"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
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: Unless previously specified on the court status list, hearings in non-detained cases at courts are postponed through, and including, May 14, 2021. (It is unclear when the next announcement will be. EOIR announced 5/14 on Mon. 3/29, 4/16 on Fri. 3/5, 3/19 on Wed. 2/10, 2/19 on Mon. 1/25, 2/5 on Mon. 1/11, and 1/22on Mon. 12/28.) There is no announced date for reopening NYC non-detained at this time.
NYT: Secretary of State Antony J. Blinken was in the Oval Office, pleading with President Biden. In the meeting, on March 3, Mr. Blinken implored the president to end Trump-era restrictions on immigration and to allow tens of thousands of desperate refugees fleeing war, poverty and natural disasters into the United States, according to several people familiar with the exchange. But Mr. Biden, already under intense political pressure because of the surge of migrant children at the border with Mexico, was unmoved.
Bloomberg: Trump regulations aimed at lengthening the amount of time an asylum seeker had to wait to apply for work authorization are now under review, with potential changes coming, according to a new government filing in a federal lawsuit over the rules.
Intercept: A joint human rights report published Tuesday, based on more than 110 in-person interviews and an electronic survey of more than 1,200 asylum-seekers in the Mexican state of Baja California, documented at least 492 cases of attacks or kidnappings targeting asylum-seekers expelled under a disputed public health law, known as Title 42, since President Joe Biden’s January inauguration.
Politico: A push from Biden touting the economic benefits of immigration reform could supplement efforts by progressive groups to sell a pathway to citizenship for undocumented people as a $1.4 trillion boon for the U.S. economy. It also may boost efforts by some on Capitol Hill to argue that a pathway to citizenship for some undocumented immigrants can be passed in a reconciliation package that, if sanctioned by the Senate parliamentarian, could move through the chamber with just 50 votes.
NYT: To date, Immigration and Customs Enforcement has reported over 12,000 virus cases. Our investigation found that the impact of infection extended beyond U.S. detention centers.
TRAC: Rates of case transfers out of MPP varied by court, from a high of 28 percent of cases assigned to the MPP court in Brownsville, Texas, transferred to a non-MPP court, to a low of just three percent of cases assigned to the MPP court in Laredo, Texas.
WaPo: Many missed their court dates because they were kidnapped and held hostage, or detained by Mexican officials, or because they couldn’t find a safe way to get to the border in the middle of the night, when most were told to arrive for their hearings, according to lawyers, advocates and the migrants themselves. Some had medical emergencies related to the conditions in which they waited. An untold number, their asylum cases now closed, remain in hiding in northern Mexico.
WaPo: More than 40 percent of the minors released by the government have at least one parent already living in the United States, but HHS has been taking 25 days on average to approve release and grant custody to the mother or father, a number that dipped to 22 days Thursday, according to the latest internal data reviewed by The Washington Post. It takes an average of 33 days to release minors to other immediate relatives, such as siblings.
Roll Call: More than a month after former D.C. Circuit judge Merrick B. Garland was confirmed as attorney general, the Justice Department — which houses the U.S. immigration court system — has not intervened.
CNN: In short, if immigration remained at near-zero levels, within decades, the country could be older, smaller and poorer. But if the US government welcomed more newcomers, within decades, the country could be younger, more productive and richer.
Intercept: Historically, the criminalization of “promoting” sex work has left the loved ones and roommates of sex workers, as well as sex worker rights advocates, vulnerable to prosecution. For many immigrant workers, the risk of deportation will remain. The DA’s office said that it would continue to bring other charges that stem from prostitution-related arrests. “Trafficking” will no doubt be used to carry out raids and harass survival workers.
Law360: The U.S. Supreme Court on Monday ruled Texas and 13 other states moved too quickly in attempting to revive the Trump-era public charge rule, saying the states would have to first make their case at the district court level.
Unpublished BIA decision finds prior attorney provided ineffective assistance by mistakenly submitting medical examination to USCIS rather than immigration court. Special thanks to IRAC. (Matter of Samuels-Foster, 7/30/20) AILA Doc. No. 21042002
Unpublished BIA decision finds IJ improperly drew falsus in uno, falsus in omnibus inference where sole false testimony related to whether respondent rather than his prior attorney signed his adjustment application. Special thanks to IRAC. (Matter of Luwaga, 7/31/20) AILA Doc. No. 21042001
Law360: Immigration courts were not required to help a Mexican immigrant refine his definition of the persecuted group he identified with in order to prevent his deportation, a Third Circuit panel has ruled.
Denying the petition for review, the court held that INA §237(a)(2)(B), which provides for removal of a noncitizen convicted of a violation of any law or regulation of a state relating to a controlled substance, contains no pardon waiver. (Aristy-Rosa v. Att’y Gen., 3/16/21) AILA Doc. No. 21041934
The court held that the petitioner was removable because his Minnesota conviction for possession of khat related to a federal controlled substance pursuant to INA §237(a)(2)(B)(i), and found that the petitioner had failed to prove that he was entitled to asylum. (Ahmed v. Garland, 4/8/21) AILA Doc. No. 21041935
Where BIA had denied asylum to petitioner based on a finding that serious reasons exist to believe he committed a serious nonpolitical crime, the court held that the “serious reasons for believing” standard requires a finding of probable cause. (Barahona v. Garland, 2/3/21, amended 4/15/21) AILA Doc. No. 21021636
The court held that the BIA did not err in determining that petitioner’s Iowa conviction for possession of a controlled substance disqualified him from relief in the form of cancellation of removal, because the Iowa statute is divisible as to marijuana offenses. (Arroyo v. Garland, 4/14/21) AILA Doc. No. 21041937
The court upheld the district court’s grant of a preliminary injunction against the implementation of a DHS/DOJ joint interim final rule that categorically denies asylum to individuals arriving at the U.S./Mexico border. (East Bay Sanctuary Covenant v. Garland, 7/6/20, amended 4/8/21) AILA Doc. No. 20070636
Granting the petition for review and remanding, the court held that the IJ’s decision to affirm the asylum officer’s adverse reasonable fear of torture determination as to the Honduran petitioner was not supported by substantial evidence. (Alvarado-Herrera v. Garland, 4/13/21)
Law360: The Eleventh Circuit has revived a Gambian man’s bid to remain in the U.S., chiding the Board of Immigration Appeals for misrepresenting how attorney misconduct, including an alleged forgery, skewed his removal proceedings.
Law360: Texas’ attorney general said in a federal court complaint Thursday that the Biden administration was not abiding by Trump-era U.S. Centers for Disease Control and Prevention rules meant to reduce the spread of COVID-19 by restricting illegal immigration.
Law360: U.S. Immigration and Customs Enforcement must hand over records related to its Alternatives to Detention program by May 3, in response to a lawsuit in New York federal court seeking information on how the agency surveils immigrants in its supervision.
DHS announced that ICE has rescinded two delegation orders related to the collection of civil financial penalties for noncitizens who fail to depart the United States. ICE had initiated enforcement of civil penalties in 2018; as of January 20, 2021, ICE ceased issuing these fines.
DHS notice of the suspension of certain requirements governing employment for F-1 students from Venezuela who are experiencing severe economic hardship as a result of the humanitarian crisis in Venezuela. (86 FR 21328, 4/22/21)
DHS notice of the suspension of certain requirements governing employment for F-1 students from Syria who are experiencing severe economic hardship as a result of the civil unrest in Syria. (86 FR 21333, 4/22/21)
Troy Miller, senior official performing the duties of the commissioner, issued a memo establishing guidance on the preferred use of immigration terminology within the federal government. The memo provides a table listing prior terminology and the new terminology CBP will use moving forward.
Sierra Leone: Support for former victims of trafficking (AFR2021-01)
Namibia: Situation for people from Ovahimba tribe and treatment for diabetes (AFR2020-30)
Ecuador: Indigenous female children’s protection from domestic abuse and harassment, and young Indigenous mothers’ access to education and employment opportunities (AME2021-03)
India: Harassment and violence against Christians (ASI2021-01)
Ethiopia: Discrimination and violence against Eritrean children in Ethiopia (MEN2021-03)
Azerbaïdjan : Etat des lieux sur la corruption, l’opposition et les rapatriés (CIS2021-01)
The failure of President Biden, Judge Garland, and Secretary Mayorkas to end the grotesque abuse of asylum seekers at our borders will be a blot on their records. Human lives are at stake!
And establishing a due process compliant, robust, generous asylum adjudication system in the U.S. is not “rocket science.” With better, more courageous leadership, and different judges (a number of whom are already on the EOIR payroll), and a partnership with NGOs and organizations who know asylum law, a much better system could have been up and functioning well before now!
Just one word to describe the performance so far: INEXCUSABLE!
“Border Message” By Steve Sack Reproduced under licenseSo far, Biden, Garland, & Mayorkas appear to share this Trump/Miller view of the humanity of brown-skinned asylum seekers! (AP Photo/Julia Le Duc)
“Jim Crow” is still alive and well @ EOIR. To date, Judge Garland & his team seem to think that the rest of us won’t notice what’s happening in “his” Immigration Courts and how it undermines every aspect of his claim to be restoring faith in the DOJ and the American justice system. A progressively-oriented, independent, expert Immigration Judiciary is a prerequisite for finally achieving racial justice in 21st Century America. So far, Judge Garland has NOT enunciated any plan to “get there,” nor has he even publicly acknowledged the many disgraceful problems plaguing EOIR!
This article will contribute to immigration equal protection jurisprudential discussions by highlighting the way in which the plenary power in immigration equal protection cases creates a barrier parallel to the intent doctrine—both prohibit curtailment of government action resulting in racialized harm. The scant recognition of the double duty done by plenary power and the intent doctrine reflects the banality of what may appear as a mere redundancy at first glance. However, the insidiousness of the double-barrier all but ensures that equal protection challenges to facially race-neutral immigration laws with disparate impact will fail. Plenary power is effectively duplicative of the intent doctrine because the intent doctrine already results in great deference to lawmakers.
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Read the full abstract at the link.
Unquestionably, immigration jurisprudence has intentionally misread the due process and equal protection clauses to achieve racist immigration policies. Getting rid of these perversions — analogous to the legal and judicial gobbledegook used by White men to make the 14th and 15th Amendments (and to a large extent, the 13th Amendment) “dead letters” for African Americans following Reconstruction — isn’t a matter of complicated legal thinking. It’s a matter of better Federal Judges and better legislators. And, the mess @EOIR — our Immigration “Courts” — is the best and most logical place to begin the long overdue task of instituting constitutional compliance and equal justice for all.
To date, Judge Garland’s failure to demonstrate a commitment to eliminating unconstitutional racism and misogyny (not to mention poor quality decision-making which also disproportionately affects individuals and communities of color) in his Immigration “Courts” threatens to destroy our legal system and “kneecap” American democracy.
We are in the perilous position we are today because past Administrations, to the extent they have even tried to address systemic racism (obviously, the Trump Administration sought the exact opposite —to deepen, protect, and promote racism and hate), have intentionally or negligently ignored the clear link between immigration law and racism in the rest of our legal system.
