Nationalism – Page 17 – immigrationcourtside.com

👍🏼PROGRESSIVE LEGAL ICON HAROLD KOH RIPS BIDEN’S BOGUS “STEPHEN MILLER LITE” XENOPHOBIC POLICIES, RESIGNS DOS POST, AMID A CRESENDO OF ADMINISTRATION LIES! — “I believe this Administration’s current implementation of the Title 42 authority continues to violate our legal obligation not to expel or return (“refouler”) individuals who fear persecution, death, or torture, especially migrants fleeing from Haiti.”

Harold H. Koh — Harold H,. Koh
American Legal Scholar
PHOTO: Wikipedia

Here’s a report from Politico:

https://www.politico.com/news/2021/10/04/top-state-adviser-leaves-post-title-42-515029

Here’s a key quote from Koh’s memo:

. . . .

I have spent much of my legal career, inside and outside the government, seeking to ensure that the United States abides by its non-refoulement obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), and the 1967 Protocol relating to the Status of Refugees (“Refugee Protocol”), which modifies and incorporates the terms of the 1951 Convention relating to the Status of Refugees (“Refugee Convention”). Article 3 of the CAT categorically prohibits State Parties from expelling, returning, or extraditing any person, without exception, to any State where there are “substantial grounds for believing he would be in danger of being subjected to torture.” Article 33 of the Refugee Convention, subject to certain narrow exceptions, flatly prohibits State Parties from expelling or returning (‘refouler’) refugees in any manner whatsoever to “the frontiers of territories” where their life or freedom would be threatened on one of [the designated grounds].

I write first, because I believe this Administration’s current implementation of the Title 42 authority continues to violate our legal obligation not to expel or return (“refouler”) individuals who fear persecution, death, or torture, especially migrants fleeing from Haiti. Second, my concerns have only been heightened by recent tragic events in Haiti, which had led this Administration wisely to extend temporary protected status (TPS) to Haitians already in the United States. Third, lawful, more humane alternatives plainly exist, and there are approaching opportunities in the near future to substitute those alternatives in place of the current, badly flawed policy.

. . . .

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First, let me assure you that the DOS’s ridiculous claim that Koh’s departure was “long planned,” and its equally ludicrous suggestion that he would continue to play a meaningful role as a fake “consultant” is pure, unadulterated BS!💩 Indeed, I’d encourage the DOS Inspector General to investigate and report on just what are Koh’s new “consulting duties,” his compensation arrangements, and exactly what he produces after today!

You don’t hire high level Administration officials with “a long planned expectation” that they will depart in fewer than nine months. Come on, man, how dumb do you think we are?

Losing someone of Koh’s reputation and abilities is a huge, yet well deserved, “black eye” for an Administration that has ditched the progressive human right experts who helped them get into the dance in the first place!

And, for what? It’s not that so-called “moderates,” fickle “independents,” and GOP nativists have been lining up to congratulate Biden, Harris, Mayorkas, and Garland on their continuation of bogus, racially charged restrictionist policies at the border. Abandoning your stated values, dissing campaign promises, pissing off your allies, while still earning slings and arrows from your opponents has to be the world’s dumbest policy!

Second, what’s also pure unadulterated BS 💩 is the Administration’s assertion, unethically defended by Garland’s DOJ, that misuse and gross abuse of Title 42 in a cowardly attempt to thwart asylum seekers of color has anything whatsoever to do with science or public health.

The truth is is stark as it is ugly:

There was no science involved, only anti-immigrant and anti-asylum animus. “That was a Stephen Miller special. He was all over that,” a former Pence aide told the AP.

https://immigrationcourtside.com/2021/10/02/%f0%9f%a4%%f0%9f%8f%b4%e2%80%8d%e2%98%a0%ef%b8%8fgarlnd-doj-polishes-otherwise-lackluster-litigation-record-with-big-win-for-stephen-miller-his-neo-nazi-anti-asylum-policy/

Of course there wasn’t! Even Stephen Miller didn’t pretend very hard that there was.

He just counted on a complicit Supremes and enough right wing toady judges afraid to do their jobs to get away with it. He was dead wrong about District Judge Emmet G. Sullivan.

But, in the end, that didn’t make any difference. Although he probably hadn’t predicted it, Miller found a key ally in “what me worry, not my family, only some non-white asylum seekers” AG Merrick Garland.

Alfred E. Neumann — Merrick Garland’s ancestors were saved! Why should he worry about the people of color he condemns without due process in his dysfunctional and biased Immigration “Courts” and by defending Stephen Miller’s neo-Nazi anti-asylum, White Nationalist border policies?
PHOTO: Wikipedia Commons

Garland inexplicably and despicably took up Miller’s unethical, illegal, and immoral cause and found some bad judges on the DC Circuit willing to help trash Black Haitians and other migrants of color. This was certainly not one of American law’s better episodes, as history will eventually document.

There is no sugar coating it! When it comes to treatment of asylum seekers of color at our Southern Border, the Biden Administration is carrying out the “Miller Lite” version of neo-Nazi Stephen Miller’s deadly White Nationalism. Shame!🤮 We’re no closer to a coherent, practical, moral, legal asylum policy at our Southern Border today than we were on Jan. 20!

As Koh points out, there have been better alternatives on asylum seekers and the border since day one of the Administration! They have just refused to take them!

Also, a complicit AG Garland who has consistently failed to stand up for the human and legal rights of migrants of color and to “just say no” to Stephen Miller’s illegal policies and contrived, clearly pretextual justifications, has been a major cause of this ongoing political, moral, legal, and humanitarian disaster.

🇺🇸Due Process Forever!

PWS

10-04-21

WHY BIDEN’S CRUEL, ILLEGAL, IGNORANT BORDER NON-POLICY OF DETERRENCE WILL CONTINUE TO BE A “KILLER ☠️FAILURE” 🤮 — Telling Folks “Doomed In Place” ⚰️ What They Already Know, That The Potential Life-Saving Trip Is “Dangerous” ⚠️ & That White America Would Rather See Them Die, 💀 Out Of Sight & Out Of Mind, Is As Insulting As It Is Stupid & Ineffective!

https://www.washingtonpost.com/local/filmmaker-darien-gap-black-migrant/2021/10/02/b0bbb85a-230b-11ec-8200-5e3fd4c49f5e_story.html

Theresa Vargas reports for WashPost:

. . . .

“I believe when I go to do this work, I need to integrate myself into the lives of the people I’m covering,” he says. “I don’t want them to see me as above them. We’re on the same level; we’re human.”

That context is needed to understand why Dennison entered the Darién Gap several weeks ago and why, unlike other photographers and videographers, he didn’t take any security guards with him.

That decision would end up giving him a different experience from that of others who have gone there to document the harrowing passage. They have left that jungle and come home with photos that show the horrific struggles of others. He almost didn’t leave the jungle, and he came home with only a fraction of the photos he took and with his own horrific story.

“What he’s been through is horrible and really disturbing,” says Erika Pinheiro, a lawyer who is the litigation and policy director of Al Otro Lado, an advocacy and legal aid organization that serves migrants, refugees and deportees on both sides of the U.S.-Mexico border. The organization has been working with Dennison to create a film that captures the experiences of U.S.-bound Black migrants.

“The only way to understand it is to see it, and that’s what he’s providing,” Pinheiro says. “It’s really important that people understand what’s happening, and that it’s not over in Del Rio.”

The Biden administration recently cleared out a border camp in Del Rio, Tex., where an estimated 15,000 migrants, most of them Haitian nationals seeking asylum, had gathered. The clearing out of the camp came after viral images and video footage showed Border Patrol agents on horseback grabbing migrants and charging at them. In one video, a young girl in a mint-green dress scrambles to get out of the way of a horse heading toward her.

President Biden decried the agents’ actions, and the Department of Homeland Security opened an investigation into the incident.

But what happened in Del Rio captures only part of what many Haitians experience to get to the United States. Many pass through the Darién Gap, some with children in tow and infants strapped to their backs or chests. Officials in Panama have said that a record 70,000 people traveled the 66 miles through the terrain this year.

Before going, Dennison did extensive research on what to expect: spiders with bites that can cause death within six hours, criminals who routinely rob travelers, and polluted water that if not filtered can sicken you. But nothing, he says, could have prepared him for what he experienced.

“When you’re in the jungle, you’re no longer a filmmaker,” he says. “You’re no longer a humanitarian. It becomes about survival.”

. . . .

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Read the full story at the link.

Sad as truth is, it’s not rocket science:

Desperate people do (and will continue to do) desperate things;
For forced migrants, the dangers of staying will always exceed those of leaving;
“Die in place” isn’t a “policy;”
“Deterrence only” can’t work in the long run;
While institutionalized racism has a long history in U.S. immigration policy, it’s never been a good policy for America, nor will it ever be!

Honestly, where does the Biden Administration get these folks who don’t “get the obvious,” lie about it, and then expect good results?

Right now, after nearly eight months, the Biden Administration still appears to be in no better position to process the next border influx than they were on January 20, despite numerous warnings and eight months of graphic practical and humanitarian failures. Racially charged rhetoric and more cruel, wasteful, dishonest enforcement and removals won’t do it!

We need reopened legal border ports of entry staffed with more and better Asylum Officers overseen by a pragmatic progressive corps of expert Immigration Judges and a BIA composed of progressive asylum experts with the guts to knock heads and get our broken border legal system back to functionality. To state the obvious, that would promote consistency, transparency, and take some of the pressure off of the Article III Courts!

Because neither Mayorkas nor Garland is committed to taking the bold actions necessary to change the dynamics at the border, America, the Biden Administration, and vulnerable legal asylum seekers appear headed for another four years of avoidable failure with all of its unhappy human and political consequences!

🇺🇸Due Process Forever!

PWS

10-03-21

🤮🏴‍☠️GARLAND DOJ “POLISHES” OTHERWISE LACKLUSTER LITIGATION RECORD WITH BIG WIN FOR STEPHEN MILLER & HIS NEO-NAZI ANTI-ASYLUM POLICY! — “ There was no science involved, only anti-immigrant and anti-asylum animus.”

