"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Groundbreaking Path2Papers Initiative Receives $1.5 Million Grant
Jaclyn Kelley-Widmer (left) and Steve Yale-Loehr are two of the leaders of the new Path2Papers initiative.
By Chris Brouwer
April 22, 2024
JNews
Groundbreaking Path2Papers Initiative Receives $1.5 Million Grant
By Chris Brouwer
April 22, 2024
Professors Jaclyn Kelley-Widmer and Stephen Yale-Loehr have secured a $1.5 million grant from Crankstart for their groundbreaking initiative, the Path2Papers project. Housed at Cornell Law School, this new nonprofit venture helps DACA recipients in the San Francisco Bay Area pursue work visas and other pathways to legal permanent residency. Cornell DACA recipients can also receive consults through this project.
Since its inception by the Obama administration in 2012, the Deferred Action for Childhood Arrivals (DACA) program has allowed an estimated 600,000 undocumented young migrants who arrived in the United States as children to obtain the right to work and temporary protection from deportation. However, with Congress’s failure to find a legislative solution and legal challenges entangling the program in federal courts, uncertainty looms over DACA’s future.
Path2Papers is one of the only programs in the country that combines experience in employer representation with expertise in evaluating employment-based immigration options for DACA recipients. Coordinated by Kelley-Widmer, Yale-Loehr, and several others, including Dan Berger ’96, an immigration lawyer and nonresident academic fellow at the Law School, the project aims to facilitate the transition of up to 40 percent of the approximately 12,000 Bay Area DACA recipients to alternative lawful immigration statuses. By doing so, it seeks to ensure that even if Congress or the courts terminate DACA, many recipients in the Bay Area can continue to reside legally in the United States, unlocking their full potential.
Path2Papers will employ a multifaceted approach to achieve its objectives. This includes providing personalized legal consultations to DACA recipients, training students and professionals in immigration law, hosting legal information sessions, offering referrals to legal service providers and pro bono attorneys, conducting training sessions for attorneys on handling DACA-related issues, and educating employers about visa options for their DACA employees.
Over the two-year grant period, Path2Papers will establish a robust infrastructure to deliver comprehensive legal assistance to Bay Area DACA recipients. During the first stage of this process, Kelley-Widmer is shifting the focus of her longstanding 1L Immigration Law and Advocacy Clinic to the Path2Papers project. “I’m excited to have the opportunity to build proactive support for DACA recipients through this cutting-edge model while integrating clinical students into the work,” Kelley-Widmer says. “And already, other organizations around the country have reached out about how to replicate this project in their area.” In addition, the project has hired immigration lawyer Krsna Avila ’17, a former clinic student, as a full-time attorney based in the Bay Area.
“This project teaches valuable legal skills to law students while also addressing a real need for a deserving and underserved population,” says Yale-Loehr. “In that sense it fulfills Cornell Law School’s mission of creating ‘lawyers in the best sense.’”
For more information about Path2Papers, visit path2papers.org.
aclyn Kelley-Widmer (left) and Steve Yale-Loehr are two of the leaders of the new Path2Papers initiative.
Professors Jaclyn Kelley-Widmer and Stephen Yale-Loehr have secured a $1.5 million grant from Crankstart for their groundbreaking initiative, the Path2Papers project. Housed at Cornell Law School, this new nonprofit venture helps DACA recipients in the San Francisco Bay Area pursue work visas and other pathways to legal permanent residency. Cornell DACA recipients can also receive consults through this project.
Since its inception by the Obama administration in 2012, the Deferred Action for Childhood Arrivals (DACA) program has allowed an estimated 600,000 undocumented young migrants who arrived in the United States as children to obtain the right to work and temporary protection from deportation. However, with Congress’s failure to find a legislative solution and legal challenges entangling the program in federal courts, uncertainty looms over DACA’s future.
Path2Papers is one of the only programs in the country that combines experience in employer representation with expertise in evaluating employment-based immigration options for DACA recipients. Coordinated by Kelley-Widmer, Yale-Loehr, and several others, including Dan Berger ’96, an immigration lawyer and nonresident academic fellow at the Law School, the project aims to facilitate the transition of up to 40 percent of the approximately 12,000 Bay Area DACA recipients to alternative lawful immigration statuses. By doing so, it seeks to ensure that even if Congress or the courts terminate DACA, many recipients in the Bay Area can continue to reside legally in the United States, unlocking their full potential.
Path2Papers will employ a multifaceted approach to achieve its objectives. This includes providing personalized legal consultations to DACA recipients, training students and professionals in immigration law, hosting legal information sessions, offering referrals to legal service providers and pro bono attorneys, conducting training sessions for attorneys on handling DACA-related issues, and educating employers about visa options for their DACA employees.
Over the two-year grant period, Path2Papers will establish a robust infrastructure to deliver comprehensive legal assistance to Bay Area DACA recipients. During the first stage of this process, Kelley-Widmer is shifting the focus of her longstanding 1L Immigration Law and Advocacy Clinic to the Path2Papers project. “I’m excited to have the opportunity to build proactive support for DACA recipients through this cutting-edge model while integrating clinical students into the work,” Kelley-Widmer says. “And already, other organizations around the country have reached out about how to replicate this project in their area.” In addition, the project has hired immigration lawyer Krsna Avila ’17, a former clinic student, as a full-time attorney based in the Bay Area.
“This project teaches valuable legal skills to law students while also addressing a real need for a deserving and underserved population,” says Yale-Loehr. “In that sense it fulfills Cornell Law School’s mission of creating ‘lawyers in the best sense.’”
For more information about Path2Papers, visit path2papers.org.
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Congrats to all involved at Cornell Law and appreciation to Professor Steve Yale-Loehr for alerting me to this wonderful initiative. This appears to be an approach that could be replicated elsewhere.
We are looking to connect with immigration attorneys who have clients who crossed the border in recent years and have sought asylum in immigration court.
Specifically, we are looking to talk to asylum-seekers who have waited years/months for their cases to be heard in immigration court and are STILL waiting for a final decision.
Please comment or send me a message if you have a client who would be interested in speaking with us.
. . . To tell Hamed Aleaziz at The NYT the truth about the “under the radar” mess at EOIR that is systemically treating those with valid claims and sound defenses unfairly and threatens, with its unrelenting disorder and “deterrence bias,” to destabilize the entire U.S. Justice System! Public Domain
The (largely avoidable), backlog building, due-process-denying mess at Garland’s EOIR is one of the “unsung drivers” of bad immigration policies and myths about migrants, particularly asylum seekers.
To the extent that this glaring problem is covered at all by the so-called “mainstream media,” it’s usually superficial: reference to the 3.5 million case backlog, long delays, and the need for more Immigraton Judges and court personnel.
Here’s your chance to correct that “cosmetic coverage” by giving Hamed input on the overall unfairness, unnecessary inefficiencies, “user-unfriendliness,” and grotesque lack of overall legal expertise, consistency, and common sense in this broken system! It has improperly become a tool of “deterrence” in behalf of DHS Enforcement and has lost sight of its only proper role of insuring Constitutionally-required due process and fundamental fairness for individuals comingbefore the Immigration Courts!