Judge Garland is looking for 100 new Immigration Judges to eliminate the 1.3 million backlog by the end of the century. No expertise necessary! PHOTO: Thomas Hawk Creative CommonsAline Barros Immigration Reporter VOA News PHOTO: Twitter
U.S. immigration courts, already swamped with a backlog of 1.3 million cases, are ill-prepared to handle a crush of new asylum claims filed by a rising number of people crossing the U.S.-Mexico border, especially children traveling alone, current and former immigration judges told VOA.
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Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
“The backlog has grown,” said Jeffrey Chase, a former immigration judge and senior legal adviser at the Board of Immigration Appeals. He added there are two ways to handle the situation.
“The response to this usually is: Hire more judges. And I think the response should be: Let’s be smarter about who we put into court and how we prioritize the cases and how we handle the cases,” Chase told VOA.
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Hon. Dana Leigh Marks U.S. Immigration Judge San Francisco Immigration Court Past President, National Association of Immigration Judges
Dana Marks, a sitting immigration judge in San Francisco who spoke with VOA in her capacity as president of the National Association of Immigration Judges (NAIJ), said the increase in immigration court cases has been gradual and “that’s why I think it stayed under the radar.”
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U.S. immigration courts are not like the federal courts that most people are familiar with. For one thing, they are housed within the executive branch — specifically, the U.S. Justice Department’s Executive Office for Immigration Review (EOIR).
In addition, immigration cases play out differently than regular court cases where litigants often feel pressure to avoid trial.
“One of the problems with the immigration system, as it currently is — we don’t have plea agreements or stipulations that handle a lot of these cases like you do in a criminal court setting where the parties meet and come up with a mutual compromise and a settlement,” Marks explained. “So every case goes to trial.”
A recent TRAC report concluded that even if the administration of President Joe Biden halted immigration enforcement entirely, “it would still take more than Biden’s entire first term in office — assuming pre-pandemic case completion rates — for the cases now in the active backlog to be completed.”
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“Our organization has long advocated that the immigration court system be taken out of the Department of Justice, and restructured, like the Article 1 [federal] tax courts,” Marks said.
Aaron Hall, an immigration lawyer in Denver, Colorado, said the immigration court system is currently subject to the whims of whichever party controls the executive branch. But he added that making the courts independent is not enough.
“We still have 1.3 million people in the system,” he said. “There’s no way to both respect due process and push all these cases through in any kind of timely manner. The resolution needs to be immigration reform.
“Having an independent immigration court system is better than having [the courts] in the Department of Justice, but what really needs to change is our [immigration] law,” Hall added.
While the Biden White House has criticized Trump’s handling of immigration cases, the new administration has yet to announce concrete measures to reform the immigration court system or take a position on calls to make it independent from the Justice Department.
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Read the complete article at the link.
Those of us who have served in the Immigration Courts are used to a struggling system unnecessarily in crisis because of a combination of inept bureaucratic management (duh, you can’t treat a court system like an agency, particularly one somewhat resembling the “Legacy INS”) and counterproductive, often ignorant, sometimes malicious, political interference from “Downtown.”
But, the prospect for improvements are bleak, with nobody currently at the “Main DOJ” or at “EOIR Headquarters” who is qualified to lead the way toward rebuilding EOIR so that “teamwork, innovation, and best practices would create a functioning court system that would guarantee fairness and due process for all.” Doesn’t sound like “rocket science” to me.
Let’s be clear about one thing.Not every asylum case needs to go to “full hearing” in a properly staffed Immigration Court system with expert judges trained in asylum law, positive precedents setting forth generous reasonable criteria for granting asylum, and a qualified BIA willing to hold accountable those unqualified Immigration Judges who have established and maintained illegal and disgraceful “Asylum Free Zones” in Immigration Courts throughout America!
Almost 100% of the “asylum precedents” issued by the AG and BIA in the last four years, and the vast bulk of those issued after 2001, tell Immigration Judges how to, and encourage them to, deny asylum, often based on specious reasoning or in conflict with earlier, more generous court and administrative precedents, not to mention the letter and spirit of the U.N. Convention and sometimes the language of the statute and the regulations.
And, due process for asylum seekers and other migrants is mocked in Immigration Court on a daily basis, even as their courageous, often pro bono counsel, are systemically abused! Is this what Judge Garland REALLY stands for? If not, why is he letting it happen?
With competent counsel representing asylum seekers and documenting their cases, and thoughtful well-trained ICE Assistant Chief Counsel with senses of justice, many positive asylum cases can be well-documented, “pre-tried” by the parties, completed, and granted in Immigration Court in a one-hour time slot or less. Indeed, before Sessions and Barr intentionally, senselessly, and maliciously destroyed what was left of justice for asylum seekers in Immigration Court, so called “A-R-C-G- domestic violence cases,” Kasinga FGM cases, family-based asylum cases, Ethiopian and Eritrean political persecution cases, evangelical Christian cases, and LGBTQ+ cases were all staples of my “short docket” — usually conducted every other Friday, at the Arlington Immigration Court. In those days, the parties worked together to get clear grants of relief that were “buried in the backlog” advanced for short hearings, with my active encouragement.
Another largely unexplored alternative is to give Immigration Judges authority to return certainly prima facile grantable asylum cases to a revived and functioning Asylum Office for completion. There are lots of ways that a different group of qualified, well-trained, practical Immigration Judges, and a BIA with Appellate Judges drawn from the ranks of “practical scholars” who are experts in asylum and due process working with (not “under”) professional judicial administrators, could get this system functioning and force those judges who are members of the “Asylum Denial Society” to shape up or ship out. That would keep Immigration Courts from building future unmanageable backlogs by focusing docket time on those cases with real issues needing full hearings. And, nobody’s due process rights would be trampled in the process by mindless “haste makes waste deny everything” enforcement gimmicks such as those the Trump regime constantly tried to impose.
Real court systems are about justice, not “deterrence” or “sending messages,” or even “carrying out Administration policies,” although there shouldn’t be much of a conflict with the latter if the Biden Administration actually lived up to its promises to asylum seekers and other migrants (something it hasn’t shown any inclination to honor, to date). The Immigration Courts, much like Article III Courts, need better judges, not necessarily more of them! Unlike the Article IIIs, which are a long term project, Judge Garland could engineer a solution for the Immigration Courts that would show drastic improvements before the end of this year and get better every year thereafter!
But, with the current gang at DOJ and Falls Church, (remarkably still riddled with Trump holdover bureaucrats and anti-asylum “appellate judges” churning out negative precedents) it’s “mission impossible.” Not a professional judicial administrator or qualified appellate judge among them!
There are folks who could institute the bold, yet obvious, steps necessary to clean up the backlog in relatively short order without stomping on individual rights; come up with merit-based judicial hiring criteria; issue precedents that would advance, not retard, due process for asylum seekers; institutionalize best (rather than worst) practices; “kick tail” until some working basic modern technology (like e-filing) is in place; learn from the private bar’s in-court experiences; put some professional judicial training in place; and return docket control and administration to local courts, where even a minimally competent judicial administrator (in other words, NOT an agency bureaucrat or DOJ politico) would know it belongs.
Now is the time to toss the deadwood and get this system back on track — before the next wave of asylum cases hit the mind-boggling dysfunction in today’s Immigration Courts. How does anyone think that throwing 100 additional Immigration Judges into this disaster zone (the Administration’s budget proposal) will solve the systemic mess and the institutionalized failure to provide anything resembling justice?
Unfortunately, the folks who could do the job are either sitting judges in the Immigration Courts or in the private/NGO sector. And, despite warnings and pleas from those of us who actually understand the system, what’s wrong with it, and how it might be fixed, Judge Garland appears uninterested in engaging in the dialogue or making the obvious personnel moves necessary to build a functioning, due-process-oriented, expert court system. So right now, the chances of avoiding further disaster look pretty grim.
Wonder what the Judge’s“emergency plans” are for when the tsunami finally hits 10th & PA, NW, in D.C.? Like most past AGs not named Jeff “Gonzo Apocalypto” Sessions, Garland might trivialize the importance of immigration and EOIR in his own mind. Maybe that’s because so few immigration cases came before the D.C. Circuit, and the ones that did involved regulations, statutes, and policy issues, usually not “individual removal cases” where human lives were at stake in an immediate context.
Perhaps it’s because EOIR is “across the river” in Falls Church, out of sight, out of mind. Maybe it’s because the unending damage that a dysfunctional and unfair EOIR inflicts on men, women, children, and their lawyers, happens across the U.S., out the Judge’s presence or consciousness. Occasionally, the Post and other national media pick it up. But the human trauma, cruelty, unfairness, and real life stories of EOIR’s disreputable conduct go largely untold and unnoticed. Even the victims and their loved ones are often too deep in the throes of these officially-sanctioned and unnecessarily-harsh injustices to worry about complaining or seeking redress.
I can, however, predict to Judge Garland that if he continues on his current tone-deaf, inept course, both his tenure as Attorney General and his legacy will forever be identified with lousy, inhumane, dysfunctional immigration policies and his inexcusable failure to fix EOIR, or even make a good faith attempt at it!
Meanwhile, government watchdog groups expressed concerns over two people whose initial conversion requests had since been approved.
One such conversion was that of Carl Risch, whose October conversion request to be the deputy director, the No. 2 job, at the Executive Office for Immigration Review within the Department of Justice (a civil service job), was approved in December. Risch had been an assistant secretary for consular affairs at the State Department, a political job. His new job came with a $10,000 raise.
“It’s a red flag when there are multiple people being converted to jobs at a single entity. It really raises an even larger concern,” Stier, of the Partnership for Public Service, said. “The process is supposed to be that a political appointee in no way has a leg up on the competition for a career job, but when you see multiple go to the same agency, you really have to wonder how it can be possible that the best qualified individuals are not once, but multiple times, people who are political appointees.”
Risch did not respond to multiple requests for comment. EOIR spokeswoman Kathryn Mattingly said Risch went through the standard pre-hiring review process with the OPM and that the agency had approved his new position.
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Read the full article at the link.
So, the folks who saved due process and stood up for the Constitution and racial justice while Judge Garland was enjoying his cushy ivory tower job at the D.C. Circuit over the past four years remain on the outside, twisting in the wind ⚰️ while their clients and colleagues suffer daily abuse in “Garland’s Star Chambers!” Nice touch!
Meanwhile, Garland hands out the big bucks and a hideout for a notoriously unqualified Trump/Miller political hack imported from the DOS. What does Risch know about immigrant justice or court management? Nothing? Oh, but why is that a problem at EOIR?
He occupies what is supposed to be a key senior management position in America’s most dysfunctional “court system” — running a simply astounding 1.3 million (known) case, largely self-created backlog, grinding out sloppy, unprofessional, biased opinions regularly rejected by even conservative Courts of Appeals, setting horrible anti-immigrant precedents and endangering the lives, health, and safety of those who are caught up in EOIR’s continuing White Nationalist cesspool of cruelty, mismanagement, and gross incompetence?
Judge Garland: “Go faster Carl and David (Garland BIA Chair Wetmore), see how much it takes to make this worthless respondent scream! Remember what your mentor Stephen Miller taught you about the lives and rights of ‘the other.’ Why do you think I’m paying you the ‘big bucks’ and letting you ‘burrow in’ if not to punish and deter those who dare seek due process and humane treatment in MY wholly-owned Star Chambers! I couldn’t have done this at the DC Circuit, but here there are NO RULES, except those we make up for our own benefit, and I aim to keep it that way!”