So far, defending this guy and his cruel policies is about the only thing that Judge Garland has done well at a DOJ that continues to treat “justice” for migrants of color as a joke! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

“Floaters” — Unlike Miller, the “losers” under Garland’s unconscionable policies often aren’t in a position to complain — at least in this world! EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)

https://www.dailykos.com/story/2021/10/1/2055491/-Appeals-court-allows-Biden-admin-to-keep-deporting-families-under-Stephen-Miller-Title-42-policy

Gabe Ortiz reports for The Daily Kos:

On Thursday, a federal appeals court allowed the continued use of the Title 42 policy, pushed initially through the previous administration by Stephen Miller, that’s used the novel coronavirus pandemic as an excuse to quickly deport asylum-seekers, including thousands of Haitians who have arrived at the southern border in search of help.

The Biden administration was set to be blocked from using the policy against families, following a federal judge’s order earlier this month. That lower court order was set to go into effect Thursday. But the policy was saved by the Biden administration, which had shockingly appealed the lower court’s decision. To be clear, the administration could have let the lower court decision stand. But it decided to protect this scientifically unsound order for continued use.

“It’s troubling to see the court grant the government’s motion to reinstate Title 42 just days after the district court ruled that its policy violates U.S. law,” Oxfam America global policy lead Noah Gottschalk told NBC News. The group is among the organizations that have led lawsuits against the policy. “We all saw the horrific images of the abuse faced by Haitian asylum-seekers subjected to Title 42, and we cannot allow people to face further harm because of this xenophobic policy.”

Department of Homeland Security Sec. Alejandro Mayorkas has claimed it is continuing Title 42 “out of a public health need.” Meanwhile, White House Press Sec. Jen Psaki has defended the policy as “a public health requirement.” That’s complete bullshit. “Vice President Mike Pence in March directed the nation’s top disease control agency to use its emergency powers to effectively seal the U.S. borders, overruling the agency’s scientists who said there was no evidence the action would slow the coronavirus,” The Associated Press (AP) reported last October.

The previous administration got its way by twisting arms. There was no science involved, only anti-immigrant and anti-asylum animus. “That was a Stephen Miller special. He was all over that,” a former Pence aide told the AP.

And, as vaccines have become readily available, the supposed rationale to keep Title 42 in place has only gotten more flimsy. If this is truly all about public health, why not rescind the policy and offer families the single-shot Johnson & Johnson vaccine? “Let me also remind the Biden administration that over 300,000 people cross the border from Mexico every day through ports of entry,” American Immigration Council Policy Counsel Aaron Reichlin-Melnick tweeted in July. “None are given COVID tests, unlike migrants who all get tested and nearly all get vaccinated.”

. . . .

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“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color — Progressive human rights experts and migrants of color haven’t been welcome at Garland’s DOJ “Happy Hours” where Stephen Miller’s policies, his judicial appointments, and his dysfunctional “star chamber” immigration courts are celebrated, defended, and even “enhanced!”

Read more about this legal, moral, and political travesty perpetrated by the Biden Administration with Garland’s support at the link.

When it comes to things like defending ending the reprehensible “killer-program” known as “Remain in Mexico” or protecting the DACA program, Garland’s litigation team has fared poorly.

They also have drawn raised eyebrows, even if not yet any ethical complaints, from Article III Judges for their questionable representations and disingenuous defense of wrongfully issued BIA final orders of removal.

Perhaps, part the problem is that after four years of “anything goes” often misleading, sometimes downright dishonest, defense of the Trump/Miller White Nationalist xenophobic, often misogynistic, dehumanizing agenda, their hearts aren’t in it. The other glaring problem is the obvious lack of commitment to progressive humanitarian values, due process for all, and “cleaning house” at a broken and dysfunctional DOJ that has been shown by Garland.

Obviously, Garland’s DOJ lawyers are more at home and more successful when when arguing for intellectually dishonest and unconstitutional dehumanization (or “Dred Scottification”) of “the other,” primarily individuals of color who are the most vulnerable among us.

What a totally disgraceful legacy for a guy that was once just “one Moscow Mitch” away from the Supremes! On the other hand, it now appears that the GOP right wingers wouldn’t have had much to fear from a guy who won’t stand up for liberal American democratic values or even simple human decency! I doubt that he would have presented much threat to the far-right, anti-American agenda!

🇺🇸Due Process Forever!

PWS

10-02-21

🇺🇸🏴‍☠️RACE IN AMERICA: CARRIE ROSENBAUM “GETS IT,” EVEN AS MAYORKAS, GARLAND, HARRIS & THE OTHER BIDEN HYPOCRITES PRETEND NOT TO: “Immigration reform, and a more robust application of the Equal Protection doctrine to all those inside the country, and at our borders, is necessary to move towards meaningfully dismantling systemic racism.”

Carrie’s guest blog in ImmigrationProf Blog should be be read and taken to heart by everyone who believes in a better, racially equal, America:

https://lawprofessors.typepad.com/immigration/2021/10/guest-post-by-carrie-rosenbaum-the-slippery-slope-of-systemic-racism-in-immigration-law-del-rio.html

Friday, October 1, 2021

Guest Post by Carrie Rosenbaum: The Slippery Slope of Systemic Racism in Immigration Law – Del Rio

By Immigration Prof

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The Slippery Slope of Systemic Racism in Immigration Law – Del Rio by Carrie Rosenbaum

When Senator Maxine Waters proclaimed that what we witnessed in Del Rio, Texas last week, Customs and Border Protection officers on horseback whipping black men, harkened back to slavery, she drew an age-old, but still relevant connection between slavery, Jim Crow, and anti-immigrant racism. In a press briefing, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas stated, “[w]e know that those images painfully conjured up the worst elements of our nation’s ongoing battle against systemic racism.” Yet, if both are right, where are our equality, anti-racism principles and why haven’t they been enough to dismantle systemic racism? Should U.S. anti-discrimination law inhibit anti-black and anti-immigrant racism, in the U.S. and at the border? Does it? Is there a slippery slope, such that undeterred discrimination against immigrants at the border seeps beyond the immediate individuals at the border?

Senator Waters was right to blur the boundaries of citizenship and rights in her speech. Racism begets racism, and racism towards black Haitians at the border translates to anti-black racism within the United States, just as anti-Mexican racism does not confine itself to noncitizens, and never has. Examples abound including obvious examples, like Latinx lynching of the late 1840s through 1920s (which coincided with lynching of Blacks), mass expulsion or “repatriation” of persons of Mexican descent that included U.S. citizens in the early 1920s and 1930s again via “Operation Wetback” in the 1950s and more subtle ones like exploitation and expropriation of Mexican and Central American farm workers and laborers, whether authorized or not, and colorblind or race neutral policies that fall most heavily, even if not completely, on persons from Mexico and Central America, like border jails.

While the Equal Protection clause of the U.S. constitution does not limit itself to citizens, it falls vastly short in protecting racialized people of color, especially immigrants. The U.S. treatment of Haitians in Del Rio implicates the problem of anti-black and anti-immigrant racism, and is indicative of the express and implicit bias that continues to evade remedy. It runs much deeper than the disturbing images of CBP agents on horseback, and its impacts have ripple effects.

At the same time that DHS Secretary Mayorkas decried systemic racism, he spelled out the government’s potential argument that the exclusion of Haitians, and Central Americans, and Mexicans that accompanies such brutal treatment was not discriminatory pursuant to the current state of immigration equal protection. He stated, “if we are able to expel them under Title 42 … we will do so” and announced that its application was “irrespective of the country of origin, irrespective of the race of the individual, irrespective of other criteria that don’t belong in our adjudicative process and we do not permit in our adjudicative process.”

Yet this is precisely how systemic racism flourishes. The reality is, this provision has been used to exclude the same racialized immigrants who have been subject to the worst treatment under immigration law. However, because the law is colorblind, Mayorkas can suggest that there was no discrimination. Pursuant to the Supreme Court’s 1977 Arlington Heights decision, discriminatory impact has to be accompanied by proof of discriminatory intent. Just by saying that wasn’t his (or implying it was not Congress’) intent, he can erase what too many know to be real. A new immigration priorities memo by the Agency released today stated that ““We must ensure that enforcement actions are not discriminatory and do not lead to inequitable outcomes.” It is a step in the right rhetorical direction, but does little to meaningfully address the colorblind racism that plagues enforcement.

What is the solution? Aside from a more expansive interpretation of the Equal Protection doctrine in line with Justice Sotomayor’s dissent in the Trump era Deferred Action for Childhood Arrivals case, and modest progress at the district court level in the crimmigration context, Congress could take steps to stop racial harm inflicted via immigration law and policy. By creating a path to legal status for those who not only have been here, but who have suffered the greatest harms of systemic racism, Haitian immigrants, Mexican immigrants, and others, Congress could start to undo the damage. It could also stop the relatively new practice of detaining or imprisoning migrants at the southern border, who happen to be almost entirely from Mexico and Central America, or abolish immigration prisons entirely. The policies that result in the imprisonment of Mexicans and Central Americans at the southern border now started with expulsion and imprisonment of Haitians in the 1980 and 1990s. Instead of expulsions and rumored potential imprisonment at the notorious Guantanamo Bay as was done in response to Haitians fleeing violence after the U.S. supported overthrow of democratically elected president, Jean-Bertrand Aristide, the U.S. could re-evaluate both its involvement in foreign affairs, and treatment of those who flee here after our interventions cause disruption and civil strife. The largest number of Black migrants come from Haiti and their mistreatment is rooted in anti-Black racism. Racializing anti-immigrant demonization does not confine itself to noncitizens, nor should the remedies. Immigration reform, and a more robust application of the Equal Protection doctrine to all those inside the country, and at our borders, is necessary to move towards meaningfully dismantling systemic racism.

—–

Carrie Rosenbaum

Law Offices of Carrie L. Rosenbaum

Lecturer & Visiting Scholar, UC Berkeley

Access my law review articles and scholarship on SSRN

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Very eloquently said, Carrie!

