Category: Legislation

SIJS VICTORY: 4TH CIR. EN BANC MAJORITY GIVES “NO DEFERENCE” TO USCIS’S MISINTERPRETATION OF LAW!  — Perez Perez v. Cooch

http://www.ca4.uscourts.gov/opinions/181330.P.pdf

Perez Perez v. Cooch, 4th Cir., En Banc, 02-10-20, published

BEFORE:  GREGORY, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, AGEE, KEENAN, WYNN, DIAZ, FLOYD, THACKER, HARRIS, RICHARDSON, QUATTLEBAUM, and RUSHING, Circuit Judges.

OPINION BY:  Judge King, joined by Chief Judge Gregory and Judges Motz, Keenan, Wynn, Diaz, Floyd, Thacker, and Harris 

DISSENTING OPINION: Judge Quattlebaum, in which Judges Wilkinson, Niemeyer, Agee, Richardson, and Rushing joined.

KEY QUOTES:

Felipe sought judicial review of the Agency’s rejection of his SIJ application, initiating these proceedings in October 2016 in the Western District of North Carolina against the Director of USCIS.1 In March 2018, the federal district court denied Felipe’s motion to set aside the Agency’s final action and granted the summary judgment motion of USCIS. Felipe then timely noted this appeal from the judgment of the district court. Unlike that court, we conclude that the Agency’s interpretation of the SIJ provision — that clause (i) requires a permanent custody order — is entitled to no deference, defies the plain statutory language, and impermissibly intrudes into issues of state domestic relations law. Consequently, we reverse the judgment and remand with instructions to grant Felipe’s motion to set aside the Agency’s final action denying him SIJ status.

. . . .

Perhaps the most egregious aspect of the dissent is that it accuses us of “plac[ing] this Court’s stamp of approval on a brazen scheme to game our federal immigration system.” See post 32. That is, despite the lack of any determination from the North

Carolina district court or even from USCIS that Felipe has acted dishonestly or corruptly, 27

the dissent boldly declares that Felipe engaged in an “obvious manipulation of the state juvenile court to circumvent federal immigration laws.” See id. The dissent specifically finds that Felipe “used, at best, dubious claims of an emergency to obtain an ex parte order at a time close enough to his eighteenth birthday that the order would never receive a proper review.” See id. And, as if it demonstrates bad intent, the dissent points to the request in Mateo Perez Perez’s complaint for custody of his brother Felipe “that the North Carolina court make the precise findings that would permit [Felipe] to apply for SIJ status and then apply for a permanent visa to remain in the United States.” See id. at 34 (commenting that the “benefits [of obtaining SIJ status] were far from lost on [Felipe]”).

The dissent’s endeavor to demonize Felipe is wholly inappropriate, unfair, and dispiriting. First of all, the principle “that appellate courts do not make factual findings” is an “axiomatic” one. See Robinson v. Wix Filtration Corp., 599 F.3d 403, 419 (4th Cir. 2010) (citing Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co., 56 F.3d 556, 575-76 (4th Cir. 1995) (“It is a basic tenet of our legal system that, although appellate courts often review facts found by a judge or jury . . . , they do not make such findings in the first instance.”)). The dissent’s fact finding is particularly objectionable here because it tramples upon the exclusive authority of the North Carolina district court to adjudicate Felipe’s custody. See Adoptive Couple v. Baby Girl, 570 U.S. 637, 656 (2013) (Thomas, J., concurring) (emphasizing that “domestic relations is an area that has long been regarded as a virtually exclusive province of the States” (internal quotation marks omitted)); cf. Ojo v. Lynch, 813 F.3d 533, 539 (4th Cir. 2016) (explaining that “it is well understood that, in

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the United States, our various state courts exercise full authority over the judicial act of adoption”).

Furthermore, the dissent’s theory that Felipe acted dishonestly and corruptly is in no way compelled by the record. Indeed, many of the adverse inferences that the dissent draws against Felipe are patently unreasonable. For example, without acknowledging that Mateo filed his complaint for custody of Felipe nearly six months before Felipe turned eighteen, the dissent finds that Felipe plotted to obtain an unreviewable emergency custody order from the North Carolina district court within days of his eighteenth birthday. And although Felipe was required by federal regulation to submit to USCIS a state juvenile court order containing findings necessary to his SIJ application, see 8 C.F.R. § 204.11(d)(2), the dissent negatively cites the request for those findings made in Mateo’s complaint for custody of Felipe. The dissent even maligns Felipe for appreciating the benefits of SIJ status, as if a mere desire to live in the United States is evidence of immigration fraud.

There is no justification for the dissent’s dismal portrait of Felipe. The North Carolina district court certainly did not indicate that it thought itself manipulated in the custody proceedings, and USCIS did not attribute its rejection of Felipe’s SIJ application to any chicanery. Rather, the state court gave every indication it believed that Felipe was the victim of abuse, neglect, and abandonment by his biological parents in Guatemala and that placing him in the custody of Mateo was in Felipe’s best interests. Thereafter, USCIS denied Felipe SIJ status solely because he lacked the type of custody order — a permanent one — that the Agency has interpreted clause (i) of the SIJ provision to require. All we 29 say today is that, because USCIS’s clause (i) interpretation is not in accordance with law, the Agency must take another look at Felipe’s SIJ application.8

KEY QUOTE FROM THE DISSENT:

Finally, in addition to suffering from the legal deficiencies described above, I fear

our decision will have serious and far reaching ramifications. First, in adopting Perez’s arguments, we sanction a scheme to game United States immigration laws. As noted above, Perez’s brother alleged to a court of law and either Perez or his brother swore in an affidavit that temporary emergency custody of Perez was needed to protect Perez from imminent, serious physical harm from Perez’s parents. But at the time the motion containing this allegation and the supporting affidavit were filed, his parents were still in Guatemala. In

other words, Perez had been in the United States, over 2,700 miles from his parents, for 47

over a year. When asked by the panel at oral argument the basis of the purported emergency, counsel for Perez was unable to provide any explanation. He likewise provided none before the entire court sitting en banc. No one, at any time, has articulated any sort of emergency.3

If there was an actual emergency, one would expect Perez’s brother to have filed the motion for an emergency order at the time the complaint was filed, or even sooner. But he did not do so. Instead, he waited until June 2015, just weeks before Perez turned eighteen, to file the motion.4 By doing so, Perez was able to obtain the ex parte, emergency order without any meaningful examination of the allegations since the parents had no way to know the motion was even filed. And since Perez was about to turn eighteen on July 6, Perez and his brother knew the July 22, 2015 hearing the state court ordered would never happen. Perez’s scheme makes a mockery of the immigration laws passed by Congress. What’s more, by sanctioning this scheme, we are sending the clear message: Gaming the federal laws is fine with us. Keep doing it.

In insisting the record does not support my characterization of Perez’s conduct, the majority invokes John Adams’ famous reminder that “facts are stubborn things.” Indeed

3 The language cited by the majority at pages 6-7 of its opinion refer to circumstances that allegedly existed when Perez lived in Guatemala. Even if true, they offer no basis for an emergency, ex parte order hearing a year and a half after Perez left Guatemala and came to the United States.

4 Perez flip-flopped on this issue at the en banc oral argument. He first suggested that he promptly filed the motion and the delay was due to the slow pace of the North Carolina court. When pressed, however, he conceded that he had not filed the motion until six months later, in June.

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they are. The fact here is that the purported emergency on which Perez’s motion was based involves events that occurred years ago and thousands of miles away. J.A. 116-117. The fact here is that Perez’s brother waited until just before Perez turned eighteen to seek emergency relief. J.A. 88, 127. The fact here is that Perez’s brother sought emergency custody of Perez without providing any notice to their parents in Guatemala. J.A. 88-89, 129-130. The fact here is that the order on which Perez’s SIJ petition was based only preserved the status quo until a hearing with due process rights could be held. J.A. 130. All these facts are plainly in the record, and my good colleagues in the majority do not suggest otherwise. They simply come to a different, and in my view implausible, conclusion about them.5

5 In considering whether Perez’s conduct is part of a scheme to game our immigration laws, I note the remarkable similarities between the facts here and those of Reyes v. Cissna, 737 F. App’x 140 (4th Cir. 2018). There, Reyes lived with her grandparents from the time she was eleven until she was sixteen. Id. at 142. At age sixteen, she entered the United States unlawfully, was apprehended and, pending a removal hearing, was moved to North Carolina where her father lived. Id. Almost two years later, and four days before Reyes’ eighteenth birthday, Reyes’ father, represented by the same lawyers as Perez, filed an action in North Carolina state court to terminate the parental rights of Reyes’ mother. Id. Reyes’ father also filed a motion seeking emergency custody of Reyes because Reyes had been abandoned by her mother. Reyes’ father claimed he should be awarded custody of Reyes on an emergency basis even though the alleged abandonment took place seven years earlier when Reyes was eleven and even though Reyes lived with her grandparents from that time until she came to the United States illegally. The North Carolina state court granted the emergency relief and set a hearing just five days later to determine custody. Id. at 143. Like our case, however, Reyes turned eighteen just before the hearing, depriving the North Carolina state court of jurisdiction to make a custody determination. Despite that, Reyes used the emergency order, obtained without any due process provided to her mother, to petition for federal SIJ benefits. Id. at 143. Sound familiar?

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Second, our decision effectively transfers much of the responsibility of determining eligibility for SIJ benefits from the Agency—which is where Congress placed it—to state juvenile courts. In doing this, we pave the way for immigrants to seek orders from state juvenile courts in order to gain an immigration advantage. I agree that, as a general rule, neither federal agencies nor federal courts should wade into the waters of state domestic relations law. But the Agency did not make any state domestic relations law determinations. And giving appropriate respect to state courts in the area of domestic relations does not mean that the Agency must abdicate its role, rubber stamp a barebones set of “findings” or ignore the circumstances of an SIJ submission. Certainly nothing in the INA suggests that result.

Third, beyond the damage to our immigration laws, this scheme and our approval of it marginalizes the importance of parents having custody over their children. Our decision approves a scheme that terminated the custodial rights of Perez’s parents without a scintilla of due process. Here, although North Carolina law requires notice and a hearing for a custody determination, Perez made an end run around that requirement with his dubious claim of emergency. And although an emergency order normally only holds the status quo in place until a hearing of which all parties receive notice and are given an opportunity to be heard, Perez’s strategic timing of the emergency motion in relation to his eighteenth birthday assured that hearing would not take place. Then, the INA and its accompanying regulations, which assume that the state court order would have been carried out with due process protections, do not require the parents to be notified of the SIJ petition.

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Perez’s scheme, like a thief in the night, terminates his parents’ custodial rights without the parents even knowing.

Last, these results would be bad enough if they affected American citizens. But here, courts in the United States are being used to eviscerate the rights of citizens of Guatemala whose parental rights should be governed by the laws of that country. Imagine the outrage we would rightly feel if another country’s courts terminated the custodial rights of American citizen parents over an American child. International comity means nothing if these schemes are endorsed.

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

I had significant experience with SIJS during my 13 years on the bench in Arlington. I also worked some on enactment of the original SIJS law that was part of IMMACT 90 during my days in private practice.

Leaving aside the facts of this particular case, whatever they might be, I found SIJS to be a “life saver” for many deserving young people who might well have been severely harmed or abused, perhaps killed or forced to “join gangs or die,” if returned to their home countries. 

Some of them were individuals who should have been granted asylum, but were improperly excluded from that relief by intentional misinterpretations of asylum law directed against refugees from Central America which predated this Administration; such injustices obviously have been aggravated by the the Trump/Miller shameless White Nationalist agenda now being directed at asylum seekers of color, all too often with the wooden approval of life-tenured appellate judges who should know better.

Human lives are at stake here!  

PWS

02-11-20

Related posts:

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LETTER FROM 21 DEMOCRATIC SENATORS HIGHLIGHTS  FRAUD, “CRIMES AGAINST HUMANITY” IN TRUMP REGIME’S BOGUS “SAFE THIRD COUNTRY AGREEMENTS” WITH SOME OF THE WORLD’S MOST DANGEROUS AND INHOSPTABLE COUNTRIES FOR ASYLUM SEEKERS!

Trump Refugee Policy
Trump Refugee Policy

https://www.warren.senate.gov/imo/media/doc/2020.02.05%20Letter%20to%20State,%20DOJ,%20DHS%20about%20Northern%20Triangle%20Asylum%20Cooperative%20Agreements.pdf

 

The Honorable Michael R. Pompeo Secretary of State
U.S. Department of State
2201 C Street, NW

Washington, DC 20037

The Honorable William P. Barr Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW Washington, DC 20530-0001

The Honorable Chad F. Wolf
Acting Secretary of Homeland Security U.S. Department of Homeland Security 3801 Nebraska Avenue, NW Washington, DC 20528

tinitrd ~tatrs ~rnatr WASHINGTON. DC 20510

February 5, 2020

Dear Secretary Pompeo, Attorney General Barr, and Acting Secretary Wolf:

We write regarding the “asylum cooperative agreements”1 (ACAs) that the Department of Homeland Security (DHS) has signed in recent months with Guatemala? El Salvador,3 and Honduras,4 countries collectively referred to as the “Northern Triangle.” These agreements outline a framework that could enable the United States to expel asylum seekers to each ofthese countries, regardless of where the migrants are from or which countries they have transited en

1 Sometimes referred to as “safe third country agreements.” U.S. Executive Office for Immigration Review and U.S. Citizenship and Immigration Services, Federal Register Notice, “Implementing Bilateral and Multilateral Asylum Cooperative Agreements Under the Immigration and Nationality Act,” effective November 19, 2019, https://www.govinfo.gov/content/pkg/FR-20 19-11-19/pdf/20 19-25137.pdf.

2 U.S. Department of Homeland Security, “Agreement between the Government of the United States and the Government of the Republic of Guatemala on Cooperation Regarding the Examination of Protection Claims,” signed July 26,2019, https://www.documentcloud.org/documents/6232982-Signed-Agreement- English.html#document/p 1.

3 U.S. Department of Homeland Security, “Agreement between the Government of the United States and the Government ofthe Republic ofEl Salvador for Cooperation in the Examination ofProtection Claims,” signed September 20, 2019, https://www.documentcloud.org/documents/6427712-US-El-Salvador-Cooperative- Agreement.html.

4 U.S. Department of Homeland Security, “Agreement between the Government ofthe United States and the Government ofthe Republic of Honduras for Cooperation in the Examination of Protection Claims,” signed September 25, 2019, https://ca-times.brightspotcdn.com/47/a5/85ea59444cb89bb2f3eca15880f3/us-honduras- asylum-cooperative-agreement.pdf.

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route to the United States.5 The Trump Administration’s approach to asylum seekers is not only inhumane and potentially illegal; it could also overwhelm the asylum systems ofGuatemala, El Salvador, and Honduras and further destabilize those countries. As such, these agreements could have serious and detrimental implications for U.S. national security.

There is significant evidence that the Northern Triangle countries are unlikely to provide safety or adequate protection for asylum seekers, both because ofthe pervasive violent crime and targeted persecution there as well as their governments’ weak or practically non-existent asylum capacities. We are also concerned that expelling asylum seekers under this framework raises serious legal and procedural questions, including the degree to which the Administration complied with relevant law in producing and signing these agreements.

As you know, the Northern Triangle countries have some ofthe highest homicide rates in the world and are experiencing massive forced displacement both internally and across borders.6•7•8 The Department of State’s own human rights reports for these countries describe the dangers of rape, femicide, forced child labor, and threats against the LGBTQ community.9 Gang violence is pervasive and often transcends borders; some ofthese criminal organizations are so dangerous that even some police forces trained to combat gang violence are themselves fleeing to the United States.10 Despite these troubling facts, on November 21,2019, the Administration expelled a Honduran man to Guatemala in the first transfer under these agreements.11 ·

The Administration has since expelled more than 250 migrants from Honduras and El Salvador to Guatemala.12 At first, the Administration said it would transfer only single adults.13 However,

5 The agreements do not allow for returning an asylum seeker to the country oftheir own nationality. But they allow, for example, for a Honduran or a Cameroonian asylum seeker to be deported to Guatemala. U.S. Executive Office for Immigration Review and U.S. Citizenship and Immigration Services, Federal Register Notice, “Implementing Bilateral and Multilateral Asylum Cooperative Agreements Under the Immigration and Nationality Act,” effective November 19,2019, https://www.govinfo.gov/content/pkg/FR-2019-11-19/pdf/2019-25137.pdf.