Is it any wonder that immigrant justice and racial justice remain in free-fall under Biden and Garland?
Let’s lay it on the line! By now, Garland should have cancelled all the Trump-era precedents (“day 1 stuff”), cleaned house at EOIR HQ, and transferred the entire BIA to somewhere where they can inflict no more damage on the American legal system!
That would also have sent a powerful“signal” to the many Immigration Judges who have established “asylum free zones” in Immigration Courts throughout the U.S. over the past two Administrations that there will be a return of due process and fundamental fairness for asylum seekers and other immigrants at EOIR.
Judges can get with the program, start granting asylum and other protection as the law requires, thereby reducing backlogs the “old fashioned way” — consistent with due process and fundamental fairness. Or, they can ship out and sign up with Stephen Miller’s “Aryian Nation Legal Team” — where it appears that many of them would be more at home.
Garland should have brought in folks already on the payroll like Judges Dana Marks, Noel Brennan, & Amiena Khan, all experts in due process, judicial management, immigration, and human rights laws, all of whom have demonstrated true leadership, consistent courage, and independence throughout their distinguished careers, on at least a temporary basis to start restoring justice, rationality, and order in the Immigration Courts.
They would already have identified qualified sitting judges who know how to grant asylum to serve as Acting Appellate Judges at the BIA to start turning things around by enforcing due process and issuing precedents that advance, rather than retard, due process, fundamental, fairness, and judicial efficiency.
Meanwhile, they would be developing legitimate merit selection criteria to recruit and hire as judges practical experts who will fairly and efficiently apply due process and fundamental fairness to all asylum seekers and other respondents, regardless of race, color, or creed. These criteria could be used to recruit andhire a diverse progressive group of permanent Appellate Judges and Immigration Judges, to determine which “probationary IJs” should be retained, and eventually to re-compete all existing IJ positions to insure a real, diverse, independent, due-process focused, Immigration Judiciary comprised of the “best and brightest” American law has to offer!
Greg Chen (AILA) and Professor Peter Moskowitz (Cardozo Law) should be on the EOIR payroll implementing their very achievable program for drastically slashing the unnecessary backlog without stomping on anyone’s rights.
Garland should already have hired Professor Michele Pistone(Villanova Law, VIISTA) to develop quality, due process oriented training programs for everyone at EOIR.
Instead, Garland is bankrolling the current crew of proven incompetents, holdovers, hangers on, and Trump/Miller White Nationalists. In other words, he’s wasting our taxpayer money, destroying the lives and futures of the most vulnerable (and often most deserving) among us, undermining racial and social justice in America, and abusing and endangering the health and safety of members of the NDPA trying to bring some semblance of the rule of law and human decency into our disgustingly dysfunctional Immigration Courts.
Could it get any worse? How?
Think about this! Neo-Nazi Stephen Miller and his fellow White Nationalists apparently were so impressed with the effective legal work done by courageous immigration/human rights/due process advocates in blocking many parts of his racist authoritarian agenda — basically the New Due Process Army (“NDPA”) and its “Senior Fighting Division” The Round Table of Former Immigration Judges — that they are forming their very own neo-Nazi legal advocacy group to help GOP AGs stymie any attempt by the Biden Administration to promote racial justice, social justice, and immigrant justice.
Given the rather incompetent (not to mention ethically questionable) performance of many DOJ attorneysduring the Trump regime, Garland is going to need all the help he can get to fend off Miller and the GOP. Rather than enlisting members of the NDPA on his team, letting them solve problems, and actively soliciting their support and alliance on litigation, he is turning them into highly motivated opponents!
How dumb and counterproductive is that! Turn your would-be friends into enemies? Sounds like something only a tone-deaf Dem politico could pull off!
I’m not a politico. But, I do understand the necessity in politics, as in almost any field, of being able to distinguish your friends from your enemies. Perhaps, Judge Garland has spent so much time in the ivory tower that he has forgotten how to play the game out here in the real world.
I’ve been hanging around the Washington legal scene for almost 50 years now. In that time, I might have witnessed a more inept start by an Attorney General of either party. But, really, I can’t remember when!
🇺🇸⚖️🗽Due Process Forever! If the NDPA must take the fight to end ☠️⚰️ deadly “Clown Courts” 🤡 to Judge Garland, so be it!
“Oh no! Is Judge Garland really going to leave me in this position for the next four years?”
COURTSIDE EXCLUSIVE! — A FIRST, DISTURBING LOOK INSIDE “JUDGE GARLAND’S FAILED EOIR” –SOURCES CLAIM JUDGE’S APPROACH TO DUE PROCESS @ EOIR TIMID, INEFFECTIVE 🤮☠️ — HEARD IT THROUGH THE GRAPEVINE 🍇 – Judge Apparently Dissing Calls By Experts, Advocates For Bold, Common Sense Actions To Restore Due Process, & Promote Judicial Independence @ EOIR — Appears Ready To Allow Miller‘s White Nationalist “Plants,” Go Along To Get Along Judges, To Continue Mocking Due Process @ Dysfunctional Courts – Will Ex-Federal Judge Become Latest In Line Of Failed Dem AGs To Allow Institutionalized Racism, Misogyny, Anti-Asylum Attitudes, Mistreatment Of Migrants, & Administrative Chaos To Flourish In America’s Worst “Courts?”
By Paul Wickham Schmidt
Courtside Exclusive
April 9, 2021
Although the information is unverified, and the sources anonymous, Courtside has pieced together an emerging disturbing picture of Judge Garland’s “master plan” to make only cosmetic changes and allow the continued mistreatment of asylum seekers and unprofessional performance of many so-called “judges” in his Immigration Courts, generally known as America’s worst and most dysfunctional tribunals where life threatening institutionalized White Nationalism, sloppy work product, and lack of human rights expertise have become the order of the day.
As we know, DOJ quickly reassigned the former EOIR Director, James McHenry, notorious for “leading” the courts into total failure in pursuit of a White Nationalist political agenda. Apparently, the head of Administration and the “IT honcho” were also forced out at “The Tower.” Presumably, this has to do with EOIR’s remarkable two-decade failure to implement anything approaching a functional nationwide e-filing system.
That’s the “good news.” But, reportedly Judge Garland has little intention of removing the BIA Chairman or the Deputy Director. Sources say that unqualified (never served as a judge) Chief Immigration Judge Tracy Short, who was sent over from DHS Enforcement by the Trump folks, could be on thin ice. But, some in the know point out that he has the least authority to influence anything because he doesn’t actually adjudicate cases and must get approval from “on high” for any further policy changes.
The Deputy Director, Carl C. Risch, whom I’ve reported on before, was a Trump political appointee who “burrowed in” right at the end. According to sources Risch, a “bureaucratic refugee” from the State Department (the only kind of “refugee” recognized by the Trump regime) was mostly interested in finding a “soft landing on the public dole,” and not many people have paid attention to him.
The BIA Chair, David Wetmore, was a confidante of neo-Nazi White Nationalist Stephen Miller at the White House before he became an advisor to the Deputy A.G. and then the Chair. Reportedly, his appointment was driven by Miller and other senior Trump people.
Potentially, in a competent system, the BIA Chair (Chief Appellate Judge) would be one of the most powerful and influential Federal Judges in America, short of the Supremes. Wetmore has supposedly politicized everything. Some say that with his “probationary period” expiring next month, he’s just trying to “hang on.”
DOJ leadership, therefore, could and certainly should remove him in his probationary period with no repercussions. However, Dem incompetence at EOIR and elsewhere in DOJ is legendary when it comes to making such bold personnel moves that, by contrast, are the “bread and butter” of the process by which GOP Administrations seize control of the bureaucracy for their political aims. Dem Administrations all to often appear more than happy to leave GOP “plants, burrowers, and holdovers” in key positions while leaving human rights experts and their own supporters “out in the cold.”
There are also rumors that DOJ has prepared a “100-page plan” for EOIR. That, in of itself, is both interesting and disturbing in light of the glaring absence of any known immigration/human rights expert with intimate knowledge of the dysfunction at the Immigration Courts and how to fix it at DOJ Headquarters downtown. As I’ve mentioned before, the few “DOJ insiders” qualified to lead such a project are some field Immigration Judges, most associated with the NAIJ.
Reportedly, “the plan” has some “good stuff” including free counsel for unaccompanied children. But it doesn’t call for what’s really needed — independent courts!
Nor is it apparent that the Garland team intends to treat the Immigration Courts as “real courts” and to appoint the qualified, diverse, expert judiciary necessary to end institutionalized racism and “Dred Scottification” in the American justice system.
This is likely to leave many of those talented and dedicated lawyers who led the defense against the degradation and dehumanization of women and people of color in the Immigration Courts over the past four years fuming! I’ve said it before, it’s a strange way for a supposedly progressive Administration to treat those who should be their staunchest allies with the potential to solve problems others can’t!
Judge Garland appears determined to repeat the deadly mistakes of past Dem Administrations by leaving the best, most powerful, and most achievable opportunity for reforming the Federal Judiciary on the table yet again. He will also neuter and discredit his plans for equal justice and racial justice before even getting them out of the box.
Some report that advocacy groups might temper their calls for judicial independence and a better qualified judiciary at EOIR to avoid criticizing the new Administration. Sadly, that would also be a huge mistake, repeating past catastrophic failures!
I’ve seldom heard or witnessed a bigger “crock” than “revolution by evolution.” Revolution comes from kicking tail, taking names, and bold aggressive due process enhancing actions. For Pete’s sake, Miller and Sessions understood the power of decisive action! Are they really that much smarter and more motivated than the Dems? Sadly, it appears so!
Last time, I watched from the “inside” as the Obama Administration left the immigration advocacy/human rights community “standing at the station” while the train pulled out, with mostly the wrong engineers at the controls. It was painful. It might be even more painful watching it happen again, despite all the warnings from those of us in the NDPA!
If an independent EOIR is ever going to happen it must be now! By the end of this year, it likely will be too late. The cost in human lives, frustration, and squandered potential for a better America and a better world will be incalculable.
Unhappily, those of us who had hoped to litigate and criticize less and help more appear destined for another four years of fighting an intransigent and tone-deaf Administration from the outside.
My three recommendations:
1) Those working on Article I better “get cracking,” because Judge Garland doesn’t appear to be interested in meaningful fixes at EOIR.
2) The human rights community had better reload and redeploy the “litigation artillery.” Because it looks to me like the only way of getting the Garland DOJ to address the festering problems undermining justice in America will be by beating them in court, over and over, until their “star chambers” finally collapse in total chaos.
3) Keep documenting the “lack of justice at Justice” — make sure that Judge Garland and his team “own” their failure to take seriously immigrant justice in the Immigration Courts and their disrespect for human rights experts who should be running and staffing our Immigration Courts!
Sure, it’s all anonymous and unverifiable. But, it sounds eerily similar to the arrogant incompetence with which the Obama Administration failed to institute achievable reforms in the Immigration Court system. So, I give it credence.
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever!