Compare this with the racist blather and White Nationalist nonsense of nativist pols like Abbott, DeSantis, Cruz, Cotton, and others who glorify Jim Crow and seek to force a sanitized, whitewashed version of American history down the throats of the public!

Also, compare this with the intellectually dishonest actions by Biden Administration officials. They disingenuously claim to be champions of racial equality and racial justice.

But, in reality, they operate “star chamber courts,” “New American Gulags,” and implement discredited, outmoded, and ineffective “Stephen Miller Lite” border enforcement policies that basically dehumanize people of color and deny them the due process and equal protection to which they are entitled under law. Also, think about the many Federal Judges who spinelessly enable that which most first year law students could tell you is illegal and unconstitutional, not to mention totally immoral!

What exactly does Assistant AG for Civil Rights Kristen Clarke do every day at the Civil Rights Division if unraveling the White Nationalist, racially tone deaf policies of her own Department, the DHS, and the “star chambers for people of color” being operated by her “boss” aren’t first and foremost on her “to do” list?

“Floaters”

“Floaters” — The ugly reality of Biden’s “Miller Lite border strategy.” It’s mostly people of color floating face-down in the river, being illegally returned to danger zones, rotting in the “New American Gulag,” and being railroaded through Garland’s biased and dysfunctional “star chamber courts.” Right now, Garland and and the rest of of the Biden Administration have “zero (0) credibility” on racial justice and voting rights!
EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)

The biggest failure of the Biden Administration to date is their willful blindness to the obvious connection between lack of overall racial justice in America and running star chambers, gulags, and border enforcement policies that are unconstitutional, dehumanizing, and racially demeaning to individuals of color. Sadly, and tragically we seem to have gone from “zero tolerance” under Trump to “zero credibility” under Biden! “When will we ever learn, when will we ever learn?”

🇺🇸Due Process Forever!

PWS

10-02-21

🗽⚖️🇺🇸 JOIN MY FRIEND & NDPA SUPERHERO 🦸🏻 HEIDI ALTMAN OF NIJC IN OPPOSING INHUMANE HAITIAN DEPORTATIONS!

Haiti has been in turmoil for many years and the recent assassination of the Haitian president, political and economic insecurity, devastating storms, and an earthquake have further destabilized the nation.

Yet, Haitians seeking protection in the United States face treacherous journeys, racial abuse, violence from border patrol agents, detention, and deportation and expulsion back to the life-threatening situation they fled in Haiti.

All people—including Haitian migrants and asylum seekers—need freedom, shelter, dignity, and compassionate welcomes.

Take action now –> Sign the petition to demand that the Biden administration HALT all deportations to Haiti.

In the past couple of weeks, the Biden administration has expelled more than 4,600 people to Haiti. And they continue to deport and expel even more people.

The Biden administration has the authority to grant humanitarian parole and stop the deportations to Haiti. We at the National Immigrant Justice Center (NIJC) are teaming up with other organizations to urge them to do just that.

Join us in demanding that the Biden administration HALT all deportations to Haiti.

SIGN THE PETITION!

Thank you for taking a stand against cruelty and injustice.

-Heidi Altman
Director of Policy, National Immigrant Justice Center

Having trouble viewing this email? View it in your web browser

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

Thanks, Heidi, my friend, for all you do for American Justice, due process, and racial justice!

🇺🇸Due Process Forever!

PWS

10-01-21

🤮👎🏽FACT-CHECKING MAYOYKAS: 1) Haiti Is NOT Safe; 2) Asylum Seekers Are NOT A “Health Threat!”

Jacob Soboroff @ NBC News With Truth About Deplorable, Unsafe, Conditions Facing Those Deported To Haiti:

https://www.today.com/video/migrants-return-to-haiti-following-deportations-from-us-mexico-border-122368581881

Thousands of Haitian migrants removed from a makeshift camp near Texas have been sent back to Haiti. Now we’re getting our first up-close look at what they are facing upon their arrival. NBC’s Jacob Soboroff reports for TODAY from Port-au-Prince, Haiti.

Sept. 30, 2021

Eleanor Acer
Senior Director for Refugee Protection, Human Rights First

Human Rights First debunks myth that seekers present a COVID health threat:

ASYLUM DOES NOT THREATEN PUBLIC HEALTH

The last week saw more of the Biden administration’s despicable deportation of Haitians and use Title 42 to deny their right to seek asylum. The administration perpetuates the false claim that their use of Title 42 is not an immigration policy, but a public health one, despite the vehement disagreement of public health experts.

Courtesy Washington Times

Migrants, many from Haiti, wade across the Rio Grande

river to leave Del Rio, Texas to avoid possible deportation.

Human Rights First also responded to the administration’s plans to use Guantanamo Bay as a migrant detention facility.

“Sending people who are seeking protection to a place that is notorious for being treated as a rights-free zone is the last thing that the Biden administration should do,” Eleanor Acer, Senior Director of Refugee Protection at Human Rights First told NPR. “It is nothing more than a blatant attempt to evade oversight, due process, human rights protections and the refugee laws of the United States.”

Maria Sacchetti
Immigration Reporter, Washington Post

Even in rolling out otherwise more reasonable enforcement priorities for ICE, Mayorkas insisted on making the bogus claim that recent border arrivals present a “national security threat,” as reported by the WashPost’s Maria Sacchetti:

Mayorkas said in his memo Thursday that migrants who cross the border illegally, particularly those who arrived unlawfully over the past year or so, remain a “threat to border security” and a priority for removal. But the ACLU has argued in its lawsuit that migrants have a legal right to seek asylum.

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

“Courtside’s” rating of Mayorkas’s claims: 🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥

Who would have thought that more than eight months into the Biden Administration, we’d still be arguing about basics like “migrants have a legal right to seek asylum in the US?” See, INA section 208.

🇺🇸Due Process Forever!

PWS

10-01-21

☠️⚰️🤮👎🏽BREAKING: DC CIR. OK’s BIDEN ADMINISTRATION’S CONTINUED RETURN OF ASYLUM APPLICANTS TO DEATH ☠️ & DANGER WITH NO PROCESS!🏴‍☠️

Andrea Castillo reports for the LA Times:

https://www.latimes.com/politics/story/2021-09-30/appellate-court-oks-biden-administration-to-keep-expelling-families-under-health-law

A federal appellate court Thursday temporarily granted the Biden administration’s request to continue the use of a public health order to quickly expel migrants with children who are stopped along the U.S. border.

A lower court had given the Biden administration until Thursday to limit use of the law, while immigrant and legal advocates proceeded with a lawsuit against it. The Trump administration had invoked the 1944 health statute, known as Title 42, to close the border to prevent people from entering the country, citing concerns about the spread of the coronavirus.

The case, brought in the District of Columbia by the American Civil Liberties Union and other groups, focuses on families with children, meaning the administration can continue to expel single adults under the provision.

U.S. District Judge Emmet Sullivan found earlier this month that advocates were likely to succeed with their case. In a 58-page ruling, he wrote that migrant families subjected to Title 42 “face real threats of violence and persecution” and are deprived of statutory rights to seek protection in the U.S.

. . . .

****************
Read Andrea’s complete article at the link!

More unfair and unjustified returns of refugees to death and despair courtesy of an Administration that doesn’t care and Federal Judges unwilling to do their jobs! The dead can’t speak. But, history will judge all those involved in this disgraceful episode!

🇺🇸Due Process Forever!

PWS

09-30-21

🗽🇺🇸WASHPOST: Our Need To Absorb Current Undocumented Residents & Expand Legal Immigration Remains As Clear As Ever — All We Lack Is The Political Will & Courage To Do The Obvious!

From the WashPost Editorial Board:

https://www.washingtonpost.com/opinions/2021/09/26/immigration-reform-is-back-square-one-way-forward-is-clear/

. . . .

There are enormous downsides to border disorder, to immigration policy paralysis and to leaving the fates of more than 11 million current immigrants without any path to a secure future — even beyond the reinforcement it provides to the United States’ growing international reputation for dysfunction. No one gains by the chaos except smugglers who soak desperate migrants financially on their way north in hopes of a better life. The losers include not only the “dreamers” brought to this country as children, who must live in perpetual anxiety, but also the country as a whole, which loses the value of immigrants, skilled and otherwise, who would turbocharge entrepreneurship, create jobs and help the economy grow.

There are available solutions if Congress could overcome its horror of bipartisan compromise. The goal should be to establish a realistic annual quota of immigrant visas for Central Americans, Haitians and others desperate to reach this country who otherwise will cross the border illegally — a number that recognizes the U.S. labor market’s demand for such employees. That must be supplemented by a muscular guest worker program that enables legal border crossing for migrants who want to support families remaining in their home countries.

. . . .

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

Read the complete editorial at the link.

It’s worth adding that the current “border disorder” is largely the result of White Nationalist, legally defective, anti-immigrant policies of the Trump regime compounded by the failure of Mayorkas and Garland to take the obvious, available, common sense steps necessary to reopen legal border ports of entry, to make the long overdue necessary reforms to establish a fair, efficient, and generous legal asylum system at the USCIS Asylum Offices and the Immigration Courts, and to insist on the creation of a robust, functional refugee program for Latin America and the Caribbean.

None of the this is “rocket science!” 🚀 Plenty of great blueprints for administrative reforms and the potential expert leadership to implement them were “out there for the taking” at the beginning of the Biden Administration. By dawdling, tapping the wrong leaders, and continuing enforcement policies and bad judicial practices that were proven failures, the Administration predictably put itself “behind the eight-ball” in establishing order and implementing the rule of law at our borders!

Until the Biden Administration ends its disgraceful, cowardly, illegal, cruel, ineffective, and inhumane reliance on bogus “Title 42” restrictions to suspend orderly legal processing at the border, they will continue to bobble the next predictable “border crisis.” The GOP will continue to spout nativist nonsense. Desperate people will continue to do desperate things. Only a tone-deaf Administration would continue to ignore this reality!

🇺🇸Due Process Forever!