Professor Erin Barbato Director, Immigrant Justice Clinic UW Law Photo source: UW LawSara McKinnon Professor, U.W. Madison Sara L. McKinnon is Professor of Rhetoric, Politics & Culture in the Department of Communication Arts, and Faculty Director of Latin American, Caribbean, and Iberian Studies. She is co-chair of the Human Rights Program PHOTO: U.WJorge Osorio Director, Global Health Institute Jorge Osorio, DVM, Ph.D., M.S., is a professor in the Department of Pathobiological Sciences in the School of Veterinary Medicine. Osorio has had a lengthy career in medical sciences, including virology, field epidemiological studies, vaccinology,… PHOTO: U.W.
A policy and research collective of the University of Wisconsin-Madison focused on assessing migration policy and developing ways to reduce risk and harm to make movement and residence safer for migrants throughout the Western Hemisphere. We approach this goal from a range of methodologies and perspectives, and share our work in a range of formats including research reports, policy documents, field briefings, narratives and stories, videos, and audio recordings or podcasts. We hope you find our research and information to be helpful in your own work.
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Get more information on this amazing initiative at the above link.
Also, here’s a link to a video of the recent UW Global Health Symposium, where Sara and Erin explain their truly amazing work in detail (starting at about 1:22 of the video):
I am also proud that my U.W. Law ’73 classmate retired Judge Tom Lister and I will be Erin’s guests at a public luncheon presentation at the U.W. Law School tomorrow (April 23, 12pm-1pm, ) where will will discuss, among other topics related to justice, our concept for “Judges Without Borders.” This innovative idea ties in well and supports the objectives of the Migration In The Americas project of analyzing and providing accurate, unbiased information about the situations of migrants before they reach our border utilizing the huge potential of retired State and Federal judges.
We hope you will join us if you are in the Madison area! (The room assignment was “pending” when the flyer went to press, so you should call the Clinic or ask at the Law School on arrival for the latest).
Hon. Thomas Lister Retired Jackson County (WI) Circuit Judge
You can read more about “Judges Without Borders” here:
An increasing number of migrants attempt to cross the US Southwest border without obtaining a visa or any other prior authorization. 2.5 million migrants did so in 2023. In recent years, responding to this influx, US officials have expanded lawful channels for a limited number of these migrants to cross the border, but only at official ports of entry. These expanded lawful channels were intended to divert migrants away from crossing between ports of entry, by foot or across rivers, thereby reducing unlawful crossings. On the other hand, some have argued that expanding lawful entry would encourage more migrants to cross unlawfully. This study seeks to shed light on that debate by assessing the net effect of lawful channels on unlawful crossings. It considers almost 11 million migrants (men, women, and children) encountered at the border crossing the border without prior permission or authorization. Using statistical methods designed to distinguish causation from simple correlation, it finds that a policy of expanding lawful channels to cross the border by 10 percent in a given month causes a net reduction of about 3 percent in unlawful crossings several months later. Fluctuations in the constraints on lawful crossings can explain roughly 9 percent of the month-to-month variation in unlawful crossings. The data thus suggest that policies expanding access to lawful crossing can serve as a partial but substantial deterrent to unlawful crossing and that expanding access can serve as an important tool for more secure and regulated borders.
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Read the complete report at the above link.
A comprehensive program combining better refugee and asylum processing with more legal pathways for migration that would reward application and processing abroad would improve the situation at the border. Certainly, it would be a much more prudent and effective investment for our Government than simply pouring more money into “proven to fail” militarization, detention, and restrictions on legal asylum.
The Immigration Clinic Wins Two Asylum Cases in One Day
15APR 2024
Last week, the Immigration Clinic secured two asylum victories in one day for our Afghan allies. These cases spanned two academic years, but both cases were granted by the Arlington Asylum Office on the same day.
In August of 2021, thousands of people went to Hamid Karzai International Airport in Kabul, Afghanistan to flee the Taliban. Among those thousands of people were Ms. S*, daughter of an Afghan government official, and Mr. K*, an Afghan attorney, and his wife Mrs. K*. Luckily, they all managed to get on a plane out of Kabul and were evacuated to the United States. When they were resettled to Hampton Roads, Ms. S, Mr. K, and Mrs. K all reached out to the Immigration Clinic for assistance in their cases.
During the 2022-23 Academic Year, Melissa Box J.D. ’23 worked with Mr. and Mrs. K on their asylum cases. Then during the 2023-24 Academic Year, Sarah Nagle, J.D. ’24 worked with Ms. S on her asylum case.
Below, we share the stories behind these lifechanging victories.
Mr. K and Melissa Box, J.D. ‘23
In Fall 2022, Melissa Box, J.D. ’23, was assigned to work on Mr. and Mrs. K’s asylum case.
Melissa was first assigned to write Mr. K’s affidavit for his asylum case. Asylum affidavits require several interviews and meticulous detail about a client’s case. While an asylum applicant’s testimony can, in theory, be enough to prove their case, the written and oral testimony must be consistent and credible. In order to capture the level of detail necessary for his case, as well as accurately prepare an affidavit in his voice, Melissa worked with Clinic Director Professor Stacy Kern-Scheerer to interview Mr. K. Across many interviews over the course of many months, Melissa learned about Mr. K’s career as an attorney, his passion for his work, and the danger he faced because of it.
Through their interviews, Mr. K and Melissa built a deep and lasting rapport. “I was lucky to have the time to make sure I fully understood Mr. K’s life’s story and gain his trust,” Melissa shared before her graduation last year. “I know Mr. K better than some law students I’ve spent years in class with. I know his mannerisms and was able to advocate for him. It really meant a lot when my client told Professor Kern-Scheerer and me that he thought I knew him better than he knew himself.”
After writing Mr. K’s affidavit, Melissa researched conditions in Afghanistan relevant to Mr. K’s case, including the treatment of attorneys and former government employees in Afghanistan. Melissa worked with Clinic Professor Nicole Medved on finding and preparing the country conditions evidence that would best support Mr. K’s asylum claim. This research was critical to contextualizing Mr. K’s fear of returning to Afghanistan.
After the Clinic submitted Mr. K’s asylum case in March 2023, USCIS quickly scheduled Mr. K and his wife for an asylum interview in April 2023, during the last week of classes of the semester. Clinic Director Professor Kern-Scheerer and Melissa prepared Mr. and Mrs. K for what to expect at the interview, and Melissa prepared her closing argument to present to the Asylum Officer for why Mr. and Mrs. K merit a grant of asylum.
Melissa Box, J.D. ’23 (left) and Professor Kern-Scheerer (right) at the Arlington Asylum Office for Mr. and Mrs. K’s Asylum interview (Spring 2023).
During the last week of class, Professor Kern-Scheerer and Melissa accompanied Mr. and Mrs. K to their asylum interview. After a roughly 3-hour hour interview, Melissa delivered her closing argument to the officer. After the interview had finished, there was nothing left to do but wait for a decision on the case.
Ms. S and Sarah Nagle, J.D. ‘24
Ms. S and her family also reached out to the Immigration Clinic for assistance in their asylum case. Ordinarily, children can be included on their parents’ asylum applications so that if the parent wins asylum, the child wins as well. However, Ms. S was too old to be included in her father’s case. Instead, she would have to meet the high burden of asylum all on her own.