“Oh, goody! I hear Judge Garland is going to keep me at EOIR! I can’t wait to tell my buddy Gauleiter Miller that the slaughter of innocents will continue!” Image: Hernan Fednan, Creative Commons License
Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
“Every woman knows what I’m talking about. It’s the presumption that makes it hard, at times, for any woman in any field; that keeps women from speaking up and from being heard when they dare; that crushes young women into silence by indicating, the way harassment on the street does, that this is not their world. It trains us in self-doubt and self-limitation just as it exercises men’s unsupported overconfidence.”
Rebecca Solnit, Men Explain Things to Me
On April 5, the U.S. Court of Appeals for the Ninth Circuit issued a published decision in Rodriguez Tornes v. Garland. The opening sentences of the decision are heartbreaking:
Since the age of five, Petitioner has been told that men will beat her if she does not submit. Her mother demanded that she learn how to do housework, how to accept spousal abuse, and how “to obey everything that [her] husband would say.” She beat Petitioner with various objects almost daily, in part to prepare her for future beatings from her husband.
But along with the darkness there was also hope. The decision’s opening paragraph concludes: “Yet Petitioner came to believe that ‘there should be equality in opinions[] and in worth’ between men and women. She became a teacher.”
Remarkably, over all the years that followed, the Petitioner’s hope survived the most brutal attempts to crush her into silence and submission. As her mother had foreseen, she endured unspeakable and repeated forms of physical and psychological torture, including beatings and rape, at the hands of her husband. Yet she continued to express the belief in her rights as an equal, and was brutally punished each time she did so, in an attempt to destroy the part of her capable of forming such belief. Neither the police nor her own family offered her any possibility of protection.
When she finally succeeded in escaping to the U.S., her abuse continued, merely transferred to the hands of another domestic partner with whom she had three children in this country. In 2017, our government deported both her and her latest abuser. Facing the prospect of continued harm in her native Mexico, her still unbroken hope guided her to the U.S. once again, where she was placed into removal proceedings.
Her hope was briefly rewarded when an Immigration Judge granted the Petitioner asylum, ruling that her persecution was on account of her feminist political opinion. The Immigration Judge alternatively held that asylum was warranted on account of the Petitioner’s membership in the particular social group consisting of “Mexican females,” which formed at least one central reason for her persecution.
It isn’t clear why ICE appealed the IJ’s decision. On appeal, the BIA acknowledged the Petitioner’s honesty and the ongoing, systemic nightmare of violence she endured because of her gender and unbroken belief that she possessed rights. And yet the BIA chose to act like a rubber stamp for the administration it served, and found a way to reverse the IJ’s well-reasoned decision. According to a concurring opinion of the circuit court, the BIA managed this by suggesting that the Petitioner’s brutal suffering was motivated by her “personal relationship” with her abuser. According to the concurrence, the BIA supported this conclusion by relying on the decision of former Attorney General Jeff Sessions in Matter of A-B-.
Of course, asylum applications require an individualized analysis of the facts of the specific case under consideration. Matter of A-B- involved a different asylum seeker from a different country who experienced different facts than this petitioner. So in citing A-B- to reach a conclusion so at odds with the facts of this case, the BIA’s judges were signaling their choice of a specific policy objective over their duty to neutrally apply law to specific facts.
Among the facts the BIA chose to ignore was the opinion of an expert who drew “on more than three decades of research, writing, legal representation, and lawmaking” in support of her conclusion. The expert, Prof. Nancy Lemon of the Univ. of Cal. – Berkeley Law School, explained how all of the weapons at abusers’ disposal are “tied to social belief systems that ‘men are entitled to dominate and control women because the male sex is considered superior.’” Prof. Lemon went into great detail in explaining the political nature of the mistreatment. Of course, it mattered not to the Board.
In discussing this case, an esteemed colleague pointed to a decision that the same court issued more than three decades ago. In 1987, in an opinion authored by Judge John T. Noonan, Jr., a conservative Reagan appointee, the Ninth Circuit concluded that a Salvadoran woman subjected to repeated sexual abuse and other violence by a sergeant in the Salvadoran military had been persecuted on account of her political opinion where the abuser threatened to falsely label her a “subversive if she refused to submit to his abuse.”1 In the words of Judge Noonan, the fact that the persecutor gave the asylum seeker “the choice of being subjected to physical injury and rape or being killed as a subversive does not alter the significance of political opinion…” The decision reversed the conclusion of the BIA that “the evidence attests to mistreatment of an individual, not persecution,” precisely the same finding the Board used more than three decades later in denying Ms. Rodriguez Tornes of her grant of asylum.
In 1993, Justice Samuel Alito, then sitting at the Third Circuit, wrote that “we have little doubt that feminism qualifies as a political opinion within the meaning of the relevant statutes.”2 28 years later, the Ninth Circuit cited Justice Alito’s words in Rodriguez Tornes, adding that it had reached the same conclusion in its own unpublished 1996 decision.3 These were obviously not the decisions of liberal judges forwarding a political agenda. To the contrary, these judges were able to transcend political ideology by neutrally applying law to facts; this is what judges do. As a result, the law of asylum has progressed to increasingly provide asylum protection to victims of domestic abuse. Immigration Judges appointed by both Republican and Democratic administrations have followed suit, authoring well-reasoned decisions granting asylum in numerous cases of domestic abuse, including this one.
Yet over the same period of time, the BIA has stubbornly refused to budge from its 1980s position that domestic abuse is simply a personal matter not linked to a political opinion within society. In the words of Jeff Sessions in Matter of A-B-, the vile abuse was simply due to the abuser’s “preexisting personal relationship with the victim.”4
When a mother feels compelled to begin abusing her five year old daughter to prepare her to obey her husband one day, can the inevitable spousal abuse that follows really be dismissed as just a personal matter? And when the record contained Prof. Lemon’s evidence (because expert testimony is evidence) of “a correlation between patriarchal norms that support male dominance and violence against women by intimate partners,” what unsupported overconfidence did the BIA’s judges rely on in explaining that they know better?
The BIA decided this case during the Trump Administration. For those hoping that the change in administration will usher in a change in the Board’s view, it bears noting that neither the Clinton nor Obama administrations brought about a sea change in the Board’s approach to domestic violence claims. Under Clinton, the BIA issued Matter of R-A-,5 a precedent that essentially precluded the granting of asylum to domestic violence victims based on their membership in a particular social group. The decision was vacated by then-Attorney General Janet Reno, who promised more enlightened regulations on the issue that never arrived. Similar regulations were rumored to be in the works under Eric Holder, but again did not materialize. The BIA’s one grudging concession to the political climate of the Obama era, Matter of A-R-C-G-, was later vacated by Jeff Sessions. While the BIA discussed a second decision under Obama expanding on the narrow holding of A-R-C-G-, it too never came to be.
Based on that history, it seems safe to say that without drastic action by Attorney General Merrick Garland, the BIA will continue issuing the same denials for the same reasons as before. For every individual such as Ms. Rodriguez Tornes who is able to succeed on appeal, there are countless more who merely end up as stratistics, deported to face more of the horrendous abuse that drove them here in the first place. The Ninth Circuit recently had to correct the BIA’s determination that attempted gang rape did not constitute persecution,6 and last year, reversed the Board erroneous rejection of a domestic violence victim’s particular social group on the grounds that it contained a few too many words.7 The BIA continues to be composed of the exact same group of judges who issued each of those decisions.
It is the role of the BIA to reach fair decisions by applying the applicable law to the individual facts. Doing so in the domestic violence context would require the Board to finally recognize opposition to systemic male oppression as a political opinion warranting asylum. Instead, for decades the BIA has enforced the offensive, outdated message to women seeking protection from such abuse that “this is not their world.” The time has come to finally put an end to this sad substitute for true administrative appellate review.
Notes:
Lazo-Majano v. INS, 813 F.2d 1432 (9th Cir. 1987).
Fatin v. I.N.S., 12 F.3d 1233, 1242 (3rd Cir. 1993).
Moghaddam v. I.N.S., 95 F.3d 1158 (9th Cir. 1996) (unpublished).
Diaz-Reynoso v. Barr, 968 F.3d 1070 (9th Cir. 2020).
Copyright 2021, Jeffrey S. Chase. All rights reserved.
Republished by permission.
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Different style, but the same message as I delivered yesterday about the BIA’s institutionalized racist misogyny and the strange tolerance that Attorney General Merrick Garland has exhibited to date for this type of grotesque judicial misconduct.
And, this is on top of the astounding, largely self-inflicted 1.3 million case backlog and total dysfunction generated by the BIA’s failures combined with the “maliciously incompetent” effort by DOJ politicos and EOIR bureaucrats to disguise a “deportation railroad” as “administrative review!” Leaving aside all the legal travesties, the mal-administration and waste of public resources alone would be more than enough to require the immediate replacement of EOIR “upper (mis)management” and the entire BIA with qualified judicial professionals and professional judicial administrators.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Jeffrey and I are hardly the first to expose the charade of “appellate review” at the BIA. Two decades ago, following the “Ashcroft Purge,” administrative scholar and former GOP House Counsel Peter Levinson published his seminal work “The Facade of Quasi-Judicial Independence In Immigration Appellate Adjudications” documenting the mockery of due process and legitimate judicial practices being foisted off on the public by DOJ politicos.
In the two decades since, legislators, DOJ Officials, and Article III Judges have done their utmost to ignore and paper over the glaring constitutional and administrative disasters identified by Peter. Not surprisingly, during that time the BIA and the Immigration Courts have descended into a slimy mass of disastrous bias, injustice, and judicial and administrative incompetence unequaled in American Justice since the heyday of the First Era of Jim Crow.(We are now in the “New Era of Jim Crow.”)
Of course, we need an independent Article I Immigration Court as a matter of the highest national priority. But, it’s not on schedule to happen tomorrow, even though it should! In the interim, Judge Garland could fix lots of the festering problems in this system. I gotta wonder if and when he is going to wake up and pay attention to the “assembly line injustice” being cranked out by “his” Immigration Courts?
GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Paulina Vera
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Thanks to Professors Benitezand Vera for the great work for the NDPA that they are doing and the values they are instilling in their students. Just think what due process could look like in the Immigration Courts if all judges, trial and appellate, reflected those same values!
The concepts are actually very straightforward.
The Attorney General is a litigant before the Immigration Court. He or she can insert themselves in the process if they choose, to represent the Government as a litigant. But, the Attorney General should be treated as any other litigant — at arm’s length.
Individuals appearing before the Immigration Court are entitled to a fair and impartial independent adjudicator. As long as the Attorney General exercises control over the selection of judges, evaluates their performance, and can review and arbitrarily change their decisions, on his or her own whim, the system will remain unconstitutional and fundamentally unfair.
Interesting that law students see so clearly, recognize, and can articulate what Federal Judges, all the way up to the Supremes, legislators, and our Attorney General all fail to acknowledge and act upon. Hope for the future! But without better-qualified legislators, judges, and Executive Branch officials, will our justice system survive long enough to get to the future? Not without some very fundamental changes!
Every day, individuals have their constitutional, statutory, and human rights stomped upon, mocked, and abused by the broken Immigration Courts. Sometimes, Circuit Courts intervene to provide some semblance of justice in individual cases; other times they turn a blind eye to injustice and fundamentally unfair decision-making in the totally dysfunctional Immgration Courts.