PWS

09-27-21

NOT ROCKET SCIENCE! 🚀 “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum . . . .” INA section 208(a). Black Organizations File Complaint About Biden Administration’s Scofflaw Actions Targeting Black Haitians & Other Asylum Seekers Of Color!

https://www.huffpost.com/entry/black-immigration-groups-demand-biden-halt-deportations-haitian-asylum_n_6150a453e4b00164119567a9

Sanjana Karanth reports for HuffPost:

Several Black immigration organizations have filed a formal complaint with the Department of Homeland Security’s Office of Civil Rights and Civil Liberties, demanding that the Biden administration halt its continued deportations of Haitian asylum seekers.

The complaint filed by four groups ― the Haitian Bridge Alliance, UndocuBlack Network, African Communities Together and Black Alliance for Just Immigration ― requests that any potential witnesses of Border Patrol abuses be allowed to remain in the U.S. while their asylum claims are investigated. The complaint was first reported by theGrio, and signed by dozens of advocacy groups.

More than 13,000 Haitians were camped along the river at the Texas border town of Del Rio last weekend when Border Patrol officers on horseback charged at some of those gathered there, verbally assaulting and appearing to whip them. Photos of the violence shocked the public.

. . . .

The complaint by the organizations notes that the migrants have been denied access to attorneys, interpreters, adequate medical care, fear-based screening and proper nourishment and sanitation, all under intense heat. It also highlights physical intimidation and violence against migrants by Border Patrol officers, and misleading statements made by Homeland Security officers to Haitians about where they were being flown to.

“We’re not living up to our obligation as a nation to be a place of refuge for people seeking a better life,” former Obama administration Cabinet member Julián Castro told HuffPost earlier this week. “And in the least, asylum seekers, whether they’re from Haiti, or from one of these Northern Triangle countries should be allowed to make their asylum claim, instead of being severely expelled from the country. This was not the change we were hoping for on immigration policy.”

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

Mayorkas’s defense of his grotesque, “Trumpist” misuse of Title 42, which actually has been rejected by a Federal Judge, on “Meet the Press” was as disgraceful as it was dishonest!

Professor Stephen Yale-Loehr succinctly nailed it in a recent interview for National Geographic: “The United States has to realize that more people are on the move in the world than ever before. We’re never going to be able to shut off our borders.” https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/posts/expert-u-s-immigration-laws-don-t-match-current-reality

Either Mayorkas doesn’t understand reality, or he’s too intellectually dishonest to speak truth! Regardless, it’s not good!

Re-establishing the rule of law and treating asylum seekers fairly and generously, as the law requires, is not an option! It’s a legal and moral obligation! There is absolutely no reason to “apologize” for treating asylum seekers fairly and humanely, no matter what racist GOP nativists like Texas “Governor Death” Greg Abbott and Senator “Cancun Ted the Insurrectionist” Cruz say!

🇺🇸Due Process Forever!

PWS

09-27-21

🏴‍☠️MAYORKAS DOUBLES DOWN ON USE OF TRUMP’S BOGUS TITLE 42 RATIONALE TO DEPORT HAITIANS — ABSURDLY & DISINGENUOUSLY CLAIMS HAITI IS “SAFE” FOR RETURNS!

Amanda Holpuch reports for The Guardian:

https://www.theguardian.com/us-news/2021/sep/26/haiti-deportations-covid-biden-homeland-secretary-mayorkas?CMP=Share_iOSApp_Other

The US homeland security secretary, Alejandro Mayorkas, on Sunday defended the Biden administration’s decision to send thousands of Haitians to a home country they fled because of natural disasters and political turmoil.

White House criticizes border agents who rounded up migrants on horseback

Mayorkas told NBC’s Meet the Press the removals were justified because of the coronavirus pandemic, a point disputed by advocates and public health experts.

“The Centers for Disease Control [and Prevention, or CDC] has a Title 42 authority that we exercise to protect the migrants themselves, to protect the local communities, our personnel and the American public,” Mayorkas said.

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“The pandemic is not behind us. Title 42 is a public health policy, not an immigration policy.”

Since Donald Trump’s administration implemented Title 42 in March 2020, advocates and dozens of public health experts have called for its end.

Under Title 42, people who attempt to cross the border are returned to Mexico or deported to their home countries without an opportunity to test asylum claims.

In January, Joe Biden stopped the rule from applying to children. Despite that, at least 22 babies and children were deported to Haiti in February.

More than 30 public health experts wrote to Mayorkas and the head of the CDC, Rochelle Walensky, earlier this month, saying Title 42 was “scientifically baseless and politically motivated”.

This coalition has repeatedly said the policy violates the right to seek asylum and ignores how basic public health measures can reduce the spread of Covid-19.

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“Title 42 runs counter to the government’s own commitment to address Covid-19 globally,” the coalition said. “The absence of effective Covid-19 mitigation services at the border and the expulsion of people to situations in which they may be exposed to Covid-19 and unable to practice prevention are contrary to the US government commitment to address Covid-19 globally.”

On Sunday, Mayorkas told CNN about 4,000 Haitians who arrived in the past two weeks have been expelled, 13,000 others had been allowed to enter the US to pursue their immigration cases in court and 8,000 had voluntarily chosen to return to Mexico.

NBC’s Meet the Press host Chuck Todd questioned Mayorkas about why thousands were being sent to Haiti even though they had traveled to the US from South America.

“These are Haitian nationals,” Mayorkas said. “Some of them don’t have documents from the countries from which they just left. So they are subject to removal.”

. . . .

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

Of course, Haiti clearly is not a safe place to return migrants:

‘They treated us like animals’: Haitians angry and in despair at being deported from US

https://www.theguardian.com/global-development/2021/sep/26/they-treated-us-like-animals-haitians-angry-and-in-despair-at-being-deported-from-us?CMP=Share_iOSApp_Other

‘They treated us like animals’: Haitians angry and in despair at being deported from US

Haitian deportees arriving from Texas say they were ‘rounded up like cattle and shackled like criminals’

Joe Parkin Daniels in Port-au-Prince

Published:

05:00 Sunday, 26 September 2021

Follow Joe Parkin Daniels

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About this content

When Evens Delva waded across the Rio Grande with his wife and two daughters, he had dreams of starting a new life in Florida. But less than a week later, he and his family stepped on to the tarmac in Port-au-Prince, the sweltering and chaotic capital of Haiti, with nothing except traumatic memories and a feeling of bubbling anger.

Delva, along with nearly 2,000 other Haitians, was deported from southern Texas this week to Haiti, despite having lived in Chile for the past six years and having few remaining connections to his home country. His younger daughter, who is four, does not hold Haitian citizenship, having been born in Chile, and speaks more Spanish than Haitian Creole.

“I don’t know what we’ll do, we don’t have anywhere to stay or anyone to call,” the 40-year-old said, moments after getting off the plane in the blistering midday Caribbean heat. “All I know is that this is the last place I want to be.”

Evens Delva and his wife at Port-au-Prince airport in Haiti on Friday after being deported from Texas. Photograph: Joe Parkin Daniels/The Guardian

It is not hard to understand why. Haiti, the poorest country in the western hemisphere, is mired in overlapping crises. Gasoline shortages and blackouts are a daily reality, while warring gangs routinely kidnap for ransom and wage battle on the streets.

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The grim situation only worsened when the president, Jovenel Moïse, was assassinated in his home on 7 July, triggering a political power struggle and further instability and street violence. On 14 August, a 7.2-magnitude earthquake struck the country’s poor southern peninsula, killing more than 2,200 people and leaving tens of thousands homeless.

US envoy to Haiti resigns over ‘inhumane’ decision to deport migrants

The Biden administration’s decision to deport thousands of Haitians under such circumstances drew opprobrium around the world, and prompted the US envoy to Haiti to resign in protest. Haiti is “a country where American officials are confined to secure compounds because of the danger posed by armed gangs in control of daily life”, he wrote in his resignation letter. “Surging migration to our borders will only grow as we add to Haiti’s unacceptable misery.”

Last week, the world was shocked by images of police officers on horseback charging at desperate Haitian migrants near a camp of 12,000, set up under the Del Río-Ciudad Acuña International Bridge. Delva was on his way to buy food and water for his family when the cavalry charge sent him and dozens of his compatriots running in a frenzy.

“We were rounded up like cattle and shackled like criminals,” he said, having spent the six-hour flight from San Antonio with his hands and legs tied.

“They treated us like animals,” added Maria, his wife.. “We’ll never forget how that felt.”

. . . .

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

David Shipler does a great job of exposing the hypocrisy and intellectual dishonesty of Mayorkas and other Biden Administration immigration officials.

America’s Callous Border

By David K. Shipler

Several years ago, a gray-haired passport control official at Heathrow Airport in London, noting “writer” under “occupation” on my landing card, asked me what I wrote. I was finishing a book on civil liberties, I told him, with a chapter on immigration. That caught his interest. He leaned forward, glanced around, lowered his voice and said, “I loathe borders.”

Funny line of work you’re in, I said. We shared a chuckle, he stamped my passport, and I crossed the border that he loathed.

We have nation states, and so we have borders. Dictatorships need them to keep people in, lest their countries be drained of the talented and the aspiring. Democracies need them to keep people out—often those with talent and aspiration who are fleeing to safety and opportunity. So far, the United States is lucky enough to be the latter. So far.

When desperate fathers and mothers are drawn with admiring naïveté to the beacon of America, when they carry their children through months of torment by mountain jungles and predatory gangs, when their courage and towering fortitude set them apart from the masses, shouldn’t they be embraced when they reach the final border of a nation of fellow immigrants that touts its compassion and humanity?

Cut through the crazy tangle of immigration laws, regulations, and inconsistent enforcement to the essential ethic, and the answer is an obvious yes. But the obvious is not obvious in the White House or in the Department of Homeland Security or in the ranks of the beleaguered Border Patrol, whose horsemen scramble, as if herding cattle, to intercept frantic Haitians wading from the Rio Grande onto the banks of freedom and promise.

