"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
President Joe Biden announced another historic slate of judicial nominees on Wednesday who would bring badly needed diversity to the nation’s federal courts.
His picks also begin to address a major vacancy problem on California’s courts.
Biden announced a total of eight new judicial nominees; three would fill seats on the U.S. Court of Appeals for the 9th Circuit and five would fill seats on U.S. district courts. All are up for lifetime appointments.
With Wednesday’s nominees, Biden has now nominated a total of 43 people to federal judgeships. Thanks in part to the Democrat-led Senate, he has been confirming judges faster than any president in more than 50 years by this point in their terms.
His latest nominees also reflect his push to bring more diversity to the federal bench, both professionally and demographically. The courts have long been represented by white, male judges with backgrounds as corporate attorneys or prosecutors. President Barack Obama helped to diversify the courts, adding historic numbers of women and LGBTQ judges, for example. But former President Donald Trump reversed that trend by overwhelmingly nominating straight, white, male, right-wing ideologues.
As a candidate, Biden vowed to bring a diversity of perspectives onto the courts, even promising to nominate a Black woman to the Supreme Court if and when a seat opens up there. He’s kept his word; so far, his court picks have been public defenders, civil rights lawyers, voting rights lawyers and historic firsts with Native American and Muslim American picks.
Wednesday’s nominees include people with backgrounds at legal civil rights organizations, too. Thomas worked for the NAACP Legal Defense and Educational Fund. Urias and Vera both worked for the Mexican American Legal Defense and Educational Fund.
California’s senators praised Biden for his six picks for courts located in their state.
“If confirmed, this slate of nominees will bring historic personal and professional diversity to California’s federal bench,” said Sen. Alex Padilla (D-Calif.). “Our justice system needs the experience and unique perspectives these public servants bring.”
But California needs far more nominees than Biden put forward Wednesday. The state still has a whopping 15 vacancies on its federal courts, in part because the state’s two U.S. senators aren’t moving quickly enough to recommend people to the White House to fill those seats.
Sen. Dianne Feinstein (D-Calif.) acknowledged there is more work to be done here.
“There are 15 additional vacancies on California’s district courts that need to be filled immediately and more expected next year,” Feinstein said. “I look forward to continuing to work with President Biden and Senator Padilla to ensure that the remaining vacancies on the federal courts in California are filled with well-qualified judicial candidates who reflect the makeup of the state.”
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Read the complete story at the link.
It’s an important step — but only a first step in the process of creating a diverse progressive Federal Judiciary, from top to bottom!
Meanwhile, a house built on a bad foundation is in trouble! In this case, that crumbling foundation is the nearly 600-judge U.S. Immigration Court at both the trial and appellate levels.
This “court” system, with nationwide jurisdiction and life or death authority over millions of lives and American families, is regressive, dysfunctional, and non-diverse, particularly when taking into account the composition of the American communities most directly affected by it’s too often defective, unprofessional, and biased decision making. That’s hardly surprising, because it was largely expanded, packed, weaponized, staffed, and directed in the “image” of Jeff Sessions, Billy Barr, and Gauleiter Stephen Miller!
Unlike Article III Judges, Immigration Judges currently are considered “DOJ Attorneys” who are selected outside the competitive Civil Service, have no “tenure” in their quasi-judicial positions, are subject to the control of the Attorney General, and can be reassigned, or in some cases terminated, at the will of the Attorney General. In simple terms, Garland could fix this badly broken system, but hasn’t done so.
The sorry condition of today’s Immigration Courts (“EOIR”) is particularly disgraceful when one considers the wide, diverse, progressive pool of potential judicial talent available in the private/NGO/sector who were either discouraged from applying under Trump or passed over in favor of lesser-qualified candidates perceived (whether accurately or not) to be more receptive and obedient to the overtly White Nationalist, xenophobic stance promoted by Trump’s DOJ.
To date, Garland has replaced zero (0) of the Trump judicial appointees. He has hired no notable progressive judges as inspirational leaders. He “promoted” one notable progressive to be among the several dozen “Assistant Chief Immigration Judges.” He outrageously appointed his first 27 Immigration Judges from among those “preselected” by Barr under defective procedures that have been universally condemned by progressive experts!
For the most part, without any progressive judicial leadership, precedents, or procedures, EOIR rambles on producing the same sloppy, haste-makes-waste, anti-immigrant, anti-asylum, racially and misogynistically tinged decisions that were the “hallmark” of the Trump-era EOIR.
If things don’t change quickly, I guarantee that American progressives will come to rue the squandered opportunity to radically reform EOIR and convert it into a model progressive judiciary that will showcase due-process-focused judging, innovation, and best judicial practices while saving lives and promoting racial justice, gender rights, and equal justice for all at the critical “retail level” of our justice system!
There was a time in the distant past when all BIA judges were not required to be members of the pro-immigration enforcement “mob!” https://www.flickr.com/photos/rasputin243/ Creative Commons License.
“Under 8 U.S.C. § 1226(c), the Government must detain noncitizens who are removable because they committed certain specified offenses or have connections with terrorism, and it must hold them without bond pending their removal proceedings. This appeal asks us to decide what process is due when such detainees contend that they are not properly included within § 1226(c) and whether noncitizens who have substantial defenses to removal on the merits may be detained under § 1226(c). Because the District Court granted relief in the form of a class-wide injunction, we must also decide whether 8 U.S.C. § 1252(f)(1) permits class-wide injunctive relief. For the reasons set forth below, we agree with the District Court that § 1226(c) is constitutional even as applied to noncitizens who have substantial defenses to removal. But for those detainees who contend that they are not properly included within § 1226(c) and are therefore entitled to a hearing pursuant to In re Joseph, 22 I. & N. Dec. 799 (BIA 1999), we hold that the Government has the burden to establish the applicability of § 1226(c) by a preponderance of the evidence and that the Government must make available a contemporaneous record of the hearing, consisting of an audio recording, a transcript, or their functional equivalent. Because we also conclude that § 1252(f)(1) does not authorize class-wide injunctions, we will reverse the District Court’s order in part, affirm in part, and remand for the entry of appropriate relief.”
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As as interesting footnote, like most of my colleagues at the Arlington Immigration Court, I always recorded bond hearings, long before this court ordered it as required by due process. One of the first things one of my colleagues told me when I arrived at Arlington was “record everything that happens in open court.” Recording protects everyone in the courtroom, including the judge!
It also helped our Judicial Law Clerks and interns “reconstruct” the bond record and understand our reasoning in the infrequent event that a “bond appeal” were filed. Otherwise, the “bond memorandum” would have to be based on the IJ’s notes and his or her recollection of what had transpired.
Talk about a defective system that should have been changed ages ago! But, that’s EOIR!And, it’s not going to improve without some major personnel changes and dynamic leadership that actually understands what happens in Immigration Court and is willing to think creatively, progressively, and change long-outdated practices and procedures, many of them in effect since EOIR was created in the early 1980s!
Here’s my favorite quote from Judge Krause’s opinion:
Having considered the standards urged by the Government and by Plaintiffs, we settle on one in between: To comport with due process, the Government must show by a preponderance of the evidence that the detainee is properly included within § 1226(c) as both a factual and a legal matter. See Addington, 441 U.S. at 423–24. It must show, in other words, that it is more likely than not both that the detainee in fact committed a relevant offense under § 1226(c) and that the offense falls within that provision as a matter of law. Cf. Joseph, 22 I. & N. Dec. at 809 (Schmidt, Chairman, dissenting) (contending that the Government must “demonstrate[] a likelihood of success on the merits of its charge” at the Joseph hearing).
Here’s a link to the full opinion, including my separate opinion, in Matter of Joseph, 22 I&N Dec. 799 (BIA 1999) (Joseph II):
Here’s the full text of my concurring/dissenting opinion (very “compact,” if I do say so myself):
CONCURRING AND DISSENTING OPINION: Paul W. Schmidt, Chairman; in which Fred W. Vacca, Gustavo D. Villageliu, Lory D. Rosenberg, and John Guendelsberger, Board Members, joined
I respectfully concur in part and dissent in part.
I join entirely in the majority’s rejection of the Immigration and Naturalization Service’s appellate arguments and in the unanimous conclusion that, on this record, the Service is substantially unlikely to prevail on the merits of the aggravated felony charge. Therefore, I agree that the respondent is not properly included in the category of aliens subject to mandatory detention for bond or custody purposes.
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 cus- tody 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 prevail” 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.
“Pushback” from appellate judges actually committed to the then-EOIR vision of “guaranteeing fairness and due process for all,” was essential! Once the “Ashcroft purge” “dumbed down” the BIA and discouraged dissent and intellectual accountability, the system precipitously tanked! It got so bad that it actually provoked harsh criticism and objections from Circuit Judges across the political/ideological spectrum.
Eventually the Bush II DOJ was forced to back off a few steps from their all-out assault on immigrants’ rights. But, the damage was done, and there were no meaningful attempts to restore balance and quasi-judicial independence at EOIR thereafter. Indeed, Ashcroft’s Bush-era successors blamed the Immigration Judges for the meltdown engineered by Ashcroft, while sweeping their own role in creating “disorder in the courts” under the carpet in the best bureaucratic tradition!
EOIR continued to languish under Obama before going into a complete “death spiral” under the Trump DOJ kakistocracy.
Despite unanimous recommendations from experts that he make progressive reform and major leadership and personnel changes at EOIR one of his highest priorities, AG Garland has allowed the mess and the fatal absence of progressive, due-process-focused, expert judges and best practices at EOIR fester.
Long-deposed progressive judges willing to speak up for due process and fundamental fairness, even in the face of a “go along to get along” culture at DOJ, are still making their voices heard, even decades after they were sent packing! It’s tragic that Garland is letting the opportunity to create a long-overdue and necessary independent progressive judiciary at EOIR slip through his fingers. Progressive Dems might “dream” of transforming the Article III Judiciary; but, it’s not going to happen while Dems are running a “regressive judiciary” at the “retail level” in the one potentially powerful judiciary they do completely control.
Sadly, vulnerable individuals, many of them women, children, and people of color, will continue to suffer the brunt of Garland’s indifferent approach to judicial justice at EOIR. Beyond that, however, his failure to transform EOIR into an independent progressive court system willing to stand up for constitutional due process, equal justice, racial equity, best judicial practices, and the rule of law undermines democracy and diminishes the rights of everyone in America!