But, nobody, but nobody, except members of the NDPA appears to be willing to recognize and act on the overall glaring constitutional and operational defects in the current Immigration “Courts” — that don’t resemble “courts” at all. That’s something that should concern and outrage every American committed to racial justice, equal justice for all, fundamental fairness, and constitutional due process!
EOIR and the U.S. Immigration Courts are an ongoing national disgrace — a festering sore upon democracy!🤮 Every day, they inflict unnecessary pain and suffering on those humans being abused by their fundamental unfairness and institutionalized chaos.!
How many ruined human lives ⚰️ and futures ☠️is it going to take for someone in the “power structure” to wake up and take notice!
With the U.S. “on pace to encounter more individuals on the southwest border than we have in the last 20 years,” as Homeland Security Secretary Alejandro Mayorkas said in a statement March 16, immigration at the U.S.-Mexico border has emerged as one of the toughest challenges facing the Biden Administration. Last week, President Biden put Vice President Kamala Harris in charge of “stemming” the flow of migrants, Biden was questioned about the immigration situation at his first official press conference, immigrant detention centers began to fill up once again, and lawmakers from both sides of the aisle made trips to the border to publicize the issue and propose solutions.
Biden’s attempts to address immigration may be new, but the issue is one that has dogged his predecessors for decades. Since the 1970s, Republicans and Democrats alike have tried to address undocumented immigration by constructing ever more draconian policies of border control, deportation and detention—border theater that grabs headlines and sometimes leads to short-term change, but never actually solves the problem.
There’s a reason why the U.S. government has failed for so many years to “control” the border: none of these policies have addressed the real reasons for migration itself. In migration studies, these are known as “push” and “pull” factors, the causes that drive migrants from one country to another.
Today, the countries sending the most migrants to the U.S.-Mexico border–especially the Central American countries of Guatemala, Honduras and El Salvador–are experiencing a combination of push factors that include poverty and inequality, political instability, and violence. And while the current situation may be unique, it is also deeply rooted in history.
Many countries in Central America have struggled with poverty since the time of independence from Spain in the early 19th century. While they are beautiful countries that are rich in culture and history, that colonial past has meant they have historically been home to large, landless, poor, rural populations, including many indigenous people of Mayan descent. In the years after Spanish control, they were typically ruled by small oligarchies that disproportionately held wealth, land and power, and their economies were primary export-dependent, which brought great riches to landowners but also exacerbated and perpetuated inequality and the poverty of the majority. Those dynamics have carried forward to today. More recently, climate change–in particular, drought and massivestorms–has forced the vulnerable rural poor out of the countryside.
. . . .
And while many Central Americans could indeed qualify for asylum based on their experiences of persecution, the previous administration made every effort to limit their ability to obtain it. Now the Biden Administration must decide whether to restore the asylum framework, which has become the only possible path to legal migration (as well as safety and security) for Central Americans and other migrants who—due to these combined push and pull factors—are desperate to come to the United States.
Given the complicated and deep-rooted reasons behind migration, lawmakers cannot control or “solve” the ongoing crisis at the border by simply pouring money and resources into ever more militaristic border theater. It’s no wonder that decades of such policies have done little to change the underlying dynamics.
Instead, if Americans are serious about changing the situation at the border, we need to address the push and pull factors behind Central American migration. We need to acknowledge the reality of the U.S. economy (in particular, that it demands immigrant labor to work low-wage jobs) and work to construct new legal frameworks that reflect that reality. We need to target financial and logistical support to encourage Central American countries to address the poverty and inequality that fuel migration, rather than cutting foreign aid, as the Trump Administration did. We need to do all we can to end the pervasive gang violence that pushes so many migrants out of their homelands. And of course, we must continue to evaluate our own historical and contemporary role in creating the longstanding problems that are pushing Central Americans to migrate.
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Read the rest of Julia’s article at the link. One key truth: many more Central American migrants would qualify for asylum and be legally admitted to our society under a fair application of our asylum laws directed and supervised by real expert judges who scrupulously enforce due process and best practices on a now biased, unfair, and dysfunctional system!
“Stemming the tide” might be neither realistic nor possible at this time. But, controlling it, managing it humanely and legally, and regularizing it, while lessening the “push” factors should be achievable.
It would, however, require bold actions:
Recognizing the primacy of humanitarian protection laws and insisting on due process in implementing them;
Putting experts in humanitarian situations, due process advocates, diplomats, labor economists, and demographers in leadership positions; and
Embracing much larger levels of legal immigration, particularly from Latin America.
Vice President Kamala D. Harris Vice President of the United States (Official Senate Photo)
Unfortunately for Vice President Harris and the rest of us who want humane, realistic immigration policies, there are reasons for our half-century of overall failure on the border.
Bloated government bureaucracies, powerful corporate interests, nativist politicians, and even foreign leaders are heavily invested in expensive and guaranteed to fail “uber enforcement” gimmicks. Failure basically creates a never-ending demand for more: more enforcement agents, “civil prisons,” jailers, deporters, cars, trucks, guns, boats, ammo, walls, fences, technology, courts, judges, prosecutors, lobbyists, “baby jails,” processing centers, foreign aid that goes largely into the pockets of corrupt leaders and their cronies, and a never-ending supply of underground, low-wage, politically neutered workers.
Additionally, we now have an entire political party with an agenda of overt institutionalized racism, dehumanization of the other, and fear-mongering White Nationalist myths driving its bogus populist narrative.
None of these “architects and enablers of border failure and institutionalized racism” are going “quietly into the night.” They will fight tooth and nail to defend their sinecures, profitable empires, and politically useful White Nationalist myths.
The politician who finally breaks the deadly cycle of failure and human misery at our border, while harnessing and realizing the positive power of human migration, will become a hero for future historians and undoubtedly merit a chapter in a new edition of Profiles in Courage.
Sadly, such recognition and adulation is likely to come long after she is gone from the scene. Long term vision and moral courage are not necessarily rewarded with short-term political popularity. Just ask the few Republicans who voted in accordance with the overwhelming, basically uncontested, evidence of Trump’s “high crimes and misdemeanors!”
That’s why it’s a tough challenge even for someone of Vice President Harris’s undoubted intelligence and abilities. It’s up to those of us who believe in a better America to keep her from getting sidetracked and co-opted by the vested interests of failure and White Nationalist myth-makers and purveyors.
President Biden’s top advisers promise “long-needed systemic reforms” to address a backlog of more than 1 million asylum cases in the immigration court system, which often keeps people applying for asylum waiting years to resolve their cases. That could mean some big changes to how asylum cases are processed at the southern border.
The plan the Biden administration is considering to speed up the process would take some asylum cases from the southern border out of the hands of the overloaded immigration courts under the Department of Justice and instead handle them under the purview of the Department of Homeland Security, where asylum officers already process tens of thousands of cases a year, two people familiar with the discussions who were not authorized to speak about administration plans told NPR exclusively.
Those familiar with the discussions say one outcome could be discouraging unauthorized migration. That’s because those who can argue for a certain fear of persecution are able to gain temporary residence and often a work permit as they wait out their cases.
. . . .
Advocates say they welcome a more efficient system, provided changes are not used as a way to expedite removals as the Trump administration did.
Eleanor Acer of Human Rights First says there are a host of reasons to allow asylum officers to conduct the first set of interviews and reduce the numbers, but she says it’s important that applicants have a chance to appeal to the court before being removed.
“The massive backlog must be dealt with,” she said. “But the answer to that problem is not to deprive asylum seekers of due process and a fair hearing, or to weaponize the asylum process to try to deter other people from seeking U.S. protection.”
The Biden administration has already ended two of the Trump administration’s programs, the Prompt Asylum Case Review and the Humanitarian Asylum Review Program, that were designed to quickly return Mexican and Central American asylum seekers suspected of having invalid claims.
Department of Homeland Security officials declined to discuss plans to shift border cases to the asylum division.
But an administration official said last week they are now working on a number of policies and regulations to create “a better functioning asylum system.”
That includes establishing refugee processing in the region and strengthening other countries’ asylum systems.
Biden also resurrected the Central American Minors program that reunited children with parents who are in the United States legally.
The Biden administration is now seeking to “pick up the pieces” after the Trump administration, with a different set of policies that abide by U.S. law but also international obligations, Meissner said.
“We need to have access to asylum,” Meissner said, “but it needs to be done in a way that can be prompt and fair, not in a way that leads to waits of years and years and court backlogs.
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Read the complete article at the link.
Why it could work:
Granting relief at the lowest level of the system is cost effective;
It’s easier to hire, train, and assign Asylum Officers than Immigration Judges;
Immigration Court time should be reserved for those cases where there is a real issue as to whether relief can be granted.
Why it probably won’t work:
Leadership is critical. Right now, there are only a few experts in government with the knowledge, proven leadership ability, organizational skills, and courage to lead this program.
Two obvious names that come to mind are Judge A. Ashley Tabaddor, currently USCIS Chief Counsel, and Judge Dana Leigh Marks, one of the “founding mothers” of U.S. asylum law and pioneer of the well-founded fear standard. Both are past Presidents of the NAIJ. Neither has yet been tapped for this assignment.
By contrast, there are a number of experts in the private/NGO sector who could lead this effort. Obvious choices would be Judge Paul Grussendorf, former Immigration Judge, Asylum Officer, UN Representative, and professor; Professor Karen Musalo, Director, Center for Refugee & Gender Studies, UC Hastings Law; Eleanor Acer, Senior Director, Refugee Protection, Human Rights First (quoted in this article); Professor Michele Pistone, Creator and Founder of the VIISTA asylum training program at Villanova Law; Professor Phil Schrag, Co-Director of the CALS Asylum Clinic at Georgetown Law and author of Baby Jails and the upcoming release The End of Asylum; Michelle Mendez, Director, Defending Vulnerable Populations at CLINIC; or Judge Ilyce Shugall of our Round Table. But, nobody of that caliber has been tapped either.
Without creative, dynamic, expert leadership, and a different approach to personnel, the program will be yet another bureaucratic failure. In case nobody has noticed, after four years of never ending abuse, gross mismanagement, and intentional misdirection by the Trump kakistocracy, the USCIS Asylum & Refugee program is also in shambles — demoralized, disorganized, leaderless, incredibly backlogged. An obvious untapped source is retired Asylum Officers and Adjudicators who could be brought back on a limited-term basis, intensively trained by experts from a “Better EOIR,” and who often are in a position to travel frequently and on short notice.
It’s not about deterrence. Already, this article speaks of “possible deterrent effect.” WRONG!The purpose of an asylum adjudication system is to provide fair, timely, generous adjudications of asylum eligibility in accordance with the letter and spirit of the Refugee Act of 1980, the U.N. Convention and Protocol on which it is based, and the due process clause of our Constitution. We have never had such a system, which inevitably would be more orderly and efficient, but also result in many more grants.
The main reason why we don’t currently have a functioning asylum system, and never have had the system that asylum seekers need and deserve, is that the system is at the mercy of a bogus Executive-controlled “court” system that time and time again has been compromised by politicos seeking who use it as an enforcement tool rather than an independent court of justice.
In 2014, the last year that I taught Refugee Law & Policy at Georgetown Law I “graded” the U.S. Asylum system at “B-.” Not as good as it should be, but not as bad as it could be.