Instead, a new torment is found: Haitians with enough grit to leave their country a decade or so ago and build lives on the margins in Brazil, Chile, and elsewhere are taken from their first steps onto U.S. soil and summarily—summarily, without due process—deported. And where to? To Haiti, a failed state where many have long since lost family or work or even places of shelter. To Haiti, which has collapsed into such violence and disarray that the State Department warns Americans on its website: “Do not travel to Haiti due to kidnapping, crime, civil unrest, and COVID-19.”

What is wrong with the air in the White House? Is there not enough oxygen? What accounts for the impaired thinking that seems to transcend administrations, from Republican to Democratic. Where is the regard for human dignity? Why is it so often absent in the calculations that create policy?

Donald Trump wore callousness on his sleeve and was proud of it. His base hooted its applause at his vilification of Mexican immigrants as rapists and drug dealers. By contrast, Joe Biden wears a badge of empathy. His mantra is compassion. “Horrible” and “outrageous” were the words he found to describe the photographed attacks on Haitians from horseback. He halted the use of horses and vowed that agents responsible “will pay.” He also said, “It’s simply not who we are.”

But it is who we are. The images have been compared to old photos of white overseers on horseback commanding enslaved Blacks in the fields. The Border Patrol in cowboy hats have been compared to Texas Rangers “who were celebrated for their excellent ‘tracking skills’ that were put to use to hunt and capture enslaved people,” said historian Monica Martinez of the University of Texas.

These are compelling analogies with painful resonance. They are also flawed as parallels, for the Black migrants at the border are not slaves. They are clamoring to be here, crossing illegally, seeing the border as a threshold. They were not brought here in chains against their will. Some are being removed in chains against their will.

Nevertheless, in a sense they are enslaved by their blackness. If white Canadians tried this up north, does anybody truly believe that they would be treated as the Black Haitians are? Animating America’s conscience should not require reaching back to the sin of slavery. The present ought to be enough.

Our borders always put our split personality on display: We are cruel and welcoming, hateful and helpful, defined by doors closed at times to entire ethnic groups and then opened to invigorate the nation with willing hands and vital contributions.

In fact, if the country is not sufficiently moved by simple morality, then it might consider self-interest. The U.S. population growth rate has been falling steadily since 2008, dropping to a mere 0.58 percent from 2020 to 2021. Many regions lack skilled workers, as homeowners and small business owners and even hospitals can testify from trying to hire carpenters, plumbers, electricians, welders, mechanics, and nurses. We should have winced when one Haitian deportee was quoted as describing himself as a welder and carpenter.

Using abuse to manipulate determined people did not work under Trump—a lesson that Biden and his advisers might have learned. Trump’s administration separated children from their parents at the border, his aides reasoning that families heading north would get the message and—what?–abandon their fortitude and survival instincts, turn around, and head back to life-threatening misery?

So, too Biden officials are reportedly figuring that tossing Haitian expatriates into Haiti’s maelstrom will dissuade others from coming. In other words, don’t be humane, and folks will give up. But they won’t give up. They will still roll the dice, because there’s always a chance, especially since some are being allowed to stay, at least for a while, pending proper examination of their asylum claims as the law requires. When your ship has sunk, you don’t stop clinging to a piece of flotsam just because some shipmates have slipped off into the sea.

What the Biden White House needs is somebody in an influential position who has made this journey, who has shepherded family and children through jungles and ganglands to reach this supposedly promised land. That official might bring to the Oval Office a glimmer of understanding and respect for the force of personality and perseverance that drive a person toward our callous border.

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

Something about the DHS Secretary job seem to require checking honesty, common sense, historical perspective, and humanity at the door, not to mention the true “rule of law.”

🇺🇸Due Process Forever!

PWS

09-26-21

🏴‍☠️👎🏽BIA BLOWS DUTY TO ADJUDICATE CAT, OIL MISREPRESENTS RECORD BEFORE CIRCUIT — Latest 5th Cir. Reject Shows Festering Competence & Ethical Problems @ Garland’s DOJ!🤮 — The BIA Ignores Matter of L-O-G-, But YOU Shouldn’t!

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.ca5.uscourts.gov/opinions/pub/19/19-60807-CV0.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca5-cat-remand-abushagif-v-garland#

Abushagif v. Garland

“Abushagif contends that the BIA abused its discretion by entirely failing to address his CAT claim. On that point, he is correct. A CAT “claim is separate from . . . claims for asylum and withholding of removal and should receive separate analytical attention.” Efe v. Ashcroft, 293 F.3d 899, 906–07 (5th Cir. 2002). Moreover, the BIA must not leave asserted CAT claims unaddressed. See Eduard v. Ashcroft, 379 F.3d 182, 196 (5th Cir. 2004). The government does not dispute that Abushagif raised a CAT claim in his motion to reopen. The government avers, however, that Abushagif did not present his claim to the Board and thus failed to exhaust it. See 8 U.S.C. § 1252(d)(1). That is flatly incorrect; Abushagif raised his CAT claim several times in his briefing before the BIA. It is confounding that the government says otherwise. The government also contends that remanding the CAT claim would be “futile” because, even if the BIA had addressed it, the Board still would not have granted his motion to reopen, given its determination that Abushagif had generally failed to submit reliable evidence in support of his claims of persecution. That contention, however, cannot overcome the plain command of our caselaw: The Board must address CAT claims where they are raised. See Eduard, 379 F.3d at 196. We therefore remand for the limited purpose of the Board’s addressing Abushagif’s CAT claim.”

[Hats off to pro bono publico counsel Alison Caditz and Jeri Leigh Miller!]

—

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

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

The government does not dispute that Abushagif raised a CAT claim in his motion to reopen. The government avers, however, that Abushagif did not present his claim to the Board and thus failed to exhaust it. See 8 U.S.C. § 1252(d)(1). That is flatly incorrect; Abushagif raised his CAT claim several times in his briefing before the BIA. It is confounding that the government says otherwise.

“Confounding,” but not surprising to any of us who follow the continuing meltdown of justice and callous indifference to the law, truth, and human lives @ Garland’s failed and failing Department of “Justice.”

The government also contends that remanding the CAT claim would be “futile” because, even if the BIA had addressed it, the Board still would not have granted his motion to reopen, given its determination that Abushagif had generally failed to submit reliable evidence in support of his claims of persecution. That contention, however, cannot overcome the plain command of our caselaw: The Board must address CAT claims where they are raised.

Basically, OIL, argues that even if they had actually addressed CAT, the BIA would still have stiffed the respondent’s claim because that’s what a “programmed to deny for any reason” BIA does. Why bother with a BIA decision when a denial is “predetermined?” Is this really the sad state of due process at Garland’s DOJ? Apparently!

Let’s put this in context. The respondent is from Libya, a country notorious for torture. Here’s an excerpt from the latest (2020) Department of State Country Report on Libya:

While the 2011 Constitutional Declaration and postrevolutionary legislation prohibit such practices, credible sources indicated personnel operating both government and extralegal prisons and detention centers tortured detainees (see section 1.g.). While judicial police controlled some facilities, the GNA continued to rely on armed groups to manage prisons and detention facilities. Furthermore, armed groups, not police, initiated arrests in many instances. An unknown number of individuals were held without judicial authorization in other facilities nominally controlled by the Ministry of Interior, Ministry of Defense, or in extralegal

Country Reports on Human Rights Practices for 2020

United States Department of State • Bureau of Democracy, Human Rights and Labor

LIBYA 7

facilities controlled by GNA-affiliated armed groups, LNA-affiliated armed groups, and other nonstate actors. Treatment varied from facility to facility and typically was worst at the time of arrest. There were reports of cruel and degrading treatment in government and extralegal facilities, including beatings, administration of electric shocks, burns, and rape. In many instances this torture was reportedly initiated to extort payments from detainees’ families.

Also, the 5th Circuit is generally considered the most conservative and pro-Government Circuit. It is a jurisdiction where the Government has to work hard and really, really screw up to lose an immigration case.

Two of the panel judges in this case are GOP appointees: Judges Engelhardt (Trump), and Smith (Reagan). The third panel member, Judge Higginson is an Obama appointee. Judge Jerry E. Smith, who wrote this opinion, is known as one of the most conservative Federal Judges in America! If these jurists see problems, you can be sure they actually exist!

One thing that unites Federal Judges across the ideological spectrum is dislike of being lied to by DOJ attorneys! Evidently, that’s no longer of concern to Judge Garland now that he is the purveyor, rather than the recipient, of misrepresentations, untruths, and sloppy, unprofessional work from DOJ attorneys!

How travesties like this, that happen at Garland’s DOJ on a daily basis, in “life or death” cases, is acceptable professional judicial performance is beyond understanding!

Additionally, how clearly misrepresenting the facts of record is ethically acceptable performance for OIL attorneys is totally beyond me!

Maybe its time for the House and Senate Judiciary Committees to call Judge Garland before them for oversight to examine his continuing mismanagement of EOIR, America’s worst, most backlogged, most blatantly unfair, court system, that has not materially improved during his tenure. They should also inquire as to why he continues to tolerate unethical performance from OIL Attorneys making material misrepresentations to Federal Courts in attempting to defend the indefensible performance of the BIA in immigration litigation. Also, why hasn’t Garland spoken out about the illegal suspension of asylum laws enacted by Congress at our borders? Human lives are at stake here!

The idea that Garland intends to “fix” this problem by throwing 200 new Immigration Judges into this broken, dysfunctional system, without first addressing any of the structural, management, competence, personnel, and institutional bias issues at EOIR is beyond absurd! “Management 101” says you fix the system by rooting out and replacing incompetent and unqualified judges, replacing incompetent managers with competent ones, and fixing the many broken operational pieces of the Immigration Court System before expanding it.

This means, at a minimum, slashing the backlog by getting hundreds of thousands of old, non-priority cases off the docket now, stopping endemic “Aimless Docket Reshuffling” at EOIR, installing a functional e-filing system, getting competent representation into the Immigration Courts, replacing the current institutionalized “worst practices” with “best practices,” and instituting real judicial training by experts from outside EOIR.

