"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
From Politico:
https://www.politico.com/news/2021/02/09/senate-merrick-garland-confirmation-hearing-468218
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PWS
02-10-21
Professor Lucas Guttentag has tracked “every known Trump-era immigration policy from January 2017 through the end of the administration.” There are over 1,000! This “easy to use” tool should be a great resource for policy makers, litigators, legislators, journalists, students, historians and teachers looking to grasp and dismantle Trump’s anti-American, anti-humanity immigration initiatives!
Needless to say, there is a whole section for the EOIR Clown Show/Kakistocracy 🤡🦹🏿♂️ containing 173 separate entries!
PWS
02-10-21
Dan Kowalski reports for LexisNexis Immigration Community:
CA4 on Guatemala, Nexus: Argueta Diaz de Gomez v. Wilkinson
Argueta Diaz de Gomez v. Wilkinson
“Diaz de Gomez claims that she received repeated death threats from a gang in Guatemala after she and her family witnessed a mass killing by gang members and refused to acquiesce to the gang’s extortion and other demands. … [W]e reject the Board’s “excessively narrow” view of the nexus requirement, and conclude that Diaz de Gomez established that her familial ties were one central reason for her persecution. … We also hold that the record conclusively establishes that the Guatemalan government was unable or unwilling to control Diaz de Gomez’s persecutors. We therefore grant the petition for review and remand for the Board to reconsider Diaz de Gomez’s claims in light of our holdings.”
[Hats off to Pamela P. Keenan!]
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So, let’s compare the 4th Circuit’s view with the most recent abomination and intentional misconstruction of the “unable or unwilling to control” doctrine by totally unqualified political hack Jeffrey Rosen, then impersonating the “Acting Attorney General” and issuing clearly unconstitutional “precedents” to implement the defeated regime’s racially biased, misogynistic, anti-asylum agenda.
https://immigrationcourtside.com/category/asylum/failure-of-state-protection/
Absurdly, up until the Biden Administration suspended it this week, Guatemala, of all places, was fraudulently determined by the Trump immigration kakistocracy to be a “safe third country” for asylum seekers. https://www.state.gov/suspending-and-terminating-the-asylum-cooperative-agreements-with-the-governments-el-salvador-guatemala-and-honduras/
Talk about “crimes against humanity!” ☠️🏴☠️ Certainly, every current civil servant who supported and advanced this bogus designation should be held accountable.
Kakistocracy Kills: Obviously, with better qualified judges, competent representation, and a fair system operated in accordance with due process and a proper interpretation of asylum laws, many of those now being arbitrarily, capriciously, and unlawfully turned back at our borders would be entitled to our legal protection. This is life or death, not a problem that can “wait till tomorrow” to be addressed! Every day that the patently inadequate “judges” currently on the BIA remain in their positions means more injustice, trauma, and even death for legitimate asylum seekers!
The BIA Clown Show 🤡🦹🏿♂️ has got to go!
PWS
02-10-21
https://www.washingtonpost.com/opinions/2021/02/07/stacey-abrams-democracy-test-future/
. . . .
Make no mistake: Democracy may have survived this year, but President Biden and Vice President Harris were elected despite, not thanks to, weakened electoral systems. Together with the Democratic Congress, they now have the opportunity to implement reforms that reaffirm our nation’s promises that our country represents and works for everyone. We as Democrats must act before it is too late.
Our democratic system faces extraordinary threats today because of sustained attacks from Republican leaders who throw up roadblocks to voting and, among the worst actors, stoke the flames of white supremacy and hyper-nationalism to cling to power. There can be no clearer example than the covid-19 pandemic. The deaths of more than 450,000 people in the richest country in the world are symptomatic of a democracy in crisis and a political system that rewards cronyism over competence. Despite strong public support for the Centers for Disease Control’s work, the Affordable Care Act, and other economic justice and safety-net policies that could save lives, millions nevertheless continue to contract the disease without adequate access to health care.
No thinking person can deny that the communities of color disproportionately suffering and dying from this pandemic are also the people whose votes — and ability to hold failed leaders accountable — have been continuously suppressed.
The pandemic has been a collision of tragedy and corroded institutions, and the challenge is in how we respond. We can either engage in collective amnesia about what we have just lived through, and leave an unaccountable government in place, or we can rise to meet this moment by fixing the broken social compact. Defeating Trump was not enough. Meaningful progress on health care, racial justice and the economy requires aggressive action on voting rights, partisan gerrymandering and campaign finance.
One of the first steps must be an overhaul of the Senate filibuster, which has long been wielded as a cudgel against the needs of millions who struggle. Today, the parliamentary trick creates a more sinister threat to our nation: the ability of a minority of senators, who represent 41.5 million fewer people than the Senate majority, to block progress favored by most Americans.
Democrats in Congress must fully embrace their mandate to fast-track democracy reforms that give voters a fair fight, rather than allowing undemocratic systems to be used as tools and excuses to perpetuate that same system. This is a moment of both historic imperative and, with unified Democratic control of the White House and Congress, historic opportunity.
The agenda to restore democracy also includes passing the For the People Act to protect and expand voting rights, fight gerrymandering and reduce the influence of money in politics; the John Lewis Voting Rights Advancement Act to restore the full protections of the 1965 Voting Rights Act; and the Protecting Our Democracy Act to constrain the corruption of future presidents who deem themselves above the law. These landmark bills have broad-based support, and would have passed long ago were it not for obstructionist leaders who fear losing their own influence if the American people have more power of their own.
. . . .
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The Trump GOP lies, insurrections, and blatantly false claims attempting to undermine the very clear Biden-Harris victory have been a smokescreen for the real voting problems — the unrelenting efforts of the GOP — “The Party of the New Jim Crow” — to suppress the votes of Americans of color. Read the rest of Abrams’s op-ed at the link.