Now I’d give it an “F.” Completely dysfunctional, highly arbitrary, and a tool of institutionalized racism and White Nationalism.
The system is ineffective as a deterrent. There is no known basis to believe that quick and often arbitrary and wrongful “rejections” are an effective deterrent. That’s particularly true because rejections are seldom explained in a reasonable, understandable manner. So, to the extent that there is a “message” it’s that you got the wrong officer or the wrong judge on the wrong day or that the U.S. legal system is inherently unfair and should be avoided by hiring a smuggler to get you to the interior of the U.S. where, as a practical matter, you have a better chance of obtaining “de facto refuge.”
The only “efficiency and leverage” that comes from the Asylum Officer system is in quickly identifying and consistently granting a substantial number of applications. That, and only that, does actually relieve the Immigration Court system of unnecessary cases. Otherwise, “non-grants” still have to go to the Immigration Courts for de novo review. I probably granted the majority of asylum cases “referred” from the Asylum Office. That leaves plenty of room to believe that a better trained and operated system with some positive guidance and effective supervision by better Immigration Judges and a truly expert BIA would achieve substantially higher grant rates and higher efficiency at the Asylum Office, thereby keeping many cases out of court and speeding the process for asylees to obtain permanent residence and eventually U.S. citizenship!
Some assumptions appear invalid. This article also repeats the unproven assumption that a fair, just, and efficient asylum system would result in rejection of the majority of cases. I doubt that.
Prior to the Trump disaster, approximately 75-80% of asylum applicants at the Southern Border passed “credible fear.” That the majority of them never achieved asylum was due less to the lack of merit in their claims than to factors such as: 1) lack of a system to match asylum seekers with qualified counsel; 2) wrong-headed anti-asylum precedents from the BIA that were specifically directed against asylum seekers from Latin America — basically institutionalized racism in the guise of “enforcement;” 3) poor selection, training, and motivation of Immigration Judges some of whom simply did not treat asylum seekers fairly, nor were they given any incentive to do so.
I granted asylum or other protection to many refugees from the Northern Triangle. I probably could have granted twice that number had the BIA precedents actually fairly and reasonably interpreted asylum law to specifically cover gender-based claims and claims arising from persecution by gangs basically operating “in lieu of government authorities” in most of the Northern Triangle.
Additionally, an honest interpretation of the CAT by the BIA would have allowed life-saving protection to be extended to many others who lacked nexus but had a high probability of torture with Government acquiescence upon return. I believe that a return to the original Acosta-Kasinga line of asylum analysis and adoption of proper CAT interpretationsalong the lines set forth by the (exiled) dissenting judges in Matter of J-E- would result in grants of some type of protection (asylum, withholding, or CAT) in the majority of Southern Border cases coming from the Northern Triangle that passed credible fear or reasonable fear.
Asylum, along with refugee status, is a key form of legal immigration to the U.S. There is absolutely nothing wrong with that. It’s NOT a “loophole.” It’s the law! Studies by groups of experts such as CMS have shown the huge benefits that refugees confer on the U.S. I have no reason to believe that asylum seekers as a group are any different.
As long as we keep treating the reality of human migration and the strengths and humanity of asylum seekers as a negative rather than a positive, we will continue to fail, as we have for decades, to fully comply with either our own laws or international conventions.
A broken, dysfunctional, unfair EOIR will continue to drag American justice down. There must be de novo review of denials by EOIR and far, far more competent review and direction in the review of credible fear denials by EOIR. A better BIA could actually set binding precedents on “credible fear” and “reasonable fear.”
Currently, EOIR is incapable of producing either consistently fair results (particularly for asylum seekers) or the inspired legal scholarship and leadership for the asylum system to be functional and held accountable. It’s going to require all new leadership, an all new BIA, elimination of all of the Trump-eraprecedents that impede fairness for asylum seekers, new merit-based selection criteria for Immigration Judges, professional administration from judicial experts, and an immediate slashing of the largely self-created “backlog” of 1.3 million cases by closing and removing from the docket every case more than a year old that doesn’t relate to a priority (most are folks who would be covered by Biden’s legalization program anyway; many are eligible for relief that USCIS could grant) to get EOIR in a position to provide the necessary legal guidance and system accountability for the Asylum Office. The absurdist notion that we could or would want to remove every one of the 10-11 million undocumented residents (many performing essential services that propped us up through the pandemic) is one of the “big lies” that has prevented rational reforms of our immigration system.
In plain terms, EOIR needs an immediate “rebuild” with a new progressive, humanitarian judiciary of experts. There is no early indication that Judge Garland either understands that “mission-critical” need or has a plan for achieving it.
As we say in the business the “devil is in the details.” Right now, I can see neither the details nor theleadership in place or “in the pipeline” to solve the debilitating problems in our asylum system that actually are undermining the entire U.S. justice system.
Biden could fix it. But, I wouldn’t count on it. That means that the only real fix in the offing will be for the NDPA to force the Administration to “get it right” through aggressive, never-ending litigation as well as continuing to seek better legislators. Highly inefficient. Yet, sometimes it’s the only way to get the attention of those in power.
If nothing else, we’ll continue to make an important historic record of the cruelty and stupidity with which the current asylum system is being administered. It doesn’t have to be this way. We can always choose to follow our “better angels.” It just takes the courage and the good judgement to get the right folks in the right jobs to make it happen.
The answer to the question posed is actually simple. As of today, DHS Enforcement and politicos at the DOJ “own” the so called Immigration “Courts” lock, stock, and barrel!
That’s an overt violation of the clear Fifth Amendment requirement that those whose lives and property are at stake be judged by a fair and impartial adjudicator — by definition one who is an expert in asylum law, human rights, and has demonstrated the ability to conduct fair hearings.
That’s also bad news for the Hispanic Community, because for the last four years those wholly owned “courts” have been operating with a clear bias against the civil and human rights of people of color, with Hispanic migrants and asylum seekers being a particular target — one that has adversely affected, even terrorized, Hispanic communities throughout the U.S. Hispanics are also grossly underrepresented among the “Immigration Judiciary” at both the trial and appellate levels, as well as on the Article III Bench — despite there being scores of Hispanic and other lawyers of color out here who would be head and shoulders above many of those currently holding these critical “life or death” judgeships!
The real questions are:
1) What can we do about it, and
2) How can we get Judge Garland and others in the Administration to listen, put an end to “Dred Scottification,” and get started on the task of bringing due process and fundamental fairness to a totally dysfunctional and dangerously biased system?
Tune in on April 7 to join the dialogue on how we can finally force the U.S. Government to make good on its unfulfilled, even mocked, Constitutional promise of due process for all persons!
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
The Republican senator Ted Cruz has drawn criticism for taking a trip to America’s southern border as the conservative Texan politician once again became the butt of internet jokes and memes.
In the style of a wildlife documentary, Cruz captured his experience with the help of professional photographers and shared his recent journey to the US-Mexico border Thursday night on social media, where he aimed to shed light on what Republicans have dubbed a crisis.
Sporting a dark green fishing shirt and matching baseball cap with the Texas flag, Cruz spoke at a press conference where he sought to paint a dramatic picture of his experience: “On the other side of the river we have been listening to and seeing cartel members – human traffickers – right on the other side of the river waving flashlights, yelling and taunting Americans, taunting the border patrol.”
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Despite his claims that the border situation is a direct result of the Biden administration’s immigration policies, residents in the Rio Grande Valley have said no such crisis exists. In fact, the number of border crossings under the Biden administration largely mirror those under the former Trump administration. Cruz was accompanied by 18 other Republican senators including John Cornyn, Susan Collins and Lindsey Graham.
After claiming he ran into heckling cartel members and saw a dead body floating in the Rio Grande, Cruz was derided by many, including the former congressman Beto O’Rourke who said:“You’re in a border patrol boat armed with machine guns. The only threat you face is unarmed children and families who are seeking asylum (as well as the occasional heckler).”
. . . .
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Read more at the link about the GOP’s complete farce — while much more courageous individuals, asylum seekers, are forced to risk their lives because the U.S. is incapable of administering our own asylum laws in a fair, responsible, and competent manner. Cruz & co apparently view this as a “photo op.” Actually, it’s a human tragedy for which history will hold Cruz and his racist party largely responsible, even if the voters fail to do so.
The best solution is to hire experts from the private/NGO/academic sectors; build a functioning asylum and refugee system that will process applicants fairly, generously, predictably, and efficiently; reopen legal ports of entry; establish a robust “on site” refugee program for the Northern Triangle; and work with the international community to alleviate the causes of forced migration. Figure out how new arrivals who qualify for legal status can help rebuild our economy moving forward. Develop a humane program for returning those who don’t qualify without endangering their lives, health, and safety.
An absolutely essential part of the solution is a new, “reimagined” EOIR, staffed with real judges who are experts in asylum, human rights, and due process. An EOIR that will “through teamwork and innovation, be the world’s best courts, guaranteeing fairness and due process for all.” Judge Garland, where are you in American justice’s hour of dire need?
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Imperfect as our current laws may be, they cover all of the foregoing. What we really need to do is follow our own laws with common sense, humanity, and a sense of urgency!
What we don’t need is more inane walls, more border enforcement directed against asylum seekers, and more cruel and illegal schemes to return refugees to back to danger without any due process. And, we certainly don’t need any more photo ops from Cruz and his GOP cronies.
The Democratic senator has spent years calling for more public defenders and fewer corporate attorneys getting federal judgeships. Now Joe Biden agrees.
For years, Sen. Elizabeth Warren (D-Mass.) has been a lonely voice in the Senate on the need to put people with all kinds of different legal backgrounds into lifetime federal judgeships.
“We face a federal bench that has a striking lack of diversity,” she said at a 2014 event on this topic, hosted by Alliance for Justice, a progressive judicial advocacy group. “President Obama has supported some notable exceptions but … the president’s nominees have thus far been largely in line with the prior statistics.”
Warren wasn’t talking about diversity in terms of demographics like race or gender; Obama made history on those fronts with his judicial nominees. She was talking about the problem with presidents and senators ― in both parties ― routinely picking corporate attorneys and prosecutors who went to Ivy League schools to be federal judges.
If you want the nation’s courts to reflect the people they serve, Warren has argued, we need judges who have been public defenders and civil rights attorneys, people familiar with the legal needs of everyday Americans who may be living on low incomes or otherwise marginalized. A diversity of legal professionals on the federal bench means more informed decisions on issues related to economic justice and civil rights.
At last, the times are catching up with Warren.
President Joe Biden is signaling he’s ready to make professional diversity central to his judicial selection process. He hasn’t nominated anyone yet, but White House counsel Dana Remus wrote to Democratic senators in December urging them to recommend court picks to the White House as soon as possible, and said that Biden is “particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.”
Top Democrats in the House are putting a spotlight on the issue too, even though they don’t have a say in confirming federal judges.
“Unfortunately, we have a lot of work to do when it comes to judicial diversity,” House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) said in a Thursday subcommittee hearing on this subject. “There are ways in which the federal judiciary of 2021 looks uncomfortably similar to the federal judiciary of 1921 … Somehow, despite all our progress, today’s federal judges remain, for instance, overwhelmingly male, white, former prosecutors or corporate lawyers who went to a handful of law schools.”
. . . .
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Read the complete article at the link.
Biden is “particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.”