This fall, Sarah Nagle, J.D. Class of 2024, was assigned to work on Ms. S’s asylum case. Sarah’s first task was to write Ms. S’s affidavit. Asylum affidavits are a critical piece of evidence because an asylum applicant’s testimony alone can be sufficient to prove their case. Since interviews with Ms. S about her story had already been completed, Sarah worked with Professor Kern-Scheerer to best capture Ms. S’s voice in her affidavit. “Sarah faced a unique challenge in writing Ms. S’s affidavit,” said Professor Kern-Scheerer. “Her assignment was to capture Ms. S’s personality and convey her fears without having heard her tell the story herself. This also underscored the importance of prior students having kept meticulous notes from previous interviews and discussions. Sarah met this challenge with thoughtful persistence, and wrote an excellent affidavit for Ms. S. ”
“Working on an affidavit was unlike any legal writing I had ever done before,” said Sarah. “Focusing on what was important to Ms. S—family, peace, and a willingness to stand by her convictions—helped anchor me in her perspective. Even though every word of the affidavit was based on her own words, I had doubts about my success until I reviewed the affidavit with her and received a smile, firm nod, and assertive ‘yes’ that I had captured what she wanted to convey. Being entrusted with helping tell someone else’s story was a great honor and fantastic learning experience.”
After completing Ms. S’s affidavit, Sarah next turned to researching conditions in Afghanistan relevant to Ms. S’s case. While it is easier to find evidence about the Taliban’s brutality against former government officials or former members of the military, finding evidence of the Taliban’s violence against their family members is not as simple. Sarah worked with Clinic Professor Nicole Medved next on finding and preparing the country conditions evidence that would best support Ms. S’s claims. This evidence played a critical role in contextualizing Ms. S’s fears of returning to Afghanistan.
In November 2023, after finishing all of the forms, affidavit, and evidence gathering, the Clinic submitted Ms. S’s asylum application to USCIS.
To everyone’s surprise, Ms. S was scheduled for an asylum interview just three weeks later. Sarah and Professor Medved worked closely with Ms. S to prepare her for what to expect at the asylum interview. Sarah also prepared her closing argument for Ms. S, demonstrating how Ms. S’s affidavit and country conditions evidence all prove that Ms. S merits a grant of asylum.
Sarah Nagle, J.D. ’24, reviewing Ms. S’s case prior to her Asylum Interview (Fall 2023).
In December, Professor Medved and Sarah Nagle accompanied Ms. S to her asylum interview in Arlington, Virginia. After Ms. S’s two-hour interview, Sarah delivered her closing argument to the officer.
“Actually getting to speak during a legal proceeding, instead of just observing, was incredible,” said Sarah. “It was really empowering to be trusted with such an important moment in someone’s life, and also reassuring to have Professor Medved right there in the interview with me after having helped me prepare and rehearse the statement!”
After Sarah’s closing argument, all that was left to do was wait. Despite requirements from Congress that her case should be decided quickly, the Clinic’s experience showed that Ms. S would likely wait many more months—or even years—before hearing a decision on her case.
Last week, the Clinic received notice that Ms. S’s asylum case was approved. Ms. S’s case marks the fastest decision ever received on any asylum case the Clinic has submitted.
Then, just hours later, the Clinic received notice that Mr. K’s asylum case was also approved, nearly one year after his asylum interview. With Mr. K’s case approved, his wife Mrs. K was also automatically granted asylum.
Now that their asylum cases have been granted, Ms. S, Mr. K, and Mrs. K can all live in the United States without fear of being forced to return to Afghanistan. They will be eligible to receive lawful permanent residency (their “green cards”) in one year, and eligible to apply for citizenship five years after that.
“My experience at the William and Mary Immigration Clinic was so meaningful,” said Melissa. “I know that I actually had a positive impact on my clients’ lives. It makes me smile when I think of Mr. K calling me his ‘Big Little Sister’ (because I’m taller than him but younger than him). I know my time and work was valued by Mr. and Ms. K.”
“Hearing that my client’s asylum case had been approved was the most incredible, and surreal, experience,” said Sarah. “Because students work in the Clinic for at most two semesters and USCIS usually operates on a timeline far longer than that, I’d gotten very used to the idea that I wouldn’t see the results of my work during my time in the Clinic. But because of the unusually quick turnaround for this asylum case, I got to share the news with Ms. S in an email that contained a lot more enthusiasm than is usually warranted in a legal context. It was a wonderful way to close out my time with this client.”
“We could not be happier for Mr. K, Mrs. K, and Ms. S or prouder of the Clinic students who worked tirelessly to prepare their asylum cases,” said Professor Kern-Scheerer. “Sarah’s and Melissa’s work, and the strong relationships that they built with the clients through their time in the Clinic, is emblematic of the incredible work that our Clinic students do here every day. In this busy season as we wrap up the end of this academic year, we’re grateful for the opportunity to pause and celebrate these lifechanging outcomes.”
Victories like these are made possible by the Clinic’s generous supporters. You can make wins like this a reality for more immigrants in Hampton Roads by donating to the Immigration Clinic.
The Clinic cannot guarantee any particular results for any particular individual or particular case. While the Clinic celebrates our victories, we recognize that each case is unique. Every noncitizen should consult with a licensed attorney about their case if they are concerned about their situation or are interested in applying for any form of immigration relief. The Clinic cannot promise any particular outcome or any timeframe to any client or potential client.
*All client names and initials have been changed for confidentiality and security
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Many congrats to all involved in more great, life-saving work from the Clinic. Once again, representation, scholarship, and exceptional preparation win the day and help the system improve efficiency and deliver justice!
My only question is why hasn’t the Government issued “positive precedent” cases dealing with repetitive situations like this?
Last Tuesday, in an interview with Univision’s Enrique Acevedo, President Joe Biden again said he’s considering issuing an executive order to ban asylum at the border. It’s an idea that Biden has floated before as the presidential election season slogs on, and after the bipartisan border bill meltdown in Congress. “We’re examining whether or not I have that power. Some are suggesting that I should just go ahead and try it,” Biden told Acevedo. “And if I get shut down by the court, I get shut down by the court.”
If Biden were to do such a thing, he would rely on Section 212 (f) of the Immigration and Nationality Act (INA), which gives a president the authority to suspend entry or place restrictions on noncitizens.
If this sounds familiar, it’s because Trump tried this several times during his presidency, most notably with the xenophobic Muslim ban. None of them were successful, and they only injected more chaos into an already beleaguered immigration system. So why is Biden proposing this idea now? The Border Chronicle spoke with immigration expert Aaron Reichlin-Melnick, policy director at the American Immigration Council, about Biden’s proposal and what an asylum ban would mean for asylum seekers and border communities.
Biden is floating the idea of issuing an asylum ban. How will this impact people seeking asylum at the border? And can the president actually, you know, just shut down the border?
So I’ll start with the second question. The answer is no. Though there are some authorities that get you somewhere close to it, like Title 42. But it’s important to understand the distinction between the legalistic aspect of issuing an order that further bans crossing the border and actually, effectively shutting down the border.