Immigration Courts are the “living, breathing repudiation” of racial justice in America!🏴☠️
Repeatedly, Federal Courts at all levels say that foreign nationals are entitled to due process under the Fifth Amendment.
Then, they often go on to convert that to an insulting platitude by approving legal travesties and substandard performance by EOIR inflicted on migrants of color, their attorneys (if any), and their communities. Maybe, it’lls because talented Hispanic judges with actual experience representing asylum seekers and other migrants in Immigration Court are so few and far between. Maybe it’s because Garland has failed to actively recruit judges from among immigration and human rights attorneys of color and has continued to employ a flawed “insider-tilted” selection process that was designed and implemented to “slam the door” on experts from the non-governmental advocacy and academic communities.
Whatever the reason, EOIR has become the “living refutation” of the assertion that Hispanics and other communities of color are treated fairly and equally under our laws and that that race-based decision-making and jurisprudence have vanished from our legal system.
Maybe it’s time for Hispanics and their allies to stop being “tolerant of inequity and bias” and start taking a more aggressive and less compromising position on Garland’s disgraceful, disorderly, dysfunctional, non-diverse, tone-deaf Immigration Courts! Your voices are NOT being heard by those running the Star Chambers and cranking out “assembly line injustice.”
Why does the Hispanic community put up with being demeaned, dehumanized, and degraded by Garland’s “Clown Courts”🤡 and also by a Democratic Party that promised change but has delivered “same old same old” at EOIR?
Recent Supreme Court mockeries of justice show that the rights of minorities are under assault by a radically right-wing Article III Judiciary stocked with GOP appointees. The Immigration Courts, by contrast, are under the total control of the Administration and present an unparalleled opportunity for minority communities to both showcase their judicial skills and to start winning back their legal rights after four years of unrelenting assault by the White Nationalist right.
Why is this perhaps once-in-a lifetime opportunity for long overdue, radical reform of a broken, biased, and incompetent system being squandered and buried by Garland as if Stephen Miller and his cronies were still calling the shots? How many Hispanic and other lives will be sacrificed to EOIR over the next three plus years? How many attorneys of color will continue to be abused, misused, and under-appreciated by an Administration pledged to “do better?” What will be left of racial justice in America if entrusted to a DOJ that doesn’t even believe in the concept in their own court system?
“We hold that B.C. was denied due process because the IJ did not conduct an adequate initial evaluation of whether an interpreter was needed and took no action even after the language barrier became apparent. Those failures resulted in a muddled record and appear to have impermissibly colored the agency’s adverse credibility determination. We therefore vacate the BIA’s decisions and remand for a new hearing on the merits of B.C.’s claims. On remand, the agency must also remedy other errors B.C. has identified, which include dealing with the corroborative evidence he submitted.”
“Baljinder Singh achieved what many immigrants to our country seek: he became a naturalized citizen. Unfortunately, he did so through willful misrepresentation, and, as a consequence, his citizenship was revoked. Before that revocation and while he was still a citizen, he was convicted of conspiracy to distribute and possess with intent to distribute illegal drugs. That led the government to initiate removal proceedings against him, and he was in fact ordered to be removed. Singh now petitions for review of that final order of removal, arguing that the pertinent statutory provisions, by their terms, permit removal only of individuals who were “aliens” at the time of their criminal convictions, whereas he was a naturalized citizen when convicted. The government responds that we must defer to the interpretation given by the Board of Immigration Appeals (“BIA”) to those statutes and therefore must deny the petition for review. In the alternative, the government contends that Singh should be treated as if he had never been naturalized and was actually an “alien” at the time he was convicted. We disagree with both of the government’s arguments and will grant Singh’s petition for review.”
Who would have thought that nearly eight months into the Biden Administration, Garland would still be living in this guy’s house and cranking out some of America’s most unabashedly horrible “jurisprudence” that actually threatens human lives! This is competence? Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
So many systemic problems here! So many obvious solutions! So much progressive expert talent out here who could get this system back on track and save lives in the process! So few excuses for Garland’s gross mishandling of the ongoing EOIR disaster!
The “culture of sloppiness, denial, and anti-immigrant bias” remains at EOIR almost eight months into the Biden Administration! Major personnel (new expert progressive judges committed to due process) and structural changes are necessary and long, long overdue!
The BIA needs to be replaced. Yesterday! Not rocket science! 🚀 Garland and his DOJ have no credibility whatsoever on civil rights, voting rights, or other racial justice issues as long as they run “star chambers” targeting primarily migrants of color (not to mention their long-suffering and dedicated lawyers, many acting pro bono).
“Justice” Star Chamber Style — Garland’s star chambers look and function disturbingly like those of Stephen Miller! Is this REALLY the “progressive humanitarian change” progressives voted for?
Immigrant justice IS racial justice IS equal justice for all! I’m certainly not the only person to have observed this!
⚠️WARNING TO PROGRESSIVE ADVOCATES: There can be no legitimate “asylum reform” without a strong, courageously progressive EOIR to set proper precedent, insure consistency, establish best practices, train judges and adjudicators, and police both the Immigration Courts and the Asylum Offices, including ordering corrective action to be taken in cases of those judge and officers repeatedly and demonstrably “not up to the job.” In simple terms, the culture of anti-asylum bias, racial dehumanization, and sloppy anti-immigrant decision-making that was promoted and institutionalized at EOIR under Sessions and Barr must be eradicated!
Do you seriously think that “this version” of EOIR, poorly trained, weakly staffed, and led by a BIA custom designed and packed by nativists to deny asylum and tilt in favor of DHS enforcement, will insure fairness and due process to asylum seekers in a “streamlined system?” No way!
Yet, beneath all the legal gobbledygook surrounding the proposed asylum regulation changes is the ugly reality that inflicting a “Miller-Lite” EOIR on asylum seekers and their advocates is EXACTLY what Garland and Mayorkas are absurdly proposing!
Advocates need to make their voices heard for immediate EOIR reforms from Garland and establishment of a new well-qualified, well-trained, progressive EOIR as an absolute, non-negotiable prerequisite to any more “gimmicks,” including most of the proposed asylum regulations.
As proved, beyond any reasonable doubt, day after day, Garland’s EOIR is “not quite ready for prime time” — not by a long shot! JUST SAY NO TO STREAMLINING & YET MORE “GIMMICKS” (see, e.g., “Dedicated Dockets”) WITHOUT RADICAL PROGRESSIVE EOIR REFORMS!⚖️🗽
The main problem with the current asylum system isn’t the law. It’s the unqualified folks charged with interpreting and applying it, those “defending the indefensible” (also an abuse of our legal process), and the spineless politicos unwilling to stand up for due process and the rule of law for migrants — at the border and elsewhere!
The failure of effective progressive leadership on EOIR reform at DOJ is simply appalling! And, OIL isn’t exactly covering itself in glory either! You can’t win the game without new and better players on the field. Right Casey?
“Casey Stengel might understand Judge Garland. The rest of us not so much.” Not going to win many games for humanity and the rule of law with Stephen Miller’s “nativist team” on the field. Is that fundamental truth really too deep for Garland and his “spear carriers” to grasp? PHOTO: Rudi Reit Creative Commons
“Kevelin Danery Espinal-Lagos and her two minor sons were ordered removed to Honduras by an Immigration Judge. While their appeal was pending before the Board of Immigration Appeals, the petitioners filed derivative U visa applications with United States Citizenship and Immigration Services that, if granted, would allow them to move to reopen their removal proceedings. Accordingly, the petitioners filed a motion requesting that the Board remand their case so that they could seek a continuance from the Immigration Judge pending the resolution of their derivative U visa applications. The Board dismissed their appeal and denied their motion to remand, reasoning that their “U-visa eligibility and the steps being taken in pursuit of a U-visa could have been discussed at the hearing before the Immigration Judge entered a decision.” For the narrow ground articulated herein, we hold that the Board abused its discretion in its reason for denying the petitioners’ motion to remand. … Espinal-Lagos did not become prima facie “eligible” for a derivative U visa until her husband filed his U visa application with USCIS on July 6, 2018—several months after her hearing before the IJ on February 7, 2018. Indeed, during oral argument when asked, “When was Ms. Espinal-Lagos eligible for a U visa?”, the Government responded that she was “eligible when it’s filed”—“it” being Bethanco’s U visa application.1 The position the Government urges—that Espinal-Lagos should have disclosed to the IJ her potential future eligibility given the district attorney signature on her husband’s U visa certification— has no basis in the regulations. Therefore, the Board’s denial of Espinal-Lagos’s motion to remand was based on a legally erroneous interpretation of the governing regulations. Navarrete-Lopez, 919 F.3d at 953. The Board’s decision was also irrational because it required Espinal-Lagos to have presented information to the IJ that could not have been discovered or presented at that time. … Because the Board abused its discretion in its single reason for denying Espinal-Lagos’s motion to remand, we grant the petition for review and REMAND to the Board for proceedings consistent with this opinion.”
Although this case is unpublished, it’s significant for these reasons:
The “super-conservative” 5th Circuit seldom reverses removal orders;
Granting the legally-required remand in this case would have been about a 30-second “adjudication” (tops) by a competent BIA appellate judge;
Instead of confessing error and asking for a remand, OIL defended this clearly wrong garbage, a likely violation of ethics, an abuse of the Circuit Court’s time, and dilatory action that took the Fifth Circuit two years to correct;
Why would a rational, ethical system even want to remove a family eligible for derivative U status, let along violate the law and make extra work to achieve an irrational, inhumane, and counterproductive result;
For Pete’s sake, this was an UNOPPOSED MOTION TO REMAND at the BIA, but incompetent judges, bad lawyering, and a vile anti-immigrant culture at DOJ created an unnecessary disaster;
As those of us who are actually familiar with the EOIR system know, mistakes like this are a daily, if not hourly, occurrence at today’s thoroughly dysfunctional EOIR! It’s just that relatively few individuals are fortunate to have the time, knowledge, and competent legal assistance to obtain justice at the Court of Appeals level.
NO, Judge Garland, as all outside experts have been telling you, the answer to largely unnecessary, self-created, out of control EOIR backlogs is NOT “dedicated dockets,” idiotic quotas, more mindless gimmicks, or even throwing more judges into an already out of control and dysfunctional system.