And, as Abrams cogently points out, one reason for the denial, downplaying, and maliciously incompetent mishandling of the pandemic by the Trump regime was that so many of the victims were among communities of color — those they never cared about and whose humanity they continuously tried to deny and disparage. Death is a great way of disenfranchising minority voters. Not to mention a little fear and intimidation thrown in for a good measure.
There is a very clear connection between the dehumanization of asylum seekers and other migrants and the disenfranchisement of voters of color. It’s all part of “Dred Scottification” — a disgraceful practice sanctioned by none other than the GOP’s Supremes’ majority!
Our future as a nation depends on Judge Garland, Vanita Gupta, and their incoming team at DOJ “connecting the dots” — beginning with dismantling and replacing the White Nationalist nativist kakistocracy at EOIR. Immigrants’ rights are civil rights are human rights! The GOP actually “gets” that (in a purely negative way)! Will the Dems finally show that they do too!
PWS
02-09-21
https://slate.com/news-and-politics/2021/02/covid-elena-kagan-supreme-court-kill.html
From Justice Elena Kagan’s dissent in South Bay United Pentecostal Church v. Newsom:
I fervently hope that the Court’s intervention will not worsen the Nation’s COVID crisis. But if this decision causes suffering, we will not pay. Our marble halls are now closed to the public, and our life tenure forever insulates us from responsibility for our errors. That would seem good reason to avoid disrupting a State’s pandemic response. But the Court forges ahead regardless, insisting that science-based policy yield to judicial edict.
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Ruth Marcus writes about U.S. District Judge Ketanji Brown Jackson in WashPost:
. . . .
Still, Jackson, named to the district court by Obama in 2013, brings to the bench an intriguing — and for the Democratic Party’s restless progressives, attractive — piece of career diversity as well: experience as a public defender.
No current Supreme Court justice has the perspective of having been a public defender, representing indigent defendants, although several — Justices Samuel A. Alito Jr., Sonia Sotomayor and Brett M. Kavanaugh, in his role as associate independent counsel — have prosecutorial experience.
For Jackson, the daughter of two public school teachers (her father later became a lawyer), the criminal justice system has an unusually personal wrinkle as well: Her uncle was convicted of a low-level drug crime when she was a senior in high school, and was sentenced to life in prison under a draconian three-strikes law. (He had been convicted previously of two minor offenses.) He ended up receiving clemency from Obama after serving three decades.
She also brings the real-world perspective of a working mother. In a remarkably candid speech at the University of Georgia in 2017, Jackson described the challenges she encountered juggling private practice at a major law firm, marriage to a surgeon and motherhood to two young daughters.
“I think it is not possible to overstate the degree of difficulty that many young women, and especially new mothers, face in the law firm context,” she observed. “The hours are long; the workflow is unpredictable; you have little control over your time and schedule; and you start to feel as though the demands of the billable hour are constantly in conflict with the needs of your children and your family responsibilities.” How refreshing to hear from a self-confessed non-Superwoman.
. . . .
But a more obscure ruling, involving William Pierce, a deaf D.C. man who was imprisoned for 51 days after a domestic dispute, may offer more insight into Jackson’s belief in law as a mechanism for achieving justice. Corrections officials did nothing to accommodate Pierce’s disability, as the law requires, ignoring his repeated requests for a sign-language interpreter.
Jackson assailed prison officials’ “willful blindness regarding Pierce’s need for accommodation.” She said it was “astonishing” for D.C. to claim that it had done enough, when “prison employees took no steps whatsoever” to figure out how to help him. And she took the unusual step of ruling for Pierce even before trial.
You can learn a lot about a judge by the way she handles the biggest-profile cases, involving those at the highest levels of government. But perhaps the more revealing test is how she applies the law to help those with the least power and the greatest need for justice.
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Read the full articles at the above links. “Willful blindness” and intentional abuses intended to “dehumanize” are daily occurrences in our warped and broken “immigration justice system” as almost any immigration/human rights/civil rights lawyer could tell you. It just operates below the radar screen, on the border, or in foreign countries (to which vulnerable humans seeking legal refuge are arbitrarily and capriciously “orbited”) where the very human trauma, torture, sickness, desolation, despair, and death are “out of sight, out of mind” to most Federal Judges and Justices.
Yes, eventually journalists and historians will document for posterity the disastrous human rights abuses in which the Federal Judiciary is complicit. But, by then it will be far too late for those who have suffered and died while those in black robes shirked their legal and moral duties!
Judge Jackson understands exactly what’s missing from today’s all too often elitist, non-diverse, non-representative Federal Judiciary (including much of the Immigration Judiciary) who are tone-deaf to, and insulated from, responsibility for the human trauma and injustice caused by their bad decisions.
Additionally, I can assure Justice Kagan that vulnerable refugees and asylum seekers (including children) have died and unnecessarily suffered lifetime trauma from the Supremes’ willful failure to enforce the Constitution against overt Executive tyranny in cases involving the “Remain in Mexico” (“Let ‘Em Die In Mexico”) Program, return of asylum seekers to torture and death with no due process whatsoever, and the “Muslim Ban.”
Indeed, the Supremes’ majority’s abdication of responsibility in the latter case led directly to Trump’s eventual insurrection against the Capitol. He was assured early on by Roberts and others that he was above the Constitution, uncountable, and exempt from normal conventions governing human decency and treatment of the most vulnerable among us in the 21st Century. I/O/W, “Dred Scottification” of the “other” — a 21st Century “Jim Crow Regime” — was A-OK with the GOP Supremes’ majority “forever insulat[ed] . . . from responsibility for [their] errors.”
