreciate your time, and attention to this issue. Sincerely,

Mimi Tsankov

Hon. Mimi Tsankov

Chair, Diversity, Equity, and Inclusion Committee

Co-Chair Gender Diversity, Equity, and Inclusion Subcommittee

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

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

Many thanks to my friend  Judge Mimi Tsankov (who also serves with me on the ABA’s National Conference on the Administrative Law Judiciary) for bringing this to my attention.

As Judge Tsankov points out, there has been some progress toward “gender equity” in terms of overall profile. However, in my view, this has been more than offset by 1) the “single sourcing” of judicial appointments to basically discourage and exclude progressive experts, advocates from the private sector, and those with backgrounds in advancing human rights and immigrants’ rights; and 2) constant political interference from the DOJ (under both parties) to promote their political agendas, usually anti-due-process, anti-immigrant, anti-asylum-seeker, and pro-enforcement, with definite overriding racial  and nationalist overtones.

Indeed, the sad situation of the NAIJ itself — bogusly “decertified” by “Billy the Bigot” Barr as “punishment” for exercising First Amendment rights, exposing waste and bias, and “daring to speak  truth to power” speaks for itself. To date, despite the Biden Administration’s claim to be supportive of the rights of Government employees, Garland has allowed the NAIJ (not to mention asylum seekers and other migrants) to continue to “twist in the wind.”

It’s also worth noting that the NAIJ is the only entity providing meaningful due process and anti-bias training to Immigration Judges. Indeed, it is the only entity providing any type of useful professional training and continuing judicial education at EOIR!

🇺🇸🗽🧑🏽‍⚖️Due Process Forever!

PWS

06-08-21

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  1. AS TOTALLY DYSFUNCTIONAL IMMIGRATION COURTS 👎🏽 CONTINUE THEIR DESCENT INTO THE ABYSS, 80 EXPERTS AND ORGANIZATIONS ASK GARLAND TO UNDO BARR’S ILLEGAL “BANISHMENT” OF THE NATIONAL ASSOCIATION OF IMMIGRATION JUDGES (“NAIJ”)🧑🏽‍⚖️
  2. Judge Mimi Tsankov @ ABA JOURNAL: 🆘 Immigration Courts Now A Human Rights Catastrophe Threatening The Heart ❤️ & Soul 😇 Of American Justice!
  3. 🏴‍☠️☠️⚰️🆘NO JUSTICE @ JUSTICE! — OUTRAGE OF PROGRESSIVE EXPERTS CONTINUES TO GROW AS GARLAND FAILS TO VACATE SESSIONS/BARR RACIST, MISOGYNIST, ANTI-IMMIGRANT, UNETHICAL, BIASED PRECEDENTS — “Garland’s Star Chambers” Careen Further Out Of Control As AG Dithers While Lives Of Vulnerable Refugee Women Hang in Balance & Pro Bono Advocates Are Forced To Exhaust Resources Fighting Trump DOJ’s Misdeeds That Biden Has Failed To Fix, Despite Promises — “Unforced Errors,” Lack Of Competent Progressive Leadership Continue To Plague Flawed Immigration Agenda @ Justice, Offend Dem Supporters! — Expert Professors Karen Musalo & Stephen Legomsky Call For Immediate Vacating Of Repulsive Matter of A-B- Abomination Before More Lives Of Women Of Color Are Lost!
  4. 🇺🇸⚖️🗽NY TIMES EDITORIAL MAKES THE CASE FOR ARTICLE I — “It’s hard to imagine a more glaring conflict of interest than the nation’s top law-enforcement agency running a court system in which it regularly appears as a party.” — Garland’s Abject Failure To Fix EOIR, Bring In Experts Highlighted, As Constitutional Due Process, Ethical, Human Rights, Racial Justice, Gender Equity, Diversity, & Management Farce @ EOIR Continues Under His Disgraceful Lack Of Awareness & Failure Of Courageous, Progressive Leadership!  — Progressives Can’t Remain Silent, Must “Raise Hell” 👹With Biden Administration About Garland’s Lousy Performance @ EOIR, As He Continues To Stack Immigration “Judiciary” With “Miller Lite Holdovers” 🤮 To The Exclusion of Progressive Experts Who Helped Put Biden Administration In Office!

