Category: Article I Immigration Court

DUE PROCESS WINS IN THE WEST: Split 9th Cir. Slams DOJ’s Vile/Unethical “No Due Process Due” Argument — Orders Bond Hearings For Asylum Applicants Who Passed Credible Fear — Padilla v. ICE — Round Table Amicus Brief Helps Save Due Process!

Padilla v. ICE

Padilla v. ICE, 9th Cir., 03-27-20, published

SUMMARY BY COURT STAFF:

SUMMARY* Immigration

Affirming in part, and vacating and remanding in part, the district court’s preliminary injunction ordering the United States to provide bond hearings to a class of noncitizens who were detained and found to have a credible fear of persecution, the panel affirmed the injunction insofar as it concluded that plaintiffs have a due process right to bond hearings, but remanded for further findings and reconsideration with respect to the particular process due to plaintiffs.

The district court certified a nationwide class of all detained asylum seekers who were subject to expedited removal proceedings, were found to have a credible fear of persecution, but were not provided a bond hearing with a record of hearing within seven days of requesting a hearing. Part A of the district court’s modified preliminary injunction provided: 1) bond hearings must take place within seven days of a class member’s request, or the member must be released; 2) the burden of proof is on the government to show why the

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

    

4 PADILLA V. ICE

member should not be released; and 3) the government must produce recordings or verbatim transcripts of the hearings, as well as written decisions. Part B concluded that the class is constitutionally entitled to bond hearings. A motions panel of this court previously denied the government’s request to stay Part B, but granted the stay as to Part A.

The panel concluded that the district court did not abuse its discretion in concluding that plaintiffs were likely to prevail on their due process claim, explaining that immigration detention violates the Due Process Clause unless a special justification outweighs the constitutionally protected interest in avoiding physical restraint. The panel also concluded that the district court did not abuse its discretion in finding that other processes—seeking parole from detention or filing habeas petitions—were insufficient to satisfy due process. The panel further rejected the government’s suggestion that noncitizens lack any rights under the Due Process Clause, observing the general rule that once a person is standing on U.S. soil—regardless of the legality of entry—he or she is entitled to due process.

The panel next concluded that the district court did not abuse its discretion in its irreparable harm analysis, noting substandard physical conditions and medical care in detention, lack of access to attorneys and evidence, separation from family, and re-traumatization. The panel also concluded that the district court did not abuse its discretion in finding that the balance of the equities and public interest favors plaintiffs, explaining that the district court weighed: 1) plaintiffs’ deprivation of a fundamental constitutional right and its attendant harms; 2) the fact that it is always in the public interest to prevent constitutional violations; and 3) the

 

PADILLA V. ICE 5

government’s interest in the efficient administration of immigration law.

As to Part A of the injunction, the panel concluded that the record was insufficient to support the requirement of hearings within seven days, and that the district court made insufficient findings as to the burdens that Part A may impose on immigration courts. The panel also noted that the number of individuals in expedited removal proceedings may have dramatically increased since the entry of the injunction. Thus, the panel remanded to the district court for further factual development of the preliminary injunction factors as to Part A.

The panel also rejected the government’s argument that the district court lacked authority to grant injunction relief under 8 U.S.C. § 1252(f)(1), which provides: “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of [8 U.S.C. §§ 1221–1232], other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.” Examining the relevant precedent, statutory scheme, and legislative history, the panel concluded that here, where the class is composed of individual noncitizens, each of whom is in removal proceedings and facing an immediate violation of their rights, and where the district court has jurisdiction over each individual member of that class, classwide injunctive relief is consistent with congressional intent.

Finally, the panel concluded that the district court did not abuse its discretion in granting the injunction as to the nationwide class. However, the panel directed that, on

 

6 PADILLA V. ICE

remand, the district court must also revisit the nationwide scope.

Dissenting, Judge Bade wrote that 8 U.S.C. § 1252(f)(1) barred injunctive relief in this case, concluding that the majority’s opinion does not square with the plain text of § 1252(f)(1), is inconsistent with multiple Supreme Court cases, and needlessly creates a circuit split with the Sixth Circuit. Judge Bade further wrote that, even if the district court had jurisdiction to issue injunctive relief, the preliminary injunction is overbroad and exceeds what the constitution demands. Judge Bade would vacate the preliminary injunction and remand for further proceedings with instructions to dismiss the claims for classwide injunctive relief.

PANEL: Sidney R. Thomas, Chief Judge, and Michael Daly Hawkins and Bridget S. Bade, Circuit Judges.

OPNION BY: Chief Judge Sydney R. Thomas

DISSENTING OPINION: Judge Bridget S. Bade

KEY QUOTE FROM MAJORITY OPINION:

The government also suggests that non-citizens lack any rights under the Due Process Clause. As we have discussed, this position is precluded by Zadvydas and its progeny. The government relies on inapposite cases that address the peculiar constitutional status of noncitizens apprehended at a port-of-entry, but permitted to temporarily enter the United States under specific conditions. See, e.g., Shaughnessy v. United States ex rel. Mezei (“Mezei”), 345 U.S. 206, 208–09, 213–15 (1953) (noncitizen excluded while still aboard his ship, but then detained at Ellis Island pending final exclusion proceedings gained no additional procedural rights with respect to removal by virtue of his “temporary transfer from ship to shore” pursuant to a statute that “meticulously specified that such shelter ashore ‘shall not be considered a landing’”); Leng May Ma v. Barber, 357 U.S. 185 (1958) (noncitizen paroled into the United States while waiting for a determination of her admissibility was not “within the United States” “by virtue of her physical presence as a parolee”); Kaplan v. Tod, 267 U.S. 228 (1925) (noncitizen excluded at Ellis Island but detained instead of being deported immediately due to suspension of deportations during World War I “was to be regarded as stopped at the boundary line”).

Indeed, these cases, by carving out exceptions not applicable here, confirm the general rule that once a person is standing on U.S. soil—regardless of the legality of his or her entry—he or she is entitled to due process. See, e.g., Mezei, 345 U.S. at 212 (“[A]liens who have once passed

PADILLA V. ICE 25

through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.”); Leng May Ma, 357 U.S. at 187 (explaining that “immigration laws have long made a distinction between those aliens who have come to our shores seeking admission . . . and those who are within the United States after an entry, irrespective of its legality,” and recognizing, “[i]n the latter instance . . . additional rights and privileges not extended to those in the former category who are merely ‘on the threshold of initial entry’” (quoting Mezei, 345 U.S. at 212)); Kwai Fun Wong v. United States, 373 F.3d 952, 973 (9th Cir. 2004) (explaining that “the entry fiction is best seen . . .as a fairly narrow doctrine that primarily determines the procedures that the executive branch must follow before turning an immigrant away” because “[o]therwise, the doctrine would allow any number of abuses to be deemed constitutionally permissible merely by labelling certain ‘persons’ as non-persons”). We thus conclude that the district court did not err in holding that plaintiffs are “persons” protected by the Due Process Clause.

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

First, and foremost, let’s give a big vote of appreciation to the All-Star Team at Wilmer Cutler who represented our Round Table on this:

Alan Schoenfeld and Lori A. Martin, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York; Rebecca Arriaga Herche, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; Jamil Aslam, Wilmer Cutler Pickering Hale and Dorr LLP, Los Angeles, California; for Amici Curiae Retired Immigration Judges and Board of Immigration Appeals Members.

Alan Schoenfeld
Alan Schoenfeld
Partner
Wilmer Cutler, NY
Lori a. Martin
Lori A. Martin
Partner
Wilmer Cutler, NY
Knjightess
Knightess of the Round Table

This team is it’s own “Special Forces Brigade” of the New Due Process Army (“NDPA”)!

WOW! Persons are “persons” under the Constitution even when they have brown skins and are asylum seekers! How “rad” can you get! What a blow to “business as usual” for the regime and their “Dred Scottification” program of dehumanizing and making non-persons out of migrants and other vulnerable minorities!

Too bad that the Supremes and other Circuit Courts have too often advanced “Dred Scottification,” hiding behind transparently bogus and contrived “national emergencies” and the doctrine of judicial dereliction of duty otherwise known as “Chevron deference.” I guess that’s why the regime has the contempt for both the law and the Article III Courts to press such legally, morally, and Constitutionally “bankrupt” arguments as they did in this case. Never know when you’ll get a “thumbs up” from those who sometimes don’t view oaths of office and their obligations to their fellow humans with enough seriousness!

Significantly, the panel found that “plaintiffs were likely to succeed on their claim that they are constitutionally entitled to individualized bond hearings before a “neutral decisionmaker.” However, in doing so they “papered over” the obvious fact that the constitutional requirement of a “neutral decisionmaker” cannot be fulfilled as long as Billy Barr or other politicos control the Immigration Courts! 

Indeed, the panel decision was a strong rebuke of Barr’s atrocious, unethical, scofflaw decision in Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019) purporting to unilaterally change the rules to eliminate bond for those who had passed “credible fear.” Fact is that no individual appearing in today’s Immigration Courts has access to the constitutionally-required “neutral decisionmaker” because Barr retains the ability to simply unilaterally change any result that doesn’t match his White Nationalist nativist agenda and can hire and fire the so-called “judges” at will.

Indeed, under Barr’s totally illegal and professionally insulting “production quotas,” I’m not sure that the “judges” on the “deportation assembly line” even get “production credit” for bond decisions because they aren’t “final orders of removal.” However, denial of bond is actually an important “whistle stop” on the “deportation express.” Those kept in the “New American Gulag” have difficulty finding attorneys and the systematic mistreatment they receive in detention helps to demoralize them and coerce them into giving up claims or waiving appeals.

When are the Article IIIs finally going to stop “beating around the bush” and hold this whole mess to be unconstitutional, as it most clearly is? 

In some ways, the panel’s decision reminds me of one of my own long-ago concurring/dissenting opinion in Matter of Joseph, 22 I&N Dec. 799, 810 (BIA 1999) (en banc) (“Joseph II”):

However, I do not share the majority’s view that the proper standard in a mandatory detention case involving a lawful permanent resident alien is that the Service is “substantially unlikely to prevail” on its charge. Matter of Joseph, 22 I&N Dec. 3398, at 10 (BIA 1999). Rather, the standard in a case such as the one before us should be whether the Service has demonstrated a likelihood of success on the merits of its charge that the respondent is removable because of an aggravated felony.

Mandatory detention of a lawful permanent resident alien is a drastic step that implicates constitutionally-protected liberty interests. Where the lawful permanent resident respondent has made a colorable showing in custody proceedings that he or she is not subject to mandatory detention, the Service should be required to show a likelihood of success on the merits of its charge to continue mandatory detention. To enable the Immigration Judge to make the necessary independent determination in such a case, the Service should provide evidence of the applicable state or federal law under which the respondent was convicted and whatever proof of conviction that is available at the time of the Immigration Judge’s inquiry.

The majority’s enunciated standard of “substantially unlikely to pre-vail” is inappropriately deferential to the Service, the prosecutor in this matter. Requiring the Service to demonstrate a likelihood of success on the merits of its charge would not unduly burden the Service and would give more appropriate weight to the liberty interests of the lawful permanent res- ident alien. Such a standard also would provide more “genuine life to the regulation that allows for an Immigration Judge’s reexamination of this issue,” as referenced by the majority. Matter of Joseph, supra, at 10.

The Service’s failure to establish a likelihood of success on the merits would not result in the release of a lawful permanent resident who poses a threat to society. Continued custody of such an alien would still be war- ranted under the discretionary criteria for detention.

In conclusion, mandatory detention should not be authorized where the Service has failed to demonstrate a likelihood of success on the merits of its charge. Consequently, while I am in complete agreement with the decision to release this lawful permanent resident alien, and I agree fully that the Service is substantially unlikely to prevail on the merits of this aggravated felony charge, I respectfully dissent from the majority’s enunciation of “substantially unlikely to prevail” as the standard to be applied in all future cases involving mandatory detention of lawful permanent resident aliens.

Concern for Due Process and fundamental fairness have intentionally been eradicated in the Immigration “Courts” by Sessions, Whitaker, and Barr. It’s past time for this constitutional mockery to be put out of its misery (and the unending misery it causes for the humans coming before it) once and for all!

As my late BIA colleague Judge Fred W. Vacca once said, albeit in a different context, “It’s time to put an end to this pathetic imitation of an adjudication.” Fred and I didn’t always agree. In fact, we disagreed much of the time. But, he did know when it was finally time to “stop the nonsense,” even when some of our colleagues just kept the system churning long past the point of reason and sanity.

And, folks, that was back in the days when the BIA actually functioned more or less like an “independent appellate court” until the Ashcroft purge of ’03 forever ended that noble vision. Like the rest of the system and those who enable it to keep churning lives as if they were mere water under the bridge, the BIA and the rest of the Immigration “Courts” have now become a national disgrace — a blot on our national conscience. Human beings seeking justice are neither “numbers” to be achieved for “satisfactory ratings,” nor “enforcement problems” to be exterminated without Due Process.

Dehumanization of the “other”and stripping them of legal and human rights is a key part of fascism. It’s what allowed German judges and most of German society to “look the other way” or actively aid in the holocaust. It has no place in our justice system — now or ever!

Due Process Forever! Judicial Complicity in Weaponized Captive “Courts,” That Aren’t Courts At All, Never!

PWS

03-28-20

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  3. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  4. COURTSIDE HAS BEEN AT THE FOREFRONT OF EXPOSING THE “CRIMES AGAINST HUMANITY” COMMITTED BY THE REGIME AND THE MORAL CULPABILITY OF THOSE WHO WILLFULLY CARRY OUT & ENABLE THESE ATROCITIES — The “Mainstream Media” Is Now Channeling Courtside! — “In the meantime, no government has the right to treat people with such abject inhumanity. History will remember Trump for this, but it will also remember the people who enable such atrocious acts.”

N.J. STATE BAR SEEKS GOVERNOR’S INTERVENTION AFTER DOJ IGNORES PLEAS TO CLOSE UNSAFE N.J. IMMIGRATION COURTS!☠️☠️☠️☠️☠️

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

NDPA stalwart and Round Table Member Hon. Sue Roy sends this:

March 26, 2020

VIA EMAIL ONLY Hon. Phil Murphy Governor

State of New Jersey Office of the Governor P.O. Box 001

Trenton, NJ 08625

Dear Governor Murphy,

Re: The Closure of the Newark and Elizabeth Immigration Courts

NEW JERSEY STATE BAR ASSOCIATION

EVELYN PADIN, PRESIDENT Law Office of Evelyn Padin 286 First Street

Jersey City, NJ 07302 201-963-8822 • FAX: 201-963-8874 evelyn@lawjcnj.com

The New Jersey State Bar Association (NJSBA) is requesting that the Newark and Elizabeth Immigration Courts be closed immediately, in the interest of the health and safety of the residents of NJ and the country. In support of this request, the NJSBA asks you to consider the following:

NEWARK IMMIGRATION COURT:

On March 6, 2020, the Newark Immigration Court, located on the 12th floor of the Rodino Building, 970 Broad Street, Newark, NJ, was temporarily closed for the afternoon because an attorney who had been exposed to COVID-19 and who was experiencing symptoms was present in court.