The best example of issuing an order that I would point to is President Trump’s 212 restriction from November 2018, through February 2021, which suspended the entry of all migrants crossing the border illegally. So we already know what it looks like when a president invokes Section 212 (f) of the INA to suspend the entry of migrants. What it looks like is nothing, because nothing happened. And that is because it is already a violation of immigration law to cross the border without inspection. And so adding another reason, you know why that’s not allowed, doesn’t have any practical impact on people who simply walk across the border or wade through the river or climb over a wall. Because the important question is not whether a person is committing an unlawful act by crossing. The important question is, what can the U.S. government do to respond once a person is on U.S. soil? This is why Section 212 (f) is not a good tool for addressing irregular migration.
The other question is, how does that affect people seeking asylum? Well, not very much. We saw this with the Trump administration, in order to carry out their 212 ban. They had to do two things: They had to issue the proclamation suspending the entry of migrants. And then separately, they passed a regulation saying, we are going to ban asylum to anyone who crosses the border in violation of the proclamation. And it’s that regulation that got struck down as unlawful with a court in California, and then the Ninth Circuit saying and affirming that what that amounted to was a total ban on asylum for people who enter the country illegally, which is simply not permissible, because the INA says people, no matter how they arrive in the United States, may apply for asylum.
Photo courtesy of Aaron Reichlin-Melnick
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I think people often forget about this, right? I mean, the law says that you can arrive anywhere at the border and ask for asylum.
You can arrive anywhere, and you can have any status. You can be documented, undocumented, you can enter legally or illegally. The key issue is whether or not you are physically present in the United States. And in that case, then they are allowed to apply for asylum. Now, the Biden administration has imposed an asylum restriction that does target people primarily by how they enter the United States. It is currently on appeal at the Ninth Circuit, and the legality of it is not entirely clear. This is the circumvention of lawful pathways rule from last May. The Biden administration basically argued that it wasn’t a total ban on asylum, because it wasn’t technically based on the manner of entry, so it didn’t violate the INA. I think that was a weak argument, though.
If Biden were to implement the ban, would it impact legal migration?
Probably not at all. This would be a restriction, like the Trump restriction, that would apply only to migrants who cross the border between ports of entry, not those who go to ports of entry. So it would probably have no impact at all on legal migration. The crucial thing to understand is that, as a practical matter, even if they do manage to get an asylum restriction in place, which passes court muster, actually carrying out that restriction on migrants at the border is a very different story. And as we are seeing today, with the circumvention-of-lawful-pathways rule, even if you have banned asylum to nearly everybody crossing the border illegally, that does not actually mean that nearly everyone who crosses the border illegally is restricted from seeking asylum.
What impact could the asylum ban have on border communities? Do you think we’d see a buildup of people on the Mexican side and in camps just sort of waiting and trying to figure out what to do?
Anytime a new policy goes into effect, there’s a wait-and-see period. The Biden administration is already maximizing credible fear interviews. So it wouldn’t have a major change on how people are processed at the border. Other than that, the few 15 percent who were even put through credible fear, they would get denied. But even then, not all of them would get denied because, crucially, an asylum ban is discretionary. It’s just an asylum ban, and there’s more to humanitarian protection than just asylum that migrants can potentially invoke to avoid rapid removal or deportation proceedings. There’s withholding of removal, which is a form of asylum that’s harder to win and offers fewer benefits. And there’s protection under the Convention against Torture. So even today, people who are not eligible for asylum are still managing to pass their fear screenings because they could demonstrate eligibility for withholding or eligibility for protection under the Convention against Torture.
So, realistically speaking, having this asylum ban applied to 100 percent could mean only a few hundred people more a month being ordered removed. Not a huge shift. But for those people, obviously a very, very dramatic change. The question then is, how does the Biden administration talk about this? Does the ban discourage some people from showing up? You know if they falsely believe that this is a major shift? And, of course, how does Mexico respond?
These are the questions that are more important, because with Section 212 (f), I don’t see a way for the president to re-create something like Title 42, where people are simply expelled back across the border without being able to seek asylum. Even the Trump administration acknowledged that that’s not something that they could do with Section 212 (f).
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What strategy do you think Biden’s using here by floating this idea? Is it purely for political reasons? Because it’s an election year?
I don’t know. I think there’s a reason that they haven’t done anything yet. And that reason is likely to do with the fact that the lawyers have probably explained to Biden what happened when Trump tried and how unsuccessful that was.
Has the narrative around immigration and the border become so removed from reality that it’s just not helpful at this point?
Yes, I do think so. People want an easy solution, you know, build the wall, what have you, and are not acknowledging that this is an issue that the United States has been facing for, in its modern form, for 15 years. If you go back further, 100 years, really, ever since we first made it illegal to cross the border, we’ve been dealing with the challenges of how do you enforce that law? If you go back to the late 19th century, when Congress passed the Chinese Exclusion Act, the United States created a Bureau of Immigration where they had an entire division whose job it was to try to stop Chinese people coming in from Mexico and Canada. And then, in the early 20th century, the biggest issue at the southern border was Mexican migrants crossing the border without permission. We have a nearly 2,000-mile land border on the south and a 3,000-mile land border on the north. That is a lot of territory to patrol even in a modern world with technology. And the United States has been through a period of high migration for 40 out of the last 50 years. For 40 years it was Mexicans, not entirely, of course, and there were Central Americans during the death squad years of the 1980s, who came to the United States for safety.
But the real shift that’s happened in the last three years has been people from further abroad. And it is just a challenging issue in a world that is more interconnected and hypermobile than at any point in human history. And we have to acknowledge that complexity when we talk about how to address this issue.
I think when people are talking about, you know, just shutting down the border, they forget about the billions in trade and citizens from both sides who are crossing the border every day.
Right, exactly. Oftentimes, people don’t even think about that, you know, most people don’t know that about the half a million people who enter the United States every single day at the southern border. That’s at least 16 million entries a month. And that’s people legally crossing back and forth for school, for work, for commerce, or tourism. So when people say, “Let’s shut down the border,” they mean to migrants, but they’re not thinking about the rest of it. And you have to go back to this question of, is that something the United States can do or wants to do? Let’s say you build a Berlin Wall with, you know, gun towers, and Trump’s moat filled with alligators and shoot migrants in the legs. That probably would deter some people. But then are you a country that is murdering people for trying to seek a better life? Do we want to be that kind of country?
So here’s a really tough question. Do you have any solutions?
An overwhelming majority of people who would like to come to the United States have no legal pathway to do so. Alternate pathway strategies are key. This puts a focus on those who haven’t yet made the decision to leave. I think it’s important to put that in that framework. Because once people have already left, they have sold their house, they’ve abandoned the lease, they, you know, liquidated a lot of their savings, they may have sent a child to a parent or an aunt or uncle. All of which means, at that point, that simply going back becomes much harder.
We also have to address the root causes for why people leave their home countries, which is the hardest to do, of course. This would require the United States to reckon with its own record of foreign policy in Latin America, which is something a lot of politicians do not want to do. Alternate pathways are a good middle ground there, because you can give people an opportunity to come to the United States temporarily and legally without breaking any laws, starving the smugglers of resources. And making it easier for people to get here without falling into the hands of bad actors.
Once people are at the border, though, it’s a different story. There have to be better options for people to cross legally at ports of entry. People still need the opportunity to seek asylum. But there should also be an enforcement component for people who don’t fall within our asylum laws. Right now, the issue is that the system can’t easily distinguish at the border between those who have slam dunk asylum claims from those who just want to come here for a better life. And that is because for years Congress has failed to provide enough resources to the asylum system, humanitarian protection, systems screening—all of that is grievously underfunded and has been for decades.