Today in particular, our nation still struggles with the sense of impunity and unaccountability improperly conferred by a dilatory Supremes’ majority on their party and its leader. Insurrection, violence, attempted overthrow of democracy — it’s all “no problem” to a tone-deaf Supremes’ majority unconcerned with the fate of our democracy.
After all, the Trump’s magamoron rioters weren’t storming their marble halls — just those of the supposedly co-equal branch across the street. But, what might have happened if they had actually stood up against Trump? He might have identified them as “the enemy” and sent his rioters their way! Worth thinking about, Oh Cloistered Ones far removed from the pain and suffering you help cause and countenance!
A better judiciary 🧑🏽⚖️👨🏻⚖️👩⚖️ for a better America! Bring on the “practical scholars” and those with actual experience representing the mostly vulnerable among us (asylum seekers are a prime example) in court.
PWS
02-09-21
https://apple.news/ATjEjX2Z_QnKYbl01eYMHNA
Ed Pilkington reports for The Guardian:
US Immigration and Customs Enforcement (Ice) deported at least 72 people to Haiti on Monday, including a two-month-old baby and 21 other children, in an apparent flagrant breach of the Biden administration’s orders only to remove suspected terrorists and potentially dangerous convicted felons.
The children were deported to Haiti on Monday on two flights chartered by Ice from Laredo, Texas to the Haitian capital Port-au-Prince. The removals sent vulnerable infants back to Haiti as it is being roiled by major political unrest.
New claims of migrant abuse as Ice defies Biden to continue deportations
Ice is facing a rising chorus of denunciation as a “rogue agency” for its apparent refusal to abide by the new guidelines laid down by Biden and his homeland security secretary, Alejandro Mayorkas. The incoming administration ordered a 100-day moratorium on all deportations, which was temporarily blocked by a judge in Texas.
However, the judge’s restraining order left in place the new guidelines stipulating that only the most serious immigration cases should be subject to deportation.
Last Friday, the administration appeared to gain the upper hand in its attempt to rein in Ice when deportation flights to Haiti were suspended. But on Monday the immigration agency reasserted itself again with the renewed flights to Port-au-Prince, children and infants on board.
Human rights activists are dismayed by the deportations, which bear a close resemblance to the hardline course set by Donald Trump. “It is unconscionable for us as a country to continue with the same draconian, cruel policies that were pursued by the Trump administration,” said Guerline Jozef, executive director of the immigration support group the Haitian Bridge Alliance.
She added: “I don’t know what’s going on between Ice and the Biden administration, but we know what needs to be done: the deportations must stop.”
. . . .
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Read the full article at the the link.
Unfortunately, as I have pointed out, ICE is totally of control. It’s going to take more than policy memos to change that!
PWS
02-08-21
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Eduardo BeckettImmigration Attorney featured in “Immigration Nation” Docuseries on Netflix
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Shaw DrakeStaff Attorney and Policy Counsel, Border and Immigrants’ Rights, ACLU of Texas |
Celina MorenoPresident and CEO, Intercultural Development Research Association (IDRA)
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Eitan PeledUNICEF USA Child Migration & Protection Program Manager |
Cristina RodriguezLeighton Homer Surbeck Professor of Law, Yale Law School
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Teresa RomeroPresident, United Farm Workers of America |
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Erica SchommerClinical Professor of Law, St. Mary’s University School of Law |
Karla VargasSenior Attorney, Texas Civil Rights Project
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Dan Kowalski reports from LexisNexis Immigration Community:
CA8 on “Serious Reasons for Believing” – Barahona v. Wilkinson
“Willian Rubio Barahona petitions for review of a decision by the Board of Immigration Appeals (“BIA”) upholding the denial of his request for asylum and withholding of removal, based on a finding that serious reasons exist to believe Barahona committed a serious nonpolitical crime outside the United States. We hold that the “serious reasons for believing” standard requires a finding of probable cause before an alien can be subject to the mandatory bar set forth in 8 U.S.C. § 1158(b)(2)(A)(iii), 8 U.S.C. § 1231(b)(3)(B)(iii), and 8 C.F.R. § 1208.16(d)(2). Because no such finding was made below, we reverse and remand for further proceedings.”
[Hats off to Allison Heimes]
Major FOIA Victory at CA2: NYLAG v. BIA
“Plaintiff-Appellant New York Legal Assistance Group (“NYLAG”) seeks access to non-precedential “unpublished opinions” issued by Defendant-Appellee the Board of Immigration Appeals (“BIA”) in immigration cases. NYLAG wants to consult the opinions, which are not routinely made available to the public, to aid in its representation of low-income clients in removal and asylum proceedings. NYLAG asserts that the BIA’s failure to make the opinions publicly available violates the agency’s affirmative obligation under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(2), to “make available for public inspection in an electronic format final opinions . . . [and] orders, made in the adjudication of cases.” In this action under FOIA’s remedial provision, 5 U.S.C. § 552(a)(4)(B), which authorizes district courts “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant,” NYLAG seeks an order requiring the BIA to make available to the public all unpublished opinions issued since November 1, 1996, as well as future unpublished opinions. The United States District Court for the Southern District of New York (Paul A. Crotty, J.) dismissed the case, concluding that FOIA’s remedial provision does not authorize district courts to order agencies to make records publicly available. We conclude that FOIA’s remedial provision authorizes the relief NYLAG seeks. FOIA’s text, read in light of its history and purpose, empowers district courts to order agencies to comply with their affirmative disclosure obligations under 5 U.S.C. § 552(a)(2), including the obligation to make certain documents publicly available. We therefore VACATE the judgment of the district court and REMAND for further proceedings consistent with this opinion.”