It starts, but does not end, with replacing the BIA and incompetent judges at EOIR with qualified progressive experts, bringing in dynamic progressive judicial leadership that solves problems rather than creates them, ending the anti-immigrant “culture of denial” at EOIR and DOJ generally, installing real, due-process-focused training and giving new progressive expert judges independence to establish and enforce quality decision-making, due process, and best practices!
Also, OIL needs a remake and some leadership from skilled, progressive immigration litigators committed to “speaking for justice,” using judicial time wisely, and making the system work rather than mindlessly assisting in the building of backlog.
Due process is a team effort! Sadly, after four years of enabling and defending the indefensible actions of the Trump fascist kakistocracy, there aren’t many folks out there at EOIR and DOJ generally who can “play this game.”
“Can’t anyone here play this game?” So far, the answer at Garland’s EOIR is a resounding “No!” PHOTO: Rudi Reit Creative Commons
🇺🇸Due Process Forever!
PWS
08-27-21
ADDENDUM:
Even as I was writing this, Dan Kowalski sent me yet another 5th Circuit BIA remand. This one was on “divisibility” and was the result of three years of litigation to correct the BIA’s unprofessional work. THAT’S what generates unnecessary backlogs! Efficiency comes from getting thing right in the first instance, particularly when proceedings should be terminated or relief granted.
“Sajid Momin Wali, a native and citizen of Pakistan, became a lawful permanent resident in 2012. In 2017, he pleaded guilty in Texas state court to possession with intent to deliver a synthetic cannabinoid. As a result, he was charged as removable under 8 U.S.C. § 1227(a)(2)(B)(i) for having been convicted of a state-law crime relating to a controlled substance defined in the Controlled Substances Act, 21 U.S.C. § 802. Both the Immigration Judge and the Board of Immigration Appeals sustained that removability determination, concluding that although the Texas statute that formed the basis of Wali’s conviction was broader than the Controlled Substances Act, Wali was removable because the Texas statute under which he was convicted was divisible. After the BIA issued its decision, this court decided Alejos-Perez v. Garland, 991 F.3d 642 (5th Cir. 2021). Under Alejos-Perez, the BIA’s determination that Wali’s statute of conviction was divisible was error. Accordingly, we grant Wali’s petition for review, reverse the BIA’s order, and remand for the BIA to reconsider whether Texas Penalty Group 2-A is divisible in light of Alejos-Perez.”
[Hats off to Amber Gracia for fighting this case since 2018!]
Amber García, Esquire Houston, TX PHOTO: AVVO
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Way to go, Amber! Welcome to the NDPA “star circle!” 🌟 Amber knows “crimigration!” Why doesn’t the BIA?
Why hasn’t Garland brought in better progressive judges? Why does he think the human lives and futures at stake in Immigration Court are expendable? ☠️👎🏽🤮
This is NOT, I repeat NOT, how an “expert court” functions! And, you can’t create and operate an expert court without experts. The “expertise” needed to fix this system is primarily on the outside. Garland needs to make long overdue personnel, leadership, structural, and attitude changes at EOIR! Lives are at stake, and they are “chargeable” to Garland!
🇺🇸DPF!
PWS
08-27-21
ADDENDUM #2
BIA screwups on the x’s and o’s of judicial decision-making continue to “burn up the internet.”
Here’s yet another unpublished rebuke from the 2d Cir. on EOIR’s “any reason to deny worst practices” sent in by my colleague “Sir Jeffrey” Chase of Round Table ⚔️🛡fame:
We conclude that the BIA and IJ erred by relying on an alleged inconsistency between Tamrakar’s testimony before the IJ that the Maoists threatened him and tried to grab him before he escaped and Tamrakar’s statement during his credible fear interview that the Maoists left after threatening him to support its adverse credibility determination without first raising that discrepancy to Tamrakar. That inconsistency was not “self-evident,” Ming Shi Xue, 439 F.3d at 114, because, during the same credible fear interview, Tamrakar stated that the Maoists “tried to grab [him] but [he] ran away from them.” A.R. at 369. This statement was consistent with his testimony. Because the IJ and BIA “relied on the combined force of [three] inconsistencies,” Singh, 2021 WL 3176764, at *7, and did not provide Tamrakar the opportunity to explain one of them, we “cannot confidently predict whether the agency would adhere to [its] determination absent [its] error[].” Id. at *4. Further lessening our confidence, one of the other inconsistencies that the BIA and IJ relied on (whether Tamrakar’s friend accompanied him during the first incident or not) is closely analogous to one that our Court determined gave “no substantial support” to an adverse credibility finding on its own. Id. at *8 (noting that an inconsistency regarding whether a third party accompanied the petitioner to the police station after a key attack could be explained by differing recollections or another innocent explanation). Because we cannot confidently predict what the agency would do absent error, we vacate its decision.
Unfortunately, chronically sloppy work and wrongful denials have become so “routinized” at EOIR that the Circuits don’t even publish many of them any more! But, there are plenty of them out there!
They are just the “tip of the iceberg” of the systemic unfairness, racially-tinged bias, utter disdain for due process, lack of equal justice, unprofessionalism, glaring lack of expertise, and gross abuse of Government resources taking place in “Garland’s Star Chamber/Clown Courts!” Even one of these these is one too many!
The Human Rights advocacy community needs to organize and demand progressive changes from Garland, starting with long-overdue personnel and leadership changes at EOIR! How many more vulnerable individuals will be wrongfully denied or deported before a “responsible government official” (of which there seems to be as distinct shortage at Garland’s DOJ) pulls the plug 🔌 on this ongoing, intolerable human rights and racial justice farce going on at the DOJ!
A robed GOP Justice, carrying a copy of Dred Scott and the tool of right-wing extremism, heads for secret meeting to take action against brown-skinned refugees! Image: Hernan Fednan, Creative Commons LicenseDahlia Lithwick Supreme Court Reporter Slate Wikimedia Commons — Public DomainMark Joseph Stern Reporter, Slate
On Tuesday night, the Supreme Court issued one of the most radical orders in recent memory—and it did it in three sentences, unsigned. By a 6–3 vote, the conservative justices attacked the president’s authority to conduct foreign policy (a principle it had vehemently preserved throughout the Trump presidency) by compelling the Biden administration to revive Donald Trump’s “Remain in Mexico” policy, which required all asylum-seekers who arrive at the Southern border—including many fleeing violence in Central America—to wait for their U.S. immigration hearings in Mexico. This 2019 policy, the product of extensive negotiations between the Trump administration and the Mexican government, has been suspended for about 17 months. On Aug. 13, however, a single federal judge issued a nationwide injunction ordering the government to reinstate the long-dormant program immediately. Late Tuesday, the Supreme Court blessed this unprecedented hostile takeover of the executive’s immigration policies without bothering to explain how or why.
The implications of Tuesday’s decision are profoundly disturbing. . . .
Perhaps the most perverse aspect of the litigation over “Remain in Mexico”—also known as the Migrant Protection Protocols, or MPP—is that the policy itself is illegal. The Immigration and Nationality Act does allow the government to return a narrow class of migrants to “contiguous territory” while they await hearings. But, as a federal appeals court explained in 2020, the law does not allow the government to send the vast majority of asylum-seekers back to Mexico to await hearings. Doing so violates the United States’ treaty obligations as implemented in the INA, which bar the government from sending refugees back to countries where they fear persecution.
. . . .
As we have suggested in the recent past, the problem with late-night emergency orders written as haikus on Post-it notes stuck to the front doors of the Supreme Court isn’t just that the parties must scramble, without guidance, to discern what it is the court wants them to do. In this case, perhaps tens of thousands of desperate asylum-seekers and their families have absolutely no clue as to what the law is now and why. We have no idea what even constitutes an emergency, or which parties have standing, or what the legal reasoning might be.
Not very long ago, the high court used its shadow docket to spank what it deemed runaway district court judges arrogating power to set immigration policy in violation of Trump’s orders. Now, the same shadow docket is being used to hand federal immigration powers to runaway district court judges, with no rule or principle set forth beyond the fact that Biden should just lose, because they say so.
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Under Roberts, the Supremes are looking more and more like the deadly EOIR Star Chambers/Clown Courts!☠️⚰️🤡 Shamefully, the “Roberts Six” have “revived” the “essence” of perhaps the worst Supremes’ decision in U.S. history, Dred Scott, and gotten away with applying it to people of color in the 21st Century!
They have elevated utter BS and fabricated “injuries” manufactured in bad faith by vile right wing GOP State AGs over the human rights, lives, and human dignity of refugees seeking asylum! In particular, they have targeted bown-skinned women, children, and families legally seeking refuge! This is progress? Seems like the definition of “judicial cowardice” to me!
Meanwhile Garland inexcusably has failed to reform his Immigration Courts by replacing unqualified Immigration Judges and BIA Appellate Judges selected by his predecessors under highly questionable procedures with well-qualified progressive judges who are experts in due process and human rights.
Building a progressive Immigration Judiciary at EOIR is absolutely necessary to developing the legal skills to hold the anti-American far right at bay and eventually creating a better Article III Judiciary that will actually stand up for due process and equal justice for all persons in America. Something the “Roberts 6” have scandalously and spinelessly failed to do!🤮👎🏽
PANEL: MARTIN (Obama), NEWSOM (Trump), and BRANCH (Trump), Circuit Judges.
OPINION BY: Judge Branch
DISSENT: Judge Martin
KEY QUOTES FROM DISSENT:
The majority opinion gives no more consideration to Mr. Murugan’s claims
and individualized evidence than did the Board of Immigration Appeals and the Immigration Judge. That is to say not much consideration at all.
Mr. Murugan produced evidence that in October 2018, the Sri Lankan government changed drastically when the former president, who had been accused of authorizing war crimes and other human rights abuses against Tamils “blindsided” political observers and “sudden[ly]” returned as prime minister. Because Mr. Murugan is a member of the Tamil ethnic group, his attorney brought up these facts at the hearing before the IJ. But the IJ took no notice of this evidence, finding that Mr. Murugan’s country conditions evidence was outdated because it included materials related to the former president’s rule from 2014 to 2016. Mr. Murugan argued to the BIA that the IJ improperly disregarded these new facts, because they were relevant to what treatment the Tamils could expect from the newly returned prime minister. Even so, the BIA mechanically adopted the IJ’s decision that Mr. Murugan’s evidence was outdated. Mr. Murugan has now tried a third time, pointing out the significance of this evidence in his brief before this Court.