Given the scale of migration we see today, the system has buckled under its own weight. So, we have to build the system back up and allow it to function. And that means delivering a yes in a reasonable time and delivering a no in a reasonable time regarding asylum claims. You know, it shouldn’t take seven years.
And it’s important to keep reminding people that these issues didn’t just start in 2020 with the Biden administration.
This is not a new issue. And it’s one that requires us to think outside of a partisan lens. This is about U.S. government capacity, the underlying legal structures, and U.S. foreign policy across the region, which has gone on for generations. The underlying legal authorities haven’t changed in decades. And the external circumstances have changed dramatically.
The ability of migrants to get to the border is easier than it has ever been. Flights are cheaper, and people have cell phones and Google Translate. In the past, if you wanted to get to the border, you would need to speak some Spanish, you would need to know someone. Now you can find all the information online. You can find it circulating on WhatsApp, Telegram or TikTok. And once you’re in a foreign country, you know, if you’re an African migrant who speaks French when you come through Mexico, you can use Google Translate to talk to other migrants and find out what they know. And so moving and migrating across the world is easier now than it has ever been. And that’s not necessarily a genie that we can put back in the bottle. And I think people need to acknowledge that and start thinking more broadly about what that means for the modern world.
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Undoubtedly, as noted in this interview, “the narrative around immigration and the border [has] become so removed from reality that it’s just not helpful at this point.”
The nativist GOP doesn’t want to acknowledge the reality of immigration, including by refugees and asylees, its inevitability, and its proven long-term benefits to America.
By contrast, Dems are afraid of the reality of immigration and too politically timid to stand up for the right to apply for asylum.
What both parties have in common is that they are perfectly willing to accept the benefits of immigration of all types — after all, this is a nation of immigrants — while denying the very humanity and the legal and human rights of those courageous and talented individual immigrants, of all types and statuses, who have built our nation and continue to do so. 🤯🤮👎🏽
“Do you support American taxpayer dollars being used to fly illegal immigrants from countries like Venezuela and Haiti into America to be settled in cities and towns near you? If so, then vote against me. Vote no to preserve this practice of using taxpayer dollars to charter planes that move and import thousands of illegal aliens into your states.”
— Sen. Bill Hagerty (R-Tenn.), in a speech on the Senate floor, March 23
“Have you had to cancel or rethink any upcoming summer trips because of high prices? Don’t worry — your taxpayer dollars will be used to pay for illegal immigrants to fly into a town near you.”
— Rep. Mark Green (R-Tenn.), chair of the House Homeland Security Committee, in a post on X, April 2
Two lawmakers from Tennessee have issued misleading statements about a Biden administration program that permitted an increased use of a process known as humanitarian parole for migrants from Cuba, Haiti, Nicaragua and Venezuela. Hagerty offered an amendment to a spending bill — defeated in a party-line vote — that he said would prevent taxpayer dollars from being used to fly in migrants. Green, on X, posted a Fox News article — headlined “All Senate Dems vote against barring taxpayer funds to fly illegal migrants to US towns” — and made a similar claim.
Under the Biden program, people from these countries who try to cross the border without the proper paperwork are ineligible for parole and subject to expulsion. Instead, before arriving, they must receive authorization to travel to the United States and a statement of financial support from a sponsor.
As of the end of February, the Department of Homeland Security says, more than 386,000 people from those countries had arrived lawfully in the United States and another 19,000 were vetted and authorized to travel. In other words, they are not in the country illegally, despite the rhetoric in the statements.
And beyond the question of whether these immigrants are “illegal,” if you listen to Hagerty and Green, U.S. taxpayers are footing the bill for their travel. That’s wrong.
. . . .
Four Pinocchios Source: WashPost
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Get all the relevant facts in the complete report at the link!
Dems appear “chronically afraid of touting success” when it comes to immigration. These programs show that with leadership, creativity, and coordination, robust, realistic legal immigration programs will garner public support, be cost effective (particularly when compared with expensive, wasteful, ineffective, cruel “detention and deterrence”), take pressure off the border, and maximize America’s ability to capitalize and maximize the benefits of human migration.
Despite the GOP’s disingenuous denial, human migration, including forced migration, is a reality! The countries that eschew “GOP-style” fear-mongering, xenophobia, and nativism to work with and manage human migration in an orderly, fair manner will own the future.
Angel of Death Artist: Evelyn De Morgan 1880 Public Realm The Angel of Death (“AOD”) comes for another asylum seeker at the border. American border policies have needlessly and heedlessly created “full employment” for the AOD!
Arelis R. Hernandez, Mariana Dias, Danielle Volpe report from Eagle Pass, TX for WashPost:
“If they’ve been in the water awhile, their skin gets pruned and webby and starts to peel off. Their eyes, nose and mouth get swollen,” [Sgt. Aaron] Horta said with a far-off look in his eyes. “For a while, I couldn’t sleep.”
By the end of 2022, Horta had recorded 225 deaths. He said it bothers him when no one claims a body, so he tries to do what he can. This past Thanksgiving, 11-year-old Cristal Tercero Medrano of Nicaragua drowned while wearing a bright-yellow Tweety Bird sweater. Horta worked with Border Patrol agents to identify her. Not long after, they found the girl’s family. Relatives sent in a photo of Cristal wearing the same yellow sweater.
“I get mad, as the father of a little girl,” Horta said. “There should be a process that isn’t the river. It gets to me, but I have to be a professional.”
. . . .
As she swiped through the images in her photo album, she landed on one of a boy in his late teens who had been in the river so long that the current had wiped the features of his face away. In another, the braces inside the mouth of a sun-scorched child were still visible. Behind [Justice of the Peace Jeannie] Smith were rows of folders detailing each death.
“River. River. Ranch. Ranch,” she said as she thumbed through the files. “John Doe. Jane Doe. John Doe. Fetus, the mother gave birth at the river, but the baby didn’t survive. They come from everywhere. I say a little prayer for each one.”
. . . .
“There’s no dignity in this,” [forensic scientist Kate]Spradley said. “But this is what our state deems acceptable.”
. . . .
As for the total fiction that immoral politicos dishonestly present (and the “mainstream media” too often mindlessly and uncritically repeats) that “deterrence — even by death” will stop forced migrants from seeking legal refuge:
[Evelin Gabriella] Gue [of Guatemala] said she and her relatives are still struggling with denial and hoping that the body Texas officials found was not her mother. They want her home, if for nothing more than to be absolutely sure it is her as they grieve. Consular officials have confirmed to the family that it is her body, though they have not submitted DNA for further verification.
Cú Chub’s family is still in debt. To pay off the loan they took out for her to migrate, they may soon make the same journey that cost them their matriarch.
So much for the deadly, irresponsible “bipartisan BS” spouted by politicos who have lost their humanity and their sense of decency!
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Everyone should read the stomach-churning complete report at the link.
It has lots of dramatic color photography, so folks can get “face to face” with this preventable human carnage. These are the truths and consequences that should — but aren’t —being heard and heeded as border enforcement is discussed.