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Why would the BIA even want to withhold unpublished decisions or bar someone from asylum based on less than probable cause? Why would anyone want to further impede the already difficult task of representing the most vulnerable in Immigration Court? What if the resources wasted on litigation to diminish due process were “repurposed” to working with NYLAG and other pro bono all-stars to achieve universal representation? Much of what EOIR does these days makes little or no sense unless looked at from a White Nationalist nativist perspective.
When will it end? The Biden Administration proclaimed a “new day” on immigration and human rights issues. But, you sure can’t tell from the junk continuing to come out of the BIA and being defended in court by OIL. No matter how welcome the change in tone from the President is, it requires concerted action and getting better judges, administrators, and litigators in place to actually change policies, produce fairer results, and save lives!
Congrats to Allison Heimes and the good folks at Fair Trials Americas.
Also, congrats to my former Georgetown Law superstar, Arlington Intern, & NY JLC, Elizabeth Gibson (“The Gibson Report”) and her colleagues at the NY Legal Assistance Group!
PWS
02-07-21
. . . .
A recent report from the Urban Institute found that more than 1 in 6 adults in immigrant families reported avoiding a government benefit program or other help with basic needs last year because of immigration concerns. This chilling effect was so persistent that households where every foreign-born member had already been naturalized said they’re avoiding benefits. Just to be safe.
Despite an ongoing national crisis with record levels of illness, financial stress and hunger.
“More than once, pediatricians have told us they’ve had children come in so sick and so malnourished that [Child Protective Services] had been called on these families,” said Cheasty Anderson, director of immigration policy and advocacy at Children’s Defense Fund-Texas. Struggling parents believe they’re “on the horns of this dilemma,” she said. They think they must choose between accepting food and medical assistance for their children — or face possible deportation, and thus separation from their children.
That’s what the Trump administration has conditioned them to believe.
Given trends so far — particularly those declines in childhood immunizations — advocates worry that the “public charge” rule might discourage immigrants from getting themselves or their children vaccinated against covid-19. Which would affect the well-being of not just these immigrant families, of course, but their surrounding communities as well. Some advocates have expressed frustration that the Biden administration hasn’t immediately rescinded the rule. Formal repeal is likely a ways off, assuming the administration goes through the usual (cumbersome, protracted) rulemaking process.
But even if the order that Biden signed this week was really more about marketing than action, that pro-immigrant P.R. is valuable. After all, “most of the original damage was done by messaging,” as the Center for Law and Social Policy’s executive director, Olivia Golden, told me. It can, and should, be undone by the same means.
If we want immigrant families to stay healthy — and keep their nonimmigrant neighbors healthy, too — the government needs to put better policies on the books. But it needs to rebuild immigrants’ trust in those policies, too. That part may ultimately be harder.
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Read Catherine’s full op-ed at the link.
Using government resources to undermine public confidence in government. Could it get any stupider and more evil?
But, let’s not forget that the bureaucratic kakistocracy at DHS, DOJ, and other agencies happily carried out and promoted the Trump/Miller bogus, racist, anti-immigrant narratives. That’s going to make it challenging for Secretary Mayorkas and incoming AG Garland to change the policies, change the messaging (if you want to see how brutally corrupt and manipulative the DHS “PR Kakistocracy” was, check out the highly acclaimed documentary “Immigration Nation”), and change the attitudes and the reality at the “retail level” — the DHS field offices and the Immigration Courts.
But it’s a challenge they must meet and conquer — for the sake of our nation.
Also, it’s worth remembering that the Supremes’ GOP majority dishonestly bent the rules to interfere with lower Federal Court rulings that had properly blocked this invidious, White nationalist, nativist attack on American communities — targeting communities of color and low-income communities. Just another example of how the Supremes’ elitist right wing majority operates outside reality (the factual record of comments from experts opposing this bogus “rule” was simply overwhelming and basically ignored by the Trump regime and the Supremes’ majority) and without regard or understanding of the human and public policy consequences of their skewed “Dred Scottifying” rulings. They are also above accountability, which makes their abuse of the most vulnerable among us even more disgusting and cowardly.
I think it’s highly unlikely that we’d see the same tone deaf misapplication of the law if it were the Justices’ kids, grandkids, neighbors, and friends unnecessarily suffering from illness and malnutrition aggravated by racist government policies. No more Justices and Federal Judges who have spent their adult lives studiously ignoring the rights and problems of those struggling to get by in a society where the rules are designed to protect the White ruling class rather than all persons living here.
It’s very clear that for GOP Justices, most of the time, only some lives and rights matter and are worth protecting. The rest of humanity can “go pound sand” as far as they are concerned.
For Pete’s sake, guns and corporate entities get more protection from the Roberts’ Court than do asylum seekers whose lives are at stake! As Justice Sotomayor says: “This is not justice.” The question remains of why we have Supremes who all too often promote injustice and fail to resist evil?
PWS
02-06-21
https://slate.com/news-and-politics/2021/02/russ-feingold-american-constitution-society-judges.html
Dahlia Lithwick interviews Russ Feingold @ Slate:
While Donald Trump failed to pass much signature legislation and largely failed to remake the federal government in ways that cannot be immediately corrected, his landmark achievement will be his lasting contributions to the federal judiciary. Breaking the records of his predecessors, Trump seated 234 judges on the federal courts in four years, including three at the Supreme Court. That means that whatever Biden and the Democrats try to do in the coming months and years, most of the efforts will ultimately be in the hands of life-tenured judges, 30 percent of whom were named by Trump. Those judges are overwhelmingly very young, very white, and very male. A preview of what’s likely to come happened just last week, when a federal judge tapped by Trump blocked Biden’s 100-day deportation “pause” with a nationwide injunction.