The majority opinion, like the IJ and the BIA, fails to engage with this
evidence. But I see it as substantial and highly probative evidence of a pattern or 19
USCA11 Case: 19-13715 Date Filed: 08/24/2021 Page: 20 of 34
practice of government persecution of Tamils. Because I believe Mr. Murugan met his burden of showing he had a well-founded fear of future persecution based on the Sri Lankan government’s practice of persecuting Tamils, I would grant him relief on this claim.
. . . .
When this Court is tasked with reviewing a decision of the BIA, we must
actually review it, albeit with deference. This majority opinion may condemn Mr. Murugan to extreme persecution in Sri Lanka because it failed to actually examine the evidence of recent political changes in that country. When a dictator with a well-documented history of persecuting an ethnic group returns to power, surely
33
USCA11 Case: 19-13715 Date Filed: 08/24/2021 Page: 34 of 34
our law does not require a member of that group wait to again experience persecution before he can claim asylum. Mr. Murugan has met his burden here. I respectfully dissent.
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I encourage everyone to read Judge Martin’s complete dissent. By contrast, Judge Elizabeth Branch’s majority opinion is a vapid, disingenuous, piece of right-wing legal sophistry. As my colleague, Hon. “Sir Jeffrey” Chase observed, Branch was “Associate General Counsel for Rules and Legislation, U.S. Department of Homeland Security, in 2004-2005,” during the Bush II Administration.
Judge Martin will retire from the bench on September 30, 2021, thus giving President Biden a chance to appoint her replacement. So, this might be her last immigration opinion.
Judge Martin calls out her intellectually dishonest Trumpy colleagues and accurately characterizes BIA review as no review at all. (Actually, it’s worse than no review, because the BIA sometimes reverses correct IJ asylum grants and rewrites decisions to make it easier for OIL to defend bad denials.)
No matter how poorly they perform their judicial duties (the majority decision in this case certainly stands out as one of many low points in recent American jurisprudence) Trump’s and McConnell’s far righty Article IIIs enjoy lifetime sinecures.
But, EOIR “judges,” particularly after the last two decades of political interference with any semblance of “judicial independence,” enjoy no such exalted lifetime protection. As DOJ keeps pointing out, they are “mere Government attorneys” who can be reassigned to a wide range of attorney positions at the discretion of the AttorneyGeneral.
Thus Garland could, and should, remove and reassign poorly qualified judges and replace them with real, well-qualified expert progressive judges who understand asylum law, will fairly apply it, will issue some positive asylum precedents, and will control the “Asylum Deniers Club” operating in Immigration Courts throughout America. The dysfunction, institutionalized unfairness, and “worst practices,” are particularly acute after four years of poor judicial selections, a BIA packed with anti-asylum zealots, and defective training by biased, anti-asylum AGs under fatally flawed and discriminatory selection procedures
Judge Martin “gets it.” How come nobody on Team Garland does?
As we can see, from the Supremes to the “retail level” at the Immigration Courts, the consequences of poor right-wing judging fall most heavily on migrants, women, children, and people of color. Progressives could change that around at EOIR. But, Judge Garland doesn’t seem up to the job, as the opportunity for long overdue, systemic, life saving changes at EOIR continues to slip through his fingers!
USAToday: Judge Matthew Kacsmaryk, a Trump appointee, directed the Biden administration to reinstate the program, saying the administration “failed to consider several critical factors” when ending the program. Kacsmaryk delayed his order for seven days to give the administration a chance to appeal.
Reuters: Mayorkas, speaking at a news conference in south Texas, did not provide details about which asylum seekers would be eligible to use the online system, but said further asylum changes would be announced in the coming days.
WaPo: The number of migrants detained along the Mexico border crossed a new threshold last month, exceeding 200,000 for the first time in 21 years, according to U.S. Customs and Border Protection enforcement data released Thursday.
NYT: By this week, at least 1,000 migrants were housed at the teeming camp, erected by the nearby city of McAllen as an emergency measure to contain the spread of the virus beyond the southwestern border. About 1,000 others are quarantined elsewhere in the Rio Grande Valley, some of them in hotel rooms paid for by a private charity.
Politico: Thousands of lawsuits on every aspect of immigration policy are pending from the Trump years — from challenges to the government’s moves to block asylum for specific individuals to roughly 100 lawsuits filed by the government to gain access to or seize land near the southern border for Trump’s border wall.
Newsweek: [S]ix months in, Biden’s administration and his Democrat-led Congress are spending millions more taxpayer dollars to expand detention and surveillance of immigrants. A private prison company is profiting from both.
WaPo: Last week, the Biden administration began the expulsion flights from the United States to the southern Mexican city of Villahermosa in a bid to deter repeat border crossers. Mexico agreed to accept those flights and said it would allow those who feared persecution in their home countries to apply for asylum. But the migrants — mostly from Honduras, El Salvador and Guatemala — who have arrived in the remote Guatemalan border town of El Ceibo describe a chaotic series of expulsions, first from the United States in planes and then from Villahermosa to Guatemala by bus. They say they were not given an opportunity to seek refuge in Mexico.
CNN: The agency’s new policy, issued Wednesday, marks the latest effort by the Biden administration to pivot from the Trump administration and tailor enforcement priorities. Going forward, ICE will require agents and officers to help undocumented victims seek justice and facilitate access to immigration benefits, according to the agency.
WSJ: The situation complicates what has already been a yearslong wait for many of the 1.2 million immigrants—most of them Indians working in the tech sector—who have been waiting in line to become permanent residents in the U.S. and are watching a prime opportunity to win a green card slip away.
CBS: The death toll from a magnitude 7.2 earthquake in Haiti soared to at least 1,297 Sunday as rescuers raced to find survivors amid the rubble ahead of a potential deluge from an approaching tropical storm. Saturday’s earthquake also left at least 2,800 people injured in the Caribbean nation, with thousands more displaced from their destroyed or damaged homes.
TheCity: Lt. Gov. Kathy Hochul, speaking publicly for the first time as New York’s governor-to-be, insisted Wednesday she’s “evolved” since fighting against driver’s licenses for undocumented immigrants by threatening them with possible arrest and deportation.
AILA: The BIA dismissed the appeal after concluding that the respondent’s prior receipt of special rule cancellation of removal under the NACARA bars her from applying for cancellation of removal. Matter of Hernandez-Romero, 28 I&N Dec. 374 (BIA 2021)
Law360: The Third Circuit signed off Monday on an order from the New Jersey Attorney General’s Office barring law enforcement agencies from sharing certain information with federal immigration authorities, ruling in a precedential opinion that two federal statutes do not bar the directive since they regulate states and not private actors.
AILA: The court upheld the BIA’s denial of asylum to the Salvadoran petitioner, finding that his proposed particular social groups of “former members of MS-13” and “former members of MS-13 who leave for moral reasons” were overbroad and lacked social distinction. (Nolasco v. Garland, 8/2/21)
AILA: The court held that it lacked jurisdiction to review the BIA’s finding that the petitioner had not presented prima facie evidence of her eligibility for cancellation of removal pursuant to INA §242(a)(2)(B)(i). (Parada-Orellana v. Garland, 8/6/21)
AILA: The court held that the BIA did not abuse its discretion in denying the petitioner’s motion to reopen, where the evidence showed that the poor conditions facing homosexuals and Christians in Somalia have remained substantially similar since the time of her hearing. (Yusuf v. Garland, 8/9/21)
AILA: The court held that the BIA did not err in finding that the petitioner’s proposed particular social group (PSG) of “Mexican mothers who refuse to work for the Cartel Jalisco Nueva Generación” was not sufficiently particularized or socially distinct. (Rosales-Reyes v. Garland, 8/4/21)
AILA: The court found that because petitioner had failed to rebut the presumption set out in the Attorney General’s decision in In re Y-L-, the BIA did not err in not considering her mental health as a factor in the particularly serious crime (PSC) analysis. (Gilbertson v. Garland, 8/2/21)
Law360: The Board of Immigration Appeals was wrong to deny administrative closure to a Mexican woman and her daughters while they had a U visa petition pending, an Eighth Circuit panel ruled, faulting the board’s reliance on now-vacated precedent.
AILA: Granting the petition for review, the court held that, because petitioner was not an applicant for admission, the BIA impermissibly applied the “clearly and beyond doubt” burden of proof in finding him inadmissible and therefore ineligible for adjustment of status. (Romero v. Garland, 8/2/21)
AILA: The court remanded for the BIA to consider in the first instance whether the petitioner was eligible for withholding of removal on account of his membership in the particular social group of “people erroneously believed to be gang members.” (Vasquez-Rodriguez v. Garland, 8/5/21)
AILA: The court held that Hawaii’s fourth degree theft statute, a petty misdemeanor involving property of less than $250, is overbroad with respect to the BIA’s definition of a crime involving moral turpitude (CIMT) and is indivisible, and granted the petition for review. (Maie v. Garland, 8/2/21)
Law360: The Ninth Circuit denied a Mexican man’s appeal of his deportation order Wednesday, saying the Board of Immigration Appeals was correct in ruling that his past conviction for marijuana possession made him ineligible for cancellation of removal.
AILA: The court held that the petitioner’s conviction in Florida under Fla. Stat. §790.23(1)(a) for being a felon in possession of a firearm did not constitute a “firearm offense” within the meaning of INA §237(a)(2)(C) and its cross-reference to 18 USC §921(a)(3). (Simpson v. Att’y Gen., 8/4/21)
Law360: A Texas federal judge on Friday extended for an additional 14 days an emergency order temporarily blocking Gov. Greg Abbott’s executive order restricting ground transportation of migrants detained at the border amid the COVID-19 pandemic.
Law360: An American who has waited years for his Pakistani wife to have her green card application processed is suing the federal government, blaming their visa limbo on what they call an illegal national security vetting program.
AILA: ICE released ICE Directive 11005.3, Using a Victim-Centered Approach with Noncitizen Crime Victims, with guidance on how it will handle civil immigration enforcement actions involving noncitizen crime victims.
AILA: USCIS SAVE issued guidance regarding Afghans who are eligible for Special Immigrant Visas and their special immigrant LPR status or special immigrant parole that meets the special immigrant requirement for certain government benefits.