On March 9, 2020, the Newark Immigration Court reopened, and remained open until March 18, 2020. During that period of time, literally thousands of respondents and their family members were required to appear at master calendar and individual hearings, along with their attorneys, attorneys from the Office of Chief Counsel, Court staff, interpreters, security guards and Immigration Judges.

It was later learned that a second private attorney and an interpreter have tested positive for COVID-19 after being in court on March 11, 2020. The attorney is quite ill. Approximately 70 other cases were heard that morning before the same Immigration Judge, who is currently under self-quarantine. That is only a fraction of the people who were present at court that day. Because of the volume of individuals who must appear at the Newark Immigration Court on any given day, the majority of individuals must wait together, sometimes for hours, in an extremely small waiting room, in which all attorneys, courts staff, interpreters, security guards and judges must also pass.

New Jersey Law Center • One Constitution Square • New Brunswick, NJ 0 8901-1520

732-249-5000 • FAX: 732-249-2815 • EMAIL: president@njsba.com • www.njsba.com

It was also learned that an attorney from the DHS Office of Chief Counsel, who was present in Court on March 13, has not only tested positive for COVID-19 but is currently in a medically induced coma in ICU fighting for his life. The entire staff of the Office of Chief Counsel, which is primarily located on the 13th Floor of the Rodino Building, has been placed under required quarantine for a period of two weeks.

As a result of this, the US Department of Justice, Executive Office for Immigration Review (EOIR) issued a directive on Twitter and Facebook stating that the Newark Immigration Court would be closed from March 18-April 10, 2020, and that all court filings would be considered timely filed on April 10, when the court reopened.

Last night, March 25, at 9:30 pm, EOIR announced via Twitter and Facebook that Newark Immigration Court would reopen starting TODAY, March 26. No further information was given to the public, or, notably, the Immigration Judges or the court staff. It has been clarified that the Newark Court has reopened for court filings only, because EOIR has now stated that any filings due during the previous days of closure would now be due on March 30, 2020.

Some members of the court staff are now required to be present to accept in-person filings at the court window, as well as to handle filings that have been mailed to the court. The Office of Chief Counsel remains closed under quarantine, and therefore cannot accept filings.

The reopening of the Newark Immigration Court, even for a limited purpose, is in clear violation of Executive Order 107. The functions of the Court at this time are non-essential, because the Court does not handle detained cases. Moreover, the reopening is putting Court staff in jeopardy of not only exposure to the virus themselves, but also of spreading it to others. The City of Newark is under a shelter-in-place restriction, and, this morning, the U.S District Court for the District of New Jersey just issued an order closing the Martin Luther King and Frank R. Lautenberg courthouses because several employees have confirmed positive COVID-19 tests. The courts are closed immediately and will remain closed through April 6, 2020.

It should be noted that the courthouses are located next door to the Rodino building, and the U.S. Attorney’s Office is in the Rodino Building. Staff, attorneys, and members of the public use the same parking facilities, elevators, and even cafeterias located in the buildings.

Therefore, for all of the above reasons, the Newark Immigration Court should be closed immediately and remain closed until its scheduled reopening date of April 10, at the earliest.

ELIZABETH IMMIGRATION COURT:

The Elizabeth Immigration Court is located at 625 Evans Street, Elizabeth, NJ, and is located in the same building as, and in close proximity to, ICE detainees. The Elizabeth Court handles detained cases and is currently open.

On March 13, 2020, a medical staff person who works in the detention center was presumed to have been exposed to COVID-19; this diagnosis was later confirmed. Moreover, because attorneys for the Office of Chief Counsel travel back and forth between the Elizabeth Immigration Court and the Detention Center, where there is an auxiliary OCC office, and the Rodino Building in Newark, the OCC in Elizabeth has been included in the mandatory, two-week quarantine. Numerous private and pro bono

attorneys also routinely appear in both courts, as do interpreters and ICE personnel.

One of the Elizabeth Immigration Judges has been out on leave; an Immigration Judge from Newark, whose husband had been quarantined but tested negative for the virus, is now handling the docket in Elizabeth.

Immigration attorneys are allowed to appear telephonically if they choose; court staff, judges, security guards, interpreters, and, of course, the detainees housed in Elizabeth are there in person. The Office of Chief Counsel is still under quarantine; their attorneys have been appearing telephonically.

On March 24, 2020, at 2:30 pm, EOIR announced, via Twitter and Facebook, that the Elizabeth Immigration Court was closing for the rest of the afternoon because they had received confirmation of “the presence of an individual with a test-confirmed Coronavirus diagnosis.”

The Elizabeth Immigration Court reopened the next day and remains open.

The Elizabeth Immigration Court hears cases for individuals who are housed at Elizabeth Detention Center, as well as at Essex and Hudson County Jails. The individuals housed at those jails are usually seen via tele video. However, a detainee and a senior staff person at Essex County Jail both have positive COVID-19 diagnoses and are experiencing serious symptoms. And ICE detainees at all three locations are engaging in hunger strikes because they are afraid of contracting the virus as well.

Moreover, on March 25, EOIR issued a requirement that all attorneys dealing with inmates in ICE detention centers and courts MUST bring their own personal protective equipment (PPE) in order to be allowed to enter the facilities. Therefore, either attorneys cannot adequately represent their clients, or they must obtain PPE at the expense of health care providers and first responders who desperately need this equipment.

The NJSBA recognizes that it is more difficult to close a court that handles detained cases, as that imposes a reduction of the individuals’ constitutional rights. However, the NJSBA believes that a short- term closure of two weeks, in order to ensure that anyone who has been exposed to COVID-19 does not spread the virus, even unwittingly, is extremely important to protect the health and safety of the individuals who are housed there, who work there, and who must report there, as well as the public at large.

The NJSBA would, at the same time, ask that the State confer with ICE regarding the release of any non-criminal or low-risk immigration detainees. This would further aid in slowing the spread of the virus, as well as protecting the individuals who work at the Elizabeth Immigration Court and Detention Center and would minimize significantly the numbers of detained cases on the court docket. Should ICE forbear from placing new detainees in custody within NJ facilities would also stem the spread of the virus to vulnerable inmate populations. Alternatives to detention, such as ankle-bracelets, or mandatory video or telephonic check-ins would help ensure that ICE’s mission is not curtailed.

It should be noted that the National Association of Immigration Judges (NAIJ), the American Immigration Lawyers Association (AILA) and the American Federation of Government Employees #511 (AFGE/ICE Professionals Union) issued a joint statement on March 22, 2020, asking for the nationwide closure of all immigration courts across the country.

Immigration attorneys, immigration courts staff, and immigration prosecutors are literally having to

make life and death decisions every day because of EOIR’s callous disregard for the health and safety of its employees, immigrants, anyone who must come into contact with the courts, and the

public. Accordingly, NJSBA is asking you to close the NJ immigration courts immediately to preserve the health and safety of the residents of NJ.

Respectfully submitted,

Evelyn Padin, Esq. President

cc: Senator Robert Menendez Senator Cory Booker

Matthew Platkin, Esq., Counsel to the Governor

Susan Roy, Esq., Chair, NJSBA Immigration Law Section Angela C. Scheck, Executive Director

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

Thanks, Sue, for all you do!

To be honest, I’m not sure that a State Governor has authority to close down a Federal Office, even in times of emergency. But, this absurd, yet deadly, situation shows the arrogant disrespect for human life, common sense, and basic decency of Barr and his EOIR toadies.

Normally, you would expect cooperation, coordination, and support from the Feds in time of a health emergency. In the age of Trump and his kakistocracy, not so much. After all, you’re dealing with a regime headed by a maliciously incompetent dude who couldn’t wait to start undermining the best advice of his own doctors and nearly all health care professionals in the U.S. Bad things happen to a country that empowers a kakistocracy!

PWS

03-27-20

 

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  3. COURTSIDE HAS BEEN AT THE FOREFRONT OF EXPOSING THE “CRIMES AGAINST HUMANITY” COMMITTED BY THE REGIME AND THE MORAL CULPABILITY OF THOSE WHO WILLFULLY CARRY OUT & ENABLE THESE ATROCITIES — The “Mainstream Media” Is Now Channeling Courtside! — “In the meantime, no government has the right to treat people with such abject inhumanity. History will remember Trump for this, but it will also remember the people who enable such atrocious acts.”
  4. 🏴‍☠️☠️🤮👎🏻IN NYT OP-ED, FORMER TRUMP DOJ ATTORNEY ERICA NEWLAND ADMITS COMPLICITY! — Having Undermined Democratic Institutions, Sold False Narratives To (Too Often Willing) Federal Judges, & Participated In Racist-Inspired “Dred Scottification” (“Dehumanization”) Of the Other Is Actually a BIG Deal! — So Is The Destruction Of Due Process & Fundamental Fairness In The Immigration Courts (Now, “Clown Courts”🤡, or “America’s Star Chambers”☠️) 

OUR IMPLEMENTATION OF ASYLUM LAW HAS ALWAYS BEEN FLAWED — NOW, TRUMP HAS SIMPLY ABROGATED THE REFUGEE ACT OF 1980, WITHOUT LEGISLATION — But, Led By The Complicit Supremes, Federal Appeals Courts Seemingly Have Lost Interest In Protecting Human Rights, Saving Lives, & Holding The Regime Accountable — America No Longer Has A Functioning Asylum & Refugee Protection System

https://www.washingtonpost.com/outlook/2020/03/21/coronavirus-cant-be-an-excuse-continue-president-trumps-assault-asylum-seekers/

Yael Schacher
Yael Schacher
Historian
Senior U.S. Advocate
Refugees International

 

By Yael Schacher in WashPost: 

The coronavirus has crowded out many policy debates. But in one area, immigration, it is fusing with the Trump administration’s broader agenda.

Using covid-19 as a cover, the administration is making its most overt move yet to eliminate the right to seek asylum in the United States. Officials claim that because of coronavirus, beginning March 21, they swiftly can return or repatriate asylum seekers at the U.S.-Mexico border. This unprecedented move violates U.S. and international law and may actually exacerbate the spread of covid-19 at the border. It also betrays the core promise of the 1980 Refugee Act, signed 40 years ago this week.

With this law the United States belatedly accepted the definition of a refugee established by the 1951 U.N. Convention and 1967 Protocol on the Status of Refugees. The Act passed Congress with overwhelming bipartisan support and made resettling refugees from abroad a part of the nation’s immigration policy. But the Act also accorded people fleeing persecution a chance to seek asylum if they arrived at U.S. borders or already were in the United States.

The law established that people could seek asylum regardless of their immigration status or mode of entry and prohibited U.S. authorities from sending asylum seekers to a place where their lives or freedom would be threatened. It is crucial to remember this right now, given the all-out assault on the U.S. asylum system by the Trump administration, which began even before the coronavirus. The proposed new ban on asylum that would turn back asylum seekers will endanger the lives of even more refugees and further jeopardize our collective public health by sending people to live on the Mexican side of the border where they will lack adequate shelter and care and where there is no way to prevent the spread of coronavirus. As the United Nations High Commissioner for Refugees has written, turning away asylum seekers would send them into “orbit” in search of a refuge and, as such, may contribute to the further spread of the disease.

Before the passage of the Refugee Act in 1980, the United States was violating the human rights of asylum seekers, in particular the thousands of Haitians who arrived in Florida by boat. Instead of having their asylum cases heard they were systemically detained by the Immigration and Naturalization Service, denied due process in the immigration courts and threatened with deportation to the persecution they had fled.

Haitian leaders and refugee advocates in New York and Florida protested against this treatment and, in May 1979, sued the government in federal court in Haitian Refugee Center v. Civiletti. In his 1980 decision, Judge James Lawrence King (a Nixon-appointee) excoriated the U.S. government for violating the rights of Haitians and prejudging their claims. As King wrote, the evidence presented at trial was “both shocking and brutal, populated by the ghosts of individual Haitians — including those who have been returned from the United States — who have been beaten, tortured, and left to die in Haitian prisons.”

King also referred to convincing evidence provided by Amnesty International and the Lawyers Committee for International Human Rights (now Human Rights First) that asylum seekers were mistreated both by U.S. immigration authorities and upon return to Haiti.

As the litigation was going on, members of Congress worked on the language of the Refugee Act. Amnesty and the Lawyers Committee suggested to then-Rep. Elizabeth Holtzman (D-N.Y.) language be added specifically to prevent people from being returned, as Haitians had been, and safeguard the right to seek asylum upon reaching anywhere in the United States. Without such a safeguard written into the law, the right to seek asylum would not be secure outside of South Florida, where Judge King’s ruling applied. Grounding the right to seek asylum in a statute also makes it harder to limit federal court review of executive branch policies that violate it.

Holtzman adopted Amnesty’s language into the House version of the bill, and it became the first provision of section 208 of the Immigration and Nationality Act. Holtzman’s language explicitly provided for the right to seek asylum not only to those who came by sea but also to those who crossed a land border or arrived at a border port of entry. Unfortunately, Holtzman did not accept the Lawyers Committee’s recommendation that the Refugee Act also include “guidelines” for determining who would be eligible for asylum and how they would prove it. It left these procedures to the executive branch.

Nonetheless, as she wrote in her report on the bill, “The Committee wishes to insure a fair and workable asylum policy which is consistent with this country’s tradition of welcoming the oppressed of other nations and with our obligations under international law.”

Almost immediately after the Refugee Act went into effect in April 1980, Fidel Castro allowed thousands of Cubans to sail to the United States. As the Carter administration devised a special program to deal with this influx, the development of general asylum procedures was put off (with only interim regulations published). Beginning in 1981, the Reagan administration embraced deterrence through interdiction, detention and externalization as the path to deal with asylum seekers, shirking the intention of Holtzman and Congress, which had ensured the right to seek asylum in the 1980 Act.