The question is what Biden and the Democrats can and will do in response to Trump’s enduring legacy. The new president is already making moves that indicate he understands that some of the norms and conventions that guided Barack Obama in building the judiciary are dead and gone. This week the Washington Post reported that the Biden administration is doing away with the formal American Bar Association vetting process that Democratic presidents used to abide by, because it was jettisoned by Republican presidents and because it simply lengthened the process. Biden is also hustling to put together the bipartisan commission he pledged would examine structural reforms for the Supreme Court and the federal judiciary. Former Wisconsin Sen. Russ Feingold is a leading Democrat attempting to strengthen the left’s ability to appoint judges, to match the pace the right has set. He is the president of the American Constitution Society, the left’s answer to the Federalist Society (we spoke last year when he assumed the post). Given the potential of the current moment for big changes in the judiciary, I wanted to ask him what happens next. Our conversation has been lightly edited for clarity.
. . . .
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Read the rest of the interview at the link.
The disgraceful mess that Trump and McConnell made out of our Federal Judiciary has been a constant theme here @ Courtside over the past four years!
What’s missing from this interview are these fundamental realizations that those of us in the world of immigration and human rights know well but seem to escape most of the others looking to fundamentally change and improve the Federal Judiciary:
PWS
02-05-21
https://apple.news/AivKVpAYJRlyoSowbSQHT6g
In his first days in office, President Joe Biden has made immigration a key priority for his administration, seeking to distinguish himself from another “deporter in chief,” as activists once called President Barack Obama.
He has issued a series of executive actions aimed at dismantling the Trump administration’s nativist legacy, unveiled an ambitious legislative proposal for immigration reform, begun to roll back a program that has left asylum seekers trapped in Mexico, and sought to enact a 100-day pause on deportations.
On Tuesday, he issued another three executive orders that create a task force to reunite families separated under President Donald Trump and implement measures to remove obstacles to noncitizens seeking to naturalize, enter the US on visas, and obtain asylum or other humanitarian protections. White House press secretary Jen Psaki said to expect additional announcements, including an expansion of the US refugee program, going forward.
For immigrant communities, those changes can’t come soon enough. Democrats have long promised to create a more just immigration system, and Biden’s initial actions have built confidence among some immigrant advocates that he intends to finally deliver, though they wish he would act even more quickly on behalf of people whose lives are hanging in the balance.
The task before Biden is immense. Immigrant communities expect him not just to revert to the Obama-era approach to immigration enforcement, which involved record deportations and an expansion of family detention, but to improve on it. And while Obama failed to pass comprehensive immigration reform or even a narrow bill offering legal protections to “DREAMers” who came to the US without authorization as children, activists see immigration reform as an imperative and are counting on Biden to pass it by whatever means possible.
Though Biden has largely stood by his record as vice president, he has acknowledged that the Obama administration stumbled on immigration, particularly with regard to mass deportations.
“We took far too long to get it right,” Biden told Univision last February. “I think it was a big mistake.”
Since Obama was in office, the public has become more favorable to immigration, in part as a reaction to the shock-and-awe tactics behind the Trump administration’s high-profile travel ban and family separation policies. The Democratic Party is also more unified on immigration, a topic they once regarded as politically radioactive.
. . . .
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Get the rest of Nicole’s outstanding and highly readable analysis at the link!
As she points out, a major challenge for the Biden-Harris team, Secretary Mayorkas, and incoming AG Garland will be dealing with a totally dysfunctional immigration bureaucracy at DHS and DOJ that often eagerly engaged in and helped promote “crimes against humanity” and unconstitutional dehumanization of migrants under the bogus claim to be “upholding the rule of law.” What absolute poppycock!
PWS
02-05-21
https://apple.news/AnyQmidDTQ_CyhgiDxmrv9g
Biden will welcome 125,000 refugees to the U.S. in first fiscal year
By Associated Press and Nikki Schwab, Senior U.S. Political Reporter For Dailymail.com at 10:10 PM UTC on 04 February 2021
President Joe Biden announced Thursday his intention to massively increase the cap on annual refugee admissions to the United States
At the State Department, he said he would sign an executive order with the aim of 125,000 refugees coming to the U.S. in his first fiscal year
Refugee admissions fell to a historical low under President Donald Trump, with the current cap sitting at 15,000
President Joe Biden on Thursday announced his intention to massively increase the cap on annual refugee admissions to the United States, which fell to a historical low under Donald Trump.
In line with a campaign promise, Biden said he would set at 125,000 the cap on admissions as part of the country’s refugee resettlement program, against the current 15,000.
‘We offered safe havens for those fleeing violence or persecution’ in previous years, when America’s ‘moral leadership on refugee issues’ encouraged other nations to open their doors as well, Biden said.
‘So today I’m approving an executive order to begin the hard work of restoring our refugee admissions program to help meet the unprecedented global need,’ he added.
‘It’s going to take time to rebuild what has been so badly damaged, but that’s precisely what we’re going to do.’
. . . .
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Read the complete article at the link.
One of the most damaging effects of the Trump regime’s cowardly and counterproductive “war on refugees” was the withering and disappearance of the premier “resettlement infrastructure” run by NGOs. It was one of many things that made our refugee program highly efficient.
The cruelty and stupidity of a White Nationalist regime that intentionally “broke” many of the functioning parts of our society while pouring money down the drain on a far right racist agenda simply can’t be overestimated.
Thanks to President Biden for restoring humanity, common sense, and the national interest to our democracy!
Refugees have been a key part our national success. Moreover, as President Biden said in his inaugural address, “leading by example” is essential to foreign policy. If we want other developed nations to participate in resettling refugees, our own robust programs and willingness to help others in need will go a long way toward encouraging and increasing constructive responses to mass migration situations.