6 United Nations Office on Drugs and Crime, “Global Study on Homicide 2019,” July 2019, https://www.unodc.org/unodc/en/data-and-analysis/global-study-on-homicide.html.
7 United Nations High Commissioner for Refugees, “Global Trends: Forced Displacement in 2018,” June 20, 2019, p. 48, https://www.unhcr.org/en-us/statistics/unhcrstats/5d08d7ee7/unhcr-global-trends-2018.html. (In 2018, over 282,000 people from the Northern Triangle countries had asylum applications pending adjudication worldwide)
8 Internal Displacement Monitoring Centre, “Painting the Full Picture: Persistent data gaps on internal displacement associated with violence in El Salvador, Guatemala and Honduras,” November 2019, pp. 10-15, http://www.internal-displacement.org/publications/painting-the-full-picture-displacement-data-gaps-in-the-ntca.
9 U.S. Department of State, “Country Reports on Human Rights Practices for 2018: El Salvador, Guatemala, Honduras,” 2018, https://www.state.gov/reportlcustoin/420abb692c/.
10 Washington Post, “It’s so dangerous to police MS-13 in El Salvador that officers are fleeing the country,” Kevin Sieff, March 3, 2019, https://www.washingtonpost.com/world/the americas/its-so-dangerous-to-police-ms-13-in-el- salvador-that-officers-are-fleeing-the-countrv/2019/03/03/e897dbaa-2287-11e9-b5b4-1d18dfb7b084 stmy.html

11 Reuters, “Shifting asylum ‘burden’: U.S. sends Guatemala first Honduran migrant,” Sofia Menchu, November 21, 2019, https://www.reuters.com/article/us-usa-immigration-guatemala/shifting-asylum-burden-us-sends-guatemala- frrst-honduran-migrant-idUSKBN1XV1 WM.
12 The Intercept, “One year into ‘Remain in Mexico,’ the U.S. is enlisting Central America in its crackdown on asylum,” Sandra Cuffe, January 29, 2020, https://theintercept.com/2020/01/29/remain-in-mexico-year-anniversary- central-america/.

13 LA Times, “In a first, U.S. starts pushing Central American families seeking asylum to Guatemala,” Molly O’Toole, December 10, 2019, https://www.latimes.com/politics/story/2019-12-10/u-s-starts-pushing-asylum- seeking-families-back-to-guatemala-for-first-time.

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the Administration has begun to transfer children and families, including a Honduran mother with two children who had been hospitalized.14 Reportedly, many ofthese migrants are not even aware in advance ofthe country to which they are being transferred. Upon arrival, they are told that they have 72 hours to either apply for asylum or leave, but are reportedly given practically no information about the process.15

Because ofthe lack ofprotection offered in Guatemala, El Salvador and Honduras, these agreements raise serious legal questions. On November 18,2019, the Department ofJustice and DHS released an interim fmal rule (“Rule”) amending departmental regulations in order to implement the ACAs.16 The Rule, effective November 19, 2019, characterizes the ACAs as “safe third country” agreements as described in the Immigration and Nationality Act, which provides that asylum seekers may be removed under the following conditiop.s:

“[I]fthe Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country ofthe alien’s nationality or, in the case ofan alien having no nationality, the country of the alien’s last habitual residence) in which the alien’s life or freedom would not be threatened on account ofrace, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, uilless the Attorney General fmds that it is in the public interest for the alien to receive asylum in the United States.”17

The Rule provides that the Attorney General and the Secretary of Homeland Security will make “categorical” determinations as to whether the Northern Triangle countries offer access to a “full and fair procedure” for determining asylum claims. Written information provided to our offices by the Administration indicates that “[t]he Attorney General and Secretary ofHomeland Security determined that Guatemala’s asylum system provides full and fair access to individuals seeking protection, as required by U.S. law, prior to the ACA entering into force on November 15.”18

The notion that Guatemala or the other two Northern Triangle countries offers such a procedure strains credulity-their systems for determining asylum claims are, at best, deeply flawed and under-resourced, and at worst, practically non-existent. According to the State Department’s human rights reports, in Guatemala, “identification and referral mechanisms for potential asylum seekers were inadequate… [and] migration and police authorities lacked adequate training

14 Associated Press, “Advocates: Honduran mother, children deported to Guatemala,” Nomaan Merchant, January 21, 2020, https://apnews.com/583a7dl0644f407e8035e5b6eddlc8f7.
15 Washington Post, “The U.S. is putting asylum seekers on planes to Guatemala- often without telling them where they’re going,” Kevin Sieff, January 14, 2020, https://www.washingtonpost.com/worldlthe americas/the-us- is-putting-asylum-seekers-on-planes-to-guatemala–often-without-telling-them-where-theyre- going/2020/01/13/0f89a93a-3576-llea-alff-c48cld59a4a1 story.html.

16 U.S. Executive Office for Immigration Review and U.S. Citizenship and Immigration Services, Federal Register Notice, “Implementing Bilateral and Multilateral Asylum Cooperative Agreements Under the Immigration and Nationality Act,” effective November 19, 2019. https://www.govinfo.gov/content/pkg/FR-2019-11-19/pdf/2019- 25137.pdf.

17 8 USC§ 1158(a)(2)(A). Emphasis added.
18 U.S. Department of State, Answer to Question for the Record to Deputy Secretary of State Nominee Stephen Biegun by Senator Bob Menendez (#235), Submitted November 20, 2019.

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concerning the rules for establishing refu,gee status.”19 Guatemala does not have a dedicated office for resolving asylum cases; instead, a commission offour officials from several ministries and the immigration department.meet a few times a year to decide cases.20 Reportedly, these officials did not resolve a single case in the first seven months of2019.21 Honduras and El Salvador do not have a single full-time asylum officer. By contrast, U.S. Citizenship and Immigration Services has about 500 asylum officers who are currently tasked with adjudicating over 300,000 pending asylum cases.22 Thus, the Northern Triangle countries are not remotely equipped to fully and fairly handle even a small fraction ofthese cases.

The lack of asylum capacity poses a grave risk that these Northern Triangle governments w ill- whether inadvertently or willfully-return asylum seekers to their country ofpersecution, constituting the serious human rights violation of refoulement that is prohibited under Section 208(a)(2)(A) ofthe U.S Immigration and Nationality Act.

This provision ofU.S.law codifies U.S. obligations prohibiting the return ofrefugees to a territory where his or her life or freedom would be threatened as a state party to the 1967 Protocol Relating to the Status of Refugees. The ACAs may also violate U.S. obligations as a party to the 1984 Convention against Torture.23 Indeed, in response to the publication ofthe Rule, the United Nations High Commissioner for Refugees released a statement, saying it “has serious concerns about the new U.S. policy on asylum,” calling it “an approach at variance with international law that could result in the transfer ofhighly vulnerable individuals to countries where they may face life-threatening dangers.”24 A recently filed lawsuit details additional legal violations posed by the implementation ofthe ACAs.25

The ACAs recently signed by DHS appear to have been drafted in haste, with multiple typographical errors introduced into the agreements.26 There is little sign that they were

19 U.S. Department of State, “Country Reports on Human Rights Practices for 2018: El Salvador, Guatemala, Honduras,” 2018, https://www.state.gov/reportlcustom/420abb692c/.
20 Wall Street Journal, “Asylum Seekers at U.S. Southern Border Can Now Be Sent to Guatemala Instead,” Michelle Hackman and Juan Montes, November 19, 2019, https://www.wsj.com/articles/asy1um-seekers-at-u-s-southern- border-can-now-be-sent-to-guatemala-instead-11574187109.
21 Univision News, “Guatemala’s ’embryonic’ asylum system lacks capacity to serve as safe U.S. partner, experts say,” David C. Adams, August 2, 2019, https://www.univision.com/univision-news/immigration/guatemalas- embcyonic-asylum-system-lacks-capacity-to-serve-as-safe-u-s-partner-experts-say.
22 Government Executive, “Homeland Security Says It Will Dramatically Increase Asylum Workforce by Year’s End,” Eric Katz, October 23, 2019, https://www.govexec.com/workforce/2019/10/homeland-security-says-it-will- dramatically-increase-asylum-workforce-years-end/160828/.
23 Protocol Relating to the Status ofRefugees, January 31, 1967; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 12, 1984; “Benchbook on International Law,” Diane Marie Amann (ed.), pp. ill.E-51, 2014, https://www.asil.org/sites/defau1t/files/benchbook/humanrights4.pdf.
24 UNHCR, “Statement on new U.S. asylum policy,” press release, November 19, 2019, https://www.unhcr.org/en- us/news/press/2019/11/5dd426824/statement-on-new-us-asylum-policy.html.
25 U.T. v. Barr, “Complaint for Declaratory and Injunctive Relief,” United States District Court for the District of Columbia, https://www.ac1u.org/sites/default/files/field document/complaint – u.t. v. barr 1 15 2020.pdf.
26 For example, the agreement with El Salvador refers to “El Salvadornian [sic] migration law, although this language is incorrect. A Google search for “El Salvadornian” produces zero results.:_the most common English- language demonym is “Salvadoran,” though “Salvadorian” and “Salvadorean” are also used. https://en.wikipedia.org/wiki/Salvadorans. U.S. Department of Homeland Security, “Agreement between the Government ofthe United States and the Government ofthe Republic ofEl Salvador for Cooperation in the

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negotiated in a meaningful way individually with each country. Furthermore, the President’s actions leading up to the agreements’ signing-including social media statements threatening to withhold, and subsequent withholding of, Congressionally-appropriated aid to the region- indicate that Central American officials may have accepted the terms under duress.27

~ Additionally, one news report indicated that, in a private meeting with President Trump, Secretary Pompeo criticized the agreement with Guatemala, “ca:lled the agreement flawed and a mistake,” and told the President that ”the Guatemalan government did not have the ability to carry out its terms.”28 This raises questions about the degree to which the State Department was involved in policy deliberations and decisions underlying these agreements.

Accordingly, please provide answers to the following questions by February 18, 2020:

  1. Did any officials within the State Department raise concerns abol)t the feasibility of implementing these ACAs due to the lack of capacity of the Northern Triangle countries’ asylum systems, or for any other reason? Please provide any such memoranda or communications in which any such concerns were articulated.
  2. What specific concerns about the agreement with Guatemala were raised by Secretary Pompeo in the reported Oval Office meeting with the President? Have these concerns been addressed?
  1. Were any assessments of the Northern Triangle countries’ asylum adjudication procedures made prior to the negotiation or conclusion ofthe ACAs? Please provide any documents related to any such assessments.
  2. The ACAs indicate that the parties shall develop standard operating procedures and plans regarding the implementation ofthese agreements. What is the status ofthese plans in each Northern Triangle coll.ntry?

4.. The ACAs indicate that they shall enter into force upon “exchange ofnotes” indicating that both countries have compl~ted the n~cessary domestic legal procedures for bringing the agreement into force. Which ofthe ACAs are in force? Please include copies ofany and all records related to this required exchange of notes.

  1. Reportedly, Honduran officials wanted to delay transfers until both countries “provided notification that they have complied with the legal and institutional conditions necessary for proper implementation of this agreement” but DHS officials wrote that this request read to them as an “escape-hatch not to implement the ACA.”29 Should this be taken as an indication that DHS considers the ACAs to be in force even in the absence of such “notification” by both countries?

Examination ofProtection Claims,” signed September 20, 2019, p. 2, https://www.documentcloud.org/documents/6427712-US-El-Salvador-Cooperative-Agreement.html.
27 Politico, “Trump warns ofretaliation against Guatemala after immigration deal falls through,” Rishika Dugyala and Sabrina Rodrigues, July 23, 2019, https://www.politico.com/story/2019/07/23/trump-guatemala-retaliation- immigration-deal-1426722; NPR, “Trump Froze Aid To Guatemala. Now Programs Are Shutting Down,” Tim McDonnell, September 17, 2019, https://www.npr.org/sections/goatsandsoda/2019/09/17/761266169/trump-froze- aid-to-guatemala-now-programs-are-shutting-down.
28 New York Times, “Trump Officials Argued Over Asylum Deal With Guatemala. Now Both Countries Must Make It Work,” Michael D. Shear and.Zolan Kanno-Youngs, August 2, 2019, https://www.nytimes.com/2019/08/02/us/politics/safe-third-guatemala.html.
29 BuzzFeed News, “Trump Wants To Start Deporting Asylum-Seekers To Honduras By January,” Hamed Aleaziz, November 25, 2019, https://www.buzzfeednews.com/article/hamedaleaziz/asylum-seekers-deportation-honduras- trump.

5

  1. The Rule indicates that the Attorney General and the Secretary ofHomeland Security will make a categorical determination that each ofthe Northern Triangle countries offers a “full and fair procedure” for adjudicating asylum claims.
    1. Which, if any countries have the Attorney General and Secretary of Homeland

Security determined do have a “full and fair procedure”? Which, if any countries have the Attorney General and Secretary of Homeland Security determined do not have a “full and fair procedure”? For each country, when were any such determinations reached?

    1. How are the Attorney General and the Secretary ofHomeland Security reaching these determinations? Please provide copies of any determinations made by DOJ and DHS and any related documentation ofdiscussions ofthis issue.
  2. The Rule characterizes the ACAs as “safe third country” agreements as described in the Immigration and Nationality Act. Besides the ACAs, the only “safe third country” agreements signed in the 50 years since the enactment ofthe Immigration and Nationality Act was the agreement with Canada. Over two years elapsed between December 5, 2002, when that agreement was signed, and December 29, 2004, when it came into force.30 In contrast, less than four months elapsed between July 26, 2019, when the ACA with Guatemala was signed, and November 15,2019, when it came into force.
  1. In the ACA signing ceremony in the Oval Office, Guatemala’s Minister of Interior and Home Affairs said that “Guatemala is definitely clear on the responsibility that it has. We are clear that we have to make changes.”31 What changes, if any, did Guatemala make to strengthen their asylum procedures in these four months? Please provide any communications between the government of Guatemala.and the Administration related to improvements made to Guatemala’s asylum system since the agreement was signed in July.
  1. In order to ensure that the United States fulfills its obligations to refrain from sending a person to a place where such person will face harm, what procedures will the Administration follow if asylum seekers face torture, ill treatment, or persecution after being transferred to the Northern Triangle? ·
  2. Is DHS transferring asylum seekers under the ACAs to Northern Triangle countries on the same flights as deportees? How is DHS ensuring that asylum seekers are not transferred in the company of individuals who may threaten their life or freedom after their arrival in country?
  3. What, ifanything, was promised or offered by U.S. officials to the governments of Guatemala, El Salvador, or Honduras in exchange for their signing onto these agreements?

30 “AgreementbetweentheGovernmentofCanadaandtheGovernmentoftheUnitedStatesofAmericaFor cooperation in the examination ofrefugee status claims from nationals ofthird countries,” signed December 5, 2002, https://www.canada.ca/enlimmigration-refugees-citizenship/corporate/mandate/policies-operational-instructions- agreements/agreements/safe-third-country-agreementlfmal-text.html.
31 White House, “Remarks by President Trump at Signing ofSafe Third Country Agreement with Guatemala,” July 26, 2019, https://www.whitehouse.gov/briefings-statements/remarks-president-trump-signing-safe-third-country- agreement-guatemala/.