These strategies remain the norm to this day. As Sen. Ted Kennedy wrote in 1981, the Act would be an effective instrument only if U.S. leaders used it wisely, to serve the country’s humanitarian traditions. The U.S. government has not paid adequate attention or resources to ensure fair and efficient adjudication of asylum claims. Indeed, Congress itself appropriates no money to United States Citizenship and Immigration Services for asylum adjudication and has allowed the immigration courts to be weaponized against asylum seekers. Over the last three years, the Trump administration has engaged in an all-out assault on asylum that already has restricted the ability of many immigrants to qualify for refuge and sent over 60,000 people to wait in Mexico, where they are forced to live in dangerous, inhumane conditions in open-air encampments and shelters.

. . . .

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

Read the rest of the article at the link.

This article inspires me to do a “reprise” of remarks I made at the Federal Bar Association’s Annual Immigration Conference in Austin, Texas, in May 2018. I describe the post-1980 history of asylum in the Immigration Courts and how the Obama Administration’s exceptionally poor and often tone-deaf handling of asylum issues at EOIR, and particularly their ill-advised response to the so-called “Southern Border Crisis” in 2014, seriously deteriorated due process and the functioning of the Immigration Courts while “paving the way” for even more blatantly scofflaw actions by the Trump regime.

JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

By

Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Federal Bar Association Immigration Conference

Austin, Texas

May 17, 2019

Hi, I’m Paul Schmidt, moderator of this panel. So, I have something useful to do while my wonderful colleagues do all the “heavy lifting,” please submit all questions to me in writing. And remember, free beer for everyone at the Bullock Texas State Museum after this panel!

Welcome to the front lines of the battle for our legal system, and ultimately for the future of our constitutional republic. Because, make no mistake, once this Administration, its nativist supporters, and enablers succeed in eradicating the rights and humanity of Central American asylum seekers, all their other “enemies” — Hispanics, gays, African Americans, the poor, women, liberals, lawyers, journalists, civil servants, Democrats — will be in line for “Dred Scottification” — becoming “non-persons” under our Constitution. If you don’t know what the “Insurrection Act” is or “Operation Wetback” was, you should “tune in” to today’s edition of my blog immigrationcourtside.com and take a look into the future of America under our current leaders’ dark and disgraceful vision.

Before I introduce the “Dream Team” sitting to my right, a bit of asylum history.

In 1987, the Supreme Court established in INS v. Cardoza-Fonseca that a well founded fear of persecution for asylum was to be interpreted generously in favor of asylum applicants. So generously, in fact, that someone with only a 10% chance of persecution qualifies.

Shortly thereafter, the BIA followed suit with Matter of Mogharrabi, holding that asylum should be granted even in cases where persecution was significantly less than probable. To illustrate, the BIA granted asylum to an Iranian who suffered threats at the Iranian Interests Section in Washington, DC. Imagine what would happen to a similar case under today’s regime!

In the 1990s, the “Legacy INS” enacted regulations establishing that those who had suffered “past persecution” would be presumed to have a well-founded fear of future persecution, unless the Government could show materially changed circumstances or a reasonably available internal relocation alternative that would eliminate that well-founded fear. In my experience as a judge, that was a burden that the Government seldom could meet.

But the regulations went further and said that even where the presumption of a well founded fear had been rebutted, asylum could still be granted because of “egregious past persecution” or “other serious harm.”

In 1996, the BIA decided the landmark case of Matter of Kasinga, recognizing that abuses directed at women by a male dominated society, such as “female genital mutilation’ (“FGM”), could be a basis for granting asylum based on a “particular social group.” Some of us, including my good friend and colleague Judge Lory Rosenberg, staked our careers on extending that much-need protection to women who had suffered domestic violence. Although it took an unnecessarily long time, that protection eventually was realized in the 2014 precedent Matter of A-R-C-G-, long after our “forced departure” from the BIA.

And, as might be expected, over the years the asylum grant rate in Immigration Court rose steadily, from a measly 11% in the early 1980s, when EOIR was created, to 56% in 2012, in an apparent long overdue fulfillment of the generous legal promise of Cardoza-Fonseca. Added to those receiving withholding of removal and/or relief under the Convention Against Torture (“CAT”), approximately two-thirds of asylum applicants were receiving well-deserved, often life-saving legal protection in Immigration Court.

Indeed, by that time, asylum grant rates in some of the more due-process oriented courts with asylum expertise like New York and Arlington exceeded 70%, and could have been models for the future. In other words, after a quarter of a century of struggles, the generous promise of Cardoza-Fonseca was finally on the way to being fulfilled. Similarly, the vision of the Immigration Courts as “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all” was at least coming into focus, even if not a reality in some Immigration Courts that continued to treat asylum applicants with hostility.

And, that doesn’t count those offered prosecutorial discretion or “PD” by the DHS counsel. Sometimes, this was a humanitarian act to save those who were in danger if returned but didn’t squarely fit the somewhat convoluted “refugee” definition as interpreted by the BIA. Other times, it appeared to be a strategic move by DHS to head off possible precedents granting asylum in “close cases” or in “emerging circumstances.”

In 2014, there was a so-called “surge” in asylum applicants, mostly scared women, children, and families from the Northern Triangle of Central America seeking protection from worsening conditions involving gangs, cartels, and corrupt governments.There was a well-established record of femicide and other widespread and largely unmitigated gender-based violence directed against women and gays, sometimes by the Northern Triangle governments and their agents, other times by gangs and cartels operating with the knowledge and acquiescence of the governments concerned.

Also, given the breakdown of governmental authority and massive corruption, gangs and cartels assumed quasi-governmental status, controlling territories, negotiating “treaties,” exacting involuntary “taxes,” and severely punishing those who publicly opposed their political policies by refusing to join, declining to pay, or attempting to report them to authorities. Indeed, MS-13 eventually became the largest employer in El Salvador. Sometimes, whole family groups, occupational groups, or villages were targeted for their public acts of resistance.

Not surprisingly in this context, the vast majority of those who arrived during the so-called “surge” passed “credible fear” screening by the DHS and were referred to the Immigration Courts, or in the case of “unaccompanied minors,” to the Asylum Offices, to pursue their asylum claims.

The practical legal solution to this humanitarian flow was obvious — help folks find lawyers to assist in documenting and presenting their cases, screen out the non-meritorious claims and those who had prior gang or criminal associations, and grant the rest asylum. Even those not qualifying for asylum because of the arcane “nexus” requirements appeared to fit squarely within the CAT protection based on likelihood of torture with government acquiescence upon return to the Northern Triangle. Some decent BIA precedents, a robust refugee program in the Northern Triangle, along with continued efforts to improve the conditions there would have “sealed the deal.” In other words, the Obama Administration had all of the legal tools necessary to deal effectively and humanely with the misnamed “surge” as what it really was — a humanitarian situation and an opportunity for our country to show human rights leadership!

But, then things took a strange and ominous turn. After years of setting records for deportations and removals, and being disingenuously called “soft on enforcement” by the GOP, the Obama Administration began believing the GOP myths that they were wimps. They panicked! Their collective “manhood” depended on showing that they could quickly return refugees to the Northern Triangle to “deter” others from coming. Thus began the “weaponization” of our Immigration Court system that has continued unabated until today.

They began imprisoning families and children in horrible conditions and establishing so-called “courts” in those often for profit prisons in obscure locations where attorneys generally were not readily available. They absurdly claimed that everyone should be held without bond because as a group they were a “national security risk.” They argued in favor of indefinite detention without bond and making children and toddlers “represent themselves” in Immigration Court.

The Attorney General also sent strong messages to EOIR that hurrying folks through the system by “prioritizing” them, denying their claims, “stuffing” their appeals, and returning them to the Northern Triangle with a mere veneer of due process was an essential part of the Administration’s “get tough” enforcement program. EOIR was there to “send a message” to those who might be considering fleeing for their lives — don’t come, you won’t get in, no matter how strong your claim might be.

They took judges off of their established dockets and sent them to the Southern Border to expeditiously remove folks before they could get legal help. They insisted on jamming unprepared cases of recently arrived juveniles and “adults with children” in front of previously docketed cases, thereby generating total chaos and huge backlogs through what is known as “aimless docket reshuffling” (“ADR”).

Hurry up scheduling and ADR also resulted in more “in absentia” orders because of carelessly prepared and often inadequate or wrongly addressed “notices” sent out by overwhelmed DHS and EOIR court staff. Sometimes DHS could remove those with in absentia orders before they got a chance to reopen their cases. Other times, folks didn’t even realize a removal order had been entered until they were on their way back.

They empowered judges with unusually high asylum denial rates. By a ratio of nine to one they hired new judges from prosecutorial backgrounds, rather than from the large body of qualified candidates with experience in representing asylum applicants who might actually have been capable of working within the system to fairly and efficiently recognize meritorious cases, promote fair access to pro bono counsel, and insure that doubtful cases or those needing more attention did not get “lost” in the artificial backlogs being created in an absurdly mismanaged system. In other words, due process took a back seat to “expedience” and fulfilling inappropriate Administration enforcement goals.

Asylum grant rates began to drop, even as conditions on the ground for refugees worldwide continued to deteriorate. Predictably, however, detention, denial, inhumane treatment, harsh rhetoric, and unfair removals failed to stop refugees from fleeing the Northern Triangle.

But, just when many of us thought things couldn’t get worse, they did. The Trump Administration arrived on the scene. They put lifelong White Nationalist xenophobe nativists Jeff Sessions and Stephen Miller in charge of eradicating the asylum process. Sessions decided that even artificially suppressed asylum grant rates weren’t providing enough deterrence; asylum seekers were still winning too many cases. So he did away with A-R-C-G- and made it harder for Immigration Judges to control their dockets.

He tried to blame asylum seekers and their largely pro bono attorneys, whom he called “dirty lawyers,” for having created a population of 11 million undocumented individuals in the U.S. He promoted bogus claims and false narratives about immigrants and crime. Perhaps most disgustingly, he was the “mastermind” behind the policy of “child separation” which inflicted lifetime damage upon the most vulnerable and has resulted in some children still not being reunited with their families.

He urged “judges” to summarily deny asylum claims of women based on domestic violence or because of fear of persecution by gangs. He blamed the judges for the backlogs he was dramatically increasing with more ADR and told them to meet new quotas for churning out final orders or be fired. He made it clear that denials of asylum, not grants, were to be the “new norm” for final orders.

His sycophantic successor, Bill Barr, an immigration hard-liner, immediately picked up the thread by eliminating bond for most individuals who had passed credible fear. Under Barr, the EOIR has boldly and publicly abandoned any semblance of due process, fairness, or unbiased decision making in favor of becoming an Administration anti-asylum propaganda factory. Just last week they put out a “bogus fact sheet” of lies about the asylum process and the dedicated lawyers trying to help asylum seekers. The gist was that the public should believe that almost all asylum seekers from the Northern Triangle are mala fide and that getting them attorneys and explaining their rights are a waste of time and money.

In the meantime, the Administration has refused to promptly process asylum applicants at ports of entry; made those who have passed credible fear “wait in Mexico” in dangerous and sometimes life-threatening conditions; unsuccessfully tried to suspend the law allowing those who enter the U.S. between ports of entry to apply for asylum; expanded the “New American Gulag” with tent cities and more inhumane prisons — dehumanizingly referred to as “beds” as if they existed without reference to those humans confined to them;illegally reprogrammed money that could have gone for additional humanitarian assistance to a stupid and unnecessary “wall;” and threatened to “dump” asylum seekers to “punish” so-called “sanctuary cities.” Perhaps most outrageously, in violation of clear statutory mandates, they have replaced trained Asylum Officers in the “credible fear” process with totally unqualified Border Patrol Agents whose job is to make the system “adversarial” and to insure that fewer individuals pass “credible fear.”

The Administration says the fact that the “credible fear” pass rate is much higher than the asylum grant rate is evidence that the system is being “gamed.” That’s nativist BS! The, reality is just the opposite: that so many of those who pass credible fear are eventually rejected by Immigration Judges shows that something is fundamentally wrong with the Immigration Court system. Under pressure to produce and with too many biased, untrained, and otherwise unqualified “judges,” many claims that should be granted are being wrongfully denied.

Today, the Immigration Courts have become an openly hostile environment for asylum seekers and their representatives. Sadly, the Article III Courts aren’t much better, having largely “swallowed the whistle” on a system that every day blatantly mocks due process, the rule of law, and fair and unbiased treatment of asylum seekers. Many Article IIIs continue to “defer” to decisions produced not by “expert tribunals,” but by a fraudulent court system that has replaced due process with expediency and enforcement.

But, all is not lost. Even in this toxic environment, there are pockets of judges at both the administrative and Article III level who still care about their oaths of office and are continuing to grant asylum to battered women and other refugees from the Northern Triangle. Indeed, I have been told that more than 60 gender-based cases from Northern Triangle countries have beengranted by Immigration Judges across the country even after Sessions’s blatant attempt to snuff out protection for battered women in Matter of A-B-. Along with dependent family members, that means hundreds of human lives of refugees saved, even in the current age.

Also significantly, by continuing to insist that asylum seekers from the Northern Triangle be treated fairly in accordance with due process and the applicable laws, we are making a record of the current legal and constitutional travesty for future generations. We are building a case for an independent Article I Immigration Court, for resisting nativist calls for further legislative restrictions on the rights of asylum seekers, and for eventually holding the modern day “Jim Crows” who have abused the rule of law and human values, at all levels of our system, accountable, before the “court of history” if nothing else!

Eventually, we will return to the evolving protection of asylum seekers in the pre-2014 era and eradicate the damage to our fundamental values and the rule of law being done by this Administration’s nativist, White Nationalist policies.That’s what the “New Due Process Army” is all about.

PWS

O3-24-20

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  3. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  4. DEMS NEED TO STOP REPEATING THE BOGUS 🤥 NARRATIVES ABOUT THE (LARGELY SELF-CREATED & OVERBLOWN) “SOUTHERN BORDER CRISIS:” Channeling “Courtside,” Yale Schacher Sets Forth A Plan For Using Experts To Not Only Reinstitute But Drastically Improve Due Process ⚖️🗽🇺🇸 For Asylum Seekers! — It’s NOT Rocket 🚀 Science!

THE “GOOD GUYS” FINALLY WIN ONE @ THE SUPREMES: Judicial Review Exists For Application Of Law To Settled Facts In Immigration Cases (Here “Equitable Tolling”) — GUERRERO-LASPRILLA v. BARR (7-2, Justice Breyer, Majority Opinion)

 

GUERRERO-LASPRILLA v. BARR, No. 18-776, 03-23-20

https://www.supremecourt.gov/opinions/19pdf/18-776_8759.pdf

MAJORITY: BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, SOTOMAYOR, KAGAN, GORSUCH, and KAVANAUGH, JJ., joined.