PWS
02-04-21
https://thehill.com/opinion/immigration/536794-unclogging-the-nations-immigration-court-system
From Immigration Impact:
. . . .
That is why the Justice Department must also identify categories of non priority immigration court cases that can be dismissed now. One obvious category is the estimated 460,000 cases — an astounding 37 percent of the current backlog — that involve individuals who could qualify, under current law, for legal status. It makes little sense to waste limited enforcement resources by having immigration prosecutors and judges spend years trying these cases in court, when trained adjudicators at another agency, U.S. Citizenship and Immigration Services, can handle them more efficiently through paper applications.
Another category of cases that should be removed from judges’ dockets are the 200,000 cases that have been pending for more than five years. By definition, these old cases are ones that prosecutors and judges have deemed low priorities.
Biden has noted that the Obama administration “took too long” to begin fixing the nation’s immigration system. His initial steps are a promising indication that he intends to move swiftly to build the fair, humane and functional immigration enforcement system he has promised. To guarantee results, the new president must use his first 100 days to identify and remove the non priority cases bottlenecked in America’s immigration courts.
Greg Chen is senior director of government relations for the American Immigration Lawyers Association. Peter L. Markowitz is a professor of law at the Benjamin N. Cardozo School of Law where he directs the Kathryn O. Greenberg Immigration Justice Clinic.
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Read the full article at the link.
Here are some more low-budget, immediate action “No-Brainers:”
Realistically, 500 Immigration Judges can complete approximately 250,000 to 300,000 cases annually. A combination of 1) the “Chen-Markowitz plan;” 2) the “Schmidt Addendum;” and 3) the more sensible and realistic enforcement priorities initiative already underway at DHS will have EOIR “operating in real time” (and, significantly, in the national interest) in no time at all — without legislation or busting anyone’s budget!
Of course, these initial steps are just the “tip of the iceberg” of the reforms necessary at EOIR, leading to the fulfillment of the vision of “through teamwork and innovation becoming the world’s best tribunals guaranteeing fairness and due process for all.” Congress must at the earliest opportunity create an independent Article I Immigration Court to institutionalize and preserve these reforms and “best practices.”
But, in the meantime, lives and our national interests are imperiled by the current deadly (and wasteful) dysfunction @ EOIR. There is every reason to fix the system now! And, it’s not “rocket science” — just expertise and common sense.
Which leads me to another obvious point — Members of the NDPA like Chen, Markowitz, Dean Kevin Johnson, Michelle Mendez, Associate Dean Professor Jaya-Ramji Nogales, Professor Phil Schrag, Professor Michele Pistone, up and coming all-star Lauren Wyatt, Judge Dana Marks and other leaders of the NAIJ, experienced due process oriented Immigration Judges like my former BIA colleague Judge Noel Brennan, and many others like them should be in charge of this effort to reform EOIR and create a model court system.
The Biden Administration must apply the same principles to EOIR Reform that they have elsewhere: Get rid of the “middlemen” and “bring in the experts” to run the show! Articles, papers, speeches, TV interviews, encounter groups, studies, and blogs are great — but putting the right folks in the right places to take action to solve problems is much better and more efficient! Put the folks with the answers in charge!
That would not only create a “laboratory of best judicial practices” that could be applied to the floundering Article III Judiciary, but also would provide the Biden Administration with source of well-trained progressive candidates for the Article III Judiciary. Leadership, including “leading by example” is critical in any well-functioning judicial system; it has been sorely lacking at EOIR (and in the Article III Judiciary) over the past four years. As the Biden Administration has already recognized, the only real leadership among the Federal Judiciary has come from “resistors” like Judge Ashley Tabaddor, now at USCIS.
Incidentally, in her current position at USCIS, Judge Tabaddor is perfectly placed to work with EOIR in carrying out the “Chen-Markowitz plan” to get cases of those potentially eligible for residence out of the EOIR backlog and into USCIS where they can be handled more efficiently.
Suggestion for EOIR Acting Director Jean King: Perhaps you weren’t aware that EOIR just posted the following recruitment notice for Attorney Advisor (Counsel to the Deputy Director) (not a joke, sadly): https://lnks.gd/l/eyJhbGciOiJIUzI1NiJ9.eyJidWxsZXRpbl9saW5rX2lkIjoxMDAsInVyaSI6ImJwMjpjbGljayIsImJ1bGxldGluX2lkIjoiMjAyMTAyMDMuMzQ1MzcxMTEiLCJ1cmwiOiJodHRwczovL3d3dy5qdXN0aWNlLmdvdi9sZWdhbC1jYXJlZXJzL2pvYi9hdHRvcm5leS1hZHZpc29yLWNvdW5zZWwtZGVwdXR5LWRpcmVjdG9yIn0.HqH7tPMLAQqeCW9Xc0ooJNBRk_97S44aMG-xy02Pesc/s/842922301/br/97008185548-l
To state the obvious, EOIR needs more “headquarters personnel” like a hole in the head! What you need is a streamlined staff of better-qualified individuals across the board: real judges and professional judicial administrators who will restore due process and get this system functioning again — sooner rather than later.
Additionally, the current Deputy Director Carl C. Risch is a notorious “Trump political burrower” who should be gone by the end of the month. 🧹🪠 https://immigrationcourtside.com/category/department-of-justice/executive-office-for-immigration-review-eoir/office-of-chief-administrative-hearing-officer-ocaho/judge-james-mchenry/carl-c-risch/
Consequently, there is no apparent need for additional “counsel” in his office right now. To say the least, this ill-timed “example of the “Continuing Clown Show at EOIR”🤡 has already become a “internet mini-sensation!” At the very least, you should wait until Risch’s replacement arrives and let her or him make the selection.