6

Sincerely,

un· ed States Senator

k4-/a…~ Richard Blumenthal
United States Senator

~~~~

Kirsten E. Gillibrand Benjamin L. Cardin

United States Senator

United States Senator

‘0…=.>–·-topher S. Murphy United States Senator

United States Senator

~%Markey ·~ United States Senator

Edward J.

Bernard Sanders United States Senator

Thomas R. Carper United States Senator

~~

United States Senator

—

7

Tim Kaine
United States Senator

Christopher A. Coons United States Senator

8

Cory A. Booker United States Senator

 

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

All good points. But, I wouldn’t hold my breath waiting for a reply from the regime.

Obviously, in the process of selling out America, the GOP just authorized the regime to “give a big middle finger” to any type of Congressional oversight.

Once you get beyond the fraud, lawlessness, and intentional cruelty of the regime’s agreements, here’s the reality of what’s awaits those illegally “orbited” to dangerous failed states in the Northern triangle: death, torture, rape, extortion, etc.:

HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 

This isn’t “normal.” It’s politically and judicially enabled neo-fascism unfolding right in front of us.

PWS

02-10-20

 

 

Related posts:

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

FEDERAL JUDGE AGAIN FAULTS DHS DETAINER PROGRAM

Joel Rubin
Joel Rubin
Federal Reporter
LA Times
Brittany Mejia
Brittany Mejia
Metro Reporter
LA Times

 

https://apple.news/AmD6XgoXgST-3d3Rtb9esMQ

 

Joel Rubin and Brittany Mejia report for the LA Times:

 

A federal judge in Los Angeles upends the way ICE may use local police to detain people it suspects of being in the country illegally.

A federal judge in Los Angeles this week issued his final judgment in a long-running immigration case, upending the way Immigration and Customs Enforcement uses local police to detain people it suspects of being in the country illegally.

The judgment filed Wednesday by U.S. District Judge Andre Birotte formalized a ruling he made in September that included a permanent injunction barring ICE from using error-prone databases when issuing so-called detainers, which are requests made to police agencies to keep people who have been arrested in custody for up two days beyond the time they would otherwise be held.

The earlier ruling also blocked ICE from issuing such requests to state and local law enforcement in states where there isn’t an explicit statute authorizing police to arrest someone or keep them in custody on an immigration detainer.

The ruling, which applied to ICE activity in all but a few states, appeared to have enormous implications for how the government targets people for deportation. However, attorneys from the U.S. Department of Justice and civil rights groups that brought the case disagreed over whether the injunction went into effect immediately, and ICE gave no indication it had changed its practices.

Last fall, an ICE spokesman said the agency was “reviewing the ruling and considering our legal options.”

This week’s judgment erased any ambiguity.

Under the judgment, ICE has three months to “adopt and implement any policies, practices, trainings, and systems changes necessary to ensure consistent and effective compliance” with the judgment, Birotte wrote. The judge ordered government lawyers to provide him with evidence it had implemented new policies.

“This judgment ensures that ICE has to comply with the court’s findings that the program it’s had for decades is grounded in unconstitutional practices that have to end,” said Jennie Pasquarella, an attorney with the American Civil Liberties Union, who helped argue the case.

The class-action lawsuit alleged that the databases that agents consult to issue detainers are so badly flawed by incomplete and inaccurate information that ICE officers should not be allowed to rely on them as the sole basis for keeping someone in custody.

In September, the judge agreed with that assessment, finding that the databases often contained “incomplete data, significant errors, or were not designed to provide information that would be used to determine a person’s removability.”

These errors, according to that decision, have led to arrests of U.S. citizens as well as noncitizens in the country lawfully. From May 2015 to February 2016, of the 12,797 detainers issued in that period, 771 were lifted, according to ICE data. Of those 771, 42 were lifted because the person was a U.S. citizen.

In the years since the lawsuit was filed, ICE has amended its policies, saying the changes made the process for issuing detainers more rigorous.

Previously, for example, agents would check individual databases in search of evidence of someone being in the country illegally. But three years ago, the agency launched a new system, in which 10 databases are automatically queried. A supervisor is required to sign off on decisions to issue detainers.

Birotte said in his judgement this week that conducting interviews with people suspected of being in the country illegally and checking the hard copy files the government keeps on immigrants is the most reliable source of information for issuing detainers.

The judge’s decision affects any detainer requests issued by an ICE officer in the federal court system’s Central District of California. That designation is significant because it includes the Pacific Enforcement Response Center, a facility in Orange County from which ICE agents send out detainer requests to authorities in 43 states, Guam and Washington, D.C.

Dozens of deportation officers and contract analysts work in shifts around the clock every day at the center. In 2018, the center issued 45,253 detainers and alerted agents at field offices to more than 28,000 additional people released from law enforcement custody before ICE could detain them.

If ICE tries to move its detainer operation to another facility, Birotte said, it must alert him in advance and the injunction would follow it to the new location.

All existing detainers issued by the enforcement center were also nullified by the judge’s ruling. Pasquarella said it was unknown how many people that affects, but said it is in “the thousands.”

Finally, Birotte gave ICE a month to alert the thousands of local and state police departments to which it sent detainer requests of his judgment and “its impact on detainers issued by ICE.” He ordered ICE to post its notice prominently on its website and said the agency “shall specifically inform these agencies that a detainer does not provide the legal authority for a state or local law enforcement officer to make a civil immigration arrest.”

The detainer process begins when police arrest and fingerprint a person. The prints are sent electronically to the FBI and checked against the prints of millions of immigrants in Homeland Security databases. If there is a match — such as someone who applied for a visa or was apprehended by Border Patrol — it triggers a review process, which often culminates with an agent at the center deciding whether to issue a detainer.

Approximately 70% of the arrests ICE makes occur after the agency is notified about someone being released from local jails or state prisons. In fiscal year 2019, ICE had lodged more than 160,000 detainers with local law enforcement agencies, according to the agency.

An ICE spokeswoman declined to comment on the judgment and would not say whether ICE had yet changed its practice of issuing detainer requests. Instead, she referred reporters to a statement released Thursday by the White House.

“A single, unelected, district judge in the Central District of California issued a legally groundless and sweeping injunction that — if not immediately lifted — will guarantee the release of innumerable criminal illegal aliens into our communities putting citizens at dire risk,” the statement said. “This ruling undermines the pillars of immigration enforcement and blocks traditional and vital law enforcement cooperation that has occurred for decades.”

 

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

Judge Andre Birotte found that the ICE detainer program is riddled with legal errors. Not too surprising. In addition to using DHS’s inherently unreliable databases, immigration “detainers” are issued by immigration agents, not neutral and detached magistrates as they should be, which makes them constitutionally suspect and has led to rulings across the country that they should not be honored.

 

If I were the ACLU, however, I wouldn’t “do the victory dance” yet. Led by the complicit “J.R. Five,” the Supremes often have shown themselves to be willing, sometimes enthusiastic, enablers of the regime’s White Nationalist campaign to dehumanize and “Dred Scottify” immigrants under our laws.

 

As the ACLU accurately has stated: “The fundamental constitutional protections of due process and equal protection embodied in our Constitution and Bill of Rights apply to every person, regardless of immigration status.”

 

Unfortunately, the “J.R. Five” has ignored the rule of law and our Constitution when it comes to protecting the rights of immigrants. They have managed to “tune out” their own immigration heritages, their own good fortune and privileged positions, and turn a deaf ear to humanity and its unnecessary suffering. Instead they have allied themselves with Trump, Stephen Miller, and the other White Nationalists in subjecting immigrants and other people of color to the “New Era of Jim Crow.”

 

Someday, if America survives as a democracy, we will get “regime change.” But, the problems of a life-tenured judiciary infected with too many at its highest levels who are unwilling to stand up for human rights and/or who are driven by a twisted far-right ideology incorporating many of the worst aspects of white supremacy and its abuses of power over history will not necessarily disappear overnight.

Due Process Forever!

 

PWS

 

02-09-20

 

 

 

 

Related posts:

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

GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”

Fernanda Echavarri
Fernanda Echavarri
Reporter
Mother Jones

https://apple.news/AyKjNs5gOQJqIJ2_IeeQvcg

Fernanda Echavarri reports for Mother Jones:

“A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts

SAN DIEGO IMMIGRATION COURT, COURTROOM #2;
PRESIDING: JUDGE LEE O’CONNOR

Lee O’Connor has been in his courtroom for all of two minutes before a look of annoyance washes over his face.

Eleven children and six adults—all of them from Central America, all of them in court for the first time—sit on the wooden benches before him. They’ve been awake since well before dawn so they could line up at the US-Mexico border to board government buses headed to immigration court in downtown San Diego, Kevlar-vested federal agents in tow. Like the dozens of families jam-packed into the lobby and the six other courtrooms, they’ve been waiting out their asylum cases in Mexico, often for months, as part of the Trump administration’s controversial border policy, the Migrant Protection Protocols.

O’Connor has a docket full of MPP cases today, like every day. Before he gets to them, though, he quickly postpones a non-MPP case to January 2021, explaining to a man and his attorney that he simply doesn’t have time for them today, motioning to the families in the gallery. While he’s doing this, the little girl in front of me keeps asking her mom if she can put on the headphones that play a Spanish translation of the proceedings. A guard motions the little girl to be quiet. 

For months, immigration attorneys and judges have been complaining that there’s no fair way to hear the cases of the tens of thousands of Central Americans who have been forced to remain on the Mexican side of the border while their claims inch through the courts. MPP has further overwhelmed dockets across the country and pushed aside cases that already were up against a crippling backlog that’s a million cases deep, stranding immigration judges in a bureaucratic morass and families with little hope for closure anytime in the near future.

I went last month to San Diego—home to one of the busiest MPP courts, thanks to its proximity to Tijuana and the more than 20,000 asylum seekers who now live in shelters and tent cities there—expecting to see logistical chaos. But I was still surprised at how fed up immigration judges like O’Connor were by the MPP-driven speedup—and by the extent to which their hands were tied to do anything about it.

Once O’Connor is done rescheduling his non-MPP case, he leans forward to adjust his microphone, rubs his forehead, and starts the group removal hearing. The interpreter translates into Spanish, and he asks if the adults understand. “Sí,” they say nervously from the back of the courtroom. O’Connor goes down his list, reading their names aloud with a slight Spaniard accent, asking people to identify themselves when their names are called. He reprimands those who do not speak up loud enough for him to hear.

O’Connor, who was appointed to the bench in 2010, is known for being tough: Between 2014 and 2019, he has denied 96 percent of asylum cases. He explains to the migrants that they have the right to an attorney, although one will not be provided—there are no public defenders in immigration court. O’Connor acknowledges finding legal representation from afar is difficult, but he tells them it’s not impossible. He encourages them to call the five pro bono legal providers listed on a sheet of paper they received that day. The moms sitting in front of me have their eyes locked on the Spanish interpreter, trying to absorb every bit of information. Their kids try their best to sit quietly.

As he thumbs through the case files, O’Connor grows increasingly frustrated: None of them has an address listed. “The government isn’t even bothering to do this,” he grumbles. The documents for MPP cases list people’s addresses as simply “Domicilio Conocido,” which translates to “Known Address.” This happens even when people say they can provide an address to a shelter in Mexico or when they have the address of a relative in the United States who can receive their paperwork. “I’ve seen them do this in 2,000 cases since May,” O’Connor says, and the Department of Homeland Security “hasn’t even bothered to investigate.” He looks up at the DHS attorney with a stern look on his face, but she continues shuffling paperwork around at her desk.

O’Connor picks up a blue form and explains to the group that they have to change their address to a physical location. The form is only in English; many of the adults seem confused and keep flipping over their copies as he tells them how to fill it out. O’Connor tells them they have to file within a week—perhaps better to do it that day, he says—but it’s unclear to me how they could follow his exacting instructions without the help of an attorney. He points out other mistakes in the paperwork filed by DHS and wraps up the hearing after about 45 minutes. The families don’t know that’s typical for a first hearing and seem perplexed when it ends. 

O’Connor schedules the group to come back for their next hearing in five weeks at 8:30 a.m. That will mean showing up at the San Ysidro port of entry at 4:30 a.m.; the alternative, he says, is being barred from entering the United States and seeking forms of relief for 10 years. “Do you understand?” he asks. The group responds with a hesitant “Sí.”

The Trump administration designed MPP to prevent people like them from receiving asylum, and beyond that, from even seeking it in the first place. First implemented in San Diego in late January 2019 to help stem the flow of people showing up at the southern border, the policy has since sent somewhere between 57,000 and 62,000 people to dangerous Mexican cities where migrants have been preyed upon for decades. Their cases have been added to an immigration court that already has a backlog of 1,057,811 cases—up from 600,000 at the time when Obama left office—according to data obtained by the Transactional Records Access Clearinghouse at Syracuse University.

The skyrocketing immigration court backlog

View on the original site.

According to immigration judge Ashley Tabaddor, who spoke to me in her capacity as union president of the National Association of Immigration Judges, MPP has constituted a fundamental change to the way courts are run. DHS, she says, is “creating a situation where they’re physically, logistically, and systematically creating all the obstacles and holding all the cards.” The MPP program has left the court powerless, “speeding up the process of dehumanizing the individuals who are before the court and deterring anyone from the right to seek protection” All this while the Department of Justice is trying to decertify Tabbador’s union—the only protection judges have, and the only avenue for speaking publicly about these issues—by claiming its members are managers and no longer eligible for union membership. Tabaddor says the extreme number of cases combined with the pressure to process them quickly is making it difficult for judges to balance the DOJ’s demands with their oath of office.

Immigration attorneys in El Paso, San Antonio, and San Diego have told me they are disturbed by the courtroom disarray: the unanswered phones, unopened mail, and unprocessed filings. Some of their clients are showing up at border in the middle of the night only to find that their cases have been rescheduled. That’s not only unfair, one attorney told me, “it’s dangerous.” Central Americans who speak only indigenous languages are asked to navigate court proceedings with Spanish interpreters. One attorney in El Paso had an 800-page filing for an asylum case that she filed with plenty of time for the judge to review, but it didn’t make it to the judge in time. 

As another lawyer put it, “The whole thing is a fucking disaster that is designed to fail.”

Guillermo Arias/Getty People line up at the San Ysidro border crossing in Tijuana in May 2019.

COURTROOM #4; PRESIDING: JUDGE PHILIP LAW

Down the hall, a Honduran woman I’ll call Mari stands up next to her attorney and five-year-old son, raises her right hand, and is sworn in. 

Mari’s hearing isn’t much of a hearing at all. Stephanie Blumberg, an attorney with Jewish Family Service of San Diego, who is working the case pro bono, asks for more time because she only recently took the case; Judge Philip Law says he will consolidate the cases of mother and child into one; and he schedules her next hearing for the following week at 7:30 a.m., with a call time of 3:30 a.m. at the border.

Just as it’s about to wrap up, Bloomberg says her client is afraid to return to Mexico. “I want to know what is going to happen with me. I don’t want to go back to Mexico—it’s terrible,” Mari says in Spanish, an interpreter translating for the judge. “I have no jurisdiction over that,” Law says. “That’s between you and the Department of Homeland Security.” Law then turns to the DHS attorney, who says he’ll flag the case and “pass it along.”

While nine families begin their MPP group hearing, Mari tells me back in the waiting room that she and her son crossed the border in Texas and then asked for asylum. They were detained for two days and then transported by plane to San Diego, where she was given a piece of paper with a date and time for court and then released in Tijuana. She didn’t know anyone, barely knew where she was, and, trying to find safety in numbers, stuck with the group released that day. Two days after US immigration officials sent her to Tijuana, she was raped.

Mari’s voice gets shaky, and she tries to wipe the tears from her eyes, but even the cotton gloves she’s wearing aren’t enough to keep her face dry. I tell her we can end the conversation and apologize for making her relive those moments. She looks at her son from across the room and says she’d like to continue talking.

“I thought about suicide,” she whispers. “I carried my son and thought about jumping off a bridge.” Instead, she ended up walking for a long time, not knowing what to do or what would happen to them because they didn’t have a safe place to go.

“I haven’t talked to my family back home—it’s so embarrassing because of the dream I had coming here, and now look,” she says. “We’re discriminated against in Mexico; people make fun of us and the way we talk.” Her boy was already shy but has become quieter and more distrusting in recent months.

In the last year, I’ve spoken to dozens of migrants in border cities like Ciudad Juárez and Tijuana who share similarly horrific stories. Human Rights First has tracked more than 800 public reports of torture, kidnapping, rape, and murder against asylum seekers sent to Mexico in the last year. A lawsuit brought by the American Civil Liberties Union, Southern Poverty Law Center, and Center for Gender and Refugee Studies is challenging MPP on the grounds that it violates the Immigration and Nationality Act, and the “United States’ duty under international human rights law” not to return people to dangerous conditions.