DISSENT:  THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined as to all but Part II–A–

SYLLABUS BY REPORTER OF DECISIONS: 

The Immigration and Nationality Act provides for judicial review of a final Government order directing the removal of an alien from this country. 8 U. S. C. §1252(a). Section 1252(a)(2)(C) limits the scope of that review where the removal rests upon the fact that the alien has committed certain crimes. And §1252(a)(2)(D), the Limited Review Provision, says that in such instances courts may consider only “con- stitutional claims or questions of law.”

Petitioners Guerrero-Lasprilla and Ovalles, aliens who lived in the United States, committed drug crimes and were subsequently ordered removed (Guerrero-Lasprilla in 1998 and Ovalles in 2004). Neither filed a motion to reopen his removal proceedings “within 90 days of the date of entry of [the] final administrative order of removal.” §1229a(c)(7)(C)(i). Nonetheless, Guerrero-Lasprilla (in 2016) and Ovalles (in 2017) asked the Board of Immigration Appeals to reopen their removal proceedings, arguing that the 90-day time limit should be equitably tolled. Both petitioners, who had become eligible for dis- cretionary relief due to various judicial and Board decisions years after their removal, rested their claim for equitable tolling on Lugo- Resendez v. Lynch, 831 F. 3d 337, in which the Fifth Circuit had held that the 90-day time limit could be equitably tolled. The Board denied both petitioners’ requests, concluding, inter alia, that they had not demonstrated the requisite due diligence. The Fifth Circuit denied their requests for review, holding that, given the Limited Review Pro-

——————

*Together with No. 18–1015, Ovalles v. Barr, Attorney General, also on certiorari to the same court.

vision, it “lack[ed] jurisdiction” to review petitioners’ “factual” due dil- igence claims. Petitioners contend that whether the Board incorrectly applied the equitable tolling due diligence standard to the undisputed facts of their cases is a “question of law” that the Provision authorizes courts of appeals to consider.

Held: Because the Provision’s phrase “questions of law” includes the ap- plication of a legal standard to undisputed or established facts, the Fifth Circuit erred in holding that it had no jurisdiction to consider petitioners’ claims of due diligence for equitable tolling purposes. Pp. 3–13.

(a) Nothing in the statute’s language precludes the conclusion that Congress used the term “questions of law” to refer to the application of a legal standard to settled facts. Indeed, this Court has at times re- ferred to the question whether a given set of facts meets a particular legal standard as presenting a legal inquiry. See Neitzke v. Williams, 490 U. S. 319, 326 (“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law”); Mitchell v. Forsyth, 472 U. S. 511, 528, n. 9 (“[T]he appealable issue is a purely legal one: whether the facts alleged . . . support a claim of violation of clearly established law”); cf. Nelson v. Montgomery Ward & Co., 312 U. S. 373, 376 (“The effect of admitted facts is a question of law”). That judicial usage indi- cates that the statutory term “questions of law” can reasonably encom- pass questions about whether settled facts satisfy a legal standard. The Court has sometimes referred to such a question as a “mixed ques- tion of law and fact.” See, e.g., U. S. Bank N. A. v. Village at Lakeridge, LLC, 583 U. S. ___, ___. And the Court has often used the phrase “mixed questions” in determining the proper standard for appellate re- view of a district, bankruptcy, or agency decision that applies a legal standard to underlying facts. But these cases present no such question involving the standard of review. And, in any event, nothing in those cases, nor in the language of the statute, suggests that the statutory phrase “questions of law” excludes the application of law to settled facts. Pp. 4–5.

(b) A longstanding presumption, the statutory context, and the stat- ute’s history all support the conclusion that the application of law to undisputed or established facts is a “questio[n] of law” within the meaning of §1252(a)(2)(D). Pp. 5–11.

  1. A “well-settled” and “strong presumption,” McNary v. Haitian Refugee Center, Inc., 498 U. S. 479, 496, 498, “favor[s] judicial review of administrative action,” Kucana v. Holder, 558 U. S. 233, 251. That presumption, which can only be overcome by “‘“clear and convincing evidence” ’ ” of congressional intent to preclude judicial review, Reno v. Catholic Social Services, Inc., 509 U. S. 43, 64, has consistently been applied to immigration statutes, Kucana, 558 U. S., at 251. And thereis no reason to make an exception here. Because the Court can rea- sonably interpret the statutory term “questions of law” to encompass the application of law to undisputed facts, and given that a contrary interpretation would result in a barrier to meaningful judicial review, the presumption indicates that “questions of law” does indeed include mixed questions. Pp. 6–7.

  2. (2) The Limited Review Provision’s immediate statutory context belies the Government and the dissent’s claim that “questions of law” excludes the application of law to settled facts. The Provision is part of §1252, which also contains §1252(b)(9), the “zipper clause.” The zip- per clause is meant to “consolidate judicial review of immigration pro- ceedings into one action in the court of appeals.” INS v. St. Cyr, 533 U. S. 289, 313. The zipper clause’s language makes clear that Con- gress understood the statutory term “questions of law and fact,” to in- clude the application of law to facts. One interpretation of the zipper clause at the very least disproves the Government’s argument that Congress consistently uses a three-part typology, such that “questions of law” cannot include mixed questions. And another interpretation— that “questions of law” in the zipper clause includes mixed questions— directly supports the holding here and would give the term the same meaning in the zipper clause and the Limited Review Provision. Pp. 7–8.

  3. (3) The Provision’s statutory history and relevant precedent also support this conclusion. The Provision was enacted in response to INS v. St. Cyr, in which the Court interpreted the predecessor of §1252(a)(2)(C) to permit habeas corpus review in order to avoid the serious constitutional questions that would arise from a contrary in- terpretation, 533 U. S., at 299–305, 314. In doing so, the Court sug- gested that the Constitution, at a minimum, protected the writ of ha- beas corpus “ ‘as it existed in 1789.’ ” Id., at 300–301. The Court then noted the kinds of review that were traditionally available in a habeas proceeding, which included “detentions based on errors of law, includ- ing the erroneous application or interpretation of statutes.” Id., at 302 (emphasis added). Congress took up the Court’s invitation to “provide an adequate substitute [for habeas review] through the courts of ap- peals,” id., at 314, n. 38. It made clear that the limits on judicial review in various §1252 provisions included habeas review, and it consoli- dated virtually all review of removal orders in one proceeding in the courts of appeals. Congress also added the Limited Review Provision, permitting review of “constitutional claims or questions of law.” Con- gress did so, the statutory history strongly suggests, because it sought an “adequate substitute” for habeas in view of St. Cyr’s guidance. If “questions of law” in the Provision does not include the misapplication of a legal standard to undisputed facts, then review would not includean element that St. Cyr said was traditionally reviewable in habeas. Lower court precedent citing St. Cyr and legislative history also sup- port this conclusion. Pp. 8–11.

  4. (c) The Government’s additional arguments in favor of its contrary reading are unpersuasive. More than that, the Government’s inter- pretation is itself difficult to reconcile with the Provision’s basic pur- pose of providing an adequate substitute for habeas review. Pp. 11– 13.

  5. No. 18–776, 737 Fed. Appx. 230; No. 18–1015, 741 Fed. Appx. 259, va- cated and remanded.,

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

Congrats to Chief Justice Roberts and Justices Gorsuch and Kavanaugh, admittedly frequent “pincushions” here at “Courtside” for often voting to uphold injustice and authoritarianism in immigration cases, for “seeing the light” and voting with the “forces of justice” on this one. Justices Thomas and Alito, perhaps predictably, continue to side with the “forces of darkness and oppression.”

As to the impact, just offhand I would hazard a guess that most Convention Against Torture (“CAT”) cases involving those whose crimes make them mandatorily ineligible for asylum and withholding involve the application of law (Is it “torture?” Will the government “acquiesce?” Is it “probable?”) to established facts (“Individuals are frequently beaten, starved, and raped in detention while the government looks the other way”). Immigration Judges, driven by inappropriate “production quotas,” officially sanctioned anti-migrant attitudes, and intentionally misleading “politicized precedents” where the migrant always loses no matter how strong their case, too often get these questions wrong. Sometimes, “dead wrong!” 

Also, given the delays in Immigration Courts, most resulting from politically-motivated “Aimless Docket Reshuffling” within EOIR or just plain administrative incompetence under an overwhelming, largely self-created backlog, the issue of “equitable tolling” regularly comes up. Since the DOJ politicos and the OIL litigators “hate equitable tolling,” the BIA almost always strains to deny such claims no matter how well-documented and meritorious. Indeed, I suspect that the unavailability of effective judicial review by “real courts” has contributed to the disturbingly low quality of the BIA’s work in cases like this.

However welcome, and it certainly is, this is just a “limited fix” in what remains a blatantly unconstitutional and dysfunctional “court” system (where the courts are not actually fair and impartial tribunals) that threatens lives and American institutions every day it is allowed to continue to operate by the Supremes and the other Article IIIs, not to mention a feckless Congress.

Due Process Forever!

PWS

03-23-20

Related posts:

  1. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  2. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  3. 🤡CLOWN CAPITOL:  J.R. PRESIDES OVER GOP CLOWN SHOW HE HELPED CREATE — Empowering The Koch Bros, Suppressing Minority Votes, Enabling GOP Gerrymandering, Ignoring Invidious Racial & Religious Motives, Turning A Blind Eye To Lies & Pretexts, It All Contributed To The Arrogant Display Of GOP Dishonesty & Impunity Now On Public Display In The Senate! — Plus Bonus Friday Mini-Essay: “Profiles in Fecklessness”
  4. 🏴‍☠️☠️🤮⚰️🆘AMERICA’S SHAME — NATIONAL DISGRACE – SYSTEMIC INSTITUTIONAL FAILURE: From Supremes Who Abandoned Their Key Precedent In Cardoza-Fonseca, To A 5th Cir. Court Of Appeals That Shirked Its Duty To Protect Refugees, To A “Don’t Rock The Boat” BIA That Failed To Enforce Uniformity, To Unqualified & Biased Immigration “Judges” Who Created Illegal, “Asylum-Free Zones,” The U.S. Asylum System Was In Deep Trouble Even Before Trump – Under Trump, It Has Become A “Killing Floor” Programmed To Intentionally Deny & Deport Deserving Refugees To Death, Torture, Or Grotesque Mistreatment, As Indolent, Cloistered Article IIIs, Unwilling To Dig In & Stop The Slaughter Look On!

BREAKING: FINALLY, SOME COMMON SENSE & DECENCY PREVAILS, AS DHS WILL SUSPEND MOST INTERIOR ENFORCEMENT!

https://www.washingtonpost.com/national/ice-halting-most-immigration-enforcement/2020/03/18/d0516228-696c-11ea-abef-020f086a3fab_story.html

Maria Sacchetti
Maria Sacchetti
Immigration Reporter, Washington Post
Arelis R. Hernandez
Arelis R. Hernandez
Southern Border Reporter
Washington Post

Maria Sacchetti & Arelis R. Hernandez report for WashPost:

United States immigration authorities will temporarily halt enforcement across the United States except for its efforts to deport foreign nationals who have committed crimes or who pose a threat to public safety. The change in enforcement status comes amid the coronavirus outbreak and aims to limit the spread of the virus and to encourage those who need treatment to seek medical help.

Immigration and Customs Enforcement said late Wednesday that its Enforcement and Removal Operations (ERO) will “delay enforcement actions” and use “alternatives to detention” amid the outbreak, according to a notification the agency sent to Congress.

ICE told members of Congress that its “highest priorities are to promote lifesaving and public safety activities.”

[[Mapping the spread of the coronavirus]]

“During the COVID-19 crisis, ICE will not carry out enforcement operations at or near health care facilities, such as hospitals, doctors’ offices, accredited health clinics, and emergent or urgent care facilities, except in the most extraordinary of circumstances,” according to the notification. “Individuals should not avoid seeking medical care because they fear civil immigration enforcement.”

The agency, which is a part of the Department of Homeland Security, did not immediately respond to questions about how many of the approximately 37,000 detainees it has in custody will remain there. Nearly 20,000 in ICE custody have some sort of criminal history, but it remained unclear how many of those people have serious criminal violations in their past.

. . . .

*********

Read the complete article at the link.

Finally, a ray of sanity and humanity from DHS!  Still no definitive word from EOIR.  

Just today, the BIA went to the trouble of disingenuously and stupidly giving DHS authority to detain nearly all asylum seekers, even those who pose neither security nor absconding risks. https://immigrationcourtside.com/2020/03/18/latest-outrage-from-falls-church-bia-ignores-facts-abuses-discretion-to-deny-bond-to-asylum-seeker-matter-of-r-a-v-p-27-in-dec-803-bia-2020/

We’ve actually gotten to the sad point where DHS occasionally acts more rationally than EOIR. Nothing to write home about. But, shows how totally perverted justice has become under Barr and the toadies at EOIR. Also says loads about those in Congress and the Article III Judiciary who have allowed EOIR to continue to heap abuses on migrants in clear violation of the Due Process Clause of our Constitution.

Due Process Forever!

PWS

03-18-20

PWS

Related posts:

  1. WHEN ARTICLE III COURTS FAIL: U.S. “Orbits” Refugee Families To Dangerous Chaos In Guatemala Under Clearly Fraudulent “Safe Third Country” Arrangements As Feckless U.S. Courts Fail To Enforce Constitutional Due Process & U.S. Asylum Laws In Face Of Trump Regime’s Contemptuous Scofflaw Conduct!
  2. 😰NO HAPPY NEW YEAR FOR FAMILIES IN “THE NEW AMERICAN GULAG”☠️⚰️ — As Kakistocracy Of War Criminals 🤮🏴‍☠️ Departs, Will President Biden Have The Wisdom & Guts To Move Beyond “The Dem Border Alarmists” & Get The Progressive Leaders 🦸🏽‍♂️⚖️ From The NDPA In Place To Bring Due Process & Order To The Border?🗽🇺🇸
  3. LEADING IMMIGRATION EXPERTS CALL FOR CLOSING COURTS, RELEASING KIDS! – Professors Stephen Yale-Loehr, Jaclyn Kelly-Widmer, and Laila Hlass Speak Out!
  4. PURE BS 💩 — TRUMP’S “BIG LIE” ABOUT MIGRANT APPEARANCES FOR HEARINGS BOGUS AS $3 BILL 🤮👎🏻— Replacing DHS/EOIR With Rational, Qualified, Fact-Based Governance & Real Judiciary Could Bring Appearance Rate Close To 100%!  — Two Items From ImmigrationProf Blog!