For the same amount, or likely much less, that governments at all levels are squandering on uncoordinated “proven to fail, illegal, gonzo enforcement and false deterrence,” that enriches cartels and human smugglers while killing legitimate refugees and harming our national psyche, the U.S. could build a first-class, timely, legally compliant, processing and resettlement system for forced migrants here and abroad that would reduce unnecessary border tragedies while capitalizing on the positive power of migration in today’s world.
Due Process is a true team effort! PHOTO: Tahirih Justice Center
Maria Daniella Prieshoff writes on LinkedIn:
Maria Daniella Prieshoff Managing Attorney Tahirih Justice Center Baltimore, MD PHOTO: Tahirih
Want to level up your #advocacy skills for your #genderbased #asylum cases in #immigrationcourt?Want to learn from a real immigration judge the basics of presenting your case before the immigration court?Then join me for Tahirih Justice Center’s”Advancing Justice: Gender-Based Violence Asylum Litigation in Immigration Court” webinar series!
Part 1 of the series is on April 23, 12-1:30pm. It will focus on the case law and strategy you’ll need to present your best gender-based asylum case, including how to handle credibility, competency, and stipulations.Monica Mananzan from CAIR Coalition will join me in this webinar. To register for Part 1: http://bit.ly/3xvwPyt
Honorable Lisa Dornell U.S. Immigration Judge (Retired) Member, Round Table of Former Immigration Judges
Part 2 of the series is on April 25, 12-1:30pm. Retired Immigration Judge Lisa Dornell will explain the best practices of litigating gender-based asylum cases before an immigration judge, as well as recommendations for direct examination, cross-examination, and how to handle issues with a client’s memory, trauma, or court interpretation.To register for Part 2: https://bit.ly/3PXJqRn
Please share with your networks!Our goal for this webinar series is to help pro bono attorneys and advocates enhance their the advocacy for #genderbasedviolence to have #immigrationjustice – we’d love for you to join us!
Wonderful learning opportunity! Many thanks to everyone involved in putting it together!
Litigating gender-based asylum cases can still be an “ordeal” at EOIR, despite some decent precedents. Learn how to avoid this fate for your clients! 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Wonder whatever happened to the “gender-based regulations” that Biden ordered to be drafted by Executive Order issued shortly after taking office? At this point, given his “lobotomized/running scared/retrograde/Trumpy Lite” position on asylum seekers and immigrants’ rights, probably just as well that they died an unheralded bureaucratic death (just as similar assignments have in the last three Dem Administrations over a quarter century).
Outside of a few Immigration Judges, who, because they understand the issue and have worked with asylum-seeking women, would never be asked anyway, I can’t really think of anyone at DOJ who would actually be qualified to draft legally-compliant gender-based regulations!
GOP are misogynists. Dem politicos are spineless and can’t “connect the dots” between their deadly, tone-deaf policies and poor adjudicative practices aimed at women of color in the asylum system and other racist and misogynistic polities being pushed aggressively by the far right! While, thankfully, it might not “be 1864” in the Dem Party, sadly, inexplicably, and quote contrary to what Biden and Harris claim these days, it’s not 2024 either, particularly for those caught up in their deadly, broken, and indolently run immigration, asylum, and border enforcement systems!
While most of the debate over immigration focuses on the U.S.-Mexico border, one of President Joe Biden’s most effective policies so far has occurred elsewhere ― at airports.
For a little over a year, Biden has used what’s called “parole” authority to collectively allow up to 30,000 vetted Cubans, Haitians, Nicaraguans and Venezuelans per month into the country, mostly via air travel, for a temporary two-year window.
The program is based on the authority held by the federal government under the 1952 Immigration and Nationality Act to grant temporary admission to foreigners on a “on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” And, the Biden administration touts, it has been accompanied by drops in the number of nationals from each of these countries who’ve crossed the U.S.-Mexico border on foot.
But to hear some right-wingers talk about it, the “CHNV parole” program — the name an acronym for the nationalities it encompasses — is a secret, treasonous endeavor that utilizes government-funded charter flights to transport “illegal” migrants into the United States. None of that is true, but that doesn’t seem to be the point.
“I don’t know of anyone in Congress who knew this!” exclaimed Sen. Ted Cruz (R-Texas) on a podcast episode, just 14 months after Biden himself announced the CHNV parole program during a public press briefing and despite regular publications of data on the program by the Department of Homeland Security.
The false accusations of secret taxpayer-funded charter flights ferrying unvetted migrants to new lives in the United States plays into Republican attempts to cast immigration issues as a major crisis — and one on which Democrats are failing — ahead of the 2024 election.
. . . .
The precedent to the CHNV parole program was introduced in October 2022, when the Department of Homeland Security created a parole program for Venezuelans that was modeled on the Ukrainian program, requiring applicants to have a U.S.-based sponsor who’s financially able to support them and to pass vetting and background checks. In January 2023, the White House announced the program would expand to include Cuba, Haiti and Nicaragua.
Individuals from those four counties who meet the requirements and haven’t attempted to cross the U.S.-Mexico border between ports of entry are allowed to fly from their home countries into the United States rather than appearing in person at land border crossings.
Since January 2023, more than “386,000 Cubans, Haitians, Nicaraguans, and Venezuelans arrived lawfully and were granted parole under the parole processes,” U.S. Customs and Border Protection wrote in a February 2024 update.
“There’s no doubt that the CHNV program is by far the largest-scale parole program that any administration has done in decades,” said Aaron Reichlin-Melnick, policy director at the American Immigration Council, a research and legal advocacy organization.
And data supports the administration’s claim that the parole program, as part of a larger package, has helped discourage “irregular” migration.
As the Cato Institute reported in September, illegal entries by Venezuelans fell 66% from September 2022 to July 2023 and from December 2022 to July 2023, illegal entries fell 77% for Haitians, 98% for Cubans and 99% for Nicaraguans. Compared with peaks in CHNV numbers in 2021 and 2022, the report added, July 2023 arrests for those four nationalities were down 90%.
“There has not been a single month where unlawful entries of the four countries combined has been above the level it was in December 2022,” Reichlin-Melnick said.
The White House announced the policy as part of a package explicitly meant to “increase security at the border and reduce the number of individuals crossing unlawfully between ports of entry.” The Biden administration grouped the program with others meant to encourage “legal pathways” into the United States ― such as increased refugee admissions and asylum opportunities in other countries ― and alongside harsher border enforcement for migrants who broke the rules.
Naree Ketudat, a spokesperson for the Department of Homeland Security, told HuffPost in a statement that the CHNV parole process was part of a strategy to “combine expanded lawful pathways with stronger consequences to reduce irregular migration, and [has] kept hundreds of thousands of people from migrating irregularly.”
And yet many on the right have misrepresented ― or simply lied about ― what the parole program is, playing on anxieties about race and national identity to paint it as part of a supposed scheme by Democrats to overwhelm the country with new residents or somehow displace American citizens.
. . . .
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Read the complete article at the link.
Beyond the barrage of racially-driven GOP lies, Dems have failed to capitalize on the success of Biden’s efforts and its benefits to the U.S. economy. Significantly, rather than just “moaning and groaning” about the so-called “immigration problem,” the Biden Administration actually took innovative action to address the situation.
The GOP claim that the program is “secret” is a blatant lie! Yet, you would be hard pressed to find any recent examples of Biden, Harris, their campaign officials, or Dem politicos touting the success of the parole program or the critical role of immigration of all types in the continuing strong performance of the U.S. economy.