“The system has not been set up to handle this in any way,” says Kate Clark, senior director of immigration services with Jewish Family Service of San Diego, one of the groups listed on the pro bono sheet Judge O’Connor handed out earlier in the day. They’re the only ones with a WhatsApp number listed, and their phones are constantly ringing because “it’s clear that people don’t know what’s going on or what to expect—and they’re in fear for their lives,” Clark says. Still, her 8-person team working MPP cases can only help a small percentage of the people coming through the courtroom every day.

Later that afternoon, shortly after 5, two large white buses pull up to the court’s loading dock. Guards in green uniforms escort about 60 people out from the loading dock. Moms, dads, and dozens of little kids walk in a straight light to get on a bus. They are driven down to the border and sent back to Tijuana later that night.

A few days later, Mari’s attorney tells me that despite raising a fear of retuning to Mexico in court, US port officials sent Mari back to Tijuana that night.

COURTROOM #2; PRESIDING: JUDGE LEE O’CONNOR

I find myself back in O’Connor’s courtroom for his afternoon MPP hearings. This time, the only people with legal representation is a Cuban family who crossed in Arizona in July 2019 and turned themselves in to Border Patrol agents. This is their first time in court, and their attorney calls in from out of state.

Right away, O’Connor wants to address a different kind of clerical error from the one that bothered him earlier in the day—and one that he thinks matters even more. It involves the first document that DHS issues to “removable” immigrants, known as a Notice to Appear (NTA) form. Although the form allows agents to check a box to categorize people based on how they encountered immigration officials, O’Connor points out that in this case it was left blank—and that “this is fairly typical of the overwhelming majority of these cases.”

He isn’t the first or only judge to notice this; I heard others bring up inconsistent and incomplete NTAs. Border officials are supposed to note on the form if the people taken into custody are “arriving aliens,” meaning they presented at the port of entry asking for asylum, or “aliens present in the United States who have not been admitted or paroled,” meaning they first entered illegally in between ports of entry. Thousands of MPP cases have forms without a marked category. As far as O’Connor is concerned, that’s a crucial distinction. He believes that this Trump administration policy shouldn’t apply to people who entered the country without authorization—meaning countless immigrants who applied for MPP should be disqualified from the get-go.

In the case of the Cuban family, like dozens more that day, the DHS attorney filed an amended NTA classifying them as “arriving aliens.” O’Connor points out is not how they entered the United States. The DHS attorney is unphased by the judge’s stern tone and came prepared with piles of new forms for the other cases of incomplete NTAs. The family’s lawyer says maybe the government made a mistake. O’Connor, unsatisfied, interrupts her: “There was no confusion. I’ve seen 2,000 of theseâ¦the government is not bothering to spend the time.” After a lengthy back-and-forth, a testy O’Connor schedules the family to come back in three weeks.

O’Connor’s stance and rulings on this issue have broader implications. He terminated a case in October because a woman had entered the country illegally before turning herself in and wrote in his decision that DHS had “inappropriately subjected respondent to MPP.” He is among the loudest voices on this issue, saying that MPP is legal only when applied to asylum-seekers presenting at legal ports of entry—though it’s unclear to many lawyers what it might mean for their clients to have their cases terminated in this way. Would these asylum seekers end up in immigration detention facilities? Would they be released under supervision in the United States? Would they be deported back to their home countries?

Since MPP cases hit the courts last March, asylum attorneys have been critical of DHS for not answering these questions. I was present for the very first MPP hearing in San Diego and saw how confused and frustrated all sides were that DHS didn’t seem to have a plan for handling these cases. Now, almost a year later, little has changed.

Tabaddor, the union president, tells me that “there are definitely legal issues that the MPP program has presented” and that judges are having to decide whether the documents “are legally sufficient.” “The issue with DHS—frankly, from what I’ve heard—is that it seems like they’re making it up as they go,” she says.

Last week, Tabaddor testified in front of the House Judiciary Committee and for the independence of immigration courts from the political pressures of federal law enforcement. There are approximately 400 immigration judges across more than 60 courts nationwide, and almost half of those judges have been appointed during the Trump era. (According to a recent story in the Los Angeles Times, dozens of judges are quitting or retiring early because their jobs have become “unbearable” under Trump.)

California Democrat Zoe Lofgren, an immigrants’ rights supporter in Congress, argued during the hearing that the immigration courts are in crisis and the issue requires urgent congressional attention. “In order to be fully effective, the immigration court system should function just like any other judicial institution,” she said. “Immigration judges should have the time and resources to conduct full and fair hearings, but for too long, the courts have not functioned as they should—pushing the system to the brink.”

Guillermo Arias/Getty Asylum seekers in Tijuana in October

COURTROOM #1; PRESIDING: JUDGE SCOTT SIMPSON

“I don’t want any more court,” a woman from Guatemala pleads just before lunchtime. “No more hearings, please.”

Unlike many of the people who were there for their first hearing when I observed court in San Diego, this woman has been to court multiple times since mid-2019. No matter how hard she tried, she couldn’t find a lawyer, she tells Judge Scott Simpson. She’s had enough.

“We’ve reached a fork on the road, ma’am,” Simpson says in a warm, calm tone. “You either ask for more time for an attorney to help you or you represent yourself.”

“No, it’d be a loss since I don’t know anything about the law,” the woman responds, her voice getting both louder and shakier. Simpson explains to her again the benefits of taking time to find an attorney.

“It’s been almost a year. I don’t want to continue the case. I want to leave it as is,” she tells him. After more explanation from the judge, the woman says she’d like to represent herself today so that decisions can be made. Simpson asks what she would like to do next, and the woman says, “I want you to end it.”

This woman’s pleas are increasingly common. Tabaddor says MPP has taken “an already very challenging situation and [made] it exponentially worse.” The new reality in immigration courts “is logistically and systematically designed to just deter people from seeking or availing themselves of the right to request protection,” Tabaddor says.

After hearing the Guatemalan woman ask for the case to be closed multiple times, Simpson takes a deep breath, claps his hands, and says there are four options: withdrawal, administrative close, dismissal, or termination. He explains each one, and after 10 minutes the woman asks for her case to be administratively closed. The DHS attorney, however, denies that request. Simpson’s hands are tied.

The judge tells the woman that because DHS filed paperwork on her case that day, and because it’s only in English, that he’s going to give her time to review it, because “as the judge I don’t think it would be fair for you to go forward without the opportunity to object to that.” He schedules her to come back in a month.

“MPP is not a program I created,” he says. “That decision was made by someone else.” 

Additional reporting by Noah Lanard.

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

“Malicious incompetence,” “Aimless Docket Reshuffling,” “Man’s Inhumanity to Man” — it’s all there on public display in this deadly “Theater of the Absurd.”

Here, from a recent Human Rights Watch report on over 200 of those illegally returned to El Salvador without Due Process and in violation of the rule of law:

138 Killed;

70 Sexually abused, tortured, or otherwise harmed.

Here is the HRW report as posted on Courtside:

https://immigrationcourtside.com/2020/02/06/how-americas-killer-courts-promote-crimes-against-humanity-human-rights-watch-trump-his-white-nationalist-sycophants-toadies-tout-lawless-policies-that-violate-legal-obligations-he/

Where, oh where, has our humanity and human decency gone?

And, how do spineless jurists on Article III Courts who continue to “rubber stamp” and overlook the disgraceful abrogation of Due Process and fundamental fairness going on in a grotesquely biased and mismanaged “court system” controlled by a White Nationalist, nativist regime look at themselves in the mirror each morning. Maybe they don’t.

Abuse of the most vulnerable among us might seem to them to be “below the radar screen.” After all, their victims often die, disappear, or are orbited back to unknown fates in dangerous foreign lands. Out of sign, out of mind! But, what if it were their spouses, sons, and daughters sent to Tijuana to be raped while awaiting a so-called “trial.”

Rather than serving its intended purpose, promoting courage to stand up against government tyranny and to defend the rights of individuals, even the downtrodden and powerless, against Government abuse of the law, life tenure has apparently become something quite different. That is, a refuge from accountability and the rules of human decency.

John Roberts, his “Gang of Five,” and the rest of the Article III enablers will escape any legal consequences for their actions and, perhaps more significant, inactions in the face of unspeakable abuses of our Constitution, the rule of law, intellectual honesty, and the obligations we owe to other human beings.

How about those cowardly 9th Circuit Judges who ignored the law, betrayed human decency, and enabled rapes, killings, and other “crimes against humanity” by “green lighting” the unconstitutional and clearly illegal “MPP” — better known as “Let ‘Em Die in Mexico” with their absurdist legal gobbledygook in Innovation Law Lab v. McAleenan. They are enjoying life in the ivory tower while their human victims are suffering and dying.

But, folks like Fernanda and many others are recording their abuses which will live in history and infamy, will forever tarnish their records, and be a blot on their family names for generations to come. 

There is no excuse for what is happening at our borders and in our Immigration Courts today. Constantly Confront Complicit Courts 4 Change! Flood the Article IIIs with examples and constant reminders of their handiwork and dereliction of duty! Let the bodies pile up on their collective doorsteps until the stench is so great that even they can no longer ignore and paper over their own complicity and moral responsibility with legal banalities. Force them to see their own faces and the faces of their loved ones in the scared, tormented faces and ruined lives of those destroyed by our scofflaw regime and its enablers. 

Also, if you haven’t already done so, tell your Congressional representatives that you have had enough of this grotesque circus!

Here’s what I wrote to my legislators, and some from other states, recently:

I hope you will also speak out frequently against the grotesque abuses of human rights, Due Process, and human decency, not to mention the teachings of Jesus Christ and almost all other religious traditions, that the Trump Administration is carrying out against refugees of color, many of them desperate and vulnerable women and children, at our Southern Border.

Additionally, under Trump, the U.S. Immigration Courts, absurdly and unconstitutionally located within a politically biased U.S. Department of Justice, have become a mockery of justice, Due Process, and fundamental fairness. I urge you to join with other legislators in abolishing the current failed (1.1 million case backlog) and unfair system and replacing it with an independent Article I U.S. Immigration Court. It’s time to end the abuse! This must be one of our highest national priorities.

I invite you and your staff to read more about the grotesque abuses of law, human rights, and fundamental human decency being committed daily on migrants and other vulnerable humans by the Trump Administration in my blog: immigrationcourtside.com, “The Voice of the New Due Process Army.” This is not the America I knew and proudly served for more than three decades as a Federal employee.

Due Process Forever; Trump’s Perverted View of America Never!

Thanks again.

With my appreciation and very best wishes,

Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Adjunct Professor, Georgetown Law

Due Process Forever; Complicit Courts & Feckless Legislators, Never!

PWS

02-07-20

 

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  3. WHEN ARTICLE III COURTS FAIL: U.S. “Orbits” Refugee Families To Dangerous Chaos In Guatemala Under Clearly Fraudulent “Safe Third Country” Arrangements As Feckless U.S. Courts Fail To Enforce Constitutional Due Process & U.S. Asylum Laws In Face Of Trump Regime’s Contemptuous Scofflaw Conduct!
  4. COURTSIDE HAS BEEN AT THE FOREFRONT OF EXPOSING THE “CRIMES AGAINST HUMANITY” COMMITTED BY THE REGIME AND THE MORAL CULPABILITY OF THOSE WHO WILLFULLY CARRY OUT & ENABLE THESE ATROCITIES — The “Mainstream Media” Is Now Channeling Courtside! — “In the meantime, no government has the right to treat people with such abject inhumanity. History will remember Trump for this, but it will also remember the people who enable such atrocious acts.”

U.S. JUDGE THWARTS (FOR NOW) TRUMP REGIME’S PERSECUTION/PROSECUTION OF HUMANITARIAN AID WORKERS – Regime’s Religious Hypocrisy Runs Deep!

Carol Kuruvilla
Carol Kuruvilla
Religious Affairs
Reporter
HuffPost

https://www.huffpost.com/entry/trump-no-more-deaths-religious-liberty_n_5e3adf4ec5b6d032e76d1313

 

Carol Kuruvilla in HuffPost:

 

A federal judge has ruled that President Donald Trump’s administration, which often boasts about defending religious liberty, has violated the religious rights of a group of volunteers at the U.S.-Mexico border.

The Trump administration has spent years cracking down on the work of No More Deaths/No Más Muertes, a Unitarian Universalist ministry in Arizona that provides water and food to migrants crossing a treacherous stretch of desert along the border where dozens have died. Various members of No More Deaths have faced fines and even jail for what they consider to be faith-based, life-saving humanitarian aid.

But for the second time in months, a judge has ruled that the government shouldn’t be punishing these volunteers for putting their faith into practice.

U.S. District Judge Rosemary Márquez ruled Monday that four volunteers who left water and food for migrants at the Cabeza Prieta National Wildlife Refuge were acting according to their “sincerely held religious beliefs.” As a result, the government substantially burdened the volunteers’ religious liberty by prosecuting them for this work, Marquez said.

“Given Defendants’ professed beliefs, the concentration of human remains on the [refuge], and the risk of death in that area, it follows that providing aid on the [refuge] was necessary for Defendants to meaningfully exercise their beliefs,” the judge wrote.

Márquez’s ruling reversed the decision of a lower court, where another judge dismissed the volunteers’ religious liberty claims and sentenced them to probation and fines last March.

A federal judge has ruled that four volunteers who left water and food for migrants at the Cabeza Prieta National Wildlife Refuge were acting according to their “sincerely held religious beliefs.” From left, they are Natalie Hoffman, Madeline Huse, Zaachila Orozco-McCormick, and Oona Holcomb.

The case against the four volunteers ― Natalie Hoffman, Oona Holcomb, Madeline Huse and Zaachila Orozco-McCormick ― goes back to December 2017, a year when 32 sets of human remains were recovered from the Cabeza Prieta National Wildlife Refuge. The volunteers were charged with misdemeanors for entering the wildlife refuge without proper permits and leaving behind jugs of water and cans of beans, which the government called abandonment of property.

The volunteers’ defense hinged on the Religious Freedom Restoration Act of 1993 (RFRA). The law states that if a defendant can prove that the government is substantially burdening her “sincerely held religious beliefs,” then the government has to show that it’s using the “least restrictive” path to achieving its goals.

This ruling shows that religious freedom is not just for the Christian right, as the Trump administration would have us believe.Parker Deighan, spokesperson for No More Deaths

RFRA initially had broad bipartisan support. But more recently, the religious right has been using RFRA as a way to secure exemptions for conservative beliefs about abortion and LGBTQ rights. The evangelical Christian owners of the Hobby Lobby craft stores famously used RFRA to avoid paying for insurance coverage for contraception.

Under Trump, the Department of Justice has urged a narrow reading of RFRA claims made by people of faith who do not share the administration’s policy goals, according to Katherine Franke, faculty director of Columbia University’s Law, Rights, and Religion Project.

“The Trump Department of Justice has taken a biased approach to defending and enforcing religious liberty rights under RFRA, robustly protecting the rights of conservative Evangelical Christians while prosecuting people whose faith moves them to oppose the government’s policies,” Franke told HuffPost in an email.

Michael Bailey, the Trump-nominated U.S. attorney for Arizona, said his team has no issue with Márquez’s finding that strong religious beliefs motivated the defendants’ acts.

“We highly value religious freedom without regard to where on the spectrum one’s beliefs might fall,” Bailey told HuffPost in a statement.

A volunteer for the humanitarian aid organization No More Deaths delivers water along a trail used by undocumented immigrants in the desert on May 10, 2019 near Ajo, Arizona.

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No More Deaths is a Unitarian Universalist ministry. But all four volunteers are technically religiously unaffiliated, which means they are part of a growing group of Americans who decline to identify with any specific religious tradition.

During testimonies, the four described feeling a spiritual calling to volunteer, inspired by beliefs about the sanctity of human life. They also spoke about taking moments of silence in the refuge to reflect on the suffering of those crossing the desert.

Holcomb said that she had constructed a “personal altar” at her home that included a ring of water bottles she picked up in the desert.

“There is … for me, I will say, like a deep spiritual need and a calling to do work based on what I believe in the world,” Holcomb testified, according to the judge’s opinion.

In its response to the volunteers’ appeal, the government argued that their beliefs were not truly religious because they didn’t explain how they fit into a “particular system of religious or spiritual beliefs.” The government also asserted that the volunteers were “draping religious garb” over “secular philosophical concerns.”

In her opinion, Márquez said that the volunteers’ RFRA claims can’t be dismissed just because they described their beliefs in broad terms and don’t belong to an established religion. She pointed out that religious and political motivations overlapped in the Hobby Lobby case. ThatSupreme Court verdict has shown that government faces an “exceptionally demanding” obligation to be minimally restrictive while imposing on a person’s religious exercise, Márquez said.

Ultimately, the government had failed to demonstrate that prosecuting the volunteers was the least restrictive means of achieving a compelling governmental interest, the judge said.

Scott Warren, a volunteer for the humanitarian aid organization No More Deaths, walks into Organ Pipe Cactus National Monument to deliver food and water along remote desert trails used by undocumented immigrants on May 10, 2019, near Ajo, Arizona.