🤡🤡POLITICIZED “CLOWN COURTS” BEHOLDEN TO DOJ POLITICAL HACKS CONTINUE TO THREATEN PUBLIC HEALTH IN ADDITION TO ERADICATING DUE PROCESS WHILE FECKLESS CONGRESS AND ARTICLE IIIS LOOK ON !

Josh Gerstein
Josh Gerstein
White House Reporter
Politico

Josh Gerstein reports for Politico:

 

https://www.politico.com/news/2020/03/17/anger-virus-dangers-immigration-courts-134709

Anger builds over virus dangers in immigration courts

After protests, Trump administration makes late-night move to scale back deportation hearings

Prior to the curtailment announced Tuesday night, a spokeswoman for the DOJ unit said: “EOIR continues to evaluate the information available from public health officials to inform the decisions regarding the operational status of each immigration court. “

However, individual scheduled hearings were not covered by the Sunday announcement nor were those for those in detention. “All other hearings proceeding,” the twitter message that night said.

One immigration judge dismissed the limitation announced Sunday as a “drop in the bucket.”

Immigration court participants complained that they were being notified by late-night Twitter posts rather than a more detailed public announcement of how the risks and benefits were being weighed.

“The immigration courts need to close. Period,” said Jeremy McKinney of the American Immigration Lawyers Association. “Most of these hearings can wait in order to put the safety of the public first….Close the courts for a few weeks until screening and proper testing can be done.”

Closing the immigration courts altogether would create thorny issues, particularly for immigrants who are being held in custody. Such a move would likely trigger legal challenges on due process grounds.

However, immigration lawyers said there are workarounds for many of the issues, including handling bond hearings via written filings and conducting hearings by video or teleconference. Video conferencing is already used to beam detainees into hearings in many courts.

Morning Shift

Get the latest on employment and immigration, every weekday morning — in your inbox.

Still, some of the steps being promoted by lawyers for immigrants could be viewed as undermining aspects of the Trump administration’s aggressive enforcement policies.

Immigrant advocates are urging the administration to “parole” into the U.S. asylum applicants sent back to Mexico under the remain-in-Mexico policy. That would be similar to the prior policy that administration officials derided as “catch and release.”

Several court participants said they found it ironic that immigration courts were largely shuttered during a government shutdown last year when their personnel were deemed non-essential, but the same personnel were told this week they are essential and must report to work despite officials at all levels of government urging Americans to remain home if at all possible.

“What is outrageous is that our non-detained courts were shut down for the government furlough, for political reasons,” said Dana Leigh Marks, a San Francisco immigration judge and former president of the judges’ union. “Yet, here we have a health emergency and no action.”

 

 

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

Gee, it’s not like there aren’t thousands and thousands of us out here who have been pointing out for years the outrageous unconstitutionality and threat to our country presented by these “captive courts” under the Trump regime!  It’s also not that they haven’t already killed folks: certainly their politicized misapplication of asylum and other protection laws have done just that! But, do we really have to have them mindlessly spreading an epidemic to have folks take notice!

 

We need regime change in November! We also need a re-examination of the composition of our Article III Judiciary, specifically on the Supremes and Courts of Appeals, to determine why so few Federal Appellate Judges have had the guts and integrity to stand up for the Constitution, the rule of law, and human decency in the time of crisis and in the face of patent Executive incompetence and tyranny. The “institutional failures” go well beyond the continuing farce in the Immigration Courts and the inexcusable failure of the regime to be better prepared for crisis.

Due Processe Forever! Clown Courts Never!🤡🤡

 

PWS

 

03-18-20

Related posts:

  1. 🤡WELCOME TO CLOWN COURT: Where The Lives Of Millions Of Humans & The Future Of America Are Treated Like A Cruel Joke, As Complicit Article III Courts Watch This Grotesque Unconstitutional Spectacle & Parody Of Justice Unfold On Their Watch!
  2. SENATORS DEMAND IG INVESTIGATE BIAS, CORRUPTION, GROSS MISMANAGEMENT @ EOIR!
  3. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 

LATEST OUTRAGE FROM FALLS CHURCH: BIA IGNORES FACTS, ABUSES  DISCRETION TO DENY BOND TO ASYLUM SEEKER: Matter of R-A-V-P-, 27 I&N Dec. 803 (BIA 2020)

Matter of R-A-V-P-, 27 I&N Dec. 803 (BIA 2020)

https://go.usa.gov/xdzDv

BIA HEADNOTE:

The Immigration Judge properly determined that the respondent was a flight risk and denied his request for a custody redetermination where, although he had a pending application for asylum, he had no family, employment, or community ties and no probable path to obtain lawful status so as to warrant his release on bond.

PANEL: BIA Appellate Immigraton Judges MALPHRUS, Acting Chairman; LIEBOWITZ, Board Member; MORRIS, Temporary Board Member.

OPINION BY:  Acting Chairman Judge Garry D. Malphrus

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

In a real court, with fair and impartial judges who follow the law and respect facts, this should have been a “no-brainer.” 

The Government’s own statistics show that represented asylum applicants released on bond show up for hearings nearly 100% of the time, regardless of “likely outcome.”  https://immigrationcourtside.com/?s=Asylum+Seekers+Appear. The respondent is a represented asylum seeker from Honduras without any criminal record or record of failures to appear. He passed the “credible fear” process. He has friend with whom he can live in the U.S. while pursuing his case. He comes from a country, Honduras, with known horrible conditions that even in this time of intentionally biased administrative anti-asylum “law” produces more than 1,000 asylum grants in Immigration Court annually, according to FY 2019 statistics from EOIR. 

His case apparently is based on his status as a gay man in Honduras.  According to the U.S. State Department’s 2019 Country Report, this claim has a very good chance of succeeding:

Nevertheless, social discrimination against LGBTI persons persisted, as did physical violence. Local media and LGBTI human rights NGOs reported an increase in the number of killings of LGBTI persons during the year. Impunity for such crimes was a problem, as was the impunity rate for all types of crime. According to the Violence Observatory, of the 317 cases since 2009 of hate crimes and violence against members of the LGBTI population, 92 percent had gone unpunished.

https://www.state.gov/reports/2019-country-reports-on-human-rights-practices/honduras/

Clearly, he should have been released on a minimal bond, particularly given the potentially health-threatening conditions in DHS detention during the pandemic.

Thus, the BIA’s “no bond” decision in this case was an outrageous misconstruction of the commonly known facts as well as a misapplication of basic bond law. In other words, an “abuse of discretion.” At some point after the justice system resumes functioning, I  hope that a “real” Federal court will “stick it to” this disgracefully disingenuous performance by this BIA panel.

We need “regime change” and an Article I U.S. Immigration Court staffed with fair and impartial judges at all levels, with “real life” expertise, who actually understand and will fairly apply asylum laws.

Due Process Forever! Patently Unfair And Biased Immigration “Courts” Never!

PWS

03-18-20

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. WHEN ARTICLE III COURTS FAIL: U.S. “Orbits” Refugee Families To Dangerous Chaos In Guatemala Under Clearly Fraudulent “Safe Third Country” Arrangements As Feckless U.S. Courts Fail To Enforce Constitutional Due Process & U.S. Asylum Laws In Face Of Trump Regime’s Contemptuous Scofflaw Conduct!
  3. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 

TOO LITTLE TOO LATE FROM EOIR? — In Apparent Response To NAIJ, NGOs, and Dems in Congress, EOIR Closes Seattle & Suspends Master Calendar In 8 Locations — Why Not Just Do What The CDC Recommends & “Go Big?” 

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

From ImmigrationProf Blog:

https://lawprofessors.typepad.com/immigration/2020/03/immigration-court-hearings-delayed-one-court-shut.html

Saturday, March 14, 2020

Immigration court hearings delayed, one court shut

By Immigration Prof

Share

AP exclusive:

WASHINGTON — Seattle’s immigration court will close down as the nation continues to grapple with managing the coronavirus pandemic, and several other large immigration courts will postpone certain hearings for immigrants who are not detained that often involve large groups.

The court in Seattle was temporarily shut down earlier this week over a report of a second-hand exposure to the virus and will remain shut until April 10. Seattle is among the areas hardest hit so far, with a cluster of deaths and dozens sickened. The number of cases in the U.S. was put at around 1,700 Friday, with about 50 deaths. But by some estimates, at least 14,000 people might be infected.

According to a statement obtained by The Associated Press from the Executive Office for Immigration Review, which manages the immigration court system, other courts will remain open where the virus has struck, including Boston, Los Angeles, New York City, San Francisco, Newark, New Jersey, and Sacramento, California. But “master calendar” dates for those who are not detained will be postponed. Those hearings can include dozens of people in a single courtroom.

“The agency continues to evaluate the dynamic situation nationwide and will make decisions for each location as more information becomes available,” according to the statement from EOIR, which is a division of the U.S. Department of Justice.

There are 68 immigration courts nationwide; the others will operate as scheduled but officials with EOIR said they are evaluating and will adjust as needed.

There have been no confirmed cases of COVID-19 within the immigration system, but it’s not clear how frequently tests are being performed, if at all.

———

Associated Press Writer Cedar Attanasio contributed to this report from El Paso, Texas.

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

I suppose some action is better than none.

But, let’s take a more rational and practical look at this. The regime’s own expert, Dr. Anthony Fauci, and other public health experts have been all over the media this weekend with a straightforward message: This is going to get worse before it gets better, so take advance precautions. 

There is a “zero percent” chance that those appearing in Immigration Court have had access to coronavirus testing. Consequently, there is no way of knowing who or how many might be infected.

We also know that a significant number of those appearing in Immigration Court will be seniors or those with pre-existing conditions.

Therefore, closing down the non-detained dockets at all Immigration Courts right now should  be a “no brainer.” There are few, if any, genuine “emergencies” on an out of control “non-detained docket” of over one million cases with hearing dates stretching into 2024 and beyond in some locations.

By moving too slowly, EOIR virtually guarantees that by the time it finally gets around to the inevitable, many individuals and their families, fearing EOIR’s often mindless penchant for “in absentia hearings,” will not get the news in time. They will have already traveled and made arrangements to stay near Immigration Courts. Also, a disproportionate number of those appearing in Immigration Court must rely on public transportation, another health risk in addition to the disruption or curtailing of service in many localities.

Thus, EOIR’s inadequate response, notably released late on Friday when attention was focused elsewhere, combined with the regime’s total lack of credibility on all things immigration, is likely to make things worse.

There are all sorts of reasons why we need an independent Article I Immigration Court with competent, professional management focused on the public good. This is just the latest example of of how politicized, dysfunctional “courts” (that aren’t courts at all, as they are controlled by the prosecutor) hurt America and endanger all of us.

Due Process Forever!

PWS

03-15-20

Related posts:

  1. 🤡🤡POLITICIZED “CLOWN COURTS” BEHOLDEN TO DOJ POLITICAL HACKS CONTINUE TO THREATEN PUBLIC HEALTH IN ADDITION TO ERADICATING DUE PROCESS WHILE FECKLESS CONGRESS AND ARTICLE IIIS LOOK ON !
  2. 😎👍🏼🥂SHEEEEEEE’S BACK! TAL KOPAN @ SF CHRON RETURNS TO THE “IMMIGRATION BEAT” WITH A POWERFUL IN-DEPTH LOOK AT HOW AMERICA’S MOST DYSFUNCTIONAL “COURT SYSTEM” PREDICTABLY SCREWED UP THE COVID-19 RESPONSE WHILE DEEPENING HUMAN MISERY INFLICTED ON THE “BACKLOGGED” — “’There isn’t a day that goes by that there isn’t mass chaos behind this veil of business as usual,’ said Ashley Tabaddor, president of the National Association of Immigration Judges.”
  3. SENATORS DEMAND IG INVESTIGATE BIAS, CORRUPTION, GROSS MISMANAGEMENT @ EOIR!
  4. 🏴‍☠️☠️🤮👎🏻IN NYT OP-ED, FORMER TRUMP DOJ ATTORNEY ERICA NEWLAND ADMITS COMPLICITY! — Having Undermined Democratic Institutions, Sold False Narratives To (Too Often Willing) Federal Judges, & Participated In Racist-Inspired “Dred Scottification” (“Dehumanization”) Of the Other Is Actually a BIG Deal! — So Is The Destruction Of Due Process & Fundamental Fairness In The Immigration Courts (Now, “Clown Courts”🤡, or “America’s Star Chambers”☠️) 

DEM SENATORS & NAIJ CONTINUE TO “BRING THE HEAT” ON EOIR “CLOWN COURTS” 🤡 🤡 FOR CLUELESS CORONAVIRUS RESPONSE TO DATE! – Two Items From Dan Kowalski @ LexisNexis

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/posts/senators-ask-eoir-about-covid-19-signage-immigration-court-scheduling

 

Mar. 11, 2020 letter from Sen. Elizabeth Warren and Sen. Edward Markey to EOIR Director McHenry:

“…We therefore urge EOIR to require the posting of the CDC signage, in English and Spanish, as well as any other relevant languages, in courtrooms and waiting areas to raise awareness of COVID-19 and how to avoid transmitting and contracting it. In addition, we request answers to the following questions by March 18, 2020:

  1. Why were immigration judges and immigration court administrators instructed to remove the CDC COVID-19 posters? What “authority” did they purportedly lack to place the posters?
  2. Who told Acting Chief Immigration Judge Christopher Santoro to issue the directive? Who in “leadership” was Judge Santoro referring to in his email regarding the posters?
  3. Did EOIR consult with qualified public health authorities before issuing its directive to remove the posters?
  4. Why was the directive reversed? Did negative publicity play any role in the decision?
  5. What steps is EOIR taking to protect immigration judges, support staff, immigrants, attorneys, and the public from the spread ofCOVID-19? A. Are sick employees and members of the public being told to go home? B. Are cleaning and disinfectant supplies being provided to all employees and to members of the public who come to the courts?
  6. How is EOIR coordinating with the rest of the Department of Justice about how to respond to COVID-19? Is it receiving guidance from any other federal agencies, such as CDC?
  7. In light of the public health concerns posed by COVID-19, will EOIR instruct immigration judges to allow immigrant respondents the opportunity to reschedule immigration court proceedings as necessary?”