Only then, after the system has been made functional, should it be expanded, if needed. Otherwise, it’s like trying to fix defective automobile production by hiring more workers and speeding up the assembly line, thereby producing more defective vehicles without fixing that which caused the defects in the first place.

This case also shows the critical, life-saving role of pro bono counsel in Immigration Court. Without the heroic efforts of pro bono publico counsel Alison Caditz and Jeri Leigh Miller, Mr. Abushagif would probably be hanging from a ceiling fan in Libya right now!

Torture — Garland indifferent to wrong torture decisions from BIA?
Photo by David R. Badger, Creative Commons

I was pleased to see that Judge Smith cited my precedent opinion in Matter of L-O-G-, 21 I&B Dec. 413 (BIA 1996) in his opinion. See FN 1. In L-O-G-, we held that “we have been willing to reopen ‘where the new facts alleged, when coupled with the facts already of record, satisfy us that it would be worthwhile to develop the issues further at a plenary hearing on reopening.’” 21 I&N Dec. at 419 (citations omitted).

Yes, folks, there was a time long ago and far away when BIA Chairs actually functioned as appellate judges: participating in cases at both the panel and en banc level, writing decisions, and, where necessary, filing dissents, without regard to “career enhancement.” That was in addition to BIA management duties, being a senior member of EOIR’s executive team, and many public speaking, writing, and other public information and educational functions.

While today’s BIA and many Immigration Judges routinely ignore Matter of L-O-G- and its important teaching, it remains “good law,” as found by Judge Smith. Practitioners should be citing it in every motion to reopen and insisting that EOIR start following its own precedents, even where they produce results inconsistent with the restrictionist positions urged by DHS or the “round ‘em up and move ‘em out attitudes” that still seem prevalent at Garland’s DOJ.

It’s rather ironic that Federalist Society hero Judge Jerry E. Smith understands me better than Garland’s BIA!

Garland seems uninterested in making the long overdue bold progressive reforms necessary to restore due process, consistency, humanity, and racial justice to our broken and dysfunctional Immigration Courts. That means the battle over the next four years is likely to shift to the Article III Courts and Congress to finally get this utterly disgraceful, yet fixable, system back on track! This is also what’s required to save at least some of the vulnerable human lives now being “chewed up and spit out” by Garland’s ☠️ “Deadly Clown Courts” 🤡 and their ethics-challenged OIL defenders!🤮

🇺🇸Due Process Forever!

PWS

09-26-21

🤮☠️ARMED GUYS ON HORSES ROUNDING UP AND WHIPPING BLACKS ACCURATELY REPRESENTS AMERICA’S UGLY RACIAL HISTORY & BIDEN’S ASYLUM POLICIES! — That’s Why The Administration Is So Eager To Disingenuously Disown The Actions They Have Encouraged & Enabled! — Blacks & Hispanics Saved Biden’s Candidacy — THIS Is Their “Reward?” — U.S. Envoy To Haiti Quits In Protest Of Biden’s Human Rights Policies, As “Strange Departures” Continue To Roil Biden’s Bumbling, Failing Immigration Bureaucracy!

https://www.theguardian.com/commentisfree/2021/sep/23/men-on-horses-chasing-black-asylum-seekers-sadly-america-has-seen-it-before?CMP=Share_iOSApp_Other

The Biden administration has condemned abuses at the border – while maintaining the policies underlying these abuses. That’s beyond cynical

Published:

06:22 Thursday, 23 September 2021

Follow Moustafa Bayoumi

You’ve probably seen a photograph haunting the internet this week: a white-presenting man on horseback – uniformed, armed and sneering – is grabbing a shoeless Black man by the neck of his T-shirt. The Black man’s face bears an unmistakable look of horror. He struggles to remain upright while clinging dearly to some bags of food in his hands. Between the men, a long rein from the horse’s bridle arches menacingly in the air like a whip. The photograph was taken just a few days ago in Texas, but the tableau looks like something out of antebellum America.

The image is profoundly upsetting, not just for what it portrays but for the history it evokes. What’s happening at the border right now puts two of our founding national myths – that we’re a land of liberty and a nation of immigrants – under scrutiny. To put it plainly, we don’t fare well under inspection.

US border patrol agents on horseback search for migrants trying to enter the United States along the US-Mexico border. Photograph: José Luis González/Reuters

. . . .

Without review, it’s impossible to know who is facing real threats of persecution when returned to Haiti. The United Nations human rights spokesperson, Marta Hurtado, said that the UN “is seriously concerned by the fact that it appears there have not been any individual assessments of the cases”. Why does the Biden administration not share her concern?

One has to wonder if the same policies expelling Haitians from the US today would be in effect if those arriving at the border were Europeans or even Cubans. If history is any guide – for decades, the US privileged Cubans over Haitians and other Caribbean peoples in immigration matters – the answer is no.

It’s one thing for the Biden administration to condemn abuses conducted by its own government that recall the worst parts of our national history. But it’s quite another to do so while maintaining the policies that enable those abuses. That’s not just cynical. It’s despicable.

Moustafa Bayoumi is the author of How Does It Feel to Be a Problem?: Being Young and Arab in America

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

Read the complete article at the link.

Meanwhile, back at the ranch:

https://www.huffpost.com/entry/us-special-envoy-to-haiti-resigns-over-migrant-expulsions_n_614c7f70e4b00164119101a3

Foote’s sudden departure leaves a void in U.S. policy toward Haiti and adds another prominent, critical voice to the administration’s response to Haitians.

AP By Joshua Goodman and Matthew Lee, September 21, 2021

The Biden administration’s special envoy to Haiti has resigned, protesting “inhumane” large-scale expulsions of Haitian migrants to their homeland wracked by civil strife and natural disaster, U.S. officials said Thursday.

Daniel Foote was appointed to the position only in July, following the assassination of Haiti’s president. Even before the migrant expulsions from the small Texas border town of Del Rio, the career diplomat was known to be deeply frustrated with what he considered a lack of urgency in Washington and a glacial pace on efforts to improve conditions in Haiti.

Foote wrote Secretary of State Antony Blinken that he was stepping down immediately “with deep disappointment and apologies to those seeking crucial changes.”

“I will not be associated with the United States inhumane, counterproductive decision to deport thousands of Haitian refugees and illegal immigrants to Haiti, a country where American officials are confined to secure compounds because of the danger posed by armed gangs to daily life,” he wrote. “Our policy approach to Haiti remains deeply flawed, and my policy recommendations have been ignored and dismissed, when not edited to project a narrative different from my own.”

Two U.S. officials with direct knowledge of the matter confirmed the resignation on condition of anonymity because they were not authorized to discuss it publicly.

One official, who was not authorized to publicly discuss personnel matters and spoke on condition of anonymity, said that Foote had consistently sought greater oversight of Haiti policy and that the administration did not believe his requests were appropriate.

Foote’s sudden departure leaves a void in U.S. policy toward Haiti and adds another prominent, critical voice to the administration’s response to Haitians camped on the Texas border. The camp has shrunk considerably since surpassing more than 14,000 people on Saturday – many of them expelled and many released in the U.S. with notices to report to immigration authorities.

The White House is facing sharp bipartisan condemnation. Democrats and many pro-immigration groups say efforts to expel thousands of Haitians without a chance to seek asylum violates American principles and their anger has been fueled by images that went viral this week of Border Patrol agents on horseback using aggressive tactics against the migrants.

. . . .

___

Goodman reported from Miami, Lee from New York on the sidelines of United Nations General Assembly meetings.

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

Read the complete article at the above link.

And, there are more “strange happenings” within the flailing Biden immigration/human rights bureaucracy.

Over at ICE, “Immigration pro” John Trasviña is out at OPLA after only a few months in office:

https://www.wgbh.org/news/national-news/2021/09/22/biden-chooses-local-ice-critic-to-be-the-agencys-top-prosecutor

By Sarah Betancourt

September 22, 2021

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The Biden administration has appointed seasoned Boston immigration attorney Kerry Doyle to become its immigration enforcement agency’s top prosecutor.

U.S. Immigration and Customs Enforcement officials confirmed to GBH that Doyle, previously of Graves & Doyle, will be its principal legal advisor. The office she will lead is the largest legal program within the Department of Homeland Security, with over 1,250 attorneys and 290 support personnel.

The Office of the Principal Legal Advisor sends its prosecutors to litigate deportation cases before the Executive Office for immigration Review, the body that oversees the nation’s immigration courts.

Doyle has been an outspoken critic of the agency and has led many lawsuits against it.

She is a graduate of the American University Washington School of Law, and George Washington University. She started her career as a legislative assistant to former U.S. Rep. Bob Wise (D-W.Va.), and became an attorney for Legal Services for Vietnamese Asylum Seekers in 1993. She was managing attorney for the International Institute of Boston from 1998 to 2001, before founding Graves & Doyle with partner William E. Graves Jr.

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The Boston-based firm handled a breadth of immigration issues, from citizenship, to business and family immigration, federal litigation, asylum, and deportation cases.

Doyle took the case of Iranian student Mohammad Shahab Dehghani Hossein Abadi, who was enrolled at Northeastern University and deported because it was assumed by Logan Airport border patrol agents that he would remain in the U.S. beyond the time frame of his student visa. She co-authored an op-ed in The Boston Globe about Abadi’s case, entitled “Customs and Border Protection gone rogue.”

Doyle has also been particularly outspoken against ICE on Beacon Hill, including one appearance in January 2020, where she called ICE “out of control” during a hearing over the Safe Communities Act, which would limit how state and local municipalities interact with federal immigration enforcement.

Doyle declined to comment on her appointment, asking GBH to speak with ICE’s media office, which did not return requests for comment.

Susan Church of Demissie & Church has known and worked with Doyle for over two decades.

“She actually taught me much of what I know about immigration law,” said Church. “I can’t imagine a better, more knowledgeable attorney to run that agency because she knows the immigration system in and out.”

Church and Doyle co-filed a 2017 federal lawsuit against former President Donald Trump with the American Civil Liberties Union after he banned entry to the U.S. from seven Muslim-majority countries.