You would would be much more likely to come across disingenuous statements blaming the GOP for not giving Biden “authority” to close the border, violate human rights, inflict more needless cruelty, and otherwise dehumanize asylum seekers at the Southern Border. In this way, Dems unwisely are playing along with the GOP nativists and giving them “cover” for their lies.
I’ll admit to initially being somewhat skeptical about the parole program, mainly because it could be seen as deflecting attention from much needed reforms and revitalization of existing legal programs for the admission of refugees and asylees that had been intentionally “kneecapped” by the Trump Administration.
Of course, no “pilot program” like this — particularly one with nationality restrictions and somewhat arbitrary numerical limits — can solve overnight problems allowed to fester for years. Yet, the parole program has demonstrated important principles that should form the basis for more durable legislative reforms of our legal immigration system:
Given realistic options, most individuals would choose to be pre-screened and apply from abroad (i/o/w “If you build it, they will use it!”);
Private sponsorships can play a key role in the selection, welcoming, resettlement, and integration process for legal immigration;
Allowing immigrants to work immediately upon arrival — rather than forcing them into an overburdened and over-bureaucratized work authorization process — benefits everyone;
More robust legal immigration opportunities will reduce pressure on the border and keep cases out of the backlogged Immigration Courts.
Rather than being a “false bone of contention” in the “immigration debate,” innovations like the parole program should form an empirical basis for bipartisan legal immigration reform and expansion that will benefit our nation and those who seek to become part of it in the 21st Century.
Becky Wolozin Senior Attorney, National Center For Youth Law PHOTO:Linkedin
Becky Wolozin, Senior Attorney, National Center For Youth Law, posted on LinkedIn:
I feel so privileged to have been part of this, to do something a good thing for people in this cruel world. Immensely proud of the advocates, migrants, and colleagues who worked together to hold the government to account and protect immigrant children caught in the fray of politics and an uncaring immigration system. It is a professional dream come true to be a member of Flores Counsel with National Center for Youth Law!
“Let us do something, while we have the chance! It is not every day that we are needed. Not indeed that we personally are needed. Others would meet the case equally well, if not better. To all mankind they were addressed, those cries for help still ringing in our ears! But at this place, at this moment of time, all mankind is us, whether we like it or not. Let us make the most of it, before it is too late!” ~ Waiting for Godot, Samuel Beckett
Thanks, Becky, for your talent, dedication, and humanity, all of which stand in sharp contrast to border bureaucrats, DOJ Attorneys, and scofflaw nativists who have “weaponized” myths, dehumanization, dereliction of legal duties, and abdication of moral responsibility! This is a great example of the type of expertise and teamwork to get the job done that is all too seldom seen from the Administration, Congress, and the Judiciary in today’s toxic and too often fact- and morality-free immigration (non) debate! I’m glad that Judge Gee saw through the Garland DOJ’s pathetic attempt to evade legal responsibilities by making arguments that easily could’ be characterized as frivolous!
You can check it out yourself as quoted from the above NYT:
In response, lawyers for the Department of Justice argued that because the children had not yet been formally taken into custody by American customs officials, they were not obligated to provide such service. They did not dispute that the conditions in the encampments were poor.
Come on, man!👎🤯
Samuel Beckett’s “Waiting for Godot,” and “Theater of the Absurd,” perhaps surprisingly, have continuing relevance to today’s “off the rails” immigration “debate.” Naseer’s Motley Group in The Rose Bowl Merlaysamuel Creative Commons Attribution-Share Alike 3.0 Waiting for Godot in Doon School.jpg Copy [[File:Waiting for Godot in Doon School.jpg|Waiting_for_Godot_in_Doon_School]] Copy December 8, 2011I also loved the quote from “Waiting for Godot!” As Courtside readers may know, the “Theater of the Absurd,”Samuel Beckett, and “Waiting for Godot” have previously found their way into my postings about Garland’s incredibly lackadaisical approach to “justice @ Justice!” See, e.g., https://immigrationcourtside.com/2023/12/22/%e2%9a%96%ef%b8%8f-followng-scathing-report-on-abuse-of-kids-in-immigration-court-eoir-announces-some-reforms-rekha-sharma-crawford-reports/.
Michelle N. Mendez, ESQ Director of Legal Resources and Training National Immigration Project, National Lawyers Guild PHOTO: NIPNLG
Michelle posted on LinkedIn:
The human beings who remain missing from the Francis Scott Key Bridge tragedy in Baltimore are all immigrants in their 30s and 40s from El Salvador, Guatemala, Honduras and Mexico, who had settled in local neighborhoods. They were fixing potholes at 1:30AM when a cargo ship struck and destroyed the bridge. Next time someone–including a presidential candidate who has caught over 100 criminal charges by this point–dehumanizes immigrants, remember these men and the children and spouses they leave behind. Remember the sacrifices that immigrant workers make day in and day out to ensure that our country runs.
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Beautifully said, my friend!
Also, much gratitude 🙏 for the first responders whose quick thinking and actions to stop all bridge traffic before the fatal crash undoubtedly saved many lives and much more heartbreak.
For those who want to contribute to the families of the lost workers, here’s a link to the Baltimore’s Civic Fund recently posted by Kelly White:
“Singh experienced multiple physical attacks and death threats over an eight-month period, from November of 2014 to June of 2015. No reasonable factfinder would conclude that Singh did not experience serious harm rising to the level of persecution. … For all these reasons we find that the record compels a finding that Singh suffered harm rising to the level of persecution. … [T]he BIA did not independently analyze relocation and determine that the government met its burden. Rather, the BIA expressly adopted the IJ’s reasons for finding that internal relocation was safe and reasonable. In doing so, the BIA adopted the IJ’s flawed relocation analysis, which did not afford Singh the presumption of past persecution or shift the burden to the government to prove that Singh can safely and reasonably relocate within India. … In sum, because the BIA erred in its relocation analysis, we grant Singh’s petition to review his claim for asylum and remand to the BIA for consideration in light of Singh v. Whitaker, 914 F.3d 654. … For the reasons set forth above, we GRANT Singh’s petition in part and REMAND to the BIA to consider (1) whether Singh is eligible for asylum because he suffered past persecution on account of statutorily protected grounds by the government or individuals whom the government was unable or unwilling to control; (2) if so, whether the DHS rebutted the presumption of a well-founded fear of future persecution; and (3) whether Singh is entitled to withholding of removal.”
“The agency entirely overlooked evidence material to the hardship determination in this case: evidence regarding Mendez’s serious back injury and its implications for his ability to support his qualifying relatives through work in El Salvador. … The BIA’s decision is VACATED and the case is REMANDED for further proceedings consistent with this order.”
H. Raymond Fasano, Esquire PHOTO: Super Lawyers Profile
—Daniel M. KowalskiEditor-in-ChiefBender’s Immigration Bulletin (LexisNexis)
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What if a brain surgeon or a heart surgeon were routinely engaging in “surgical malpractice?” Wouldn’t it be a cause for grave concern?🤯
Almost every week, sometimes multiple times, the BIA mishandles the basics in potential “life or death” cases. Yet, Garland somehow shrugs it off! This not only adds to the “dehumanization” of migrants (their lives don’t count), but also badly skews the statistical profile that undergirds much of the misguided immigration (non) dialogue.