 

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

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/naij-asks-eoir-to-suspend-non-detained-mchs

 

NAIJ Asks EOIR to Suspend Non-Detained MCHs

NAIJ, Mar. 12, 2020

“… we call on you to suspend all non-detained master calendar dockets for the duration of this public health crisis. Immigration Judges can use cancelled master calendar time to hear individual cases (including addressing the backlog of hundreds of thousands of long-pending cases scheduled for individual hearing) that do not involve unwarranted exposure to large numbers of people in our space-limited facilities. …”

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

Thanks, Dan.

As the situation deteriorates, America’s mismanaged “Clown Courts” 🤡🤡 continue to endanger the public while denying due process and wasting taxpayer money by having no contingency plans in place and failing to issue clear guidance to either their own employees or the public.

But, let the record show that they have plenty of time to develop unneeded and counterproductive “Immigration Judge dashboards,” tie up the system with frivolous litigation to “decertify” the NAIJ, and set up “TV pilot programs” to railroad kids through the Atlanta Immigration Court. All enforcement-related “gimmicks;” no time for due process or the public interest.

But, the record should also document the dereliction of duty by Congress and the Article IIIs for allowing this “clown show” to continue to inflict damage on the American public and our legal system.

Due Process Forever! Clown Courts Never!🤡🤡

PWS

03-13-20

Related posts:

  1. 🤡WELCOME TO CLOWN COURT: Where The Lives Of Millions Of Humans & The Future Of America Are Treated Like A Cruel Joke, As Complicit Article III Courts Watch This Grotesque Unconstitutional Spectacle & Parody Of Justice Unfold On Their Watch!
  2. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  3. HALLOWEEN HORROR STORY: Opaque & Biased Politicized Judicial Hiring Denies Migrants The Fair & Impartial Adjudication To Which They Are Constitutionally Entitled – Given The Generous Legal Standards, A Worldwide Refugee Crisis, & Asylum Officers’ Positive Findings In Most Cases, Asylum Seekers Should Be Winning The Vast Majority Of Immigration Court Cases — Instead, They Are Being “Railroaded” By A Biased System & Complicit Article III Courts!
  4. SENATORS DEMAND IG INVESTIGATE BIAS, CORRUPTION, GROSS MISMANAGEMENT @ EOIR!

COURTSIDE HAS BEEN AT THE FOREFRONT OF EXPOSING THE “CRIMES AGAINST HUMANITY” COMMITTED BY THE REGIME AND THE MORAL CULPABILITY OF THOSE WHO WILLFULLY CARRY OUT & ENABLE THESE ATROCITIES — The “Mainstream Media” Is Now Channeling Courtside! — “In the meantime, no government has the right to treat people with such abject inhumanity. History will remember Trump for this, but it will also remember the people who enable such atrocious acts.”

 

https://edition.pagesuite.com/popovers/dynamic_article_popover.aspx?guid=17e4b3b6-8350-4ef2-86b2-45242bddfa52&v=sdk

From the LA Times Editorial Board:

The U.S. betrays migrant kids

Kevin Euceda, a 17-year-old Honduran boy, arrived at the U.S.-Mexico border three years ago and was turned over to the custody of the Department of Health and Human Services until his request for asylum could be decided by immigration courts. During that period, he was required, as are all unaccompanied minors in custody, to meet with therapists to help him process what he had gone through.

In those sessions, Kevin was encouraged to speak freely and openly and was told that what he said would be kept confidential. So he poured out his story of a brutalized childhood, of how MS-13 gang members moved into the family shack after his grandmother died when he was 12, of how he was forced to run errands, sell drugs and, as he got older, take part in beating people up. When he was ordered to kill a stranger to cement his position in the gang, Kevin decided to run.

His therapists submitted pages of notes over several sessions to the file on him, as they were expected to do. But then, HHS officials — without the knowledge of the teen or the therapists — shared the notes with lawyers for Immigration and Customs Enforcement, who used them in immigration court to paint the young migrant as a dangerous gang member who should be denied asylum and sent back to Honduras. In sharing those therapy notes, the government did not break any laws. But it most assuredly broke its promise of confidentiality to Kevin, violated standard professional practices — the first therapist involved quit once she learned her notes had been shared — and offended a fundamental expectation that people cannot be compelled to testify against themselves in this country.

Kevin, whose story was detailed by the Washington Post, wasn’t the only unaccompanied minor to fall victim to such atrocious behavior, though how many have been affected is unknown. The government says it has changed that policy and no longer shares confidential therapy notes, but that’s not particularly reassuring coming from this administration. It adopted the policy once; it could easily do so again.

Last week, Rep. Grace F. Napolitano (D-Norwalk) and Sen. Jeff Merkley (D-Ore.) introduced the Immigrants’ Mental Health Act of 2020 to ban the practice, which is a necessary preventive measure. The bill would also create a new training regimen to help border agents address mental health issues among migrants and require at least one mental health expert at each Customs and Border Patrol facility. Both of those steps are worth considering too.

That the government would so callously use statements elicited from unaccompanied minors in therapy sessions to undercut their asylum applications is part of the Trump administration’s broad and inhumane efforts to effectively shut off the U.S. as a destination for people seeking to exercise their right to ask for sanctuary. Jeff Sessions and his successor as attorney general, William Barr, have injected themselves into cases at an unprecedented rate to unilaterally change long-established practices and immigration court precedent.

They have been able to do so because immigration courts are administrative and part of the Justice Department, not the federal court system, and as a result they have politicized what should be independent judicial evaluations of asylum applications and other immigration cases. Advocates argue persuasively that the efforts have undermined due process rights and made the immigration courts more a tool of President Trump’s anti-immigration policies than a system for measuring migrant’s claims against the standards Congress wrote into federal law.

Of course, trampling legal rights and concepts of basic human decency have been a hallmark of the administration’s approach to immigration enforcement — witness, for example, its separation of more than 2,500 migrant children from their parents. Beyond the heartlessness of the separations, the Health and Human Services’ inspector general last week blasted the department for botching the process. Meanwhile, the administration has expanded detention — about 50,000 migrants are in federal custody on any given day, up from about 30,000 a decade ago — and forced about 60,000 asylum seekers to await processing in dangerous squalor on Mexico’s side of the border.

There are legitimate policy discussions to be had over how this government should handle immigration, asylum requests and broad comprehensive immigration reform. In the meantime, no government has the right to treat people with such abject inhumanity. History will remember Trump for this, but it will also remember the people who enable such atrocious acts.

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

The LA Times is ”on top” of the grotesque perversion of the Immigration “Courts” under nativist zealot Jeff “Gonzo Apocalypto” Sessions and Trump toady Billy Barr to carry out a White Nationalist political agenda:

They have been able to do so because immigration courts are administrative and part of the Justice Department, not the federal court system, and as a result they have politicized what should be independent judicial evaluations of asylum applications and other immigration cases.

Who’a NOT “on top” of what’s happening: The GOP-controlled U.S. Senate, Chief Justice Roberts, a number of his Supremely Complicit colleagues, and a host of Court of Appeals Judges who allow this unconstitutional travesty to continue to mock the Fifth Amendment and the rule of Law, while abusing and threatening the lives of legal asylum seekers every day! 

This was even before yesterday’s cowardly, wrong-headed, and totally immoral “Supreme Betrayal” of the most vulnerable among us in Wolf  v. Innovation Law Lab. https://immigrationcourtside.com/2020/03/11/let-the-killing-continue-predictably-supremes-game-system-to-give-thumbs-up-to-let-em-die-in-mexico-brown-lives-dont-matter/ As MLK, Jr., said “Injustice anywhere affects justice everywhere.” 

With 2.5 Branches of our Government led by anti-democracy zealots and cowards, House Speaker Nancy Pelosi is our only remaining bulwark against tyranny! Capable as she is, she can’t do it all by herself!

In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet, the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis ability to carry out their agenda.

 

— United States Holocaust Museum, Law, Justice, and the Holocaust, at 8 (July 2018)

How soon we forget!

Due Process Forever; Complicit Courts & Other Immoral Enablers, Never!

PWS

03-12-20

Related posts:

  1. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  2. EOIR TARGETS UNACCOMPANIED KIDS FOR DEPORATION RAILROAD!
  3. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  4. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 

U.S. DISTRICT JUDGE LYNN S. ADELMAN CHANNELS “COURTSIDE” — BLASTS ROBERTS & COMPANY FOR AIDING THE FORCES SEEKING TO DESTROY OUR DEMOCRACY — “Instead of doing what it can to ensure the maintenance of a robust democratic republic, the Court’s decisions ally it with the most anti-democratic currents in American politics,”

Fred Barbash
Fred Barbash
Legal Reporter
Washington Post

 

https://www.washingtonpost.com/nation/2020/03/11/lynn-adelman-roberts-trump/

Fred Barbash reports for the WashPost:

Lynn S. Adelman, a U.S. district judge in Milwaukee, has riled conservatives by publishing a blistering critique of the Supreme Court’s record under Chief Justice John G. Roberts Jr., focusing on a string of decisions that he argues have fostered “economic inequality,” “undermined democracy” and “increased the political power of corporations and wealthy individuals” at the expense of ordinary Americans.

Adelman also criticized President Trump, who he wrote ran as a populist but failed to deliver “policies beneficial to the general public. … While Trump’s temperament is that of an autocrat,” Adelman wrote, “he is disinclined to buck the wealthy individuals and corporations who control his party.”

The article by Adelman was all the more unusual because it went after the chief justice directly. Roberts, he said, was “misleading” in his 2005 confirmation hearing testimony when he pledged to be a passive “umpire” calling balls and strikes.

Adelman called that metaphor a “masterpiece of disingenuousness,” saying the court under Roberts “has been anything but passive” as its “hard right majority” has actively participated in “undermining American democracy.”

As president, Donald Trump has repeatedly accused federal judges of being political and beholden to the presidents who appointed them. (JM Rieger/The Washington Post)

The article, entitled “The Roberts Court’s Assault on Democracy,” is scheduled for publication in an unspecified forthcoming issue of the Harvard Law & Policy Review, which describes itself as the official publication of the liberal American Constitution Society. It was published in full at SSRN this month.

Adelman, appointed to the bench by President Bill Clinton in 1997, is a former Democratic state senator in Wisconsin and Legal Aid Society trial lawyer. Perhaps his best-known decision nationally was a 2014 ruling striking down Wisconsin’s voter ID law. 

His broad critique of the Roberts court, with particular reference to its decisions on voting rights and campaign finance by corporate interests, is not an uncommon one — coming, that is, from liberal scholars or political leaders, including former president Barack Obama.

But coming from a sitting federal judge in a journal article accompanied by such a blunt attack on Roberts, not to mention Trump, it has attracted uncommon attention.

. . . .

**********

Read the complete article at the link.  

So I’m not the only one to note the Chiefie’s “Taneyesque” performance, particularly on issues involving the rights of migrants, refugees, Muslims, and other persons of color. He has joined the regime in “Dred Scottifying” those with brown skins who are entitled to the protection of our Constitution and our laws, which Trump has eliminated without legislation, relying largely on transparently fraudulent “national security rationales.”  

But, Roberts hasn’t been much good for African Americans or other minorities either, joining his right winger activist colleagues in disingenuously dismantling key parts of civil rights and voting rights protections and turning an intentionally blind eye to partisan gerrymandering carried out by the GOP to disenfranchise minorities. Election results get skewed and folks actually die as a result of these intentional miscarriages of justice to further a toxic right wing agenda aimed at destroying America’s democratic institutions, promoting inequality, and institutionalizing privilege. As Judge Adelman said “the transformation of the Supreme Court from what he described as a defender of ordinary people and ‘subordinated groups’ to an enabler of an ‘anti-democratic’ Republican agenda.” Right on, Judge A!

I also found this comment telling:

Adelman was unapologetic. “I think it’s totally appropriate to criticize the court when there’s a basis for it,” he said. “Judges are encouraged to comment on the law because we have a particular interest, knowledge and familiarity.”

Compare that with the “muzzling” of the Immigration Judiciary by the Executive reported recently on Courtside. https://immigrationcourtside.com/2020/03/03/🤡🤡clown-court-report-as-due-process-goes-into-death-spiral-regime-muzzles-immigration-judges/

And, as I constantly point out, the Immigration Courts aren’t “courts” at all. They are blatantly unconstitutional “star chambers” run by the Executive Branch with the complicity of the Article III Judiciary who see their work daily and know full well that they are often “rubber stamping” final orders sending folks into potentially life-threatening exile with only a transparently thin veneer of “due process.” But, according to Roberts and his gang, brown-skinned refugees aren’t entitled to even access this process in a reasonable manner, let alone receive the fair hearings to which they are entitled before being “orbited” to potential death in foreign lands. What if it were his wife and kids? I’ll bet their lives would get more consideration.

I also appreciate Judge Adelman’s “spotlighting” the disingenuous testimony of Roberts and other right wingers under oath before the Senate when they “feigned impartiality” to disguise their anti-democracy agenda (without, of course, losing the support of the rightest Republicans who were “licking their chops” at finally getting their long-awaited “judicial wrecking crew” in place).

As one of my esteemed Round Table colleagues said recently:  “In the words of Balzac, ‘to distrust the judiciary marks the beginning of the end of society.’”

Unhappily, thanks to Roberts and other complicit Article IIIs, we’re there. Which is exactly how Trump and his supporters want it!

In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet, the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis ability to carry out their agenda.

 

— United States Holocaust Museum, Law, Justice, and the Holocaust, at 8 (July 2018)

How soon we forget!

So much for the bogus ”passive “umpire” calling balls and strikes.”

Due Process Forever! Complicit Courts Never!

PWS

03-11-20

Related posts:

  1. COURTSIDE HAS BEEN AT THE FOREFRONT OF EXPOSING THE “CRIMES AGAINST HUMANITY” COMMITTED BY THE REGIME AND THE MORAL CULPABILITY OF THOSE WHO WILLFULLY CARRY OUT & ENABLE THESE ATROCITIES — The “Mainstream Media” Is Now Channeling Courtside! — “In the meantime, no government has the right to treat people with such abject inhumanity. History will remember Trump for this, but it will also remember the people who enable such atrocious acts.”
  2. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  3. WHEN ARTICLE III COURTS FAIL: U.S. “Orbits” Refugee Families To Dangerous Chaos In Guatemala Under Clearly Fraudulent “Safe Third Country” Arrangements As Feckless U.S. Courts Fail To Enforce Constitutional Due Process & U.S. Asylum Laws In Face Of Trump Regime’s Contemptuous Scofflaw Conduct!
  4. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”

WILL CLUELESS CLOWN COURTS ENDANGER PUBLIC HEALTH & SAFETY? 🤡🤡 — The Inevitable Spread of Coronavirus Is “Old News” & Poorly Designed & Mismanaged Immigration Courts Appear To Be a “High Risk” Potential Breeding Ground — Predictably, Dysfunctional EOIR Has No Contingency Plans In Place! — 100-Case “Master Calendars” in Mini-Courtrooms Bringing Old & Young, Infirm & Able, From Far & Near Together Under Threat Of In Absentia Deportation — What Could Possibly Go Wrong?