The Office of the Principal Legal Advisor has control over whether immigrants are released from detention, what financial amounts — or bonds — are set for them to be released, or whether a lawsuit gets postponed.

“There will be a tremendous opportunity to craft policy procedures, rules and the like to make sure that immigrants receive a fair day in court and a fair hearing and have a fair shot at getting a life in the United States,” said Church.

Biden’s Department of Homeland Security has been criticized for continuing to keep immigrants detained with high bond amounts, but Church thinks Doyle’s appointment shows there may be a shift.

“I think it’s clear that the Biden administration is following the path of the progressive district attorney and installing somebody in charge who cares about safety issues, but also cares deeply about the rights and the protections for immigrants,” she said, referring to the recent nomination of Suffolk County District Attorney Rachael Rollins to be the U.S. attorney.

Carol Rose, executive director of the ACLU of Massachusetts, also applauded the pick. “We hope Kerry Doyle’s outstanding track record of fighting for immigrants’ rights continues in her new position at ICE,” Rose said. But, she added, “the ACLU remains committed to holding this and other government agencies accountable.”

The former principal legal advisor John D. Trasviña announced his retirement at the beginning of September.

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

On one hand, Kerry Doyle is well qualified and presumably will work to restore professionalism, common sense, and humanity to what had been a misdirected, counterproductive, and totally out of control agency under Trump and his toadies.

But, there has to be more to Trasviña’s “retirement” than meets the eye. One does not normally accept a senior level policy position in a new Administration while planning to “retire” within a few months.

So, something else is going on here. Many of us had applauded the appointment of Trasviña, a high profile, nationally respected, experienced expert in immigration, civil rights, human rights, and racial justice, at OPLA. During his short tenure, he issued helpful memos and guidance expanding the use of prosecutorial discretion (“PD”) at ICE. More aggressive and sensible use of PD is critical to controlling and eventually eliminating the largely Government-created 1.4 million case Immigration Court backlog.

Best wishes to Kerry in her new position!

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

Immigration and human rights are a mess because Biden and his advisors ignored expert advice to move quickly and aggressively to restore robust refugee and asylum systems and to institute long overdue progressive reforms and personnel changes at EOIR. Right now, there appears to be neither an overall plan nor the dynamic progressive leadership and better Immigration Judiciary to carry it out.

It’s going to take more than a few intellectually dishonest expressions of “outrage” from Biden Press Secretary Jen Psaki and a bogus “investigation” of Border Patrol Agents who were only carrying out the cruel, inhumane, and racist policies developed and approved at the highest levels of the Biden Administration, to wipe out the images of the abuse of asylum applicants at our border and the deep-seated racial prejudices and biases it represents. 🏴‍☠️It’s all about dehumanization and continuing “Dred Scottification” of the “other”🤮☠️ — predominantly courageous, yet vulnerable, people of color!

🇺🇸Due Process Forever!

PWS

09-24-21

COLBY KING @ WASHPOST: 20 Years After 9-11, Right Wing Terrorism, Masquerading As Bogus “Patriotism,” 🏴‍☠️⚰️Threatens America!

Colbert I. King
Columnist
Washington Post

https://www.washingtonpost.com/opinions/2021/09/10/since-911-most-terrorism-this-country-has-been-made-usa/

. . . .

Then there’s the outrageous domestic terrorist attack against our very nation — the Jan. 6 insurrection, when mobs of President Donald Trump’s supporters stormed and pillaged the U.S. Capitol to disrupt a joint session of Congress assembled to formalize the election of President-elect Joe Biden.

That was no spontaneous outburst of rage by a ragtag bunch of thugs. Jan. 6 was a deliberate attack on revered democratic institutions and was as evil in intent as Osama bin Laden’s launch of hijacked airliners at the heart of America’s symbols of economic and military power.

Review the record. The litany of domestic terrorism attacks manifests an ideological hatred of social justice as virulent as the Taliban’s detestation of Western values of freedom and truth.

But again, another profoundly different distinction.

The domestic terrorists who invaded and degraded the Capitol are being rebranded as patriots by Trump and his cultists, who perpetuate the lie that the presidential election was rigged and stolen from him. Respect for the vision of democratic government has sunk so low that 21 members of Congress objected when the House voted to honor Capitol and D.C. police officers for their heroism on Jan. 6.

The “core of strength” cited in the Post’s editorial on Sept. 12, and so evident in the response to the Jan. 6 insurrection, is needed now more than ever.

The taste for despotism, stimulated by Trump’s unraveling of American political culture, is loose in the land.

Be on guard. Because more post-9/11 attempts at domestic terrorism are surely yet to come.

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

Read the rest of the op-ed at the link.

Immigrants have felt the brunt of the post-9-11 attack on truth, Constitutional rights, and liberal American values by the right-wing neo-fascists.

Interestingly, former President George W. Bush’s remarks yesterday echoed Colby’s main point about insurrectionists on the right. Sadly, W’s epiphany is about 20 years too late — long after he unleashed Dick Cheney and John Ashcroft and others of their ilk on America. It didn’t have to be that way! But, it was, and our nation is still reeling from the continuing assault from the right!

🇺🇸Due Process Forever!

PWS

09-12-21

🤮👎🏽GREGG ABBOTT IS A MISOGYNIST MORON, A RACST VOTE SUPPRESSOR, & OTHER STUFF WE ALREADY KNEW FROM BESS LIVIN @ VANITY FAIR!

Bess Levin
Politics & Finance Writer
Vanity Fair

Levin Report: Dumbass Texas Governor Claims No-Exceptions Abortion Law Is Fine Because He’s Going to “Eliminate” Rape

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If you’re a person who believes it’s literally no one’s business who gets an abortion other than that of the pregnant individual undergoing the procedure, you’ve likely been incandescent with rage since the Supreme Court’s conservative majority decided to allow Texas to proceed with an insane law that prohibits terminating pregnancies after six weeks, with no exceptions for rape or incest. That anger likely stems from not just the law itself but having to listen to the chorus of dumbass voices who’ve come out backing Texas for effectively banning people from obtaining an abortion, from Tucker Carlson, who opined that the law shows “democracy does still exist,” to California gubernatorial candidate Caitlyn Jenner, who ironically commented that she supports Texas’s right to choose its own laws.

Of course, another one of those voices is the Lone Star state governor Greg Abbott, who signed the bill into law in May, saying at the time, “Our creator endowed us with the right to life and yet millions of children lose their right to life every year because of abortion,” and that the Texas Legislature “worked together on a bipartisan basis to pass a bill that…ensures that the life of every unborn child who has a heartbeat will be saved from the ravages of abortion.” (That both sides of the aisle supported the bill would be news to Texas Democrats, as just a single one of them voted for it.)

Asked on Tuesday why his state felt the need to “force a rape or incest victim to carry a pregnancy to term,” Abbott responded like only a person who really, really hates women can, claiming, “It doesn’t require that at all.” He added: “Because obviously it provides at least six weeks for a person to be able to get an abortion, so for one it doesn’t [require] that. That said, however, let’s make something very clear. Rape is a crime and Texas will work tirelessly to make sure that we eliminate all rapists from the streets of Texas by aggressively going out and arresting them and prosecuting them and getting them off the streets.”

There’s a lot to unpack here, so let’s start with the fact that Abbott is claiming that because the law allows for abortion up to six weeks, it’s not forcing anyone to do anything. As doctors, people who’ve been pregnant before, and people who’ve bothered to read a book on the subject before crafting legislation on it have noted, by the time a person misses her first period, she’s already roughly four weeks pregnant. That means that under Texas law, someone would have no more than two weeks, not six, to determine she’s pregnant and decide whether or not to get an abortion. Even in the case of people who are actively trying to get pregnant, that window can narrow even further for numerous reasons including if they have irregular cycles. Usually, then, one would make an appointment with a doctor to confirm the pregnancy, and as Abbott may or may not know, healthcare in America is not the greatest, so she may not be able to be seen for several weeks. And that hugely generous two weeks is not only a joke for many people actively trying to have a child, but for the majority of people who are not. “It is extremely possible and very common for people to get to the six-week mark and not know they are pregnant,” Jennifer Villavicencio, M.D., lead for equity transformation at the American College of Obstetricians and Gynecologists, told The New York Times. In other words, Abbott should fuck all the way off with his “obviously it provides at least six weeks for a person to be able to get an abortion.”

Then there’s the hilarious remark that he’s going to eliminate rape in Texas, so not allowing individuals to terminate pregnancies that result from heinous crimes is a moot point. Really, Abbott is going to make Texas rape-free? If he had that power, why didn’t he do it prior to enacting this law? The victims of the 14,824 reported rapes in his state in 2019, when he was four years into his first term, would probably love to know! (For those of you keeping up at home, that figure made Texas the No. 1 state for rape that year.)

Of course, Abbott is far from the first politician to say something ridiculously idiotic about abortion and rape. In fact, he joins a long line of assholes who’ve smugly offered their moronic two cents on the matter, an illustrious group that includes:

The Ohio state legislature, which introduced a bill in 2019 requiring doctors to “reimplant an ectopic pregnancy” into the uterus, or face charges of “abortion murder,” despite the fact that such a procedure is medically impossible;

Former Texas state representative Jodie Laubenberg, who claimed while in office that rape victims don’t need access to legal abortion, because they can get “cleaned out” with rape kits, which obviously is not at all how rape kits work;

Representative Michael Burgess, who somehow obtained a medical degree in 1977, and declared that male fetuses masturbate in utero—naturally, there is no evidence of this—, so abortions shouldn’t be allowed;

Former North Carolina state representative Henry Aldridge, who once said, “The facts show that people who are raped—who are truly raped—the juices don’t flow, the body functions don’t work, and they don’t get pregnant. Medical authorities agree that this is a rarity, if ever.” (Medical authorities do not agree with this);

Former congressman Todd Akin, who boldly declared on the campaign trail: “If it’s a legitimate rape, the female body has ways to try to shut that whole thing down.”

Welcome to the club, Greg! Can’t wait to hear you parse the nuances of putting $10,000 bounties on the heads of individuals trying to help people escape your barbaric law.