Márquez’s decision comes months after another No More Deaths volunteer, Scott Warren, was acquitted of a federal misdemeanor charge for leaving water jugs in the Cabeza Prieta National Wildlife Refuge for migrants. The judge in that case also acknowledged that Warren’s action was protected by his right to religious freedom. That was one of the first times progressive religious beliefs related to immigration have been protected in this way, the Law, Rights, and Religion Project told HuffPost in November.

Franke said there are other cases where progressive people of faith are making religious exemption claims. The Rev. Kaji Douša, a New York pastor and immigrant rights activist, claims the federal government violated her religious freedom when she was detained and placed on a watch list for ministering to asylum seekers at the U.S.-Mexico border.  The government has “trivialized” Douša’s RFRA claims and urged the court to dismiss them, Franke said.

In Philadelphia, the DOJ is trying to prevent a faith-based overdose prevention organization from opening a safe injection site, arguing that its “true motivation is socio-political or philosophical — not religious — and thus not protected by RFRA.”

Franke said that when Congress passed RFRA in 1993, the statute was meant to protect the religious liberty of people across a wide spectrum of beliefs, “not just some, and certainly not only those who hold religious beliefs that were shared with the current federal administration.”

Parker Deighan, a spokesperson for No More Deaths, told HuffPost that Márquez’s ruling on Monday reaffirms that “providing humanitarian aid is never a crime.”

“This ruling shows that religious freedom is not just for the Christian right, as the Trump administration would have us believe,” she said. “We hope that that Judge Marquez’s ruling signifies a shift towards religious freedom exemptions being used to protect the work of people and organizations fighting on the side of justice, such as migrant solidarity organizations and indigenous peoples fighting for protection of their sacred lands and traditions, rather than protection for discrimination and bigotry.”

 

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

So, here’s the deal.

The Trump (the least religious and most immoral President in U.S. History) regime uses a bogus “religious protection” rationale to cloak far-right programs of hate, intolerance, dehumanization, marginalization, and cruelty directed at people of color, the LGBTQ community, migrants, refugees, women, children, Muslims, Jews, and other vulnerable groups. According to the regime, “religious freedom” is limited to the “extremist religious right.”

Then, the regime attempts to misuse “the law” to punish those who actually “show Christ-like love in word and in deed.” To her credit, U.S. District Judge Rosemary Márquez “just said no” to this disingenuous nonsense.

The only way to stop the intellectual dishonesty, mockery of religious humanitarian principles, and misuse of our laws is to oust Trump and his enablers from office at every level. Otherwise, we can expect the persecution and cruelty to continue.

And don’t be surprised if the “J.R. Five” on the Supremes find a way to manipulate the system to enable the persecution of others to continue and grow worse. It’s what complicit “judges” do in the face of tyrants.

While the regime is using your tax dollars to pervert the law to persecute humanitarian workers, they are simultaneously violating our Constitution, our statutes, and our international obligations, with the connivence of the Supremes and Federal Appeals Courts who choose to look the other way rather than standing up for individuals’ rights against authoritarian overreach.

It’s time to stand up for our Constitutional rights, human rights, and human decency. Throw the corrupt and immoral GOP and their collaborators out of office at the next election, and bring in Government officials, legislators, and life-tenured judges who are willing and able to stand up for their oaths of office!

Due Process Forever!

PWS

02-06-20

 

 

 

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. EOIR TARGETS UNACCOMPANIED KIDS FOR DEPORATION RAILROAD!
  3. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  4. 🤮NO PEACE ON EARTH GOODWILL TOWARD MEN (WOMEN, OR ESPECIALLY CHILDREN) FROM REGIME OF “BAD SANTAS” 🦹🏿‍♂️🎅🏻— Illegally Separated Families Continue To Suffer Irreparable Trauma, 😰 Volunteer Groups 😇🗽⚖️ Left To Pick Up Pieces — A Reminder That Defeated Regime Has Mocked, Disparaged, & Trashed Christ’s Values & Assaulted Humanity Over Four Christmases!🏴‍☠️🤮☠️⚰️👎🏻

HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 

https://www.hrw.org/report/2020/02/05/deported-danger/united-states-deportation-policies-expose-salvadorans-death-and

February 5, 2020

Deported to Danger

United States Deportation Policies Expose Salvadorans to Death and Abuse

Summary

pastedGraphic.png

February 5, 2020

US: Deported Salvadorans Abused, Killed

Stop Deporting Salvadorans Who Would Face Risks to Their Safety, Lives

The US government has deported people to face abuse and even death in El Salvador. The US is not solely responsible—Salvadoran gangs who prey on deportees and Salvadoran authorities who harm deportees or who do little or nothing to protect them bear direct responsibility—but in many cases the US is putting Salvadorans in harm’s way in circumstances where it knows or should know that harm is likely.

Of the estimated 1.2 million Salvadorans living in the United States who are not US citizens, just under one-quarter are lawful permanent residents, with the remaining three-quarters lacking papers or holding a temporary or precarious legal status. While Salvadorans have asylum recognition rates as high as 75 percent in other Central American nations, and 36.5 percent in Mexico, the US recognized just 18.2 percent of Salvadorans as qualifying for asylum from 2014 to 2018. Between 2014-2018, the US and Mexico have deported about 213,000 Salvadorans (102,000 from Mexico and 111,000 from the United States).

No government, UN agency, or nongovernmental organization has systematically monitored what happens to deported persons once back in El Salvador. This report begins to fill that gap. It shows that, as asylum and immigration policies tighten in the United States and dire security problems continue in El Salvador, the US is repeatedly violating its obligations to protect Salvadorans from return to serious risk of harm.

Some deportees are killed following their return to El Salvador. In researching this report, we identified or investigated 138 cases of Salvadorans killed since 2013 after deportation from the US. We found these cases by combing through press accounts and court files, and by interviewing surviving family members, community members, and officials. There is no official tally, however, and our research suggests that the number of those killed is likely greater.

Though much harder to identify because they are almost never reported by the press or to authorities, we also identified or investigated over 70 instances in which deportees were subjected to sexual violence, torture, and other harm, usually at the hands of gangs, or who went missing following their return.

In many of these more than 200 cases, we found a clear link between the killing or harm to the deportee upon return and the reasons they had fled El Salvador in the first place. In other cases, we lacked sufficient evidence to establish such a link. Even the latter cases, however, show the risks to which Salvadorans can be exposed upon return and the importance of US authorities giving them a meaningful opportunity to explain why they need protection before they are deported.

The following three cases illustrate the range of harms:

  • In 2010, when he was 17, Javier B. fled gang recruitment and his particularly violent neighborhood for the United States, where his mother, Jennifer B., had already fled. Javier was denied asylum and was deported in approximately March 2017, when he was 23 years old. Jennifer said Javier was killed four months later while living with his grandmother: “That’s actually where they [the gang, MS-13 (or Mara Salvatrucha-13)] killed him.… It’s terrible. They got him from the house at 11:00 a.m. They saw his tattoos. I knew they’d kill him for his tattoos. That is exactly what happened.… The problem was with [the gang] MS [-13], not with the police.” (According to Human Rights Watch’s research, having tattoos may be a source of concern, even if the tattoo is not gang-related).

 

  • In 2013, cousins Walter T. and Gaspar T. also fled gang recruitment when they were 16 and 17 years old, respectively. They were denied asylum and deported by the United States to El Salvador in 2019. Gaspar explained that in April or May 2019 when he and Walter were sleeping at their respective homes in El Salvador, a police patrol arrived “and took me and Walter and three others from our homes, without a warrant and without a reason. They began beating us until we arrived at the police barracks. There, they held us for three days, claiming we’d be charged with illicit association (agrupaciones ilícitas). We were beaten [repeatedly] during those three days.”

 

  • In 2014, when she was 20, Angelina N. fled abuse at the hands of Jaime M., the father of her 4-year-old daughter, and of Mateo O., a male gang member who harassed her repeatedly. US authorities apprehended her at the border trying to enter the US and deported her that same year. Once back in El Salvador, she was at home in October 2014, when Mateo resumed pursuing and threatening her. Angelina recounted: “[He] came inside and forced me to have sex with him for the first time. He took out his gun.… I was so scared that I obeyed … when he left, I started crying. I didn’t say anything at the time or even file a complaint to the police. I thought it would be worse if I did because I thought someone from the police would likely tell [Mateo].… He told me he was going to kill my father and my daughter if I reported the [original and three subsequent] rapes, because I was ‘his woman.’ [He] hit me and told me that he wanted me all to himself.”

As in these three cases, some people deported from the United States back to El Salvador face the same abusers, often in the same neighborhoods, they originally fled: gang members, police officers, state security forces, and perpetrators of domestic violence. Others worked in law enforcement in El Salvador and now fear persecution by gangs or corrupt officials.

Deportees also include former long-term US residents, who with their families are singled out as easy and lucrative targets for extortion or abuse. Former long-term residents of the US who are deported may also readily run afoul of the many unspoken rules Salvadorans must follow in their daily lives in order to avoid being harmed.

Nearly 900,000 Salvadorans living in the US without papers or only a temporary status together with the thousands leaving El Salvador each month to seek safety in the US are increasingly at risk of deportation. The threat of deportation is on the rise due to various Trump administration policy changes affecting US immigration enforcement inside its borders and beyond, changes that exacerbated the many hurdles that already existed for individuals seeking protection and relief from deportation.

Increasingly, the United States is pursuing policies that shift responsibility for immigration enforcement to countries like Mexico in an effort to avoid any obligation for the safety and well-being of migrants and protection of asylum-seekers. As ever-more restrictive asylum and immigration policies take hold in the US, this situation—for Salvadorans, and for others—will only worsen. Throughout, US authorities are turning a blind eye to the abuse Salvadorans face upon return.

Some people from El Salvador living in the United States have had a temporary legal status known as “Temporary Protected Status” or “TPS,” which has allowed those present in the United States since February 2001 (around 195,000 people) to build their lives in the country with limited fear of deportation. Similarly, in 2012, the Obama administration provided some 26,000 Salvadorans with “Deferred Action for Childhood Arrivals” or “DACA” status, which afforded some who had arrived as children with a temporary legal status. The Trump administration had decided to end TPS in January 2020, but to comply with a court order extended work authorization to January 2021. It remains committed to ending DACA.

While challenges to both policies wend their way through the courts, people live in a precarious situation in which deportation may occur as soon as those court cases are resolved (at the time of writing the DACA issue was before the US Supreme Court; and the TPS work authorization extension to January 2021 could collapse if a federal appellate court decides to reverse an injunction on the earlier attempt to terminate TPS).

Salvadoran asylum seekers are also increasingly at risk of deportation and return. The Trump administration has pursued a series of policy initiatives aimed at making it harder for people fleeing their countries to seek asylum in the United States by separating children from their parents, limiting the number of people processed daily at official border crossings, prolonging administrative detention, imposing fees on the right to seek asylum, extending from 180 days to one year the bar on work authorization after filing an asylum claim, barring asylum for those who transited another country before entering the United States, requiring asylum seekers to await their hearings in Mexico, where many face dangers, and attempting to narrow asylum.

These changes aggravated pre-existing flaws in US implementation of its protection responsibilities and came as significant numbers of people sought protection outside of El Salvador. In the decade from 2009 to 2019, according to government data, Mexican and United States officials made at least 732,000 migration-related apprehensions of Salvadoran migrants crossing their territory (175,000 were made by Mexican authorities and just over 557,000 by US authorities).

According to the United Nations’ refugee agency, the number of Salvadorans expressing fear of being seriously harmed if returned to El Salvador has skyrocketed. Between 2012 and 2017, the number of Salvadoran annual asylum applicants in the US grew by nearly 1,000 percent, from about 5,600 to over 60,000. By 2018, Salvadorans had the largest number (101,000) of any nationality of pending asylum applications in the United States. At the same time, approximately 129,500 more Salvadorans had pending asylum applications in numerous other countries throughout the world. People are fleeing El Salvador in large numbers due to the violence and serious human rights abuses they face at home, including one of the highest murder rates in the world and very high rates of sexual violence and disappearance.

Despite clear prohibitions in international law on returning people to risk of persecution or torture, Salvadorans often cannot avoid deportation from the US. Unauthorized immigrants, those with temporary status, and asylum seekers all face long odds. They are subjected to deportation in a system that is harsh and punitive—plagued with court backlogs, lack of access to effective legal advice and assistance, prolonged and inhumane detention, and increasingly restrictive legal definitions of who merits protection. The US has enlisted Mexico—which has a protection system that its own human rights commission has called “broken”—to stop asylum seekers before they reach the US and host thousands returned to wait for their US proceedings to unfold. The result is that people who need protection may be returned to El Salvador and harmed, even killed.

Instead of deterring and deporting people, the US should focus on receiving those who cross its border with dignity and providing them a fair chance to explain why they need protection. Before deporting Salvadorans living in the United States, either with TPS or in some other immigration status, US authorities should take into account the extraordinary risks former long-term residents of the US may face if sent back to the country of their birth. The US should address due process failures in asylum adjudications and adopt a new legal and policy framework for protection that embraces the current global realities prompting people to flee their homes by providing “complementary protection” to anyone who faces real risk of serious harm.

As immediate and first steps, the United States government should adopt the following six recommendations to begin to address the problems identified in this report. Additional medium- and long-term legal and policy recommendations appear in the final section of this report.

  • The Trump administration should repeal the Migration Protection Protocols (MPP); the two Asylum Bans; and the Asylum Cooperation Agreements.
  • The Attorney General of the United States should reverse his decisions that restrict gender-based, gang-related, and family-based grounds for asylum.
  • Congress and the Executive Branch should ensure that US funding for Mexican migration enforcement activities does not erode the right to seek and receive asylum in Mexico.
  • Congress should immediately exercise its appropriation power by: 1) Refraining from providing additional funding to the Department of Homeland Security (DHS) for Immigration and Customs Enforcement (ICE) and US Customs and Border Protection (CBP) unless and until abusive policies and practices that separate families, employ unnecessary detention, violate due process rights, and violate the right to seek asylum are stopped; 2) Prohibiting the use of funds to implement the Migrant Protection Protocols, the “Asylum Bans,” or the Asylum Cooperation Agreements, or any subsequent revisions to those protocols and agreements that block access to the right to seek asylum in the United States.
  • Congress should exercise its oversight authority by requiring the Government Accountability Office and the Office of Inspector General to produce reports on the United States’ fulfilment of its asylum and protection responsibilities, including by collecting and releasing accurate data on the procedural experiences of asylum seekers (access to counsel, wait times, staff capacity to assess claims, humanitarian and protection resources available) and on harms experienced by people deported from the United States to their countries of origin.
  • Congress should enact, and the President should sign, legislation that would broadly protect individuals with Temporary Protected Status (including Salvadorans) and DACA recipients, such as the Dream and Promise Act of 2019, but without the overly broad restrictions based on juvenile conduct or information from flawed gang databases.

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

History will neither forget nor forgive the many Article III Judges who have betrayed their oaths of office and abandoned humanity by allowing the Trump regime to run roughshod over our Constitution, the rule of law, and simple human decency.

Future generations must inject integrity, courage, and human decency into the process for appointing and confirming Article III Judges. Obviously, there is something essential missing in the legal scholarship, ethical training, and moral integrity of many of our current batch of  shallow “go along to get along” jurists!  Human lives matter!

Due Process Forever; Complicit Courts Never!

PWS

02-06-20

Related posts:

  1. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  2. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  3. WHEN ARTICLE III COURTS FAIL: U.S. “Orbits” Refugee Families To Dangerous Chaos In Guatemala Under Clearly Fraudulent “Safe Third Country” Arrangements As Feckless U.S. Courts Fail To Enforce Constitutional Due Process & U.S. Asylum Laws In Face Of Trump Regime’s Contemptuous Scofflaw Conduct!
  4. EOIR TARGETS UNACCOMPANIED KIDS FOR DEPORATION RAILROAD!

NO EXPERTISE NECESSARY! – At The “New EOIR,” Immigration Judges No Longer Need to Demonstrate Immigration Experience – Just a Willingness To Send Migrants to Potential Death, Danger, or Misery Without Due Process or Fundamental Fairness – When Your Job Is To Impose Arbitrary “Death Sentences,” Maybe It’s Easier If You Don’t Understand What You’re Really Doing!

Nolan Rappaport
Nolan Rappaport
Contributor, The Hill

 

https://thehill.com/opinion/immigration/481152-us-hiring-immigration-judges-who-dont-have-any-immigration-law-experience

 

Nolan Rappaport writes in The Hill:

 

. . . .

 

Hiring judges without immigration law experience