Laura Lynch
Laura Lynch
Senior Policy Counsel
AILA

NDPA stalwart Laura Lynch, Senior Policy Counsel @ AILA reports:

Flagging this new CNN article along with two letters from the NAIJ.

 

 

 

Immigration judges want to know how to handle coronavirus

pastedGraphic.png

By Priscilla Alvarez, CNN

Updated 5:04 PM ET, Mon March 9, 2020

 

(CNN)The union representing immigration judges urged the Trump administration in a letter Monday to “immediately” implement steps to protect judges and their staff and provide guidance on how to proceed amid the coronavirus outbreak, which also has the potential to exacerbate the overwhelming backlog of pending cases.

 

The letter calls for the Executive Office for Immigration Review, an agency within the Justice Department that oversees the nation’s immigration courts, to inform employees about the plan “as it relates to a potential pandemic,” noting that some immigration court functions “may not lend themselves to telework.”

 

“As you know, our work requires us to be in close contact with the public on a daily basis, often in very large numbers and groups,” wrote Judge Ashley Tabaddor, president of the National Association of Immigration Judges.

 

She continued: “Beyond our own employees, the respondents who come before us may also be at high risk for developing serious illness. Because we order their appearance and they face the prospect of removal if they don’t appear, sick respondents and respondents vulnerable to serious illness will keep coming to court unless we take action.”

 

As concerns over the coronavirus ramp up, some government agencies, businesses and organizations have taken steps to try and prevent the spread of the disease by preparing for employees to telework, limiting travel and canceling gatherings.

 

In Monday’s letter, the union asked the Trump administration to consider measures such as waiving the appearance of some respondents, allowing for telephonic appearances and limiting in-court paper filings. The union is also recommending in an email to the workforce that judges keep bottles of hand sanitizer in the courtroom, use disinfecting wipes to clean surfaces and limit court attendance.

 

Any change in daily operations is critical in immigration court, which faces a pile-up of pending cases. Immigrants fighting deportation generally have a chance to make their case in court, where they can ask a judge to allow them to stay in the US by arguing they qualify for asylum or another legal option.

 

Last year’s US government shutdown, which resulted in some cases being postponed, exacerbated the long-standing issue and added to the backlog. There are more than 1 million pending cases before the immigration courts, according to Syracuse University’s Transactional Records Access Clearinghouse or TRAC, which tracks immigration court data — resulting in cases being scheduled out years in advance.

 

TRAC estimated last year that between 80,000 and 94,000 immigration court hearings may have been canceled as a result of last year’s government shutdown. The only cases that moved forward during that time were those of immigrants in detention.

 

The concerns held among immigration lawyers Monday are reminiscent of the government shutdown.

 

Immigration attorneys are worried about the effect on the backlog of cases if judges, attorneys, and other stakeholders are out because of the illness.

“If this thing gets out of control, it’s always a problem when cases are canceled, given the backlog,” Lawrence K. Le Roy, an immigration lawyer based in Newark, said in reference to coronavirus.

 

John Leschak, an immigration attorney, had a hearing scheduled Monday at the Newark immigration court for a client seeking asylum in the United States. The judge was not in court and the hearing was postponed. It’s unclear whether the reason behind the judge’s absence was related to coronavirus.

 

“It’s unfortunate because it’s a case that’s been pending for a long time,” Leschak said. “We’re between a rock and a hard place.”

 

The coronavirus is also already impacting the operations of some federal courts across the US.

 

For example, a district court in Washington state and the 9th Circuit Court of Appeals, which hears cases from nine western states including Washington, altered some of the procedures as the virus continues to spread. Washington has seen at least 80 cases.

 

Unlike other courts, however, immigration courts fall under the executive branch, not the judicial branch.

 

Ariane de Vogue and Kevin Bohn contributed to this story.

 

Laura A. Lynch, Esq.

Senior Policy Counsel

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

Thanks Laura, my friend, for keeping us up to date. And, as always, thanks to Priscilla for her great reporting on the never-ending mess and continuing outages at EOIR.

When it comes to public service and professional court administration from “Headquarters,” “today’s EOIR is the pits.” And, that’s not a knock on Chief Judge Chris Santoro who is generally known as a “straight shooter” and a “problem solver.” I think that I’ve acknowledged before that he was always kind and supportive to me and helped me through some very difficult times in my career at Arlington. I’ll always be appreciative for that.

“Reading between the lines,” he was ordered by one of his “superior bozos” in EOIR’s ludicrous “chain of command” to issue the inane order and then to rescind it when everything “hit the fan.” Typical EOIR “march ‘em up the hill, then march ‘em down again nonsense,” that actually has an adverse effect on both internal morale and the public.

On the other hand, perhaps it’s time for those who know how screwed up and “maliciously mismanaged” this system is to “come out and join the resistance,” as others in our Round Table have done, some at considerable personal sacrifice (not me, of course — I was fortunate enough to be able and ready to retire from EOIR even before the current regime took over.) I have no doubt that someone with Chief Judge Santoro’s ample and diverse skill set could find employment in the private sector.

But, this “circus-like” incident raises deeper issues.  

In what kind of “court system” are “judges” not allowed to post public notices issued by the CDC without saying “Captain May I?” The DOJ falsely claims that its “judges” are “policy officials.” Whoever heard of a “policy official” who couldn’t hang up a Government public health poster? This whole thing is an unbelievable farce! Why does it take a directive from “Headquarters” to rectify what should be a no brainer in any functioning court system? 

And, what kind of “court system” (outside the military) reports to “headquarters.” You think that the U.S. District Courts in Washington called up John Roberts to see if it was OK to cancel trials because of a public health threat? I doubt it. 

Why wasn’t NAIJ President Judge Ashley Tabaddor involved in the Coronavirus planning. She speaks for those “on the line” in contact with the public. Certainly, few issues could have a greater effect on “working conditions” than steps to prevent the spread of infectious disease.  Why is the NAIJ forced to waste time complaining and going to such lengths when competent management would have involved them in advance planning months ago?

Imagine how much better this system would operate if it were run by real judges who hired professional court administrators to work for the public good, instead of maliciously incompetent clowns carrying out Stephen Miller’s fascist agenda?

As you know, I blame the Article IIIs and Congress for letting this deadly mockery of our Constitution and American Justice continue to operate — essentially to dehumanize, abuse, and sometimes kill. I trust the younger members of the NDPA, folks like Laura and her colleagues, and the next generations to see that the life-tenured judges and legislators who looked the other way and knowingly acted as enablers as human dignity, our Constitution, and the rule of law were trampled upon by a White Nationalist regime are held fully accountable in the “court of history.”

The “J.R. Five’s” toxically improper action in Wolf v. Cook County, skirting the rules to enable the regime’s illegal, racially motivated rewriting of the “public charge” rules to go into effect has been exposed for the outrageous politically biased action it is. It allows the regime to intentionally spread panic in ethnic communities, particularly targeting Hispanics, citizens, immigrants, and the undocumented, and to intimidate those who should be seeking health care advice from doing so. Nice public health policy. As if Coronavirus and other diseases know the difference between “documented” and “undocumented” humans. It’s likely that Roberts and his tone deaf cronies will have even more “blood on their hands” before this is over.

As I said on Courtside recently, in the future, we also need more courageous, scholarly, humane, and ethical Article III Judges — folks who will read the Constitution and stand up for individual rights and for human dignity — folks who understand as MLK once said that “injustice anywhere is a threat to justice everywhere.” The current group of Article IIIs is a national disgrace (as a whole, although there are many notable exceptions, mostly among the U.S. District Court Judges who all too often get reversed by the CAs and the Supremes as their “reward” for “standing tall” for the rest of us and standing up for the fair application of the rule of law).

In the meantime, NAIJ President Judge Ashley Tabaddor is a national hero for standing up for the due process rights of all and having the courage to “speak truth to power” in these perilous times. Obviously, the unethical “decertification action” started by DOJ and EOIR is part of the effort to punish and silence her.  Hang in there Ashley! We in the NDPA and the Round Table support and appreciate you and your tireless efforts!

Due Process Forever! Clown Courts 🤡& Complicit Article III Courts Never!

PWS

03-11-20

Related posts:

  1. HALLOWEEN HORROR STORY: Opaque & Biased Politicized Judicial Hiring Denies Migrants The Fair & Impartial Adjudication To Which They Are Constitutionally Entitled – Given The Generous Legal Standards, A Worldwide Refugee Crisis, & Asylum Officers’ Positive Findings In Most Cases, Asylum Seekers Should Be Winning The Vast Majority Of Immigration Court Cases — Instead, They Are Being “Railroaded” By A Biased System & Complicit Article III Courts!
  2. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  3. 😎👍🏼🥂SHEEEEEEE’S BACK! TAL KOPAN @ SF CHRON RETURNS TO THE “IMMIGRATION BEAT” WITH A POWERFUL IN-DEPTH LOOK AT HOW AMERICA’S MOST DYSFUNCTIONAL “COURT SYSTEM” PREDICTABLY SCREWED UP THE COVID-19 RESPONSE WHILE DEEPENING HUMAN MISERY INFLICTED ON THE “BACKLOGGED” — “’There isn’t a day that goes by that there isn’t mass chaos behind this veil of business as usual,’ said Ashley Tabaddor, president of the National Association of Immigration Judges.”
  4. SENATORS DEMAND IG INVESTIGATE BIAS, CORRUPTION, GROSS MISMANAGEMENT @ EOIR!

ARTICLE I: National Association of Women Judges (“NAWJ”) Advocates Independent U.S. Immigration Court

Judge Joan Churchill
Honorable Joan Churchill
Retired U.S. Immigration Judge
Member Round Table of Retired Judges

Round Table superstar Judge Joan Churchill reports:

The letter has been addressed to the Chairs and Ranking Members of both the Senate and HR Judiciary Committees, as well as to the HR Immigration Subcommittee, and to Senator Whitehouse of the Senate Judiciary Committee, who sent a letter last month to the AG, cosigned by several other members of the Senate Judiciary Committee, expressing concerns about due process at the Immigration Courts.  There are 7 letters, attached below for your records.

Because all seven letters are similar in content, I’m linking and reprinting only the one to Chairwoman Zoe Lofgren of the House Subcommittee on Immigration & Citizenship.

Zoe Lofgren, Chair, HR Immigration Subcommittee

NATIONAL ASSOCIATION OF WOMEN JUDGES

1001 Connecticut Avenue, N.W., Suite 1138, Washington, D.C. 20036 T: (202) 393-0222 W: www.nawj.org

February 28, 2020

The Honorable Zoe Lofgren

1401 Longworth House Office Building Washington, D.C. 20515

Dear Representative Lofgren:

In your role as Chair of the House Committee on the Judiciary’s Subcommittee on Immigration and Citizenship, the National Association of Women Judges [NAWJ] writes in support of the creation of an independent Immigration Court. We respectfully call on Congress to establish an Article I Immigration Court system that is independent of the Department of Justice, or any other prosecutorial agency, in order to guarantee due process and a fair hearing with justice for all.

Currently, the Immigration Courts are housed in the U.S. Department of Justice’s Executive Office for Immigration Review [EOIR], which manages Immigration Courts at both the trial and appellate levels.

1

This structure presents an inherent conflict of interest. The Immigration Courts are adjudicatory bodies

tasked with providing due process hearings to respondents in removal proceedings. It is essential that its judges be neutral adjudicators who are not subject to the policy making chain of command of an executive agency, or to direction by a party to the cases before them.

NAWJ has been the leading voice of women jurists across the country for over forty years. Founded in 1979, our non-partisan membership includes over 1,000 judges, women and men, serving at all levels of the state and federal judiciary. Our membership includes judges on administrative, military, tribal, and other specialized courts, in addition to the regular state and federal courts. NAWJ has, since our founding, championed the advancement of women and minorities in the legal profession, the independence of the judiciary, and equal access to justice.

NAWJ’s support for an independent Immigration Court outside the Department of Justice is long standing. We adopted a resolution in support on April 16, 2002 stating that:

1 The appellate level of the Immigration Court system is known as the Board of Immigration Appeals or BIA.

Chair Zoe Lofgren Page Two

“The NAWJ supports an independent structure for the Immigration Courts (at both the trial and appellate levels) outside the Department of Justice, to assure fairness and equal access to justice, and to assure both the appearance and reality of impartiality.”

We followed up with another resolution adopted on October 18, 2008 stating:

“The National Association of Women Judges supports the enactment of federal immigration legislation that provides for full and fair administrative adjudication and review of deportation orders.”

We are pleased to hear that Congress is currently considering introduction of legislation on this important topic.

Due process by adjudicatory tribunals requires case by case adjudication in which a neutral decision maker, using his/her independent judgment, renders a decision based entirely on the record before him/her, the facts of the case, the submissions of the parties, and the governing law and regulations, without direction from above or consideration of outside (ex parte) influences. The current structure of the Immigration Courts, however, presents a systemic problem to neutral adjudication, as the structure allows:

(1) a supervisory role regarding the content of Immigration Judges’ rulings and

decisions, as a factor in their performance evaluations, and

(2) participation in the adjudicatory process by policy makers who are, in turn,

answerable to one of the parties, an executive agency of the Government.

We respectfully urge Congress to establish an independent Immigration Court system, under Article I of the United States Constitution, that would assure due process and judicial independence.

Thank you for consideration of our views. Sincerely,

The Honorable Bernadette D’Souza President

National Association of Women Judges

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

For those of you who don’t already know my long-time friend and colleague Judge Joan Churchill, here is a little background.

Joan and I worked together as Attorney Advisors at the BIA in the early 1970s. She was the leader of the movement to start an employees’ union at the BIA, largely to insure fair and respectful treatment of our support staff. I was a “charter member,” and Joan served as our first President.

Later, after becoming one of the first women Immigration Judges at the “Legacy INS,” Joan served as the President of the Immigration Judges’ Association, the predecessor to the National Association of Immigration Judges. Among her many accomplishments, Joan successfully, and almost single handedly, argued the “Due Process case” against an INS proposal to take asylum cases out of Immigration Court and assign them exclusively to the newly created Asylum Office.   