GARLAND’S “MILLER LITE” BIA CONTINUES ASSAULT ON ASYLUM SEEKERS — MATTER OF D-G-C-, 28 I&N Dec. 297 (BIA 2021) Is Latest Anti-Asylum Missive Issued By Garland’s Captive Courts!

https://www.justice.gov/eoir/page/file/1401876/download

BIA HEADNOTE:

The mere continuation of an activity in the United States that is substantially similar to the activity from which an initial claim of past persecution is alleged and that does not significantly increase the risk of future harm is insufficient to establish “changed circumstances” to excuse an untimely asylum application within the meaning of section 208(a)(2)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a)(2)(D) (2018).

PANEL: GREER, WILSON, and GOODWIN, Appellate Immigration Judges.

OPINION: Judge Goodwin

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

I adopt the comments of my good friend and Round Table colleague, Judge Jeffrey Chase:

I really see this as a continuation of the McHenry Deportation Machine policy.  This is a very fact-sensitive issue that should be left to IJs to determine on a case-by-case basis.  Providing the hundreds of Trump IJ hires with a general rule for pretermitting asylum is going to lead to abuse.

For progressives, it’s like the election never took place and Barr is still running the DOJ! 

And, for those progressives who try hard not to pay attention to the ongoing and worsening due process disaster in Immigration Court, it’s not such a good sign either! How do you seriously expect to get a more progressive Article III Judiciary when the Biden Administration, through Garland, maintains the Immigration Courts, which they control without any Senate confirmation process, as a haven for Trump-era judicial appointees and anti-progressive, anti-due process, anti-asylum, racially-demeaning policies that were part of Stephen Miller’s White Nationalist agenda?

Stephen Miller Monster
His policies and his judges remain “alive and well” in Garland’s dysfunctional Immigration Courts, while progressive human rights experts have been consigned to the “black of the bus.”  Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

All the hard, often thankless and even dangerous, work that human rights and immigration progressives have put in to maintain some semblance of racial justice and due process in the immigration system in the face of the numerous Trump onslaughts over the past four years, and to get Biden and Harris elected, apparently has earned them neither a “place at the table” nor any respect for their views, expertise, and importance to this Administration’s success. That raises serious questions about the future of the Democratic Party and the role of progressives therein.

🇺🇸Due Process Forever!

PWS

06-07-21

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  2. 🏴‍☠️☠️⚰️🆘NO JUSTICE @ JUSTICE! — OUTRAGE OF PROGRESSIVE EXPERTS CONTINUES TO GROW AS GARLAND FAILS TO VACATE SESSIONS/BARR RACIST, MISOGYNIST, ANTI-IMMIGRANT, UNETHICAL, BIASED PRECEDENTS — “Garland’s Star Chambers” Careen Further Out Of Control As AG Dithers While Lives Of Vulnerable Refugee Women Hang in Balance & Pro Bono Advocates Are Forced To Exhaust Resources Fighting Trump DOJ’s Misdeeds That Biden Has Failed To Fix, Despite Promises — “Unforced Errors,” Lack Of Competent Progressive Leadership Continue To Plague Flawed Immigration Agenda @ Justice, Offend Dem Supporters! — Expert Professors Karen Musalo & Stephen Legomsky Call For Immediate Vacating Of Repulsive Matter of A-B- Abomination Before More Lives Of Women Of Color Are Lost!
  3. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  4. 🇺🇸⚖️🗽GARCIA HERNANDEZ, MOSKOWITZ, CHEN, & I RIP GARLAND’S CONTINUATION OF BARR’S HORRIBLE IMMIGRATION JUDGE HIRING PRACTICES  🤮👎🏻 — DOJ’s Lame, Disingenuous Defense Of Garland’s Anti-Diversity, Anti-Immigrant, Anti-Due Process, Expertise-Denying Bogus Judicial Hiring Practices @ EOIR Enrages Progressives, Scholars, Experts, Betrays Biden’s Promises, Threatens To Shatter Dem Coalition! — Report By Rebecca Beitsch @ The Hill!