Congresswoman Sheila Jackson Lee (D-Texas) pointed out that the Executive Office for Immigration Review (EOIR) has been hiring as judges lawyers who do not have any immigration law experience.

In fact, the experience requirement in immigration judge vacancy announcements doesn’t even mention immigration law experience:

“Experience: Applicants must have a full seven (7) years of post-bar experience as a licensed attorney preparing for, participating in, and/or appealing formal hearings or trials … Qualifying litigation experience involves cases in which a complaint was filed with a court, or a charging document … was issued by a court, a grand jury, or appropriate military authority…”

EOIR recently swore in 28 new immigration judges, and 11 of them had no immigration law experience.

None.

That’s a problem for justice.

Due process isn’t possible when judges do not fully understand the law — and it takes a long time to learn immigration law. According to the American Bar Association, “To say that immigration law is vast and complex is an understatement.” Rutgers University law professor Elizabeth Hull says that our immigration laws are “second only to the Internal Revenue Code in complexity.”

The concern over judges with no immigration law experience is more than just idealism or theory — the inexperience can impact people’s lives in major ways.

For instance, an otherwise deportable alien may be eligible for lawful permanent resident status if he has been in the United States long enough. 8 USC §1259 permits certain deportable aliens to register for permanent residence if they entered the United States prior to Jan. 1, 1972; have resided in the United States continuously since such entry; have good moral character; and are not ineligible for citizenship.

How many inexperienced immigration judges would know that?

This influx of inexperience may explain why asylum decisions vary so widely from judge-to-judge.

What’s more, these judges might not be able to meet the eligibility standards for an Article 1 court if subject matter expertise is required.

. . . .

 

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

You can read Nolan’s full article, from which this is excerpted, at the above link. I agree wholeheartedly with this part of Nolan’s conclusion: “EOIR should not be trying to deal with this backlog by hiring more judges if it can’t find judges with adequate immigration law experience.”

 

 

Here’s an actual anecdote that I received recently from a Courtside reader:

 

I had a merits hearing . . . with a new IJ with no immigration background at all.  It happened to be an old adjustment which the ICE trial attorney had reviewed and agreed in advance to a grant, pending a few questions.  So the ICE TA explained this to the IJ, and I asked the IJ if [he/she] understood the terms involved.  And it turned out that the IJ didn’t know what an I-140 is and didn’t know what 245(i) is.  [He/She] didn’t say a word; we ran the hearing.  The ICE attorney actually had to fill out the IJ’s order for [him/her] to sign; [he/she] had no idea what to write or what boxes to check.

 

What if it had been a contested hearing?

 

 

Yes, indeed, “what if this had been a contested hearing?” I assume that what passes for EOIR/DOJ “new judge training” these days just tells new judges that “when in doubt, kick ‘em out.” Just check the “denied” and “ordered removed” boxes on the form orders. At least this one had a “happy ending.” Many do not!

 

I’ve heard other anecdotes about newer Immigration Judges totally ignorant about asylum law and afraid to admit it who cited Matter of A-B- as basis for “blanket summary denial” of all gender-based asylum claims from Central America. Other newer judges reportedly are largely unaware of the burden-shifting “regulatory presumption of future persecution” arising out of past persecution.

 

Others apparently don’t understand the interplay and differing requirements and consequences among asylum, withholding of removal under the Act, CAT withholding, and CAT deferral. “Mixed motive,” a key life or death concept in asylum cases — you’d be lucky to find a handful of Immigration Judges these days who truly understand how it applies. That’s particularly true because the BIA and the Attorney General have recently bent the concept and many of the Circuit precedents interpreting it intentionally out of shape to favor DHS enforcement and discriminate against bona fide asylum applicants.

The generous interpretation of the “well founded fear” standard required by the Supremes in Cardoza-Fonseca and embodied in the BIA’s Matter of Mogharrabi is widely ignored, even mocked in some of today’s enforcement driven, overtly anti-asylum Immigration Courts.

To be fair, I’ve also heard praise from advocates for some of the newer Immigration Judges who seemed eager and willing to be “educated” by both counsel, weren’t afraid to admit their gaps in knowledge and request amplification, and seemed willing carefully to weigh and deliberate all the facts and law to reach a just and well-explained decision; this contrasts with “summary preconceived denial” which is a common complaint among advocates that also includes some judges who have been on the bench for years.

The larger problem here is that too many of the Circuits Courts of Appeals seem to have gone “belly up” on their duty to carefully review what is happening in the Immigration Courts and to insist on the basics of fundamental fairness, due process, and fair and impartial decision-making.

 

It’s pretty simple: At neither the trial nor appellate levels do today’s Immigration Courts operating under EOIR and DOJ control qualify as “expert tribunals.” It is legally erroneous for Article III Courts to continue to “defer” to decision makers who lack fairness, impartiality, and subject matter expertise.

 

With human lives, the rule of law, and America’s future at stake here, it’s past time for the Article III’s to stop pretending that is “business as usual” in the warped and distorted “world of immigration under the Trump regime.”

Would any Article III Judge subject his or her life to the circus now ongoing at EOIR. Of course not!  Then it’s both legally wrong and morally corrupt for Article IIIs to continue to subject vulnerable migrants to this type of charade and perversion of justice!

 

Due Process Forever; Complicit Courts Never!

 

PWS

 

02-05-20

 

 

Related posts:

  1. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  4. HALLOWEEN HORROR STORY: Opaque & Biased Politicized Judicial Hiring Denies Migrants The Fair & Impartial Adjudication To Which They Are Constitutionally Entitled – Given The Generous Legal Standards, A Worldwide Refugee Crisis, & Asylum Officers’ Positive Findings In Most Cases, Asylum Seekers Should Be Winning The Vast Majority Of Immigration Court Cases — Instead, They Are Being “Railroaded” By A Biased System & Complicit Article III Courts!

T.C. WILLIAMS HIGH SCHOOL STUDENT TEAM MAKES IMMIGRATION VIDEO FOR C-SPAN STUDENTCAM 2020 COMPETITION!

T.C. WILLIAMS HIGH SCHOOL STUDENT TEAM MAKES IMMIGRATION VIDEO FOR C SPAN STUDENTCAM 2020 COMPETITION!

T.C. Williams HS Logo
T.C. Williams HS Logo
T.C. Williams Total Logo
T.C. Williams Titan Logo

Recently, I had the honor of working with a team of three talented T.C. Williams High School students and Mary Giovagnoli, Senior Counsel for Legal Strategy at , on a video interview about immigration issues in the upcoming 2020 election. Here is the result produced by the amazing student team of Amal Sharif, Ben Janusz, and Alex Conkey:

https://www.youtube.com/watch?v=Ja10WHkEDGU&t=4s 

This video is an entry in the C-Span StudentCAM 2020 Competition.

T.C. Williams is the public high school for ‘Alexandria, Virginia, where Cathy and I have lived since 1973. All three of our adult children, Wick, Will, and Anna, attended the Alexandria City Public Schools and are proud graduates of T.C. Williams High School (“Remember the Titans”).

GO T.C.!

PWS

02-05-20

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. “IT’S 1939” & WHITE NATIONALIST AMERICA IS FAILING HUMANITY AGAIN: THE ST. LOUIS REPLAY: History Will Neither Forget Nor Forgive Us For Wrongfully Sending Refugees To Their Doom – Nor Will The Complicit Roles Of The Supremes & Other Life-Tenured Federal Judges Be Buried Beneath Their Cowardly Legal Gobbledygook! — “Extermination As Deterrence” Is Not “OK Policy!”
  3. INCONVENIENT TRUTH: HALEY SWEETLAND EDWARDS @ TIME TELLS WHAT TRUMP, MILLER, COTTON, SESSIONS, & THEIR WHITE NATIONALIST GANG DON’T WANT YOU TO KNOW: Human Migration Is A Powerful Force As Old As Human History; It’s A Plus For Receiving Nations; It Won’t Be Stopped By Walls, Jails, Racist Laws, Or Any Other Restrictionist Nonsense; But, It Can Be Intelligently Controlled, Channeled, Harnessed, & Used For The Benefit Of The U.S. & The Good Of The Migrants! — “But to maximize that future good, governments must act rationally to establish humane policies and adequately fund an immigration system equipped to handle an influx of newcomers.”
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 

THE LATEST FROM HON. JEFFREY S. CHASE:  Rethinking Chevron In The Era Of Weaponized Immigration Courts Acting As Adjuncts Of DHS Enforcement, & Further Adventures Of The Round Table!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
jeffreyschase.com
In the present climate, immigration lawyers must continue to present judges with creative, intelligent arguments; to present the public with proof of what is wrong with the current system; and to present those in power to change what is wrong with solutions.

I’ve added posts that address each these points. First, I discuss some recent articles in which scholars raise creative legal arguments as to the limits of Chevron deference in appeals to the federal courts. I have also posted a statement of our Round Table of Former Immigration Judges to the House Judiciary Committee, Immigration and Citizenship subcommittee that was made part of the record of its hearing last Wednesday on solutions to the present crisis in the immigration courts.

I have also posted the group statement of our Round Table on the one-year anniversary of the MPP, or “Remain in Mexico” policy that was drafted by former Immigration Judge Ilyce Shugall, who has volunteered her time to travel to Texas to observe MPP hearings that is meant to raise awareness of the need to end this awful program.
SUN, FEB 02

Rethinking Chevron?

The powers of the Attorney General and the Board of Immigration Appeals to influence law by issuing binding precedent decisions is greatly enhanced by what is known as Chevron deference.  The principl
Read More
TUE, JAN 28

Statement to the House Judiciary Committee on Immigration Court Reform

On Wednesday, January 29 at 9:30 am, the House Judiciary Committee, Immigration and Citizenship Subcommittee is holding a hearing entitled “Courts in Crisis:  The State of Judicial Independence and
Read More
TUE, JAN 28

Statement on the One Year Anniversary of the MPP Program

January 28, 2020

The Round Table of Former Immigration Judges is comprised of former immigration judges who are dedicated to due process in the immigration system.  As former immigration judges, we
Read More
jeffreyschase.com, 500 4th Ave., Brooklyn, NY, USA

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Another article that ties in well with a critical re-examination of Chevron in immigration cases is Tess Hellgren’s recent wonderful short article: “Faced with the Trump Administration’s weaponization of the immigration courts against asylum-seeking individuals, the role of the federal courts is more important than ever.” I recently republished it here: https://immigrationcourtside.com/2020/02/01/tess-hellgren-innovation-law-lab-when-it-comes-to-the-captive-bia-weaponized-immigration-courts-the-article-iiis-need-to-put-away-the-rubber-stamp-restore-integrity-to-the-law-fac/

As we see the results of the regime’s Article III-enabled and encouraged nativist, racist policies like an expanded “Travel Ban” that now includes a large portion of Africa, new non-legislative restrictions on legal immigration, unmitigated expansion of the deadly “New American Gulag,” intentional mistreatment of children, and the continuing abrogation of both Due Process and our binding obligations to protect refugees at our Southern Border and elsewhere, Tess’s last sentence is particularly prophetic:

As the Attorney General and other executive officials attempt to expand their authority to define the terms of immigration adjudication, federal courts should heed the Seventh Circuit’s decision – and remember the foundational legal principle that “[i]t is emphatically the province and duty of the judicial department to say what the law is.”

So far, the Supremes and the Circuits have largely “vacated the province and shirked their duties” to the nation and our laws by shrinking and cowering in the face of the regime’s continuing lawlessness, bullying, bias, and tyranny. Indeed, the Supremes have shown a disturbing favoritism to unjustified requests by Trump’s Solicitor General to short-circuit the litigation system and the rules that bind all others. 

Not since the Eisenhower Administration’s “Operation Wetback” (obviously one of the regime’s “models” of lawless disregard for human and legal rights, not to mention basic morality) has our national Government shown such overt racism and contempt for migrants of color. Yet, rather than standing tall and delivering a united, powerful, intellectually courageous defense of our Constitution, the “GOP Gang of Five Supremes” backed the dehumanization and demonization of migrants on racial and religious grounds for transparent and invidious political reasons in the “Travel Ban case.” They basically invited and then approved a demonstrably false and “bad faith” national defense “pretext” which the Administration has “jumped on” to justify other attacks on the rule of law.  

Now the “ban” has remarkably, but predictably, been extended to a large part of Africa, including its largest economy, Nigeria. Hardly a whimper as Trump disembowels both Constitutional norms and human decency. What’s next on the agenda, Supremes, a bogus Executive ban on all non-White, non-Christian immigration? Who’d be surprised at this point?

Of course, with “constitutional de-personification” well under way with Article III approval, the next targets will be US citizens of color and others who “dare to differ” like the LGBTQ community, women, political opponents, journalists, lawyers, and, finally, judges themselves once their usefulness to Trump and his authoritarian regime is exhausted. The all-powerful, unrestrained, “unitary Executive” has no need of legislature, judiciary, or the people except to “ratify” their authoritarian abuses.

The failure to defend and reinforce the courageous legal community challenging the regime’s authoritarian overreach and the pathetically weak defense of the integrity of judicial colleagues who have tried to hold the regime accountable by Roberts has done nothing  but confirm and reinforce Trump’s pre-existing  belief that courts are “his” tools and judges “his toadies.”

America deserves better from its life-tenured judiciary! What’s the purpose of a supposedly independent life-tenured judiciary that sides with powerful, dishonest, lawless, bullies over the rights of individuals and is unwilling to stand up for the rights and human dignity of the most vulnerable among us?

PWS

02-04-20

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  3. COURTSIDE HAS BEEN AT THE FOREFRONT OF EXPOSING THE “CRIMES AGAINST HUMANITY” COMMITTED BY THE REGIME AND THE MORAL CULPABILITY OF THOSE WHO WILLFULLY CARRY OUT & ENABLE THESE ATROCITIES — The “Mainstream Media” Is Now Channeling Courtside! — “In the meantime, no government has the right to treat people with such abject inhumanity. History will remember Trump for this, but it will also remember the people who enable such atrocious acts.”
  4. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”

COMING ATTRACTIONS: ST MARY’S LAW REVIEW ON RACE & SOCIAL JUSTICE, & USTA INSTITUTE ON TEXAN CULTURES PRESENT THE 2020 IMMIGRATION SYMPOSIUM ON FEB. 28, 2020 IN SAN ANTONIO — Featuring Khizr Khan, Keynote Speaker; Ira J. Kurzbazn, Esquire, Guest Speaker; & A Host of Experts, Including Me!

My speech is entitled: “Due Process Doesn’t Live Here Any More: Weaponized Immigration Courts Are America’s Star Chambers”

 

Here is the complete program and registration information:

Symposium_Poster

 

Hope to see you in San Antonio.

Due Process Forever!

PWS

02-03-20

Related posts:

  1. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. 🏴‍☠️☠️🤮👎🏻IN NYT OP-ED, FORMER TRUMP DOJ ATTORNEY ERICA NEWLAND ADMITS COMPLICITY! — Having Undermined Democratic Institutions, Sold False Narratives To (Too Often Willing) Federal Judges, & Participated In Racist-Inspired “Dred Scottification” (“Dehumanization”) Of the Other Is Actually a BIG Deal! — So Is The Destruction Of Due Process & Fundamental Fairness In The Immigration Courts (Now, “Clown Courts”🤡, or “America’s Star Chambers”☠️) 
  4. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”

TESS HELLGREN @ INNOVATION LAW LAB: When It Comes To The Captive BIA & Weaponized Immigration Courts, The Article IIIs Need To Put Away The Rubber Stamp & Restore Integrity To The Law! — “Faced with the Trump Administration’s weaponization of the immigration courts against asylum-seeking individuals, the role of the federal courts is more important than ever.”

Tess Hellgren
Tess Hellgren, Staff Attorney and Justice Catalyst Legal Fellow

http://innovationlawlab.org/blog/the-role-of-judges-to-say-what-the-law-is-judicial-oversight-of-immigration-adjudication/

 

THE ROLE OF JUDGES TO “SAY WHAT THE LAW IS”: JUDICIAL OVERSIGHT OF IMMIGRATION ADJUDICATION

By Tess Hellgren, Staff Attorney and Justice Catalyst Legal Fellow

January 31, 2020

Since the beginning of the Trump Administration, the immigration court system has been used as a tool to further the executive branch’s anti-immigrant agenda. The Attorney General and other executive officials have enabled widespread due process violations and skyrocketing case backlogs while imposing case quotas and docketing rules that prevent judges from serving as impartial adjudicators.[1]

Last week, the Seventh Circuit highlighted a new abuse of power: the refusal of executive officials in the Board of Immigration Appeals (BIA) to follow a direct order from a federal court.

The BIA is the administrative body responsible for reviewing decisions that are appealed from sixty-eight immigration courts across the country. Like these immigration courts, the BIA is part of the Executive Office for Immigration Review (EOIR) – the immigration court system, located in the executive branch, that is ultimately overseen by the Attorney General of the United States. Despite the serious flaws inherent in the design of this system, BIA decisions may at least be appealed up to the appropriate federal circuit court, providing a crucial layer of independent judicial review in individual cases.[2]

In the case of Baez-Sanchez v. Barr, the Seventh Circuit had previously held that the immigration laws unambiguously grant immigration judges the power to waive a noncitizen’s inadmissibility to the United States, overruling the BIA’s prior decision to the contrary.[3] On remand, the BIA “flatly refused to implement” the court’s direct order.[4] Writing that the BIA’s decision “beggars belief,” the Seventh Circuit stated that

We have never before encountered defiance of a remand order, and we hope never to see it again. Members of the Board must count themselves lucky that [the Respondent] has not asked us to hold them in contempt, with all the consequences that possibility entails.[5]

This language is an extraordinary rebuke: it is very rare for a circuit court to issue an implicit threat to hold members of an administrative agency in contempt for directly disregarding a court order. The Seventh Circuit was clear that the BIA was mistaken if it thought that “faced with a conflict between our views and those of the Attorney General it should follow the latter.”[6] Affirming foundational separation of powers principles, the Seventh Circuit admonished that

[I]t should not be necessary to remind the Board, all of whose members are lawyers, that the “judicial Power” under Article III of the Constitution is one to make conclusive decisions, not subject to disapproval or revision by another branch of government . . . Once we reached a conclusion, both the Constitution and the statute required the Board to implement it.[7]