AILA: USCIS stated that 8/12/21 through 9/30/21, it will extend the validity period for Form I-693, Report of Medical Examination and Vaccination Record, from two years now to four years due to COVID-19-related delays in processing. Guidance is effective 8/12/21, and comments are due by 9/13/21.
AILA: Executive order issued 8/9/21, imposing sanctions on those determined to have contributed to the suppression of democracy and human rights in Belarus, including suspending the unrestricted immigrant and nonimmigrant entry into the United States of such persons. (86 FR 43905, 8/11/21)
AILA: On 8/5/21, President Biden issued a memo directing DHS to defer for 18 months the removal of Hong Kong residents present in the United States on 8/5/21, with certain exceptions. (86 FR 43587, 8/10/21)
The article by Anita Kumar in Politico should be an “eye opener” for those progressive advocates who think Garland is committed to due process, equal justice, and best practices in Immigration Court and elsewhere in the still dysfunctional immigration bureaucracy. This particular quote stands out:
“The Department of Justice really was a center of gravity for some of the most…hideous anti- immigrant policies that came out of the Trump administration and really was in some ways ground zero for the anti-immigrant agenda of Donald Trump,” said Sergio Gonzales, who worked on the Biden transition and serves as executive director of the Immigration Hub. “And this is why it’s so critical that DOJ moves swiftly and aggressively to undo that agenda.”
I dare any advocate to claim Garland has moved “swiftly and aggressively” to undo the Miller White Nationalist agenda! Yes, after a crescendo of outrage and public pressure from NGOs, he has vacated four of the worst xenophobic and procedurally disastrous precedents. But, there are dozens more out there that should have been reversed by now.
More important, returning the law to its pre-Trump state is highly unlikely to bring meaningful change and fairer results as long as far too many of the Immigration Judges and BIA Judges charged with applying that law are Trump-era appointees, some with notorious records of anti-immigrant bias and a number who have denied almost every asylum case that came before them. (And, it’s not like A-R-C-G- was fairly and consistently applied during the Obama Administration, which largely gave “the big middle finger” to progressives in appointments to the Immigration Judiciary).
Is an IJ who was denying nearly 100% of A-R-C-G- cases (and in some cases misogynistically demeaning female refugees in the process) even prior to A-B- suddenly going to start granting legal protection? Not likely!
Are BIA Judges who got “elevated” under Trump by being notorious members of the “Almost 100% Denial Club” suddenly going to have a “group ephifany” and start properly and generously applying A-R-C-G- to female refugees and insisting that trial judges do the same? No way!
Is a BIA where notorious asylum deniers are heavily over-represented and others have shown a pronounced tendency to “go along to get along” with Miller-type xenophobic White Nationalist policies now going to do a “complete 360” and start churning out “positive precedents” requiring IJs to fairly and generously grant asylum as contemplated in long-forgotten (yet still correct) precedents like Cardoza-Fonseca, Mogharrabi, and Kasinga? Not gonna happen!
Will a few rumored, long delayed progressive expert appointments to the Immigration Judiciary “turn the tide” ofsystemic dysfunction, intellectual dishonesty, anti-immigrant, anti-asylum “culture,” lack of expertise, and dereliction of due process and fundamental fairness at EOIR? Of course not!
So, progressives, don’t kid yourselves that Garland has “seen the light” and is on your side. Judge him by his actions and appointments!
Note, that unlike Sessions and Barr, it’s actually hard to judge Garland on his rhetoric, because there isn’t much. He’s five months into running a nationwide system of dysfunctional “star chambers.”
But, to date, he hasn’t uttered a single inspiring pronouncement on returning due process, fundamental fairness, human dignity, decisional excellence, or professionalism to EOIR, connecting the dots between immigrant justice and racial justice, or given any warning that those who don’t “get the message” will be getting different jobs or heading out the door.
I still remember my first personal encounter with AG Janet Reno when she exhorted everyone at the BIA to promote “equal justice for all!” I still think of it, and it’s still “on my daily agenda” — over a quarter century later, even after the end of my EOIR career!
Where are Garland’s “inspiring words” or “statements of values” on immigrant justice and equal justice for all!Actions count, but rhetoric in support of those actions is also important. So far, Garland basically has “zeroed out” on both counts!
Yes, along with the entire immigration community, I cheered the appointment of Lucas Guttentag! But, Lucas isn’t deciding cases, nor has he to date brought the progressive experts to EOIR Management and repopulated the BIA with progressive expert judges who will end the due process abuses and grotesque injustices at EOIR and start holding IJs with anti-asylum, anti-migrant, anti-due-process agendas accountable.
Also unacceptably, progressive litigators haven’t been brought in to assume control of the Office of Immigration Litigation (“OIL”) and end wasteful, and often ethically questionable, defense of the indefensible in immigration cases in the Article IIIs.
We need bold, progressive, due process/fundamental fairness/racial justice reforms! It’s got to start with major progressive personnel changes! And, it should already have started at EOIR!
The best laws, regulations, precedents, and policies in the world will remain ineffective so long as far too many of those judges and senior executives charged with carrying them out lack demonstrated commitment to progressive values, not to mention relevant, practical expertise advancing human and civil rights!
Contrary to what many think, bureaucracy can be moved by those with the knowledge, guts, determination, and commitment to do it! Seven months after Biden’s inauguration, the DOJ remains a disaster with the situation at EOIR leading the way!
It didn’t have to be that way! It’s unacceptable! Foot dragging squanders opportunities, wastes resources, and, worst of all, actually costs lives and futures where immigration is at stake. This isn’t “ordinary civil litigation!” It’s past time for tone-deaf and inept Dem Administrations to stop treating it as such!
The following item from Angelika Albaladejo at Newsweek should also be a “clarion call” to advocates who might have thought this Administration (and even Congressional Dems) has a real interest in human rights reforms.
Here’s the essence:
President Joe Biden promised to end prolonged immigration detention and reinvest in alternatives that help immigrants navigate the legal process while living outside of government custody. These promises were part of Biden’s campaign platform and the reform bill he sent to Congress on his first day in the White House.
But six months in, Biden’s administration and his Democrat-led Congress are spending millions more taxpayer dollars to expand detention and surveillance of immigrants. A private prison company is profiting from both.
Meanwhile, community case management—which past pilot programs and international studies suggest is less expensive while more effective and humane—is receiving comparatively little support.
Same old same old! Election is over, immigration progressives who helped elect Dems are forgotten, and human rights becomes an afterthought —or, in this case, worse!
Progressives must continue to confront a largely intransigent and somewhat disingenuous Administration. A barrage of litigation that will tie up the DOJ until someone pays attention and, in a best case, forces change on a tone-deaf and recalcitrantAdministration, is a starting point.
But, it’s also going to take concerted political pressure from a group whose role in the Dem Party and massive contributions to stabilizing our democracy over the past four years is consistently disrespected and undervalued (until election time) by the “Dem political ruling class!”
Legislation to create an Article I Immigration Court and get Garland, his malfunctioning DOJ, and his infuriating “what me worry/care attitude” completely out of the picture has also become a legal and moral imperative, although still “a tough nut to crack” in practical/political terms. But, we have to give it our best shot!
Actions (including, most important, personnel changes) solve problems and save lives! Unfulfilled promises, campaign slogans, and fundraising pitches not so much!
Many who helped put Biden and Garland in office believed that “Americans Gulags” and “EOIR StarChambers” would be a thing of the past by now. But, outrageously, they are still alive, well, and thriving in the Biden Administration, even being expanded and defended by Garland’s team of morally and ethically challenged DOJ lawyers. “The Inspiring Words & Deeds of AG Merrick Garland on Immigrant Justice” would fill a book about as large as “The Combined Wisdom & Humanity of Donald Trump & Stephen Miller.” Oh well, at least the Grim Reaper must be happy with the way things are going! Image: Hernan Fednan, Creative Commons License
😎Due Process Forever! Star Chambers and the New American Gulag, Never!
“In sum, we conclude that the BIA abused its discretion in two respects: it departed from established policy when it failed either to apply the Sanchez Sosa factors or to remand to allow the IJ do so, and it failed to provide a rational explanation for its decision, including its treatment of this court’s binding precedent in Caballero-Martinez. … We grant the petition for review, vacate the BIA’s May 2020 order, and remand for proceedings consistent with this opinion.”
[Hats off to David L. Wilson and amici Immigrant Law Center of Minnesota, ASISTA Immigration Assistance Project and National Network To End Domestic Violence!]
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Folks, all of this nonsense, delay, needless litigation, and remarkable legal/judicial incompetence was for the “purpose” of denying a well-deserved continuance to a U visa applicant — what should have been about a 5-minute positive adjudication, at max. No wonder the Federal Courts are clogged, the EOIR backlog grows, and the system has lost all respect and credibility!
I wish that Lucas Guttentag, Lisa Monaco, Vanita Gupta, and Merrick Garland would explain to all of us what is the purpose of an “expert tribunal” that lacks expertise, fundamental legal skills, judicial independence, moral courage, and common sense, as well as the backbone to have stood up to folks like Sessions and Barr (see, e.g., the Census Bureau career civil servants for stark contrast).
EOIR needs, among other things, changes at the top, real courageous progressive leadership, and a new, well-qualified, progressive, practical, expert BIA that puts due process and fair adjudication above all else. The practical experts are out there! Lucas knows exactly who should be leaders, role models, and appellate judges at the BIA! He knows that EOIR is the one critically important Federal Judiciary that can be transformed in the short run into a progressive, due-process-focused, “model judiciary!” Every day wasted in making the necessary changes in personnel and procedures is a life-changing, life-preserving opportunity wasted!
So, what’s the delay? Why is this nonsense, injustice, and waste of resources continuing nearly seven months into the Biden Administration? What’s with the continuing, due-process-denying, corner-cutting, sophomoric “denial quotas” for EOIR “judges” that produce wasteful, unjust “garbage adjudications” like this litigation exemplifies?
Lucas Guttentag Senior Counselor to the Deputy Attorney General
It shouldn’t be this hard to get long, long overdue, well-documented, common sense, readily achievable changes at EOIR! It shouldn’t be this hard for asylum seekers and other migrants, as well as their long-suffering representatives, to get the due process and fair and impartial adjudication that is their absolute right under the Due Process Clause of the Fifth Amendment to our Constitution!