In other Abbott news…

When he’s not signing and defending disgraceful abortion bills, he’s disenfranchising millions of his constituents. Per Bloomberg:

Greg Abbott on Tuesday signed one of the nation’s most aggressive laws curbing access to the ballot, joining a wave of such restrictions enacted after former President Donald Trump’s false claim that the 2020 election was stolen. The legislature passed the measure last month after an exodus from the state by Democratic lawmakers during the first of two special sessions. After the walkout sputtered, Republican lawmakers passed the bill without delay.

Republicans have spent months raising doubts about the 2020 election, which experts say was one of the nation’s most secure. Now, supporters of new state laws say too many voters have lost faith in voting systems, and must be reassured.

“We must have trust and confidence in our elections,” Abbott said at a signing ceremony in Tyler, Texas. “The bill that I’m about to sign helps to achieve that goal. It ensures that every eligible voter will have the opportunity to vote.” Of course, that’s an interesting way to describe a law that makes it harder to vote, by, among other things, ending drive-thru voting, limiting mail-in voting, and endowing partisan poll watchers with more power. In a tweet, the American Civil Liberties Union wrote “This law is unconstitutional and anti-democratic. Texas—we’ll see you in court. Again.” Beto O’Rourke, the former Democratic U.S. representative from El Paso, wrote in a statement: “Governor Abbott is restricting the freedom to vote for millions of Texans. Instead of working on issues that actually matter, like protecting school kids from Covid or fixing our failing electrical grid, Abbott is focused on rigging our elections and implementing extreme, right-wing policies.”

. . . .

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

You can check out the rest of the always lively and entertaining “Levin Report” at the above link. Like their lost idol, Abbott & DeSantis are plumbing the absolute bottom of American politics and actually killing and irreparably harming their “constituents” as they do it. Undoubtedly, that will make them “heroes” in today’s existentially dangerous “anti-heroic, anti-democracy” GOP!

PWS

09-08-21

⚖️🗽🇺🇸👨🏻‍⚖️👩‍⚖️NEVER TOO LATE: 22 YEARS AGO, FIVE OF US DISSENTED FROM THE BIA’S “ROLLOVER” TO IMMIGRATION ENFORCEMENT IN THE “JOSEPH II” BOND CASE — Four Of Us Were “Exiled” For Our Views — Now, The 3rd Circuit Says We Were Right! — Gayle v. Warden!

Kangaroos — There was a time in the distant past when all BIA judges were not required to be members of the pro-immigration enforcement “mob!”
https://www.flickr.com/photos/rasputin243/
Creative Commons License.

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca3-on-mandatory-detention-gayle-v-warden

CA3 on Mandatory Detention: Gayle v. Warden

Gayle v. Warden

“Under 8 U.S.C. § 1226(c), the Government must detain noncitizens who are removable because they committed certain specified offenses or have connections with terrorism, and it must hold them without bond pending their removal proceedings. This appeal asks us to decide what process is due when such detainees contend that they are not properly included within § 1226(c) and whether noncitizens who have substantial defenses to removal on the merits may be detained under § 1226(c). Because the District Court granted relief in the form of a class-wide injunction, we must also decide whether 8 U.S.C. § 1252(f)(1) permits class-wide injunctive relief. For the reasons set forth below, we agree with the District Court that § 1226(c) is constitutional even as applied to noncitizens who have substantial defenses to removal. But for those detainees who contend that they are not properly included within § 1226(c) and are therefore entitled to a hearing pursuant to In re Joseph, 22 I. & N. Dec. 799 (BIA 1999), we hold that the Government has the burden to establish the applicability of § 1226(c) by a preponderance of the evidence and that the Government must make available a contemporaneous record of the hearing, consisting of an audio recording, a transcript, or their functional equivalent. Because we also conclude that § 1252(f)(1) does not authorize class-wide injunctions, we will reverse the District Court’s order in part, affirm in part, and remand for the entry of appropriate relief.”

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

As as interesting footnote, like most of my colleagues at the Arlington Immigration Court, I always recorded bond hearings, long before this court ordered it as required by due process. One of the first things one of my colleagues told me when I arrived at Arlington was “record everything that happens in open court.” Recording protects everyone in the courtroom, including the judge!

It also helped our Judicial Law Clerks and interns “reconstruct” the bond record and understand our reasoning in the infrequent event that a “bond appeal” were filed. Otherwise, the “bond memorandum” would have to be based on the IJ’s notes and his or her recollection of what had transpired.

Talk about a defective system that should have been changed ages ago! But, that’s EOIR! And, it’s not going to improve without some major personnel changes and dynamic leadership that actually understands what happens in Immigration Court and is willing to think creatively, progressively, and change long-outdated practices and procedures, many of them in effect since EOIR was created in the early 1980s!

Here’s my favorite quote from Judge Krause’s opinion:

Having considered the standards urged by the Government and by Plaintiffs, we settle on one in between: To comport with due process, the Government must show by a preponderance of the evidence that the detainee is properly included within § 1226(c) as both a factual and a legal matter. See Addington, 441 U.S. at 423–24. It must show, in other words, that it is more likely than not both that the detainee in fact committed a relevant offense under § 1226(c) and that the offense falls within that provision as a matter of law. Cf. Joseph, 22 I. & N. Dec. at 809 (Schmidt, Chairman, dissenting) (contending that the Government must “demonstrate[] a likelihood of success on the merits of its charge” at the Joseph hearing).

Here’s a link to the full opinion, including my separate opinion, in Matter of Joseph, 22 I&N Dec. 799 (BIA 1999) (Joseph II):

https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3398.pdf

Here’s the full text of my concurring/dissenting opinion (very “compact,” if I do say so myself):

CONCURRING AND DISSENTING OPINION: Paul W. Schmidt, Chairman; in which Fred W. Vacca, Gustavo D. Villageliu, Lory D. Rosenberg, and John Guendelsberger, Board Members, joined

I respectfully concur in part and dissent in part.

I join entirely in the majority’s rejection of the Immigration and Naturalization Service’s appellate arguments and in the unanimous conclusion that, on this record, the Service is substantially unlikely to prevail on the merits of the aggravated felony charge. Therefore, I agree that the respondent is not properly included in the category of aliens subject to mandatory detention for bond or custody purposes.

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

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

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

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

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

“Pushback” from appellate judges actually committed to the then-EOIR vision of “guaranteeing fairness and due process for all,” was essential! Once the “Ashcroft purge” “dumbed down” the BIA and discouraged dissent and intellectual accountability, the system precipitously tanked! It got so bad that it actually provoked harsh criticism and objections from Circuit Judges across the political/ideological spectrum.

Eventually the Bush II DOJ was forced to back off a few steps from their all-out assault on immigrants’ rights. But, the damage was done, and there were no meaningful attempts to restore balance and quasi-judicial independence at EOIR thereafter. Indeed, Ashcroft’s Bush-era successors blamed the Immigration Judges for the meltdown engineered by Ashcroft, while sweeping their own role in creating “disorder in the courts” under the carpet in the best bureaucratic tradition!

EOIR continued to languish under Obama before going into a complete “death spiral” under the Trump DOJ kakistocracy.

Despite unanimous recommendations from experts that he make progressive reform and major leadership and personnel changes at EOIR one of his highest priorities, AG Garland has allowed the mess and the fatal absence of progressive, due-process-focused, expert judges and best practices at EOIR fester.

Long-deposed progressive judges willing to speak up for due process and fundamental fairness, even in the face of a “go along to get along” culture at DOJ, are still making their voices heard, even decades after they were sent packing! It’s tragic that Garland is letting the opportunity to create a long-overdue and necessary independent progressive judiciary at EOIR slip through his fingers. Progressive Dems might “dream” of transforming the Article III Judiciary; but, it’s not going to happen while Dems are running a “regressive judiciary” at the “retail level” in the one potentially powerful judiciary they do completely control.

Sadly, vulnerable individuals, many of them women, children, and people of color, will continue to suffer the brunt of Garland’s indifferent approach to judicial justice at EOIR. Beyond that, however, his failure to transform EOIR into an independent progressive court system willing to stand up for constitutional due process, equal justice, racial equity, best judicial practices, and the rule of law undermines democracy and diminishes the rights of everyone in America!

🇺🇸Due Process Forever!

PWS

09-08-21

Here’s a report from Politico:

Here’s a key quote from Koh’s memo:

🇺🇸Due Process Forever!

Related posts:

Theresa Vargas reports for WashPost:

🇺🇸Due Process Forever!

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Gabe Ortiz reports for The Daily Kos:

🇺🇸Due Process Forever!

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Carrie’s guest blog in ImmigrationProf Blog should be be read and taken to heart by everyone who believes in a better, racially equal, America:

🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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Jacob Soboroff @ NBC News With Truth About Deplorable, Unsafe, Conditions Facing Those Deported To Haiti:

Human Rights First debunks myth that seekers present a COVID health threat:

Even in rolling out otherwise more reasonable enforcement priorities for ICE, Mayorkas insisted on making the bogus claim that recent border arrivals present a “national security threat,” as reported by the WashPost’s Maria Sacchetti:

“Courtside’s” rating of Mayorkas’s claims: 🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥

🇺🇸Due Process Forever!

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Andrea Castillo reports for the LA Times:

🇺🇸Due Process Forever!

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From the WashPost Editorial Board:

🇺🇸Due Process Forever!

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Sanjana Karanth reports for HuffPost:

🇺🇸Due Process Forever!

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Amanda Holpuch reports for The Guardian:

Of course, Haiti clearly is not a safe place to return migrants:

David Shipler does a great job of exposing the hypocrisy and intellectual dishonesty of Mayorkas and other Biden Administration immigration officials.

🇺🇸Due Process Forever!

Related posts:

Dan Kowalski reports for LexisNexis Immigration Community:

🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

Related posts:

🇺🇸Due Process Forever!

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Levin Report: Dumbass Texas Governor Claims No-Exceptions Abortion Law Is Fine Because He’s Going to “Eliminate” Rape

Related posts:

🇺🇸Due Process Forever!

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