The Seventh Circuit’s decision also noted that the Attorney General had submitted a brief asking the court to give the BIA another opportunity to issue “an authoritative decision” on this issue, arguing that such a decision could be entitled to judicial deference.[8] The court aptly responded that this “request is bizarre,” as the court had already held that the applicable regulation was unambiguous – and an agency “cannot rewrite an unambiguous [law] through the guise of interpretation.”[9] As the Supreme Court made clear in Kisor v. Wilkie, “if the law gives an answer—if there is only one reasonable construction of a regulation—then a court has no business deferring to any other reading, no matter how much the agency insists it would make more sense.”[10]

Notably, even if the Seventh Circuit had found the laws in question to be ambiguous, the Attorney General and members of the BIA do not have free reign to impose any interpretation they choose. It is true that federal courts must defer to the reasoned decisions of administrative agencies when Congress has left the agency’s discretion to interpret an ambiguous provision of law, under the doctrine of Chevron deference.[11] But this deference is not boundless. As the Supreme Court made clear in Chevron, courts should defer to agencies’ interpretation of ambiguous statutes when the agency interpretation is “a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute.”[12] The agency’s interpretation must thus still fall “within the bounds of reasonable interpretation.”[13]

This standard, and the Seventh Circuit’s reprimand, is especially important as the Attorney General attempts to aggressively expand his control of immigration court adjudication. Under the Trump Administration, the Attorneys General have issued a number of “certified” decisions that attempt to restrict eligibility for asylum based on factors such as domestic violence, gang violence, or past persecution due to family membership.[14] In these decisions, which upend years of established immigration precedent, the Attorney General has pointedly asserted his authority to construe the terms of the Immigration and Nationality Act and implied that federal courts must fall in line with his interpretations.[15]

Yet the Attorney General’s reasoning holds only if his interpretations are actually entitled to judicial deference: if the laws in question are ambiguous and the federal courts find his interpretations reasonable.[16] And as the Supreme Court has admonished, “let there be no mistake: That is a requirement an agency can fail.”[17] Indeed, in addressing the application of the Attorney General’s certified decision in Matter of A-B-, at least one federal court has already held that a “general rule against domestic violence and gang-related claims during a credible fear determination is arbitrary and capricious and violates the immigration laws.”[18]

Faced with the Trump Administration’s weaponization of the immigration courts against asylum-seeking individuals, the role of the federal courts is more important than ever. As the Attorney General and other executive officials attempt to expand their authority to define the terms of immigration adjudication, federal courts should heed the Seventh Circuit’s decision – and remember the foundational legal principle that “[i]t is emphatically the province and duty of the judicial department to say what the law is.”[19]

[1] See generally Innovation Law Lab and Southern Poverty Law Center, The Attorney General’s Judges: How the U.S. Immigration Courts Became a Deportation Tool, 14–15 (June 2019), https://innovationlawlab.org/reports/the-attorney-generals-judges/; Complaint, Las Americas v. Trump, No. 3:19-cv-02051-SB (D. Or. Dec. 18, 2019), https://innovationlawlab.org/wp-content/uploads/2019/12/ECF-1-Las-Americas-v.-Trump-No.-19-cv-02051-SB-D.-Or..pdf.

[2] See Immigration and Nationality Act § 242; 8 U.S.C. § 1252.

[3] Baez-Sanchez v. Sessions, 872 F.3d 854, 856 (7th Cir. 2017); Baez-Sanchez v. Barr, No. 19-1642, slip op. at 2–3 (7th Cir. Jan. 23, 2020).

[4] Baez-Sanchez, slip op. at 3.

[5] Id. at 3–4.

[6] Id. at 4.

[7] Id. 

[8] Id. at 4–5.

[9] Id. at 5.

[10] Kisor v. Wilkie, 139 S.Ct. 2400, 2415 (2019).

[11] Chevron  v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).

[12] Id. at 844–45; see also 5 U.S.C. § 706(2) (a reviewing court shall set aside agency action, findings, and conclusions found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”).

[13] See Kisor, 139 S.Ct. at 2416, quoting Arlington v. FCC, 569 U.S. 290, 296 (2013).

[14] See Matter of A-B-, 27 I&N Dec. 316 (2018); Matter of L-E-A-, 27 I&N Dec. 581 (2019). Note inconsistencies

[15] See Matter of A-B-, 27 I&N at 326–27; Matter of L-E-A-, 27 I&N at 591–92.

[16] See Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005) (allowing for agency interpretation to override judicial interpretation in certain circumstances, when the agency interpretation is “otherwise entitled to Chevron deference”).

[17] See Kisor, 139 S.Ct. at 2416.

[18] Grace v. Whitaker, 344 F. Supp. 3d 96, 127 (D.D.C. 2018).

[19] See Marbury v. Madison, 5 U.S. 137, 177 (1803).

 

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Well said, Tess!

 

Thanks for being such a NDPA stalwart!

 

Due Process Forever!

 

PWS

02-01-20

 

Related posts:

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

THE NEED FOR AN INDEPENDENT ARTICLE I U.S. IMMIGRATION COURT: A New “Video Short” From AILA Productions!

THE NEED FOR AN INDEPENDENT ARTICLE I U.S. IMMIGRATION COURT: A New “Video Short” From AILA Productions!

 

Starring (in order of appearance):

Hon. A. Ashlley Tabaddor
Hon. A. Ashley Tabaddor
President, National
Association of Immigration Judges (“NAIJ”)
Me
Me
Jeremy McKinney
Jeremy McKinney, Esquire
Greensboro, NC
AILA 2nd Vice President
Professor Shoba Wadhia
Professor Shoba Wadhia
Penn State Law

Watch it here:

https://youtu.be/8fkt-g4XG_A

 

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

Never has the need been greater!

 

Due Process Forever; Captive Courts Never!

 

PWS

02-01-20

Related posts:

  1. HALLOWEEN HORROR STORY: Opaque & Biased Politicized Judicial Hiring Denies Migrants The Fair & Impartial Adjudication To Which They Are Constitutionally Entitled – Given The Generous Legal Standards, A Worldwide Refugee Crisis, & Asylum Officers’ Positive Findings In Most Cases, Asylum Seekers Should Be Winning The Vast Majority Of Immigration Court Cases — Instead, They Are Being “Railroaded” By A Biased System & Complicit Article III Courts!
  2. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  3. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  4. THE TRUTH IS OUT, THANKS TO MICHELLE MENDEZ @ CLINIC: Practice Pointers on Matter of Castillo-Perez & “Takeaways” From FOIA Trove On In Absentias!

4th CIR. NABS BIA VIOLATING DUE PROCESS, AGAIN: Yes, Guys, Believe It Or Not You Should Allow the Respondent To Actually TESTIFY Before Sustaining An “Adverse Credibility” Finding! — Atemnkeng v. Barr – Plus, Bonus Mini-Essay: “When Will Life-Tenured Judges Stop Enabling The Arrogant Trashing Of Due Process By Our Authoritarian Regime?”

4th CIR. NABS BIA VIOLATING DUE PROCESS, AGAIN: Yes, Guys, Believe It Or Not You Should Allow the Respondent To Actually TESTIFY Before Sustaining An “Adverse Credibility” Finding! — Atemnkeng v. Barr – Plus, Bonus Mini-Essay: “When Will Life-Tenured Judges Stop Enabling The Arrogant Trashing Of Due Process By Our Authoritarian Regime?”

http://www.ca4.uscourts.gov/opinions/181886.P.pdf

Atemnkeng v. Barr, 4th Cir. Jan. 24, 2020, published

PANEL:  GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.

OPINION BY:  Chief Judge Gregory

KEY QUOTE:

Ngawung Atemnkeng, a citizen of Cameroon, fled her country after participating in

anti-government meetings and protests, getting arrested and was detained without trial several times, being tortured and beaten by government officers, and receiving numerous death threats. An immigration judge (“IJ”) initially noted some inconsistencies in Atemnkeng’s application, but nevertheless found her credible and her explanations plausible, and granted her asylum application. On appeal, the Board of Immigration Appeals (“BIA”) reversed the IJ’s determination and instructed the IJ, in reviewing the asylum application a second time, to afford Atemnkeng an opportunity to explain any inconsistencies.

On remand, Atemnkeng has now relocated to Baltimore and the new IJ (“Baltimore IJ”) permitted her to submit additional documents in support of her asylum application and scheduled a master calendar hearing. Approximately one month prior to the hearing, however, the Baltimore IJ issued a written ruling denying Atemnkeng’s applications for asylum and other reliefs. The Baltimore IJ concluded, without Atemnkeng’s new testimony, that she was not credible in light of inconsistencies in her story. On a second appeal to the BIA, the Baltimore IJ’s ruling was affirmed without an opinion. Atemnkeng now petitions for review of the BIA’s summary affirmance of the Baltimore IJ’s rulings.

In her petition for review, she raises several claims, most notably, that her due process rights were violated when the Baltimore IJ deprived her of an opportunity to testify on remand. Concluding that Atemnkeng’s claim related to her ability to testify is

meritorious, we grant the petition for review, vacate the BIA’s affirmance, and remand for 2

further proceedings. In light of our conclusion that the Baltimore IJ failed to give Atemnkeng an opportunity to testify and weigh the relevance of that testimony in conjunction with the entire record, we decline to address whether the adverse credibility determination and denials of Atemnkeng’s applications for withholding of removal and relief under the Convention Against Torture (“CAT”) were erroneous.

*******************************“

When Will Life-Tenured Judges Stop Enabling The Arrogant Trashing Of Due Process By Our Authoritarian Regime?”

By Paul Wickham Schmidt

“Courtside” Exclusive

Jan. 1, 2020

Giving someone a chance to testify in person and explain apparent discrepancies, particularly when the case was for remanded for just that reason, seems like “Law 101.” It’s so elementary, I wouldn’t even include it on a final exam!

 

After all, simple logic, unclouded by a philosophy of treating migrants as a subclass whose legal rights judges often parrot but seldom enforce, would say that “Due Process is at its zenith” when human lives are at stake, as was the case here. It’s also required not only by the Constitution, but by BIA precedents like Matter of A-S-. So, how does this “go south” at EOIR?

 

Following precedents where it might help a respondent, be it a BIA or a Circuit precedent, seems to have become largely “optional” in the Immigration Courts these days, as I have previously observed. Instead, with constant encouragement from a White Nationalist, xenophobic regime, and lots of complicit judges at all levels, Due Process has largely been wiped out in Immigration Court.

 

Thank goodness this respondent, represented by long-time practitioner Ronald Richey (an Arlington Immigration Court regular” during my tenure), had the wherewithal to get to the Fourth Circuit and to draw a panel of judges interested in setting things right.

 

Think about what might have happened if she had landed in a complicit, largely “Decency Free Zone” like the Fifth or Eleventh Circuits, known for “going along to get along” with almost any abuse of migrants’ rights by the Government.

 

When are all Article III Judges going to start “connecting the dots” and asking why a supposedly “expert tribunal” whose one and only job should be to painstakingly insure that nobody is denied relief and removed from the United States, particularly to potential torture or death, without full Due Process and fundamental fairness is making fundamental mistakes in churning out removal orders.

 

Once upon a time, EOIR, the “home” of the Immigration Courts set out to use “teamwork and innovation to become the world’s best administrative tribunals, guaranteeing fairness and due process for all.”Not only has that “noble vision” been totally trashed, but the exact opposite has become institutionalized at EOIR: “Worst practices,” badly skewed pro-prosecutor hiring, inadequate professional training, lack of expertise, speed and expediency elevated over quality and care, intentional institutionalization of anti-immigrant, anti-asylum, pro-DHS bias, demeaning treatment of respondents and their lawyers, and the extermination of judicial independence and public accountability.

 

Today’s EOIR is truly a grim place, particularly for those whose lives are being destroyed by its substandard performance and also for the attorneys trying desperately to save them. Obviously, most Article IIIs have insulated themselves from the practical humanitarian disasters unfolding in Immigration Courts every day under their auspices.

 

What do they think happens to folks who can’t afford to be represented by Ronald Richey or one of his colleagues and whose access to pro bono counsel is intentionally hampered or impeded by EOIR? Think they have any chance whatsoever of a “fundamentally fair hearing” that complies with Due Process? Hearings for unrepresented individuals in detention are so grotesquely ridiculous that EOIR and DHS have gone to extreme lengths to impede public access so their abuses will take place in secret. Just ask my friendLaura Lynch over at AILA or my colleague Judge Ilyce Shugall of our Round Table what it’s like simply trying to get EOIR and DHS to comply with their own rules.

 

Listen folks, I helped formulate and implement the Refugee Act of 1980 as a Senior Executive in the “Legacy INS” during the Carter and Reagan Administrations. I even represented a few asylum applicants in private practice, something most Article III Judges and even many Immigraton Judges have never done. In 21 years on the “Immigration Bench” at both the trial and appellate levels, I personally listened to, read, or reviewed on appeal more asylum cases than any sitting Article III Judge of whom I’m aware.

 

The various parodies and travesties of justice in today’s Immigration Courts are eerily similar to, or in some cases the same, as I used to hear and read about in some of the third-world dictatorships, banana republics, and authoritarian tyrannies I dealt with on a regular basis. It’s simply infuriating, and beyond my understanding, that privileged, life-tenured, Article III Judges in our country, sworn to uphold our laws and Constitution, can continue to permit and so “glibly gloss over” these violations of law and gross perversions of human decency.

 

And, that goes right up to the Supremes’ intentional, disingenuous “tone deaf” approach to ignoring the real unconstitutional, invidious motives and fabrications behind the Administration’s original “Travel Ban.” All of the fatal legal defects were carefully documented and explained by various lower court judges trying conscientiously to uphold their oaths of office and “do the right thing.” Instead they were “dissed” by the Supremes and their hard work was ignored and denigrated. Fake, exaggerated, or “trumped up” “national security” pretexts for abusive treatment of “others” and political or religious opponents is a staple of persecuting regimes everywhere, as it now has become a judicially-enable staple of our current regime.

 

It’s long past time for the Article IIIs to wake up and put an end to the systemic nonsense that is literally killing people in our dysfunctional Immigration Court system. Is this the type of system to which you would entrust YOUR life, judges? If not, and I severely doubt that it is, why does it pass for “Due Process” for some of the most vulnerable among us? Think about it?

 

Due Process Forever; Complicit Courts Never!

 

PWS

01-31-20

 

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  3. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  4. PURE BS 💩 — TRUMP’S “BIG LIE” ABOUT MIGRANT APPEARANCES FOR HEARINGS BOGUS AS $3 BILL 🤮👎🏻— Replacing DHS/EOIR With Rational, Qualified, Fact-Based Governance & Real Judiciary Could Bring Appearance Rate Close To 100%!  — Two Items From ImmigrationProf Blog!

INSIDE TRUMP’S “NEW AMERICAN GULAG” — This Fox Is Licking Her Lips, Getting Ready To Devour Hens As Regime Pokes Congress In The Eyes With Sharp Sticks!

Hamed Aleaziz
Hamed Aleaziz
Immigration Reporter
BuzzFeed News
Julie Kirchner
Julie Kirshner
Anti-Immigrant Activist
DHS Official
“Fox in Hen House”

https://www.buzzfeednews.com/article/hamedaleaziz/immigration-hardliner-detention-ombudsman

Hamed Aleaziz reports for BuzzFeed News:

The Trump administration has named a hardline former leader of an anti-immigration group to help set up a new role created by Congress to oversee complaints of civil rights violations in detention centers and help those affected by misconduct, according to an internal memo obtained by BuzzFeed News.

The Office of the Immigration Detention Ombudsman was created in the most recent appropriations bill to “address issues that arise in DHS detention facilities” and remain independent of Immigration and Customs Enforcement or US Customs and Border Protection. The office will report directly to the secretary of Homeland Security.

Ken Cuccinelli, the controversial second-in-command at the Department of Homeland Security, appointed Julie Kirchner, former leader of FAIR, a group that advocated for policies that restrict immigration, to help set up the office, according to the memo. Cuccinelli also tapped Tracy Short — a former top ICE official who signed memos during the Trump administration to stop the agency from granting reprieves for certain immigrants facing deportation — to also help figure out the plans for the office.

“To spearhead this effort, I have asked Julie Kirchner, outgoing Citizenship and Immigration Services Ombudsman, and Tracy Short, Senior Advisor at Immigration and Customs Enforcement, to work with senior leadership and staff within the Department to lay the proper foundation for the [office],” according to the memo, which was dated Jan. 28.

Congress provided $10 million for the office to address issues of misconduct by DHS officials in detention centers, establish a process to oversee complaints made against immigration officials, inspect facilities, provide recommendations for improvement, and potentially help those whose rights have been violated while in custody.

“In the immediate days and weeks Julie and Tracy will be contacting a variety of individuals across the Department to solicit their input and request information regarding the formation of this new office,” Cuccinelli wrote.

Kirchner was initially picked as the ombudsman at USCIS in 2017, before her departure in the role was announced late last year.

When her appointment was originally announced in 2017, advocacy groups were outraged, due to her background at FAIR, which the Southern Poverty Law Center had labeled a hate group and “America’s most influential anti-immigrant organization.”

“Kirchner’s new position is a very powerful one, which it makes it all the more disturbing considering her past work,” the SPLC said at the time.

The move to appoint Kirchner and Short to help “lay the proper foundation” for the office will likely spur criticism from Congressional officials.

“That’s like letting the fox watch the hens,” said one congressional staffer in a message to BuzzFeed News.

John Sandweg, former acting head of ICE during the Obama administration, said the move was not surprising, but potentially indicative of how the administration sees the role.

“These are the architects of the Trump administration’s immigration enforcement policies,” he said. “It’s not a surprise they would try to build this thing in a way that makes it as less impactful as possible and seems inconsistent with the intent of Congress when they created the office. We have to wait to see what the end product is.”

DHS did not immediately comment.

ICE has expanded the number of people it detains to record levels under President Trump. As of late January, the agency was detaining nearly 41,000 immigrants. The peak came last summer, when around 55,000 immigrants were in custody in local jails and private prisons across the country.

In December, the House Oversight and Reform Committee announced it had opened an investigation into the medical care of immigrant detainees in the wake of a BuzzFeed News story that revealed a series of allegations of substandard care from a whistleblower.

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

Totally corrupt!

“Wait and see what the end product is?” John Sandweg, are you really so naive that you think Kirchner will do her job and help detainees to be treated like humans? Come on, man! No way! We already know what’s going too happen. And, it will be the exact opposite of what Congress intended in enacting this legislation. But, it’s not like Congress, or the courts for that matter, hold this regime accountable for scofflaw conduct.