Additionally, the status quo does not guarantee that no one will be present in the United States without permission. In fact, with the plenary power doctrine in place, there are approximately 10 million individuals living in the United States without permission. (And most of them crossed the border legally, entering the territory with legal authorization for some period that expired.) Despite this, the United States continues to exist. Noncitizens, however, are denied more independent adjudicators under the false idea that by denying them we somehow protect the nation’s sovereignty. These are complex lives interwoven with our communities, businesses, schools, and the lives of US citizens. The failure to provide fair process affects more than just the noncitizen; in fact, it degrades our democracy and affects us all.
Perhaps the sovereignty fear is shorthand for something else? Is it an objection to multiculturalism? The reflection of a desire to give the president power to thwart statutory immigration law? Or perhaps courts and policymakers have been invoking the phrase “plenary power” for so long that it has become an out of date, knee-jerk reaction.
Sovereignty and foreign policy will remain intact even with more independent immigration adjudication. The sovereignty fear is a distraction from what really needs our attention; we should not let it stop us from providing fair process.
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The threat to our democracy hardly comes from those seeking legal refuge to save their lives or to find meaningful work to support their families and contribute to society.A more robust and fair legal immigration system would assist in identifying the relatively small percentage of migrants who seek to do us harm.
No, the bigger threat comes from GOP neo-fascist insurrectionists and their spineless political enablers who actively seek to undermine our democracy with lies and White Nationalist racism.
In a more functional system, Professor Family and those like her who understand and are committed to the “big picture” of American democracy and equal justice for all would be the Appellate Immigration Judges and Article III Judges — jurists ready and willing to stand up to Executive abuses of authority! The Immigration Courts should be the “starting place” for restoring and reinforcing American democracy. Does the Biden Administration have the vision and guts to make it happen?
USCIS: Individuals applying for Haiti TPS must submit Form I-821, Application for Temporary Protected Status, during the 18-month initial registration period that runs from Aug. 3, 2021, through Feb. 3, 2023. Haiti TPS applicants are eligible to file Form I-821 online.
TRAC: The number of new cases continues to severely outpace the rate at which judges can keep up, resulting in a growing backlog that is approaching 1.4 million.
ImmProf: A Biden administration official announced last week that the government has processed green card applications at such a slow pace that it will come at least 100,000 slots short of using up the annual limit. Without drastic revisions in the glacial processing times, President Biden will have presided over one of the largest cuts to legal immigration in U.S. history — and almost no one is talking about it.
AIC: All told, available data shows that ICE arrested 674 potential U.S. citizens, detained 121, and deported 70 during the time frame the government watchdog analyzed.
NYT: Mr. Biden said on Thursday night that White House staff were “putting out a message right now” that “we should include in the reconciliation bill the immigration proposal.”
Hill: Although the document is deeply critical of the Trump administration, it leads with border management, relegating the Biden administration’s “root causes” initiative to the last section.
Vox: [D]iversity visa lottery winners who applied for visas amid the Covid-19 pandemic now risk losing their opportunity to come to the US — in part because the State Department has continued the Trump-era policy of deprioritizing their applications.
Buzzfeed: Thirty-two unaccompanied immigrant children who were deported to Guatemala despite a judge’s order have yet to be brought back to the US to apply for asylum, six months after the government admitted it was in the wrong. Now, immigration advocates are ramping up pressure on the Biden administration to speed up the process.
Reuters: Garland’s letter comes just a day after Abbott signed the order, which states that “no person, other than a federal, state, or local law-enforcement official, shall provide ground transportation to a group of migrants” who have been detained by federal immigration officials for crossing the border.
AP: Unless there’s a legal challenge or other exception, ICE’s options are to either transfer current detainees in Illinois to other states or release them.
WaPo: “The IRS is aware some taxpayers who filed tax returns with ITIN numbers did not receive their child tax credit payment for July. We have worked expeditiously to correct this issue and these taxpayers will start receiving payments in August. All impacted taxpayers will receive their July payment.”
Advance copy of USCIS notice announcing the designation of Haiti for Temporary Protected Status for 18 months, effective 8/3/21 through 2/3/23. The notice will be published in the Federal Register on 8/3/21. AILA Doc. No. 21073002
Lexis: Matter of Aguilar-Barajas, 28 I&N Dec. 354 (BIA 2021) (1) The offense of aggravated statutory rape under section 39-13-506(c) of the Tennessee Code Annotated is categorically a “crime of child abuse” within the meaning of section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2018). (2) The Supreme Court’s holding that a statutory rape offense does not…
Law360: The Eighth Circuit refused on Thursday to review a Honduran man’s bid for deportation relief reserved for victims of child abuse, saying the government had discretion to decide he didn’t deserve exemption because of his criminal history.
Law360: A split Ninth Circuit panel denied a Mexican woman’s petition for review of her deportation, which was previously blocked due to the ambiguous nature of her drug conviction, citing a recent U.S. Supreme Court ruling that an unclear conviction alone cannot save an applicant’s case.
Lexis: Maie v. Garland “Maie’s petition contends that his petty theft convictions are not categorically CIMTs. The government’s initial response argued only that Maie failed to preserve this argument. For reasons explained more fully below, we conclude that Maie’s argument was not waived. Because Maie’s argument presents an issue we have yet to address in a published opinion, we ordered supplemental…
Lexis: Romero v. Garland “Romero had been admitted before he applied for adjustment of status. Thus, he is not now an “applicant for admission,” and therefore the “clearly and beyond doubt” burden does not apply. Rather, the “preponderance of the evidence” burden from 8 C.F.R. § 1240.8(d) applies. … [W]e remand for the BIA to reconsider whether Romero met his burden to show by…
Law360: An LGBTQ American expat is closing down her lawsuit seeking to obtain citizenship for her daughter born overseas, following a policy change from the Biden administration that allowed the child to secure a passport even though she’s not biologically related to a U.S. citizen.
AILA: The United States filed a lawsuit in federal district court against Texas and its governor, Greg Abbott, alleging that the governor’s 7/28/21 executive order relating to the transportation of certain migrants during the COVID-19 pandemic is unlawful. (United States v. Texas, et al., 7/30/21) AILA Doc. No. 21080239
Politico: The American Civil Liberties Union on Monday announced it will resume a lawsuit against the Biden administration to force an end to the use of a provision of U.S. health code known as Title 42 to expel migrant families arriving at the border.
AILA: DHS announced that it resumed expedited removal flights for certain families who recently arrived at the southern border, cannot be expelled under Title 42, and do not have a legal basis to stay in the United States. CBP returned individuals to Guatemala, El Salvador, and Honduras. AILA Doc. No. 21080231
AILA: DOS announced that certain Afghan nationals and their eligible family members are now eligible for a Priority 2 designation granting U.S. Refugee Admissions Program access. Notice outlines eligibility. AILA Doc. No. 21080240
AILA: USCIS announced the opening of a new asylum office in Tampa, Florida on August 2, 2021, in response to an increasing asylum workload in Florida. This is the 11th asylum office in the country and the second in Florida. The Tampa and Miami asylum offices will divide the state’s asylum workload.AILA Doc. No. 21080238
AILA: DHS published its semiannual regulatory agenda providing a summary of projected regulations, existing regulations, and completed actions of DHS and its components. (86 FR 41226, 7/30/21) AILA Doc. No. 21080237
Immigration Court backlogs continue to mushroom as Garland to date has failed to take the aggressive measures needed and recommended to slash the docket by getting so-called “non-priority” cases off the docket (see, e.g., “Chen/Moskowitz proposal”) and bringing in more “progressive practical scholar judges” who know how to complete cases without compromising due process;
Biden’s announced support for “immigration legislation by reconciliation” might be the best shot for an Article I Immigration Court — is it an “idea whose time has finally come” as Judge Dana Leigh Marks, long-time Article I advocate, said recently;
Biden Administration mindlessly chooses to go to war with ACLU and human rights advocates on continued abuse of Title 42 to suspend asylum at the border (why not instead enlist these experts to restore a functioning asylum system at the border?);
ICE evidently has been deporting U.S. citizens, and not just “one or two;”
Circuits continue to “ding” BIA on basics like standard of proof, categorical approach;
Lucas Guttentag arrives on the scene @ DOJ not a moment too soon— but he’ll need lots of expert help on the inside to “right this sinking ship;”
Haste makes waste once again, as Gov. drags feet on returning 32 illegally removed children, spurring yet more unnecessary litigation (what about getting it right the first time around? — saves time and resources, also lives!);
https://lawprofessors.typepad.com/immigration/2021/07/lets-call-the-border-crisis-what-it-is-another-big-lie-from-the-right.html is also a “good read.” It seems pretty obvious, as many of us have been saying over and over, that having no legal system for screening and admitting refugees would add to the number of apprehensions and illegal entries — what other choice do desperate refugees have under the dysfunctional system maliciously created by Trump and mindlessly and illegally being maintained by Biden? Blaming the “victims” for our Government’s own intellectually dishonest, scofflaw, and immoral actions is a particularly cowardly thing to do! After nearly seven months in office (and over two months to prepare after the election) there is no excuse for the Biden Administration’s failure to have in place a fair and efficient asylum system, staffed by experts and better IJs who understand asylum and protection laws and are willing and well-qualified to grant relief to the deserving! Properly screening and establishing an orderly, fair adjudication system, with the assistance of NGOs and legal aid groups across the nation, would take pressure off of border communities. It would also allow qualified asylum seekers to become legal residents and begin fully contributing to our society and economy. Almost all experts, economists, and demographers say we need more legal immigration. Here it is staring us in the face; but, our Government wastes time and resources futilely trying to deter and expel folks who can help us out (while saving their own lives — a “win-win”)!
“Thomas Malthus was wrong about economics, but he would be delighted with the GOP’s dishonest “beggar thy neighbor” policies!” Creative Commons 4.0
If you’ve taken Econ 101, you were probably taught that the economy is a zero-sum game. If I win, another economic actor has to lose. One group’s gains mean another’s losses. The issue with that theory? It’s not only wrong, it’s dangerous: Nationalist leaders around the world have played on voters’ fears by threatening that the economic progress of immigrants and minorities will result in losses for everyone else.
The truth is, life isn’t a zero-sum game. A growing body of evidence actually shows that inclusion isn’t just compatible with economic growth – it’s absolutely necessary.