Undoubtedly, a reformed IJ tenure program (considering not only discipline but also retention of current judges and improved professional training) that is transparent, fair, and effective is a badly needed and long overdue improvement. But, hiring another bureaucrat (on short notice, which is likely to produce a less than “best qualified” candidate) isn’t the answer.
That being said, I’ve already heard from a number of private practitioners who would love to be in charge of “professional responsibility for Immigration Judges.” They have lots of great ideas for improvements and a number of places where they would start the process immediately, if not sooner!
PWS
02-04-21
Meet the courageous, dynamic , outspoken, new human-rights-oriented leaders looking to fulfill the Constitution and make “equal justice for all” a reality @ the DOJ and for America. Sam Levine reports for The Guardian.
On her last day at the justice department in 2017, Vanita Gupta considered taking a picture as she left the agency’s headquarters on Pennsylvania Avenue. But she decided against it. Gupta, the outgoing head of the department’s civil rights division, once described as the “crown jewel” of the agency, didn’t really want to remember the moment, she told a reporter who was shadowing her for the day.
Jeff Sessions, then the incoming attorney general, was poised to unwind much of the painstaking progress Gupta, 46, and her colleagues had spent the last four years building. It was no secret that Sessions opposed the kind of court agreements the justice department used to fix unconstitutional policing policies across the country (“dangerous” and an “exercise of raw power” in Sessions’ eyes). Nor were there any illusions that Sessions would try very hard to enforce the Voting Rights Act, already on its last legs after the supreme court gutted a key provision in 2013 (Sessions described the landmark civil rights law as “intrusive”).
Many of those concerns came to pass. Trump’s justice department not only did little to enforce some of the country’s most powerful civil rights protections for minority groups, but in several cases it opposed them. It filed almost no voting rights cases and defended restrictive voting laws, tried to undermine the census, challenged affirmative action policies, sought to roll back protections for LGBTQ+ Americans, and limited the use of consent decrees to curb illegal policing practices. Gupta took a job as the head of the Leadership Conference on Civil and Human Rights, a coalition of civil rights groups across the country, where she became one of the leading figures pushing back on the Trump administration.
Joining Gupta in that effort was Kristen Clarke, a 47-year-old former justice department lawyer who leads the Lawyers’ Committee for Civil Rights Under Law, founded in 1963 to help attorneys in private practice enforce civil rights. As her group filed voting rights and anti-discrimination lawsuits across the country over the last few years, Clarke spent hours nearly every election day briefing journalists on reports of incoming voting problems. Reports of long lines, voting machine malfunctions, translator issues – no problem was too small. The monitoring sent a message that civil rights groups would move swiftly against any whiff of voter suppression.
Now, after years of leading the fight for civil rights from outside the justice department, both women are poised to return to its top levels, where they can deploy the unmatchable resources of the federal government. Last month, Joe Biden tapped Gupta to serve as his associate attorney general, the No 3 official at the department, and Clarke to lead the civil rights division. If confirmed by the Senate, Gupta would be the first woman of color to be the associate attorney general; Clarke would be the first Black woman in her role.
“They are both independently legit civil rights champions with a long deep history,” said Justin Levitt, who worked with Gupta at the justice department and knows both women well. “They’re going to make a really spectacular, really powerful team.”
Picking two career civil rights lawyers for two of the top positions at the justice department sends an unmistakable signal that civil rights enforcement will be a top priority for the agency over the next four years. Civil rights leaders said they could not remember a prior administration in which two of the department’s highest positions were filled by civil rights attorneys, especially two such as Clarke and Gupta.
“It’s going to be really important and energizing and exciting to be able to be in conversation and discussion with people who understand the department’s role in civil rights enforcement,” said Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund (LDF), who has worked closely with both women. “But it’s also going to be exciting, and as a matter of resources, to have the department actually do civil rights enforcement.”
. . . .
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Read the rest of these inspiring American profiles 🇺🇸🌟at the link. Don’t you think we need the “Vanita & Kristen” of immigration and human rights to lead the restoration effort at EOIR and the BIA?
Here are the “keys to success:”
And, speaking of “Jewel in the Crown.”👑 That’s exactly how many of us in the “Round Table of Former Immigration Judges” 🛡⚔️ once viewed EOIR. The “EOIR Vision” was: “Through teamwork and innovation be the worlds’s best tribunals, guaranteeing fairness and due process for all.”
So, Vanita, and I hope Kristen also, can imagine the anger and determination to fight with which our Round Table viewed the dismemberment of due process and weaponization of the Immigration Courts under Sessions, Whitaker, and Barr. From aspiring to be the “world’s best tribunals” to “Star Chambers” and a grotesque, dysfunctional national disgrace!
On the plus side: Both Gupta and Clarke are the daughters of immigrants. Both have written and advocated for immigrants’ rights as part of their civil rights leadership.
Caution. Obama Attorneys General Eric Holder and Loretta Lynch were “facially aggressive” on protecting voting rights and police reforms. Yet, at the same time they: helped DHS set deportation records; allowed EOIR to spiral toward dysfunction (to a large extent through failure to procure and properly manage resources and an indolent judicial hiring program that was both “closed and non-diverse in nature” and glacial in operation (2 years to fill an average judicial vacancy!)); supported “baby jails,” the “family gulag,” and toddlers representing themselves on asylum cases in Immigration Court; looked the other way as private prisons treated asylum seekers and migrants worse than convicted criminals; and “went along to get along” with the Administration’s misuse of the Immigration Courts as (a highly ineffective) deterrent to applications for asylum.