That’s basically a description of scores of immigration/human rights experts out here in the New Due Process Army (“NDPA”). Yes, they should be a primary source of appointees to the Article III Judiciary! Absolutely! But, they should also be appointed to the BIA and the Immigration Courts — now!
At present, the Immigration Courts are “administrative courts,” not part of the Article III Judiciary; therefore, Senate confirmation isn’t necessary. They are “administered” by a now “evil-clown-like” 🤡🦹🏿♂️ DOJ bureaucracy called “EOIR.” We need to get the right progressive scholars and “disciples of due process” on the Immigration Bench — immediately, without further delay!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Immigration Courts are one of most powerful tools in American law. Also, Constitution be damned, until we get a long overdue Article I independent Immigration Court, they are completely controlled by the AG — Judge Merrick B. Garland. This is a big, big deal — nearly 600 judgeships, almost the size of the entire U.S. District Court system, are at stake!
Sessions and Barr quickly figured: Why not aggressively weaponize EOIR to undermine American democracy, institutionalize racism and misogyny, and promote White Nationalist authoritarianism? And, that’s exactly what they did — to the max. Using EOIR judgeships to reward some of their unqualified, white, nativist buddies in the process was an “added bennie.”
G. Reaper Approaches ICE Gulag With “Imbedded Captive Star Chamber” Run By EOIR, For Their “Partner” Reaper Image: Hernan Fednan, Creative Commons License
Even the totally incomprehensible incompetence with which they administered EOIR fulfilled their “negative dream.” Dysfunctional Immigration Courts became an important tool for debilitating the entire U.S. justice system and “Dred Scottifying” (dehumanizing) persons of color before the law.
Those with compelling cases for relief, many pending for years, were shuffled off to the end of the docket. Or, if they did get a hearing, incompetent or compromised “judges” at the trial and appellate levels often arbitrarily denied their claims for bogus reasons. This disgraceful mess of a “court” actually penalized those with strong cases for relief — many who should have been done and joined our society years ago instead linger in the largely self-created EOIR “backlog” of 1.3 million cases. Or, theyare condemned to endless litigation to vindicate their rights in a system intentionally rigged against them.
“Justice” Star Chamber Style
Looking for the underpinning for the idea that people of color have reduced rights to vote, political participation, and that their lives don’t really matter? Look no further than the ongoing “Dred Scottification” of asylum applicants and other people of color in Immigration Court, now enshrined in a number of bogus “precedents” issued by White Nationalist AGs and their wholly-owned BIA!
BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
And, their job was “easy as pie” following the indolent stewardship of their Dem predecessors. When the latter finally got around to filling judicial vacancies at EOIR, every couple of years, they handed them out almost exclusively to government “insiders” — like they were “length of service” pins! Better-qualified progressive, due-process-oriented, experts, scholars, advocates, and others in the private/NGO/academic sector — folks who actually could have brought badly needed professionalism, excellence, and order to a system careening out of control — were basically “shut out” by the Dems. Interesting way to reward your potential allies!
The Dems’ “diverse recruiting program” for the Immigration Judiciary was to advertise the positions for about 10 minutes on the “insider online bulletin board” known as “USA Jobs.” Then, after an average two-year long, excruciatingly wasteful and mindless “Rube Goldberg-designed evaluation” by layer after layer of bureaucrats — few, if any of them actual sitting Immigration Judges — participating, in most cases they basically just selected “the next ICE prosecutor, EOIR staffer, or OIL litigator up.” But, the “beauty” of this system is that with so many layers of bureaucracy involved, nobody could be held accountable for the actual selections! Talk about a “finger-pointers’ dream.”
Oh yeah, and of course there was no room for public input and/or participation in this process. Some of the newly anointed judges actually had rather less-than-stellar reputations in the immigration community at large. Many would have drawn blank stares if mentioned to a panel of acknowledged immigration and human rights experts. Few were “household names,” except perhaps in a negative sense. No matter to the Obama folks!
During the Obama Administration, I attended a so-called “training-session” at an Immigration Judge Conference — this was “in person,” although for a number of years we got “home-video grade” training CDs. There, curiously, one of these “newbies” was selected to “educate” a group of us, many of us with decades of experience in the field and some with actual teaching credentials under their belts. Our “instructor” referred to the Government as “us,” to the respondent and counsel as “them,” and bragged that “our big wins from OIL” would make it easier to deny asylum.
Other “instructors” parroted cringingly mind boggling mis-statements of asylum law — apparently designed to fit into OIL’s preferred litigation positions. And, incredibly, this was with the “founding mother” of U.S. Asylum Law, Judge Dana Leigh Marks, who had argued and won the landmark “well-founded-fear” case INS v. Cardoza-Fonseca before the Supremes, effectively muzzled and holding her head in the audience.
In 21 years on the bench, during “EOIR training,” I was lectured to by a variety of BIA Attorney Advisors, OIL Attorneys, politicos, DHS Officials, State Department Officials, Ethics Officers, stress managers, and an occasional NGO advocate. Never, did I get to hear my colleague Judge Marks’s views on the development of asylum law since Cardoza. Sure, that didn’t stop us from carrying on a dialogue elsewhere, as we did. But, we were pretty much “on the same page.” The folks who needed to hear what Judge Marks had to say didn’t.
Hon. Dana Leigh Marks U.S. Immigration Judge San Francisco Immigration Court Past President, National Association of Immigration Judges
And, we wonder why Dems inevitably screw up immigration law, and end up defending highly regressive actions and “designed to fail” policies — try “baby jails,” indefinite detention, and non-English-speaking toddlers “representing themselves” in Immigration Court. I kid you not! Each of the foregoing were things that the Obama DOJ vigorously advanced and defended before Federal Courts!🤮
Will Judge Garland figure it out before it’s too late? Or, as his Obama predecessors did, will he fritter away his time with “more sexy,” but actually far less important initiatives and lofty ideals that will be effectively undermined by failing to create a progressive, expert, well functioning, professional Immigration Judiciary.
Judge Merrick B. Garland, U.S. Attorney General Official White House Photo Public Realm
Racial justice, equal justice, and due process for all persons in America start in the Immigration Court. And, right now they are dying there! If Judge Garland doesn’t pay attention, grasp the moment, aggressively clean house, and take the long overdue, radical, courageous actions to build a better Immigration Judiciary, the whole U.S. justice system might well come crashing down upon him! And, he will have only himself to blame!
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever! A Better EOIR for A Better Federal Judiciary! A Better Federal Judiciary For A Better America! Not rocket science! But, it does require vision, recognition of the problem, and the courage to solve it!
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)Gabe Gutierrez NBC News Correspondent Atlanta, GA
Reminds me of the essay I recently posted from my friend, Don Kerwin at CMS:
The number of unaccompanied children and asylum-seekers crossing the US-Mexico border in search of protection has increased in recent weeks. The former president, his acolytes, and both extremist and mainstream media have characterized this situation as a “border crisis,” a self-inflicted wound by the Biden administration, and even a failure of US asylum policy. It is none of these things. Rather, it is a response to compounding pressures, most prominently the previous administration’s evisceration of US asylum and anti-trafficking policies and procedures, and the failure to address the conditions that are displacing residents of the Northern Triangle states of Central America (El Salvador, Guatemala, and Honduras), as well as Venezuela, Cuba, Haiti, and other countries…
The real immigration crisis is not at the border, but in the failure to respond effectively to the conditions driving forced migration, to establish orderly and viable legal immigration policies, to legalize the increasingly long-tenured undocumented population, and to reform and invest sufficiently in the US asylum and immigration court systems.
Donald M. Kerwin Executive Director Center for Migration Studies
It also echoes the words of veteran journalist Marc Cooper, posted by my friend Dan Kowalski over on LexisNexis Immigration Community:
When I was in Mexico reporting on the exodus, I would talk with dozens of migrants who were just a an hour or two away from starting their trek and, to a person, not one of them said they paid any attention to new US laws and regs as they were determined to cross no matter what. And no matter the sacrifices.
Dan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)
Even the WashPost editorial page writers “get” the reality of human migration in a way the nativist fear-mongers never will:
Yet despite fearmongering by Republicans, the current influx is neither a public health emergency nor a national security threat. The vast majority of those allowed to enter the country will join relatives here while their asylum claims plod along. That wait is too long — it can stretch to three years or more — and the administration insists it will shrink the backlog. It has also earmarked $4 billion in aid from the pandemic relief bill for Central America — with strings attached to prevent its misuse — to attack the conditions that make life miserable there and drive migrants to seek refuge in this country.
Dumping Asylum Seekers in Honduras Artist: Monte Wolverton Reproduced under license
Still, sadly, facts and reality seem largely irrelevant here.
Despite denials from Secretary Mayorkas, the Biden Administration appears to be believing Kevin McCarthy’s BS on some level.
Thursday, the Administration basically negotiated a “lite version” of Trump’s “Let ‘Em Die in Mexico” — essentially trading AstroZenica vaccine (which wasn’t approved for use in the U.S. anyway) for Mexico’s agreement to step up harsh enforcement measures against migrants crossing their Southern Border and to warehouse families arbitrarily rejected without due process by the U.S. under our bogus CDC directive. We already have seen how well that works out!
A girl peers out from an encampment at the U.S.-Mexico border where she and several hundred people waited to present themselves to U.S. immigration to seek asylum. / Photo by David Maung
Any way you cut it, the realities of human migration, the lives of the desperate individuals involved, the views of human rights experts and advocates, and our supposed commitment to international conventions, the rule of law, and Constitutional Due Process take a back seat when the “bogus border debate” shifts into high gear.
There is actually a very simple truth here: “Forced migration” is not “optional!” In fact, a number of forced migrants prefer “death in the attempt” to “death in place.”
Therefore, all the “deterrents,” “border militarization,” “Baby Jails,” and “stay home statements” won’t ultimately stop the inexorable flow (although they might temporarily divert, modulate, or vary it— usually just enough for the “powers that be” to declare “victory at sea” as a result of their failed policies while ignoring the human carnage and lost opportunities they leave behind).
Professor Philip G. Schrag Georgetown Law Co-Director, CALS Asylum Clinic, Author of “Baby Jails”
Sure, there is a timing factor. Weather, the “business plans” and propaganda of smugglers (Trump’s “enforcement only” policies have been a boon for them in more ways than one, not only boosting their fees, but diverting enforcement resources away from the “real” law enforcement problems at the border involving drugs and human exploitation), and Biden’s pledge to restore humanity and the rule of law to America all factor into the equation in some way.
But, they are not the the primary causes of forced migration, except to the extent that climatechange (ignored and worsened by Trump and the GOP) has aggravated the poverty and economic disorder in the Northern Triangle by destroying the livelihoods of many farmers and making their land essentially worthless.
Tone-deaf GOP politicos like McCarthy and Sen. Rob Portman (R-OH) apparently think the solution is to continue to mock the rule of law, violate the Constitution, and simply declare the Southern Border closed forever, al a Stephen Miller. Let families and children “die in place” in their home countries, die on the journey at the hands of other governments, or rot forever in Mexico — “Out of sight, out of mind.” As long as it isn’t happening in our country and being covered by our news outlets, who cares about human lives? That was certainly the Trump approach!