On this week’s episode of Nick Hanauer’s podcast Pitchfork Economics, JP Julien discusses a report that he co-wrote as a leader of global management consulting firm McKinsey & Company’s Institute for Black Economic Mobility. This think tank isn’t in the business of getting accolades from progressive circles – or conservative ones – it’s focused on the cold, hard data. Here’s what Julien told us about economic inclusion:
When more people can fully participate in the economy, we all win
Julien says that when people from all races and backgrounds are able to participate as workers, entrepreneurs, and consumers, the economy is stronger and more resilient. There’s already plenty of evidence for this theory: Between 1960 and 2010, 40% of GDP growth can be directly tied to women and people of color joining the labor force. “The data speaks quite clearly that the more we get people to participate, the better outcomes we produce,” Julien says.
Economic discrimination hurts all of us
There’s a staggering price tag on economic discrimination against people of color and women in America. In his paper, Julien found that eliminating wealth disparities between Black and white households and Hispanic and white households could add $2 to $3 trillion of incremental annual GDP to the U.S. economy. And if more women join the workforce over the coming years, we could add $2.1 trillion in GDP by 2025.
These gains aren’t zero-sum numbers; they don’t come at the expense of the economic value of white men – those numbers are in addition to that growth. That means America’s missing out on at least $5 trillion of economic activity because whole demographics have been shut out of the economy.
Corporations that focus on Diversity, Equity, and Inclusion outperform their peers
From the end of last year to this May, we’ve seen Fortune 1000 companies spend $66 billion in racial equity commitments. That’s because of a growing consensus among Fortune 1000 companies that being good corporate citizens actually creates economic opportunities. In his research, Julien found that corporations with more diverse boards and diverse leadership teams actually outperform their peers. It’s becoming impossible to ignore: DEI policies lead to a better and more profitable workplace.
For centuries, our economy has been constructed around exclusionary policies that shut out women and people of color – and this is discrimination is taking a toll on everyday Americans and our country’s economic growth. We can all win by increasing inclusion in the economic playing field – but we’re going to need all hands on deck to tear down this unfair economic system, and that means we need your help right now.
We’ve created an urgent poll to show support for win-win policies that allow everyone to participate in our economic system. We need 5,000 people to answer this one question before 11:59 p.m. tonight, and we’re counting on you to cast your vote tonight. Tell us now:
Does economic inclusion lead to greater economic growth?
“For centuries, our economy has been constructed around exclusionary policies that shut out women and people of color – and this discrimination is taking a toll on everyday Americans and our country’s economic growth.”
Couldn’t help thinking of these words as I listened to insurrectionist/traitor “Cancun Ted” Cruz pontificate about why it’s OK to exploit farmworker labor and mischaracterize a long-overdue and well-earned legal status as “amnesty” in responding to Sen. Alex Padilla (D-CA) during a hearing yesterday on helping farm workers.
Despite the noxious, racist, White Nationalist bogus rhetoric of Cruz, Gov. Gregg Abbott, and other GOP political hacks from the Lone Star State, Texas and its economy would indeed be in dire straits without the economic and cultural contributions of migrants, both documented and undocumented. So would the rest of us without the essential services, productivity, and societal contributions of immigrants of all types. Indeed, without immigrants of all types, Native Americans would be the only inhabitants of America.
We need immigration laws and policies built on truth and optimism about the future, not the “beggar thy neighbor” White Nationalist myths of the nativist restrictionists!
“The immigration courts were completely upended by the Trump administration, but what awaits them under this new administration? Join Immigration Judge Amiena Khan, President of the National Association of Immigration Judges, and Julia Preston, Contributing Writer at The Marshall Project, for a discussion on the future of the immigration courts.
The two will discuss where the judge’s union stands in its decertification fight; what judges are hoping to see from this administration and what the lasting impacts of the past 4 years will be.
Join us at 1 pm on July 23rd, 2021
Panelists:
Hon. Amiena Khan:
Judge Khan is the President of NAIJ. Judge Khan was appointed as a United States Immigration Judge in New York by Attorney General Eric Holder in December 2010. In her personal capacity, she is a member of the Federal Bar Association (FBA) and is the Vice-Chair of the Federal Bar Association Immigration Law Section.
Judge Khan is appearing in her capacity as President of NAIJ. Her views do not represent the official position of the Department of Justice, the Attorney General, or the Executive Office for Immigration Review. Her views represent her personal opinions, which were formed after extensive consultation with NAIJ membership.
Julia Preston:
Julia Preston is a Contributing Writer at The Marshall Project. Preston previously worked for 21 years at The New York Times. She was the National Correspondent covering immigration from 2006 through 2016, and a correspondent in Mexico from 1995 through 2001, among other assignments. She is a 2020 winner of an Online Journalism Award for Explanatory Reporting, for a series by The Marshall Project on myths about immigration and crime. She was a member of the Times staff who won the 1998 Pulitzer Prize for reporting on international affairs, for a series on the corrosive effects of drug corruption in Mexico.
Time
Jul 23, 2021 01:00 PM in Eastern Time (US and Canada)
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Should be a great panel from two real experts from the NDPA!
Sadly, however, it’s not clear that Judge Garland, Lisa Monaco, Vanita Gupta, Kristen Clarke, and others who are supposed to be fixing the dysfunction will be among the audience. Nor do I see much concrete evidence that they have established a meaningful dialogue with those, like Amiena and Julia, who have the expertise and creative problem solving ability to fix the DOJ’s embarrassingly broken “courts” before more migrants and their attorneys are abused.
In my view, and the view of many others, the “destructive phase” of the last four years moved much more rapidly and with more purpose than the “reconstructive and improvement phase” that was promised by the Biden Administration.
There are still far too many of those who were “part of the problem” in key positions, and far, far too few, if any, dynamic new faces who have been brought in (or promoted from within) with the capability and the mandate to fix the mess, establish progressive values, and return to a due process/fundamental fairness/best practices focus!
There are “reliable rumors” of some better appointments in the offing. But, it hasn’t happened till it happens.
“Sadly, over the last two decades the US has been unable to get beyond this vision of ‘deterrence’ of legal asylum seekers.“ — Floaters — “How The World’s Richest Country Responds To Asylum Seekers” EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)Vice President Kamala D. Harris Vice President of the United States. — “So far, she hasn’t gotten beyond the mistakes of the past, either. Taking a tour with CBP won’t help.” (Official Senate Photo)
Last week, Ms. Harris traveled to Guatemala to meet with President Alejandro Giammattei and expressed the Biden administration’s goal to “help Guatelmalans find hope at home.” During a press conference on June 7, she told Guatemalans thinking of making the journey north to the United States: “Do not come. Do not come.”
“O.K., that’s like saying, ‘Stay home and die,’” according to the Rev. Pat Murphy, a Scalabrini priest who runs the Casa del Migrante shelter in Tijuana, Baja California. “That message is falling on deaf ears.”
If Ms. Harris does travel to the border, Father Murphy said, she should be sure to make a visit to the Mexican side. “If she just stays on her side, she’s not going to find much,” he said.
In Tijuana, Ms. Harris would see a camp of 2,000 asylum seekers near the port of entry, Father Murphy said. “If she looked a little further, she would see the people who are victims of violence in Tijuana and Mexicali and other places,” he said. Migrants may be eager to escape bad situations in their home countries, Father Murphy said, but they often do not understand how difficult conditions at the border are “until they’re stuck in the middle of [a border city] with no place to go.”
“You can’t understand [border realities] by talking to government officials. You have to talk to the people who are working with migrants and hear about the suffering.”
At diminished capacity because of the pandemic, migrant shelters are full. The United States has started to accept some vulnerable people, like families with children with an illness or those being persecuted because of their sexual orientation, Father Murphy said. But there are also hundreds deported every day.
He believes if the vice president did decide to visit the border, it would be worth her while. “You can’t understand [border realities] by talking to government officials,” Father Murphy said. “You have to talk to the people who are working with migrants and hear about the suffering.”
. . . .
Donald M. Kerwin Executive Director Center for Migration Studies
Donald Kerwin, the executive director of the Center for Migration Studies in New York, also noted that people have a right not to migrate—to stay in their home country. He sees immigration policy as an arena for a fruitful convergence of Catholic social teaching, international law and contemporary human rights principles.
The Biden administration’s recognition of the forces that drive migration should be applauded, but it can address root causes while re-establishing humane asylum policies at the border.
“States are responsible for ensuring that people can flourish at home,” he said. “But it’s an empty right at this point in many communities in the Northern Triangle countries. They’re facing impossible conditions, caused by natural disasters, climate change, gang violence and extraordinary poverty. So people have a right to flee those impossible conditions and seek lives that are worthy of human dignity. In some cases, that means leaving their countries.”
When they do leave their home countries, people have the right to seek protection wherever they can find it, Mr. Kerwin said. “The vice president seems to have bought into the… I can’t use another word, but the nativist party line, that somehow these immigrants are the cause of the problem when, in fact, they’re the victims of multiple problems in many cases.”
The United States needs a functioning refugee resettlement system, an asylum system and robust humanitarian programs to address the conditions in Central America that are driving people to migrate, he said. “They’re not in place right now,” Mr. Kerwin said, “and until they are in place, people will reluctantly, at a terrible cost…continue to migrate.”
If Ms. Harris visits the border, Mr. Kerwin suggested she speak with migrants that have entered the United States, starting with the children. “Find out why they’ve come, what drove them to the United States and also see what their situation is currently, in often overcrowded facilities,” he said. “At that point, it would be clear as day that these folks are not a problem. These folks fled terrible problems, but they themselves are not the problem.”
Earlier this month, more than 20 bishops, Vatican representatives and leaders of Catholic organizations met for an emergency immigration meeting at Mundelein Seminary, outside of Chicago. Mr. Kerwin, who attended the meeting, said organizers displayed notes written by immigrant children, often addressed to God.
“It’s clear from reading these notes that these are lovely children, who miss their parents and worry about them and are in difficult situations that are not of their own making. And that the United States should do right by them,” he said. “And the right thing is to protect them and reunify them with family members.”
Chloe Gunther, America intern, contributed to this story.
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Read the full article at the link.
Politicians of both parties are averse to the truth. They don’t have the courage and backbone for it! But the truth is quite simple, if somewhat “inconvenient.”
Unless and until we can solve the problems driving refugees to flee the Northern Triangle, we will have to take more of them. We should welcome them through an orderly legal system, including a robust, properly staffed, and honestly administered legal refugee and asylum system.