If the anti-immigrant, anti-asylum, huge “over-denial” problem at EOIR were addressed with better qualified judges and adjudicators, it would become apparent that many more, probably a majority, of those caught up in the dysfunction at EOIR and the Asylum Office are qualified to remain in the U.S. in some status. And, proper positive precedents would guide practitioners, ICE Counsel, Immigration Judges, and Asylum Officers to correct results without protracted litigation that eventually burdens the Courts of Appeals, causes avoidable remands, fuels “Aimless Docket Reshuffling,” and contributes mightily to the mushrooming EOIR backlog!
As a result, these cases could be prepared, prioritized, granted, and individuals could get on with their lives and maximize their human potential to help our nation — just as generations before them have done including the ancestors of almost all Americans! How soon some of us forget!
The real, largely self-created, “immigration crisis,” is NOT insufficient “deterrence, detention, and cruelty” at the border! It’s the grotesque failure of all three branches of Government to insist on a fair, timely, well-staffed, professionally-managed, due-process-compliant adjudication, review, and resettlement system for asylum seekers and other immigrants. It’s also the ongoing attempt to “cover up” and minimize our Government’s mistreatment of asylum seekers, particularly those asserting their legal right to apply at our borders and in the interior regardless of status!
The racially-driven “targeting” of asylum seekers at the border is a ruse designed to deflect attention from the realities of human migration, what drives it, and the failure of governments across the board to come to grips with them and to fulfill their legal responsibilities to treat all persons fairly, humanely, and in accordance with correct interpretations and applications of the law!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Here’s additional commentary on Singh from my Round Table ⚖️⚔️ colleague “Sir Jeffrey” Chase:
The IJ was really determined to deny on this one. And I guess Vandyke had filled his quota of once in a lifetime for finding fault with the government, and thus had no choice but to dissent.
How would YOU like to face a system “determined to deny” with your life on the line? How would Garland like it?
Actually, under the generous “well-founded fear” standard applicable to asylum (Cardoza-Fonseca/Mogharrabi) and the authoritative guidance in the U.N. Handbook on adjudication, applicants like Singh who testify credibly are supposed to be given “the benefit of the doubt.” Garland has, quite improperly, like his immediate predecessors, allowed this key humanitarian legal principle to be mocked at EOIR! Instead, as cogently pointed out by “Sir Jeffrey,” here the IJ and the BIA actually went the “extra mile” to think of “any reason to deny” — even totally specious ones!
Also, half-baked, legally deficient “reasonably available internal relocation analysis”is a long-standing, chronic problem at EOIR, despite a regulation setting forth analytical factors that should be evaluated. Few, if any, such legitimate opportunities are “reasonably available” in most countries sending asylum applicants!
Moreover, once past persecution is established, the DHS has the burden of showing that there is a reasonably available internal relocation alternative, something that they almost never can prove by a preponderance of the evidence! Indeed, in my experience, the DHS almost never put in such evidence beyond rote citations to generalized language in DOS Country Reports!
The “judicial competency/bias” problems plaguing EOIR are large and well documented. Yet, Garland pretends like they don’t exist!
Has Alfred E. Neumann been “reborn” as Judge Merrick Garland? “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?” PHOTO: Wikipedia Commons
A federal appeals court late Tuesday ruled against Texas in its bitter clash with the federal government, deciding that a law allowing the state to arrest and deport migrants could not be implemented while the courts wrestled with the question of whether it is legal.
A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, which has a reputation for conservative rulings, sided in its 2-to-1 decision with lawyers for the Biden administration who have argued that the law violates the U.S. Constitution and decades of legal precedent.
The panel’s majority opinion left in place an injunction imposed last month by a lower court in Austin, which found that the federal government was likely to succeed in its arguments against the law.
Under Garland, the BIA’s approach to gender-based asylum has too often remained tethered to the past. Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Hon. “Sir Jeffrey” S. Chase reports to the Round Table⚔️🛡️:
Hi all: Another win to report, in a First Circuit case in which we filed a joint amicus brief with immigration law professors (and some in our group actually fit within both categories!).
However, the court declined to address our argument regarding the correct nexus standard for withholding claims (as opposed to asylum claims). The reason is that the court found that the BIA misstated one of the petitioner’s particular social groups, such that (according to the circuit court):
In sum, the BIA rejected a PSG of its own devising and not the social group Ferreira advanced. Its characterization substantively altered the meaning of Ferreira’s proffered PSG and amounts to legal error.
The court directed:
On remand, the BIA should carefully consider Ferreira’s gender-based PSG in light of our decisions in De Pena-Paniagua and Espinoza-Ochoa.
Both of those cited decisions were quite favorable to the petitioners.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
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Fear mongering and myth making by politicos of both parties, with the connivance of the media, deflect attention from the real problem: a dysfunctional U.S. asylum adjudication system that hugely and disingenuously over-rejects and under-protects, in addition to being too slow and unconstitutionally inconsistent. Thus, both parties intentionally skew the statistics against asylum seekers and feed racially-driven nativist “talking points” about the border!
The BIA/OIL claim that the gender-based psg is not recognizable is utterly preposterous!It took me fewer than 5 minutes of internet research to find this very recent Trinidad government report recognizing that gender-based violence is an endemic and well-documented problem that disproportionately affects women and girls in Trinidad. While the report sets forth an “aspirational multi-year plan” to address the problem (“willing to protect”), there is no indication that the plan is reasonably effective at present (“but unable to do so at present”).
Here is some other “choice commentary” from Round Table members:
“A win is a win–again ‘calling’ the BIA on doing the wrong thing!”
“Great job, Team!! Let’s keep up this winning streak.”
“Wow – great! As Paul would say, another bad Garland/BIA Fiasco. Making up a psg and then denying relief because of it. Funny if it were not so tragic!“
“Yes, especially when they are telling IJs they can’t even determine what PSG fits the facts of the case unless the Respondent gets it just right! Yet they can make up whatever they want and then say it doesn’t fit the facts or isn’t cognizable!”
“When we were at the International Judges conference that [Paul] organized at Georgetown, all of the international judges said that gender was a recognized psg in their countries—even the countries where women are discriminated against and/or persecuted!”
“Like most of you, I am at a loss to understand how gender, alone, does not meet every requirement of PSG. The BIA position on this is inexplicable, and IMO, at minimum, borders on frivolous.“
Roger that! Intentionally ignoring the obvious and failing in the duty to consistently recognize and prioritize many easy grants of asylum and other protection is the “elephant in the room” for the U.S. justice system!
No wonder spineless politicos, judges, and the media want to shift attention away from their shared responsibility for a glaringly unjust and inept asylum system to blame the hapless victims of their collective failure — whose lives and futures are on the line!
Sarah Nagle, J.D. ’24, reviewing Ms. S’s case prior to her Asylum Interview (Fall 2023).
Last Tuesday, in an interview with Univision’s Enrique Acevedo, President Joe Biden again said he’s considering issuing an executive order to ban asylum at the border. It’s an idea that Biden has floated before as the presidential election season slogs on, and after the bipartisan border bill meltdown in Congress. “We’re examining whether or not I have that power. Some are suggesting that I should just go ahead and try it,” Biden told Acevedo. “And if I get shut down by the court, I get shut down by the court.”