She’s there to insure that cruel and inhuman treatment are the norms, there is no accountability, and that the legion of DHS detention abuses (the “core concept” of the “New American Gulag”) are covered up. In other words, to insure maximum dehumanization, a key part of the regime’s nativist agenda. What in Julie Kirchner’s anti-immigrant zealotry, or Tracy Short’s for that matter, would make you think that there is any “ambiguity” on how this will play out?

Keep those court cases rolling! Notwithstanding their tendency toward complicity, eventually, at least some Federal Judges hopefully can be “shamed” into enforcing laws protecting migrants, recognizing human rights, and requiring human dignity in DHS’s treatment of detainees (most of whom don’t belong in “uncivil” detention in the first place).

PWS

01-30-20

Related posts:

  1. IMMIGRATION COURTS: “MALICIOUS INCOMPETENCE ON STEROIDS” — With Court System Reeling & Asylum Applicants Suffering, Administration Plans Another Round Of Massive “Aimless Docket Reshuffling” (“ADR”), Reports Hamed Aleaziz @ BuzzFeed News!
  2. SPRINT TO THE BOTTOM: Trump Administration Trashes Refugees & Human Rights In A Despicable Return To “1939-Style Fascism Lite!” — America’s Rancid Conduct & Negative Leadership Presages Another Worldwide Refugee Tragedy — This Time The Blood Will Be Directly On Our Hands!
  3. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  4. 😰NO HAPPY NEW YEAR FOR FAMILIES IN “THE NEW AMERICAN GULAG”☠️⚰️ — As Kakistocracy Of War Criminals 🤮🏴‍☠️ Departs, Will President Biden Have The Wisdom & Guts To Move Beyond “The Dem Border Alarmists” & Get The Progressive Leaders 🦸🏽‍♂️⚖️ From The NDPA In Place To Bring Due Process & Order To The Border?🗽🇺🇸

BUSY KNIGHTS & KNIGHTESSES: The Round Table Speaks Out Again For Due Process & Judicial Independence On The Eve Of House Subcommittee Hearing

Round Table House 12920 hearing

Statement of the Round Table of Former Immigration Judges Submitted to the House Judiciary Subcommittee on Immigration and Citizenship
Hearing on “Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts”
January 29, 2020
This statement for the record is submitted by former Immigration Judges and former Appellate Immigration Judges of the Board of Immigration Appeals (BIA). Members of our group were appointed to the bench and served under different administrations of both parties over the past four decades. Drawing on our many years of collective experience, we are intimately familiar with the workings, history, and development of the immigration court from the 1980s up to present.
The purpose of the immigration courts is to act as a neutral check on executive overreach in the enforcement of our immigration laws. In their detached and learned interpretation of the laws and regulations, Immigration Judges exist to correct overzealous bureaucrats and policy makers when they overstep the bounds of reasonable interpretation and the requirements of due process.
Unfortunately, no Attorney General has ever created an impartial immigration court system because the immigration courts have always been housed inside the U.S. Department of Justice, subject to the nation’s chief enforcement officer, the Attorney General. Due in large part to the efforts of their union, the National Association of Immigration Judges, (NAIJ), the Immigration Judge corps managed to maintain decision making independence even when faced with increased caseloads and political pressures.
We are extremely disturbed by this administration’s systemic and unprecedented efforts to undermine Immigration Judges’ independence and neutrality. Such efforts have proceeded seamlessly through three different Attorneys General. Even Matthew Whitaker, acting as a caretaker and with no prior immigration law background, managed in his brief time in charge to certify two cases to himself, one of which was a decision of the BIA which had denied asylum and created a difficult standard for those seeking asylum based on their family ties, in order to make such standard even more daunting.
The three Attorneys Generals have together abused their certification power to circumvent the intent of Congress by rewriting our nation’s immigration laws. In
1

some of their decisions, the Attorneys General have eliminated precedent decision and then imposed requirements that necessitate much more attorney preparation, longer hearings, and more exacting decisions from the Immigration Judges themselves in order to grant relief where such relief is due. The disingenuous assertion for doing so was that the parties had stipulated to certain facts and findings without evidence, when in fact the parties had done so – as in all judicial settings – because the evidence in support of such facts and findings was overwhelming and there is no need to burden the court system by presenting them in each case. At the same time, the Department of Justice has greatly expedited the hearings of those who are often most vulnerable, while requiring a growing number of asylum-seekers to either wait in Mexico in a state of homelessness, with little access to counsel or ability to be able to gather evidence; or to alternatively be detained in horrific conditions in remote detention facilities, all with little to no access to counsel.1 The administration has increasingly denied observers access to Remain in Mexico hearings.2 In particular, a member of our group was asked to leave a Remain in Mexico hearing where she was observing a case on the spurious claim that her note taking was distracting.3
In addition to cutting off access to the agency’s more controversial classes of hearings, EOIR has also effectively ended the participation of Immigration Judges as speakers in legal conferences and at law schools, including as participants in moot court hearings.4 The judges’ own union, the NAIJ, has served as the sole voice of its members, publicly speaking out against policies that undermine its independence and impartiality, and in advocating for independent Article I court status. In response, the Department of Justice has sought to silence the NAIJ
1 On January 24, 2019, the Department of Homeland Security (DHS) announced the Migration Protection Protocols (MPP), a policy also known as “Remain in Mexico,” which requires individuals seeking asylum at our southern border to remain in Mexico while their U.S. removal proceedings are pending.
2 Adolfo Flores, Immigration “Tent Courts” Aren’t Allowing Full Access To The Public, Attorneys Say, (1/13/2020), https://www.buzzfeednews.com/article/adolfoflores/immigration-tent-courts-arent-allowing-full-public-access.
3 The Round Table of Former Immigration Judges, Letter to Director McHenry and Chief Immigration Judge Santoro, (Dec. 10, 2019), https://immigrationcourtside.com/wp-content/uploads/2019/12/McHenry- letter_letterhead-1.pdf.
4 The Knight First Amendment Institute, Knight Institute Calls on DOJ’s Executive Office for Immigration Review to Suspend Policy Silencing Immigration Judges, (Jan. 6, 2020), https://knightcolumbia.org/content/knight-institute- calls-on-dojs-executive-office-for-immigration-review-to-suspend-policy-silencing-immigration-judges.
2

through a present effort to decertify on the same basis that was rejected previously this union that has been certified since 1979.5
The Attorneys General have also issued decisions stripping Immigration Judges of the judicial tools needed to properly execute their duties. Through precedent decisions by certification, then-Attorney General Jeff Sessions issued binding decisions stripping Immigration Judges of their long-standing ability to administratively close6 or terminate7 cases where appropriate or necessary, or even to continue hearings where due process requires.8
The above actions of Attorneys General, as well as the reshuffling of Immigration Judge dockets to assure that cases are heard based on the political priority of the day as opposed to due process concerns, has resulted in unprecedented, sky- rocketing backlogs.9 The backlog has increased exponentially despite the dramatic increase in Immigration Judge appointments, most of which have favored individuals with enforcement backgrounds. Some have wondered if this is an attempt to implode the Immigration Court system, but whether it is intentional or not, this could be the ultimate effect.
EOIR’s director is not a political appointee, yet he has acted as one by promulgating policies that undermine judicial independence. For example, he has created completion quotas that require Immigration Judges to choose between justice for those who appear before them and their own job security. The vast majority of other administrative judges – including Social Security Judges – are exempted from such quotas by statute, and the Immigration Judges were previously exempted by policy. Immigration Judges are told in their training that they are only DOJ attorneys and as employees of the Attorney General and the Department of Justice, they owe loyalty to the objectives of those they serve. Such quotas damage the public’s confidence in the immigration court system by creating the perception of bias. Even in the law enforcement context, quotas are seen as harmful. For example, most states outlaw such quotas for traffic tickets issued by
5 Eric Katz, The Justice Department says immigration law judges operate as managers, an argument the Federal Labor Relations Authority rejected in 2000, (Aug. 12, 2019), https://www.govexec.com/management/2019/08/ trump-administration-looks-decertify-vocal-federal-employee-union/159112/.
6 Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018)
7 Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018) 8 Matter of L-A-B-R- et. Al., 27 I&N Dec. 405 (A.G. 2018)
9 According to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University the December 2019, backlog was 1,089,696. See, https://trac.syr.edu/phptools/immigration/court_backlog/
3

police officers. Pressuring Immigration Judges to adhere to the views of the enforcement officer and agency that employ them contradicts the Supreme Court’s 1954 ruling to the contrary, in which it held that the BIA must decide cases according to its judges’ “own understanding and conscience,” and not those of the Attorney General.10
EOIR has taken additional actions to undermine the appearance of neutrality so necessary to a court system. The agency posted on its website a press release announcing a “return to the rule of law” based solely on an increase in the number of deportation orders issued by the courts.11 More recently, the agency issued a “Myths vs. Facts” sheet12 falsely claiming that noncitizens as a rule don’t appear for their court hearings (whereas statistics compiled by TRAC indicate an appearance rate over 90%;13 that asylum seekers’ claims lack merit, and that attorneys don’t really impact court outcomes. The members of this honorable committee are asked to try to imagine any other court issuing such a statement concerning those that appear before its judges, and to further imagine what the public response would be. Our Round Table was one of several groups that issued a statement strongly criticizing such action.14
Our group includes a significant number of former Immigration Judges who retired or otherwise left the bench sooner than intended due to the unconscionable policies of the present administration. Two amongst us took the highly unusual step of resigning after only two years on the bench. One of our members made a point of retiring after 28 years on the bench on the day before the oppressive completion quota system went into effect as a statement that he refused to work under such conditions.15
10 Accardi v. Shaughnessy, 347 U.S. 260 (1954).
11 https://www.justice.gov/opa/pr/return-rule-law-trump-administration-marked-increase-key-immigration-statistics
12 https://www.justice.gov/eoir/page/file/1161001/download 13 See, https://trac.syr.edu/immigration/reports/562/.
14 Round Table of Former Immigration Judges, EOIR “Myth vs. Fact” Memo, (May 13, 2019), https:// www.aila.org/infonet/retired-ijs-and-former-members-of-the-bia-object; See also AILA Policy Brief: Facts About the State of Our Nation’s Immigration Courts, (May 14, 2019), https://www.aila.org/advo-media/aila-policy-briefs/aila- policy-brief-facts-about-the-state-of-our.
15 “Immigration Judges say they’re ;leaving jobs because of Trump policies,” The Hill, Feb. 13, 2019, https:// thehill.com/latino/429940-immigration-judges-say-theyre-leaving-jobs-because-of-trump-policies
4

We acknowledge our former colleagues still on the bench who continue to afford due process and fairness in their decisions. Their increasing difficulty in doing so was illustrated by the highly-publicized case in which an Immigration Judge in Philadelphia, upon receiving a case remanded by the Attorney General, continued the hearing of a minor who did not appear for purposes of ensuring that the youth received proper notice of the hearing, as required by law. EOIR management immediately removed the case from the judge’s docket, along with more than 80 other similar cases. The judge was most improperly chastised by his supervisor. Instead of assigning the case to another judge in the Philadelphia court, EOIR management sent one of its own to Philadelphia for the sole purpose of issuing an in absentia removal order against the youth.16 What message did these actions send to the Immigration Judge corps (in particular, to those recently hired who may be removed without cause within two years of their appointments) about exercising independent judgment? We affirm that such action would have been unthinkable under any prior administration during the four decades in which we served.
Immigration Judges also depend on a fair review of their decision on administrative appeal to the BIA. We are sad to report that the Appellate Immigration Judges on the BIA have abdicated the independent understanding and conscience recognized 66 years ago by the Supreme Court. Last month, a judge sitting on the U.S. Court of Appeals for the Third Circuit stated in a concurring opinion of the court: “it is difficult for me to read this record and conclude that the Board was acting as anything other than an agency focused on ensuring Quinteros’ removal rather than as the neutral and fair tribunal it is expected to be. That criticism is harsh and I do not make it lightly.”17 And on January 23, 2020, a three Judge panel of the U.S. Court of Appeals for the Seventh Circuit suggested holding the BIA’s judges in contempt of court, “with all the consequences that possibility entails.”18 What provoked such reaction was the BIA’s decision to completely ignore a binding order of an Article III court because then-Attorney General Jeff Sessions in a footnote to a certified decision had expressed his disagreement with such decision. The Seventh Circuit stated that the Board’s action “beggar’s belief,” adding that it has “never before encountered defiance of a remand order, and we hope never to see it again.” But as long as the Attorney General holds the power to
16 National Association of Immigration Judges, Judges’ Union Grievance Seeking Redress for the Unwarranted Removal of Cases from IJ, (Aug. 8, 2018), https://www.aila.org/infonet/naij-grievance-redress-removal.
17 Quinteros v. Att’y Gen., No. 18-3750 (3d Cir. Dec. 17, 2019).
18 Baez-Sanchez v. Barr, No. 19-1642 (7th Cir. Jan. 23, 2020). 5

remove them and the Circuit Courts don’t, the BIA will err on the side of job security.
With the BIA acting as the Attorney General’s enforcer, Immigration Judges are increasingly concerned with whether U.S. Immigration Customs Enforcement (ICE) might appeal a grant of relief. One of the requirements specified in the immigration judges’ performance quotas requires that not more than 15 percent of the immigration judges’ decisions can be remanded or reversed on appeal by the BIA.
It is the role of Congress to write the immigration laws and that of the Attorney General to uphold them. This administration has sought to rewrite those laws in defiance of directives of the Supreme Court and the Courts of Appeal which demonstrates that it is time for Congress to remove the responsibility for creating a fair immigration court from the Attorney General. The administration has stymied the efforts of immigration judges to faithfully execute their sworn obligations to accord due process to everyone who appears before them and to decide every case on its own merits after a full and fair consideration of the evidence. Instead, EOIR has imposed unrealistic productivity mandates that place speed above all considerations of fairness.
For all of the above reasons, we hope that Congress will take steps towards removing the immigration courts and BIA from the Department of Justice and establishing an independent Article I Immigration Court. In the meantime, we hope that Congress will use the powers at its disposal to limit undue influence on the Immigration Judges; to protect the NAIJ union from decertification; and to call the BIA to account for its recent outrageous behavior.
We appreciate the opportunity to provide this statement for the record and look forward to engaging as Congress considers reforming the immigration court system.
Contact with questions or concerns: Jeffrey S. Chase, jeffchase99@gmail.com. Sincerely,
Hon. Steven Abrams, Immigration Judge, New York, Varick St., and Queens (N.Y.) Wackenhut Immigration Courts, 1997-2013
Hon. Terry A. Bain, Immigration Judge, New York, 1994-2019
6

Hon. Sarah Burr, Assistant Chief Immigration Judge and Immigration Judge, New York, 1994-2012
Hon. Esmerelda Cabrera, Immigration Judge, New York, Newark, and Elizabeth, NJ, 1994-2005
Hon. Teofilo Chapa, Immigration Judge, Miami, 1995-2018
Hon. Jeffrey S. Chase, Immigration Judge, New York, 1995-2007
Hon. George T. Chew, Immigration Judge, New York, 1995-2017
Hon. Joan Churchill, Immigration Judge, Arlington, VA 1980-2005
Hon. Bruce J. Einhorn, Immigration Judge, Los Angeles, 1990-2007
Hon. Cecelia M. Espenoza, Appellate Immigration Judge, BIA, 2000-2003
Hon. Noel Ferris, Immigration Judge, New York, 1994-2013
Hon. James R. Fujimoto, Immigration Judge, Chicago, 1990-2019
Hon. Jennie L. Giambastiani, Immigration Judge, Chicago, 2002-2019
Hon. John F. Gossart, Jr., Immigration Judge, Baltimore, 1982-2013
Hon. Paul Grussendorf, Immigration Judge, Philadelphia and San Francisco, 1997-2004
Hon. Miriam Hayward, Immigration Judge, San Francisco, 1997-2018
Hon. Charles Honeyman, Immigration Judge, Philadelphia and New York, 1995-2020
Hon. Rebecca Jamil, Immigration Judge, San Francisco, 2016-2018
Hon. William P. Joyce, Immigration Judge, Boston, 1996-2002
Hon. Carol King, Immigration Judge, San Francisco, 1995-2017
Hon. Elizabeth A. Lamb, Immigration Judge, New York, 1995-2018
Hon. Donn L. Livingston, Immigration Judge, Denver and New York, 1995-2018 Hon. Margaret McManus, Immigration Judge, New York, 1991-2018
Hon. Charles Pazar, Immigration Judge, Memphis, 1998-2017
Hon. Laura Ramirez, Immigration Judge, San Francisco, 1997-2018
Hon. John W. Richardson, Immigration Judge, Phoenix, 1990-2018
Hon. Lory D. Rosenberg, Appellate Immigration Judge, Board of Immigration Appeals, 1995-2002
Hon. Susan G. Roy, Immigration Judge, Newark, NJ 2008-2010
Hon. Paul W. Schmidt, Chair and Appellate Immigration Judge, Board of Immigration Appeals, and Immigration Judge, Arlington, VA 1995-2016
Hon. Ilyce S. Shugall, Immigration Judge, San Francisco, 2017-2019
Hon. Denise Slavin, Immigration Judge, Miami, Krome, and Baltimore, 1995-2019
Hon. Andrea Hawkins Sloan, Immigration Judge, Portland, 2010-2017
Hon. Gustavo D. Villageliu, Appellate Immigration Judge, BIA, 1995-2003
Hon. Robert D. Vinikoor, Immigration Judge, Chicago, 1984-2017
Hon. Polly A. Webber, Immigration Judge, San Francisco, 1995-2016
7

Hon. Robert D. Weisel, Assistant Chief Immigration Judge, Immigration Judge, New York 1989-2016
8

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Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog

Thanks to our “Lead Knight,” Hon. Jeffrey Chase, for all of his work on drafting, revising, and coordinating this huge, important project on short notice (all while continuing to save lives in Immigration Court as a “real” trial lawyer).

Yes, there were “knightesses” (female knights) in history. Joan of Arc is a well known one. Today, they are common (perhaps a majority) among the ranks of our Round Table and certainly among the fiercest and most courageous champions of Due Process as well as role models for all aspiring judges! 

Knjightess
Knightess of the Round Table

Due Process Forever!

PWS

01-28-20

 

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