Alternatively, we could continue our current policies of immorally and illegally killing some on the journey, “snuffing” some in the desert (where their bodies might never be found and “counted”), and enriching smugglers and cartels who will eventually get many determined survivors into the interior.
There, they will join our highly exploitable, yet politically expedient for both parties (for differing reasons), “extralegal population.” Alimited number will be “in the wrong place at the wrong time” and be arbitrarily removed by ICE, usually at costs that far exceed any demonstrable benefits. Even fewer will commit misconduct leading to their arrest and removal.
But the bulk of them will blend in somehow and do what’s necessary for themselves and their families to survive, as has been happening for decades and generations. They will also enrich and improve our nation in ways both predictable and unpredictable. Some will eventually find it possible and advantageous to return to their nations of origin, most won’t.
It would be far better for both the migrants and our nation, not to mention humanity as a whole, if we included the bulk of those forced to come here in our legal immigration system. But, whether we are enlightened enough “to do it the right way” or not, they will come as long as the alternatives are starvation, death, unspeakable abuse, and unending despair.
Migration is both our oldest and most persistent human phenomenon and an essential survival skill for humanity. It’s going to take more than inane walls, cruel and illegal imprisonment in American Gulags, unworkable laws, mindless, yet expensive, enforcement, nativist rhetoric, bad judges, and cowardly politicians sending “don’t come” messages to make them “die in place.” Our politicians might be not be bright or brave enough to face reality — but, I guarantee that the forced migrants we like to dehumanize and look down upon are much smarter, braver, more aware, and far more creative, adaptable, and capable than we think!
NPR: In a pair of decisions announced Wednesday, Attorney General Merrick Garland is vacating several controversial legal rulings issued by his predecessors — in effect, restoring the possibility of asylum protections for women fleeing from domestic violence in other countries, and families targeted by violent gangs.
AP: A pending federal court case in Texas is challenging whether the program’s creation was legal. If the challenge is successful, it could end protections, adding urgency to those pressing Congress for a more lasting solution.
Axios: The policy known as Title 42 has resulted in tens of thousands of migrant family members, including asylum seekers, being sent away — as well as thousands of kids then separating from their families to cross into the United States alone.
Reuters: As the U.S. military completes its withdrawal from Afghanistan in the coming weeks, the Biden administration says it is adding staff to hurry up the visa process for Afghans who worked for the U.S. government and want to flee to avoid Taliban reprisals.
CityLimits: As they continue on the campaign trail, contenders of both parties who remain in the race speak openly about citizens’ concerns, such as crime, police reform, affordable housing, education, health, jobs and the Big Apple’s recovery from the COVID-19 pandemic. Latino voters, however, still feel that they have not heard concrete proposals regarding immigrants.
Intercept: Internal ICE records and emails, as well as a deposition by an ICE officer in a court case, show the agency referring to an advocacy group as a “known adversary” and closely surveilling the immigration and civil rights activists’ activities, both online and in person.
NYT: Health and consumer protection agencies have repeatedly warned that several of these treatments, as well as vitamin infusions and expensive injections of “peptide therapies” sold at alternative wellness clinics for more than $1,000, are not supported by reliable scientific evidence.
AIC: Although not every proposed rule put on the agenda will end up being finalized, the agenda signals an administration’s priorities and its goals for pursuing changes to our immigration system through executive action.
DOJ vacated Matter of A-B- and Matter of A-B-II and stated that immigration judges and the BIA should no longer follow these decisions when adjudicating pending or future cases. Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) AILA Doc. No. 21061639
DOJ vacated Matter of L-E-A- II in its entirely and immigration judges and the BIA should no longer follow Matter of L-E-A- II when adjudicating pending and future cases. Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021)AILA Doc. No. 21061640
AAG: Please review any pending cases that may be affected by the Attorney General’s vacatur of L-E-A-II, A-B-I, and A-B-II and take appropriate steps in light of that development, including seeking remands in appropriate cases to allow the Board to reconsider asylum claims based on this change in the law.
The court certified to New York State Court of Appeals the question of whether an intent to “appropriate” property requires an intent to deprive the owner of property permanently or under circumstances where their property rights are substantially eroded. (Ferreiras Veloz v. Garland, 6/7/21) AILA Doc. No. 21061635
Law360: A split Third Circuit panel on Thursday refused to halt deportation proceedings for a Jamaican woman who pled guilty to defrauding the elderly in a lottery scam, ruling in a precedential decision that she didn’t prove she was likely to face retribution from the scam’s ringleader if sent back to her native country.
The court held that although the defendant, a former military officer, refused to shoot civilians during the Salvadorian Civil War, the fact that he “assisted” and “participated in the commission of” extrajudicial killings permitted his denaturalization. (United States v. Vasquez, 6/11/21) AILA Doc. No. 21061737
The court concluded that 8 CFR §212.7(e)(4)(iii), together with 8 CFR §§1003.10(b) and 1003.1(d)(1)(ii), gives IJs and the BIA the authority for administrative closure to permit noncitizens to apply for and receive provisional unlawful presence waivers. (Garcia-DeLeon v. Garland, 6/4/21) AILA Doc. No. 21061634
The court found that while the Memphis Immigration Court violated procedural rules in transferring the petitioner’s hearing to the Louisville Immigration Court, that violation was a procedural question relating to venue, not jurisdiction to hear the case. (Tobias-Chaves v. Garland, 6/8/21) AILA Doc. No. 21061636
The court granted the petition for review and remanded the case to the BIA in light of the U.S. Supreme Court’s recent decision in Niz-Chavez v. Garland. (Lorenzo Lopez v. Garland, 6/8/21) AILA Doc. No. 21061643
The court held that the BIA erred by reviewing the IJ’s decision de novo rather than for clear error, and found that the record established that the petitioner had met her burden to show it was more likely than not she would be tortured if removed to Mexico. (Soto-Soto v. Garland, 6/11/21) AILA Doc. No. 21061644
Law360: A split Tenth Circuit panel on Tuesday reversed a Utah federal judge’s order finding that American Samoans are birthright U.S. citizens, holding that the issue belongs in the hands of Congress, not the courts.
Law360: In a decision that established several court precedents, the Eleventh Circuit has revived a Sri Lankan man’s bid for asylum, ruling that both an immigration judge and the Board of Immigration Appeals failed to properly reconsider his asylum application after allowing him to stay in the United States.
Law360: The D.C. Circuit ruled Friday that it lacks jurisdiction to revive asylum-seekers’ challenge to how border officers carry out a policy that requires migrants to seek protections in other countries they pass en route to the U.S.
AILA: DHS filed a motion for partial summary judgment in district court on all the plaintiffs’ claims regarding the 30-day timeline repeal rule, which was published on June 22, 2020.
Law360: The Biden administration has asked a Maryland federal judge to keep intact a Trump-era asylum work rule that gives the U.S. Department of Homeland Security more time to process work permits, saying the increased flow of asylum-seekers justifies the change.
Law360: Three Mexican nationals have asked a Colorado federal court to declare that U.S. Citizenship and Immigration Services unlawfully denied their green card applications by finding them inadmissible under a 10-year bar on reentering the United States up to 20 years after they left the country.
USCIS provided guidance in the Policy Manual on employment authorization and deferred action for principal petitioners for U nonimmigrant status and qualifying family members with pending, bona fide petitioners. Comments and feedback is due by July 14, 2021. AILA Doc. No. 21061433
DHS and DOS issued a joint statement on the second phase of the Central American Minors (CAM) program’s reopening. Eligibility now includes legal guardians and parents and U.S.-based parents or legal guardians with pending asylum application or pending U visa petition filed before 5/15/21. AILA Doc. No. 21061631
Thanks Elizabeth!As previously noted, I remain skeptical of Biden Administration plans to “reform” asylum law without bringing in the progressive human rights experts who can handle the job!
Most needed “reforms” — like bringing in progressive judges, replacing the BIA, bringing in progressive managers and executives, slashing the largely self-created EOIR backlog, working with NGOs to provide universal representation to asylum seekers and other vulnerable individuals, eliminating unnecessary detention, issuing positive precedents to guide IJs and Asylum Officers, bringing on more Asylum Officers and offering them better training (see, e.g., VIISTA @ Villanova), restoring Administrative Closing, implementing e-filing at EOIR, expanding the Central American Minors Program and other refugee programs in Central America, and many others are “hiding in plain sight.”
The “blueprints” are already about there — in bulk! All that’s missing is the dynamic new progressive leadership to implement them and insure compliance.
Also, as I’ve pointed out before, no Administration in history has had the benefit of so much empirical data, practical scholarship, and “ready for prime time” workable solutions for such well-documented and glaring problems. The asylum and EOIR “fixes” are both highly doable and can produce immediate positive results with more to follow!
But, not necessarily the way the Biden Administration is going about it, with far too many of those needed to turn “rhetoric into reality” still on sidelines in the private sector. In the meantime, folks who have already proved beyond a reasonable doubt that they can’t fix the system remain in key positions.
For Pete’s sake, several of my Georgetown Law students rattled off some of these solutions in class yesterday, and asked me why nobody was working on them. I told them I couldn’t figure out why the Biden Administration was so “slow on the uptake” with so many resources and experts out here in the private sector!
One of my most obvious ideas — hire my three colleagues, Georgetown Professors Phil Schrag, Andy Schoenholtz, and Temple Associate Dean Jaya Ramji-Nogales who recently wrote “instant immigration classic” The End of Asylum and earlier wrote the classic “bad government” expose Refugee Roulette — on a six month consulting contract to come in and fix EOIR and the Asylum Office.
It’s not so much regulatory reform that’s needed (although to be sure improvements can be made), but rather bringing in progressive leadership and better judges in key positions at DHS, DOJ, and EOIR to insure that due process is maximized, best practices are instituted, and recalcitrant personnel still committed to the Trump/Miller White Nationalist agenda are placed in other jobs where they can’t overtly damage our justice system.
Not “rocket science!” 🚀 But, it’s not going to be solved by a “regulatory agenda” either!
– Sozi
“O.K., that’s like saying, ‘Stay home and die,’” according to the Rev. Pat Murphy, a Scalabrini priest who runs the Casa del Migrante shelter in Tijuana, Baja California. “That message is falling on deaf ears.”