Later in our careers, Joan and I were “reunited” as colleagues at the Arlington Immigration Court. I was the “keynote speaker” at her retirement ceremony.

Following retirement, Joan hasn’t missed a beat. She served as President of the NAWJ and has actively and effectively pressed the case for Article I status as a member of the ABA National Conference on the Administrative Judiciary (of which I also am a member). Undoubtedly, Joan’s efforts were a key factor in getting such strong support for the Article I proposal from the ABA.

All of us who served as Immigration Judges and believe in the fundamental value of Due Process under law owe a debt of gratitude to Joan for her courageous, effective, pioneering work and her continued involvement in fulfilling the one-time “EOIR vision” of “through teamwork and innovation, being the world’s best administrative tribunals insuring fairness and due process for all.”

I might add, that it wasn’t always easy for Joan who has constantly demonstrated courage, an incredible work ethic, and “grace under fire.” But, that’s another story.

For now, I’m just thankful to be able to call Joan a friend and colleague and to continue to benefit from her wisdom, scholarship, and hard work in behalf of all of us in the Round Table of Former Immigration Judges.

Well done, my friend and colleague!

Due Process Forever; “Captive” Courts Never!

PWS

03-10-20

Related posts:

  1. HERE’S A SEPARATE LETTER ON THE URGENT NEED FOR AN ARTICLE I U.S. IMMIGRATION COURT THAT I SENT TO MY SENATORS AND CONGRESSMAN TODAY!
  2. BUSY KNIGHTS & KNIGHTESSES: The Round Table Speaks Out Again For Due Process & Judicial Independence On The Eve Of House Subcommittee Hearing
  3. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  4. 54 NGOs DECLARE EOIR A DUE PROCESS DISASTER AREA, URGE CONGRESS TO CREATE INDEPENDENT ARTICLE I COURT — Round Table of Former Immigration Judges Among Groups Seeking Change — Join AILA’S “Twitterstorm” Today (Wednesday)

AS THOSE CHARGED WITH PROTECTING JUSTICE “TOADY UP” & ENABLE TRUMP REGIME’S “CRIMES AGAINST HUMANITY,” ONE GROUP OF CIVIL SERVANTS HAS THE COURAGE TO STAND UP FOR DUE PROCESS, THE RIGHTS OF ASYLUM SEEKERS, & SIMPLE HUMAN DIGNITY: USCIS ASYLUM OFFICERS! BONUS+: My Latest Monday Essay: “Heroes & Enablers”

Joe Jurado
Joe Jurado
Freelance Reporter
The Root

https://apple.news/AOKo5byofRfKem24qSuLsaA

Joe Jurado reports for The Root:

The immigration policies executed by the Trump administration have been, to be succinct, f***ed up. That’s not even just me saying that. The people who have to execute his policies are saying it too. 

The New York Times reports that a union of federal asylum workers has filed an amicus brief stating that a policy from the Trump Administration that diverts migrants to Guatemala is unlawful. The union, National CIS Council 119, represents 700 asylum and refugee officers of the United States Citizenship and Immigration Services. The brief states that international treaty obligations are being violated as a result of having to deport migrants to a country where they will likely face prosecution. The Trump administration made a deal with Guatemala that allows the United States to deport migrants seeking asylum in the States to Guatemala. The union believes that these new rules are forcing them to violate the laws they were trained to uphold.

. . . . 

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

Read the complete report at the link.

HEROES & ENABLERS — Judges Who Aid The Trump Regime’s Deadly Oppression Of The Most Vulnerable Among Us Will Eventually Hear The Voices Of Those They Abandoned & Dehumanized — Even From The Graves Of The Oppressed, History Will Pass Judgement On The Smugly Powerful Who Abuse The Weak!

By Paul Wickham Schmidt

Courtside Exclusive

March 9, 2020

 

USCIS Asylum Officers are the “NDPA Heroes of the Week!” 

So, one group of courageous civil servants is willing to put their careers on the line to defend the Constitution and the rights of the vulnerable. But, others in more protected positions, like, for example, Supreme Court Justices and some Court of Appeals Judges, are afraid to stand up to Trump and defend the rule of law and the humanity of those whose only “crime” is to trust in our legal protection system. The courage of one group contrasts with the willful ignorance and cowardly complicity of the other. What’s wrong with this picture? 

At some point, there will be “regime change” in the Executive as well as the Senate. When that happens, our system needs a complete re-examination of the immigration scholarship, commitment to human rights, and the moral leadership of those we are giving lifetime appointments to the Federal Bench, particularly the Supremes. 

Obviously, the system has failed when two current justices choose to use their power and privileged positions disingenuously to rail about the “bogus horrors” of nationwide injunctions, and thereby spur the regime on to even grater abuses, while papering over the real issue of the actual grotesque legal, constitutional, and human rights violations inflicted on migrants and others by a White Nationalist would-be authoritarian regime that would eventually do away with almost all of our legal rights. 

In the future, perhaps we should consider elevating more Asylum Officers with law degrees and a record of fair adjudication and speaking truth to power to the Article III Judiciary, including the Supremes. There are younger members of our Round Table of Former Immigration Judges who were forced by the regime into “early retirement” who could bring scholarship, fairness, practicality, and justice back to the Article IIIs. How about some pro bono lawyers, clinical professors, and NGO leaders who combine scholarship with real life experience and whose proven creativity and problem solving skills far exceed the pedestrian and wooden approaches we see all too often from today’s failing Article III Judiciary. Although their efforts are mocked, disrespected, and undermined by complicit Article III Judges, like the “J.R. Five,” these courageous “defenders of democracy and the rights of the weak” are the ones who are in fact keeping our legal system afloat in the face of Article III willful ignorance and complicity in tyranny.

And, we definitely need fewer corporate lawyers (except those who have extensive pro bono immigration/human rights experience), prosecutors, and right wing “think tankers” occupying the Federal bench.We have an oversupply of those folks on the bench right now, and our rights are suffering for it. It will take years, perhaps decades, to repair the damage they are causing and to bring the Federal Judicial system back into a proper balance.

These aren’t “liberal/conservative philosophical questions.” They are black and white questions of moral courage and the willingness to enforce Due Process and protect those whose lives are endangered by the Trump regime’s cruel and lawless programs and constant racially-inspired lies, naked bias, and misrepresentations. Sending folks back to dangerous countries without functioning asylum systems is wrong as a matter of law. Period. Making them “Remain in Mexico” is wrong. Period. A so-called “court system” run by a transparently biased, disingenuous, “uber enforcement” official like Billy Barr does not provide the “fair and impartial adjudications” required by Due Process. Period. Separating families and putting kids in cages and “kiddie gulags” is wrong. Period. Those initiating and carrying out those policies should be chastised and held accountable, not enabled. Period.

Actually, many courageous and scholarly U.S. District Judges have gotten these straightforward legal questions exactly right and promptly entered life-saving injunctions. A number of U.S. Immigration Judges have also courageously adhered to the rule of law in the face of excruciating and unethical pressure from DOJ politicos and their toadies to cut corners and railroad individuals out of the country without due process.

It’s the Supremes and too many Circuit Court Judges who who have “rolled over” for the regime’s cruel and inhuman nonsense. By doing so, they essentially “pull the rug” out from under those judges who have the encourage and integrity to “just say no” to the regime’s constant overreach. In doing so, the Federal Appellate Courts and the Supremes are actually engaging in undermining the system they serve and encouraging “worst practices” and even worse results. What truly reprehensible “role models” for upcoming lawyers. Fortunately, many newer lawyers are members of the New Due Process Army and are ignoring the poor and immoral examples of judicial spinelessness set by their supposed “elders.”

Life tenure protects the jobs and paychecks of Article III Judges. But, it won’t protect them from justified criticism and the ultimate judgement of history. Bashing the oppressed in behalf of those in power might seem like a good short-term strategy. After all, the deported, the abused, and the dead don’t normally get to “write history.” 

But others are watching this travesty unfold and are pledged to “give a voice” to those silenced by the gross dereliction of legal duties and ignoring simple human decency and values by many with power who could have put an end to these obscene human rights abuses. Chief Justice Roger Taney might have been hailed by the White Supremacists of his age for his opinion in Dred Scott. But, he hasn’t “weathered the test of time” too well! Nor will Chief Justice Roberts and others who have been “going along to get along” with cruel and illegal abuses wantonly inflicted by the White Nationalist regime on the most needy and vulnerable among us.

Congrats and much appreciation from all of us in the New Due Process Army to USCIS Asylum Officers for your courage and integrity in the face of tyranny!

Due Process Forever; Complicity & Enabling Cruelty Never! 

PWS

03-09-20

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BARR TO HIS WHOLLY OWNED IMMIGRATION JUDGES: Just Deny CAT Protection – Any Ol’ Ground Will Do – Matter of R-A-F-, 27 I&N Dec. 778 (A.G. 2020)

https://www.justice.gov/eoir/page/file/1252416/download

Matter of R-A-F-, 27 I&N Dec. 778 (A.G. 2020)

EOIR HEADNOTES:

(1) The Board of Immigration Appeals should consider de novo the application of law to the facts of this case, including whether the deprivations that the respondent would be likely to encounter upon removal to Mexico would constitute “torture” within the meaning of the Department of Justice regulations implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994).

(2) To constitute “torture” under these regulations, an act must, among other things, “be specifically intended to inflict severe physical or mental pain or suffering.” 8 C.F.R. § 1208.18(a)(5). “‘[T]orture’ does not cover ‘negligent acts’ or harm stemming from a lack of resources.” Matter of J-R-G-P-, 27 I&N Dec. 482, 484 (BIA 2018) (citing Matter of J-E-, 23 I&N Dec. 291, 299, 301 (BIA 2002)).

(3) To constitute “torture,” an act must also be motivated by “such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind.” 8 C.F.R. § 1208.18(a)(1).

 

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

Actually, contrary to Billy Barr’s unethical “precedent,” the BIA “panel” in this case consisting of (now retired) Appellate Immigration Judge Linda Wendtland got this one completely right, as did the Immigration Judge.

Admittedly, this respondent isn’t a particularly sympathetic character. But, that’s totally irrelevant in a CAT deferral of removal case, where protection is mandatory if the respondent faces torture with Government acquiescence.

Let’s just take a cursory look at the publicly available information on what happens to mentally ill individuals in Mexico.

 

The Nightmare That Is Mexico’s Mental Health System

Published by Ariel Jacoby on Friday, April 15, 2016 | Features

 

Though there are an estimated 10 million people with mental, visual, hearing or motor disabilities living in Mexico, the country’s mental health system is so dysfunctional that the unlucky patients under its care are colloquially referred to as “abandanodos” – abandoned ones.

It’s an accurate description for these lost souls. A 93-page report from Disability Rights International revealed the horrific living conditions at Mexican mental health facilities, which are a breeding ground for human rights violations and abuse of the handicapped patients that these institutions are meant to help. Many patients never received a clinical diagnosis of their condition and don’t have families to give them private care – these patients remain locked inside the hospitals indefinitely and become completely anonymous to the world.

Patients rock back and forth in urine soaked clothes or walk about soiled, feces-smeared floors without shoes. Bedsheets are an uncommon luxury; hygiene is an abstract concept in a Mexican mental hospital where some “patients and their caretakers could not fully explain how or why they were institutionalized” (New York Times). Without proper oversight and the absence of any sort of registry system, it is not uncommon for mentally ill children to literally disappear from Mexican mental health facilities with no record of their name, age, or families.

In this dismal hole of human despair, atrocities are ubiquitous and plentiful. Many of the patients in these institutions have been detained against their will for years and will likely languish inside the walls of these torture chambers until their death. Psychotropic drugs are excessively relied upon to treat patients and the more aggressive patients who don’t respond to medication can be subject to forced lobotomies, which need only the approval of the facility director. Eric Rosenthal, the director of Disability Rights International, found that 1/4 of the mental health facilities were keeping patients in restraints for extended periods of time – an act that violates Article 1 of the United Nations convention against torture.

 

The concept of human rights has no real meaning or significance in these unregulated, inhumane environments. The investigation conducted by DRI revealed the severity and frequency of human rights violations within the walls of such state-run facilities. In one institution, a terrified blind patient admitted to being raped by one of the staff members – a claim that was quickly dismissed by Mexican officials. In another facility, investigators discovered two young women who had been institutionalized at a young age, grew up in the hospital, and had been working as unpaid laborers for years. There exists no record of how or why these women were institutionalized and Mexican law requires no legal review to detain them indefinitely as modern-day slave laborers.

The director of Samuel Ramirez Hospital, one of the 31 state-run mental health facilities in Mexico, calls his own hospital “hell” and has voiced his belief that the mental health of every patient at his facility have been made worse by their institutionalization. He blames the lack of proper funding and a deficiency of properly trained personnel – at a different mental institution nearby, there are only two psychologists and one doctor to treat the 365 patients who have been institutionalized there.

The sad state of Mexico’s mental health system can be traced back to its government’s complex and deep-rooted political issues. Mexico’s budget for mental health makes up about 2.5% of its overall health spending. This is an improvement from the paltry 1.6% allocated to mental health a decade ago, but still significantly lower than the WHO’s recommendation of 10%. Without a significant electorate of mental health advocates, mental health lacks any real political sway in Mexico. Back in 2006, Mexico was among 96 countries who ratified the United Nations Convention on the Rights of Persons with Disabilities. But it is clear that not much has changed within the system itself.

 

 

https://www.medelita.com/blog/the-nightmare-that-is-mexicos-mental-health-system/

Mexico isn’t Haiti or some other “poor country.” It’s the 15th largest economy in the world. The allocation of a paltry 2-3% of spending on mental health is an intentional embrace of torture by the Mexican Government that relates directly to the dehumanized place of the mentally ill in Mexican society. A Mexican national being deported from the U.S. with a criminal record would very likely receive the “worst of the worst” – not “negligently” but very intentionally. Clearly,. the torture and punishment of the mentally ill just because they are mentally ill is “any reason based on discrimination of any kind.” I give this respondent 90 days max until he’s tortured to death if returned to Mexico. The conditions requiring mandatory deferral of removal under CAT have clearly been met.

 

Judge Wendtland was right. Barr is “dead” wrong. But, Billy’s message to his subordinates is clear: Forget the law: deny, deny, deny!

 

The system is broken. Removal of the Immigration Courts from the DOJ and the end of the ability of unqualified immoral politicos like Billy Barr to interfere in the judicial system in derogation of Constitutional Due Process is essential to the survival of our democracy.

Due Process Forever; Billy Barr Never!

PWS

02-29-20

 

 

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