That’s hardly a “solution,” except in neo-Nazi or Soviet-era terms. The harshest and most inhuman approaches will, as they have in the past and continue to do, fail to stop desperate humans who want to survive from doing what’s necessary to save their lives and preserve their families’ futures, even when that interferes with the GOP’s “whitewashed” version of “American greatness.”
The solution involves following Constitutional due process, re-establishing the rule of law (including a radical “reform and replace” of our dysfunctional Immigration Courts), and adhering to our international obligations, both in letter and spirit. It also requires an expanded, much more robust, legal immigration system that reflects the demands of our economy, the needs of migrants, and the realities of human migration, particularly from Latin America. Like it or not, there will be more immigration.
As I have said before: “There are many ways in which we can diminish our own humanity, but none of them will stop human migration.”
Will G. Reaper Become The Lasting Image of America’s 21st Century Human Rights & Racial Justice Failures In The Eyes Of The Rest Of Humanity & Future Generations? Image: Hernan Fednan, Creative Commons License
Contrary to the GOP blather, immigration, voluntary, forced, coerced, legal, extra-legal, white, non-white, Christian, non-Christian, is what the real America is all about, for better or worse. Overall, immigration is a positive force for America.
Here’s a great essay on the positive nature of immigration by Pedro Gerson on Slate. Pedro isthe director of the Immigration Law Clinic at the Louisiana State University Law Center, and a former immigration staff attorney at the Bronx Defenders. The latter organization has been home to a number of notable members of the NDPA.
Pedro Gerson Director, Immigration Law Clinic LSU Law Center SOURCE: Twitter
As Pedro says, human migration to America will continue notwithstanding GOP xenophobes. The only question is whether we will have the wisdom and courage to work with and take advantage of its power in constructive, creative, forward looking ways, rather than trying to “recreate Jim Crow!”
Or, will we continue, as GOP restrictionists urge, to squander resources, goodwill, and human potential on futile efforts to eradicate what is perhaps the oldest and most fundamental phenomenon of human existence?
🇺🇸🗽⚖️Due Process Forever! Restore the rule of law! Fix The Disgraceful, Dysfunctional Immigration Courts, Judge Garland! End White Nationalist racism!
NOW HILL — Former Worcester County prosecutor and Wicomico County Deputy State’s Attorney William “Billy” McDermott has been appointed as a federal immigration judge by the U.S. Attorney General.
U.S. Attorney General Merrick B. Garland has appointed McDermott, 35, a resident of Girdletree, as a federal immigration judge assigned to the New York City Court effective March 28. McDermott, a Worcester County native who graduated from Snow Hill High School, served as deputy state’s attorney under former Worcester County State’s Attorney Beau Oglesby.
When Oglesby was appointed to the Worcester County Circuit Court bench in January 2018, McDermott, his top prosecutor, was appointed Ad Interim State’s Attorney for Worcester County. He announced he was running for the office full-time, but lost a narrow election to current Worcester County State’s Attorney Kris Heiser later in 2018.
McDermott was immediately picked up by the Wicomico County State’s Attorney’s Office, where he has served as lead prosecutor ever since before his appointment as a federal immigration judge this week. As deputy state’s attorney for Wicomico County, McDermott has prosecuted many important cases over the last few years, including the Jamel Gould homicide trial, the Brendon Fields homicide trial, the Jonathan Megee homicide trial, the Barbara Pilchard animal abuse trial and the Salisbury University hate crime graffiti case, for example.
Outside the courtroom, McDermott has assisted in the creation of the new Prosecution Integrity Unit. He has also testified in Annapolis on several pieces of important public safety-related legislation and led the first annual Wicomico County State’s Attorney Summer Camp for youth.
“We are incredibly excited and proud of Billy’s appointment,” said Wicomico County State’s Attorney Jamie Dykes. “This may by the opportunity of a lifetime for him and his family, and we know that our country will be well-served by those qualities that will make him an excellent judge.”
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Read the complete article at the link.
Short “honeymoon!” Most disappointing from an Administration and AG who claim a commitment to justice for asylum seekers and other migrants!
Nothing personal against Judge McDermott. He sounds like a decent guy. He might be well-qualified to be a U.S. Attorney, an official in the DOJ’s Criminal Division, or for dozens of other positions in the Federal Bureaucracy. He might even prove to be better than some of the Immigration Judges now on the bench.
But, the idea that he is the best qualified individual to be a U.S. Immigration Judge is facially absurd. Most of us could think of dozens of much better qualified candidates, just in the NY area.
As I always say, first impressions are lasting impressions. Sadly, Judge Garland has chosen to start by thumbing his nose at those of us committed to immigrant justice and a better Immigration Judiciary. I see no excuse for this tone-deaf appointment.
It looks like the only way the NDPA and the forces of equal justice will get Garland’s attention is by continuing to sue, sue, sue, resist, agitate, and win until we can force change! Sure, it’s dumb and counterproductive on the part of the Biden Administration. Sure, we expected better from Judge Garland.
But, hey, what else is new? If Democratic politicos ever took the time to understand EOIR and its potential for good or evil, we wouldn’t have the unmitigated mess we have today! And, there is no viable plan in place to fix it, nor have we seen the type of consciousness about the ongoing mockery of justice at EOIR necessary to start fixing the American justice system!
🇺🇸🗽⚖️Due Process Forever. A “Built to Fail” Immigration Judiciary, Never!
There, of course, are pressing humanitarian issues to address along the U.S./Mexico border. But to say that this issues are a result of “open border policies” is simply wrong. No major party political leader to my knowledge is calling for “open borders.” Rather, the “open borders” mantra is something that Republican politicians invoke to attack immigration policies that they do not like.
Democrats have another explanation for the current situation at the border. House Speaker Nancy Pelosi told ABC News’ “This Week” that the policies of the Trump administration, which radically transformed immigration enforcement from 2017-21, are to blame for the recent increase in unaccompanied migrant children at the southern border,
“This is a humanitarian challenge to all of us,” Pelosi said. “What the administration has inherited is a broken system at the border and they are working to correct that in the children’s interests.”
Thanks, Kevin, for adding some reality and perspective to the discussion. You can read Abbott’s statement at the link. Notably, the Republicans have offered no constructive solutions to this humanitarian issue, either in or out of power, other than to engage in child abuse and continually violate the laws, both international and domestic.
The criticism from the likes of Abbott, who as “Governor” of Texas has presided over a power grid disaster that actually killed and threatened the health of Texas residents and who has thumbed his nose at public health recommendations that save lives, is particularly disingenuous. And, naturally, the dangerous and deadly results of Abbott’s and the GOP’s mis-governance of Texas have fallen disproportionately on Latinos and other communities of color. The Abbott/GOP response has been to attempt to disenfranchise citizens of color in Texas!
The same can be said of GOP House Minority Leader Kevin McCarthy whose main contribution to America’s safety and security has been to whitewash the deadly assault on our Capitol that his “supreme leader” orchestrated. Again, a person with no credibility.
Those seeking a more nuanced and accurate picture of what’s really happening at the Southern Border should read the lengthy report of Arelis Hernandez in the WashPost:
Migrants are not overrunning U.S. border towns, despite the political rhetoric
Leaders in Texas border towns say their economies are suffering because of pandemic restrictions on cross-border travel.
. . . .
City officials and nonprofit organizations can’t force families to stay in the hotels but Darling, the McAllen mayor, said so far no one they track has left isolation prematurely.
“We tell them if they want to leave on our buses, they need to follow our rules,” he said. The city has spent nearly $200,000 of taxpayer money it hopes will be reimbursed by the federal government, but Abbott’s rejection of Federal Emergency Management Agency funding from the Biden administration will complicate matters for localities.
Darling said his city is full of compassionate people, and they are doing the rest of the country a favor in taking care of migrant families on the front end of their journeys.
Along the border, faith organizations, local emergency managers and immigration advocates say they have learned from previous surges how best to coordinate. They are preparing to receive flights and buses full of asylum seekers, mostly recently released families with small children, to ease capacity issues that critics say the Department of Homeland Security officials should have anticipated.
Coronavirus restrictions have put capacity limits on shelters run by community organizations on the U.S. side of the border, but so far the numbers are not at 2019 levels, said Pastor Michael Smith of the Holding Institute in Laredo. Shelters and temporary detention facilities operated by the U.S. Health and Human Services’ contractors, however, are over capacity.
But without more orderly intervention, the numbers could overwhelm. The Biden administration plans to deploy FEMA to the border to help with the migration surge as the administration tries to quickly scale up space to temporarily hold and process migrants and unaccompanied children — many between the ages of 13 and 17.
“The failure to have an administrative process is causing a humanitarian crisis,” Smith said during a news conference organized by Laredo activists. “There are solutions to the issues, but they are not solutions that call for militarizing the border.”
“We need robust infrastructure at our ports of entry to handle people seeking asylum,” said Tannya Benavides, of the No Border Wall coalition. “We need more lawyers and judges, not more troops or technology.”
Arelis R. Hernandez Southern Border Reporter Washington Post
Great article by Arelis! I highly recommend it. My only caveat is that we need not just more lawyers and judges, certainly correct, but better Immigration Judges who are experts in asylum law, have experience representing asylum seekers, and can fairly, efficiently, and consistently identify those with valid claims to protection under the law before it was perverted by the Trump regime. Also, the Government could use more qualified Asylum Officers who could screen and finally adjudicate the grantable cases, under correct legal criteria set forth by better-qualified Immigration Judges and a completely new due-process-human rights-oriented BIA without even having to send the cases to court.
These are the bold steps necessary to get out of the cycle of “same old, same old” — which inevitably ends with harsh measures directed at asylum seeking families and children that do nothing to address the causes of forced migration. “Enforcement-only deterrent measures” never have solved, and never will solve, the long-term problem in a constructive manner. The cycle of failed, yet expensive and inhumane deterrents, just keeps repeating itself Administration after Administration.
I have already suggested tapping into retired Asylum Officers and other retired USCIS Adjudicators with the necessary asylum expertise. I’m betting that my retired Round Table colleague, and former Asylum Officer and UN Official, Judge Paul Grussendorf would be available to help lead such an effort.
To solve this problem, the Biden Administration must put some expertswho understand the practicalities of refugee and asylum situations in place and let them solve the problem. It should come as no shock that the current gangs at DHS and EOIR —largely holdovers who participated in the Trump regime’s cruel, failed, and illegal “enforcement only” policies at the border — are not going to be able to get the job done. At least they can’t without some effective “adult supervision” from those committed to humane, legal, and timely processing of asylees and other migrants in full compliance with due process and best practices.
The Trump regime eschewed any attempt to build a fair, effective, timely asylum adjudication system that complied with domestic and international law as well as due process. Instead, they concentrated on eradicating the entire U.S. refugee and protection system through regulations (many enjoined), Executive Orders (some enjoined), bogus administrative “precedents,” and stacking the Immigration Courts with overtly anti-asylum or “go along to get along” “judges.” Right now, the entire system is in shambles — the most obvious example being the totally dysfunctional mess at EOIR!
To “win the game,” the Biden Administration needs to get the right players on the field. While there has been some notable progress, that hasn’t happened to date. And, with politicos like Abbott and McCarthy stirring the pot daily, time is running to get the “A Team” in place to combat their lies, distortions, and nonsense.