Sessions, Whitaker, and Barr might have been the “Kings of Aimless Docket Reshuffling” at EOIR that helped produce an astounding 1.3 million case plus “backlog.” But, it started in earnest under the Obama Administration.
That’s what I mean by the “two headed policy:” arguing for voting rights for minorities in one courtroom while simultaneously ignoring the human and civil rights of migrants in the next courtroom. Arguing for the right to vote in one case, while arguing (apparently with a straight face) that toddlers who can’t speak English have no right to legal representation in the next case.
Not only that, but with the Biden Administration apparently looking to rapidly fill upcoming Article III vacancies, the Obama DOJ’s mishandling of the Immigration Courts has deprived President Biden of the chance to draw from a diverse group of younger, progressive Immigration Judges whose practical scholarship, commitment to human rights and due process, courage, and proven ability to function in a “high stress” judicial setting would make them strong candidates for the now-reeling Article III Judiciary.
That’s certainly not to say that there aren’t some potential progressive candidates for the Article III Judiciary among today’s present, and particularly recently “retired,” (some essentially “forced out” at relatively young ages as a “matter of conscience”) Immigration Judges. There are! But, only a fraction of the number there would have been if the Obama Administration had taken the Immigration Courts with proper seriousness.
And, that’s leaving aside the lives that could have been saved and better jurisprudence that could have been “institutionalized” with better, merit-based, judicial selections at EOIR during the Obama Administration!
I sincerely hope that Vanita Gupta and Kristen Clarke can help Judge Garland get the job done at Justice. The “human rights/immigration world” will be cheering for you. Getting some of the folks from the New Due Process Army (“NDPA”) into key positions at EOIR and the rest of the DOJ will be an “early signal” of whether or not “Team Garland gets it.”
Removing McHenry at EOIR was a good start! But, it’s only a small step in what has to be done to make racial justice and immigrant justice a reality at the DOJ. The “brooms and plungers” 🧹🚽 need to come out, and the sweeping and plunging has to be quick and widespread.
On the other hand, there is “no patience for another Obama Administration” out here in the real world. Every day, EOIR and DOJ are killing folks, ruining lives, and abusing the brave and dedicated attorneys of the NDPA! If the rhetoric doesn’t produce short term results and drastic improvements, you can expect the same type of aggressive litigation from the NDPA that stopped the defeated regime from completely destroying the U.S. justice system.
PWS
01-03-21
James Stout reports for Slate:
On Jan. 21, minibuses of contractors in hi-viz vests were still bumping along the dirt road they had built for themselves in the high desert village of Campo, California, an hour east of San Diego. Less than 24 hours before, the newly inaugurated President Joe Biden had signed an executive order declaring that “the national emergency declared by Proclamation 9844 … is terminated and that the authorities invoked in that proclamation will no longer be used to construct a wall at the southern border.”
The Trump administration’s border wall project arrived in Campo in early 2020. The area is rugged and rolling, studded with oak trees and sagebrush. It couldn’t be more different from the bustling beaches and boardwalks most people associate with San Diego.
Into this landscape came contractors who were working with dynamite and heavy machinery 24 hours a day, with funding from both the Department of Homeland Security and the Department of Defense. The latter money came through the executive order rescinded by Biden, in which Trump had claimed an emergency that even he admitted was not necessary. In 2020, the emergency spending accounted for $676 million in San Diego and El Centro counties.
The borderlands in eastern San Diego County, like every inch of the United States, are the ancestral homelands of Indigenous people. San Diego County has the highest number of reservations in the country, and the Kumeyaay people lived on this land long before the border came. Over the past year, they have been fighting a 30-foot steel wall that tears through the fragile high desert and divides Kumeyaay living north of the wall from their relatives to the south.
From a vantage point on top of a peak in eastern San Diego County, the wall stretches out as a physical manifestation of the brutality and ugliness of Donald Trump’s vision of American greatness. Sagebrush bushes, which survive in a region that can kill you with heat in the summer and cold in the winter, are held back by a rusty barbed wire fence next to a double-wide dirt road which runs alongside the towering steel spine of the wall proper. The wall stands on a deep concrete foundation, backed by the empty brownness of the roadway. No effort has been made aesthetically or ecologically to make this wall belong here. It’s as if the land, plants, and animals have drawn back in revulsion at the intrusion. On the other side of the newly created dead zone, bushes and plants grow right up to the border.
. . . .
Border Patrol agents drive around the area in expensive trucks, on an expensive road, next to a barrier that cost billions of dollars, all to keep the poorest people on the planet from asking us for help. In 2018, I spent time volunteering with a migrant caravan that had arrived in Tijuana and watched U.S. Department of Homeland Security employees launch tear gas over this wall at kids who couldn’t afford shoes.
Passages for the wall have been blasted out of the fragile landscape of California’s desert, causing drainage problems, disrupting migration pathways for the area’s wildlife, and leaving huge piles of rubble. Further east, there are half-finished roads that lead to nowhere, designed to allow contractors to deploy huge machinery against the defenseless landscape. They’re now just even-more-obvious illustrations of the ridiculous nature of the whole project.
Even before the roads run out, there are gaps in the wall. Construction stepped up in the months before the election to allow for Trump to make ever more ridiculous claims about miles of wall built, sometimes this meant harder-to-build areas were skipped or two crews worked on a wall that didn’t quite meet in the middle. It would be funny if it weren’t so ugly and pointless.
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Read the complete article at the link.
The unfinished wall is also a monument to:
With respect to the latter, there is nothing that will bring the world’s greatest and richest “superpower” to its knees more quickly than a ragtag band of desperate unarmed humans yearning to breathe free 🗽and seeking legal protection ⚖️🧑🏽⚖️under our system! How dare they assert their legal rights and their humanity!
PWS
02-03-21
