"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Legal asylum seekers from Central America might have thought that cruelty, illegality, and stupidity went out with the Trump Administration. They were wrong! Now Biden proposes to lawlessly “presume denial” of asylum — with no legal basis — and dump legal asylum seekers of color from his “disfavored nations” back into Mexico, whose asylum system is dysfunctional and where abusive treatment of asylum seekers has been well documented and recognized by a Federal Court! Women suffering from gender-based persecution are particular targets of this Administration’s campaign against humanity! Artist: Monte Wolverton Reproduced under license
Many groups issued immediate statements of outrage and protest at this cruel, lawless, and intellectually dishonest betrayal! I set forth two of them here:
From the American Immigration Council:
PRESS RELEASE
Department of Justice and Department of Homeland Security Release Details of Dangerous New Asylum Transit Ban
WASHINGTON, Feb. 21, 2023—Today, the U.S. Department of Justice and the U.S. Department of Homeland Security released a Notice of Proposed Rulemaking (NPRM) that will implement a new asylum transit ban—one of the most restrictive border control measures to date under any president. The policy will penalize asylum seekers who cross the border irregularly or fail to apply for protection in other nations they transit through on their way to the United States.
As described in the NPRM, the proposed asylum transit ban rule would all but bar asylum for any non-Mexican who crosses the U.S.-Mexico border between ports of entry, unless they had previously applied for—and been denied—asylum in another country before arrival.
Specifically:
The rule would apply to all non-Mexican migrants (except unaccompanied minors) who had not been pre-approved under one of the Biden administration’s parole programs, which are currently open only to certain nationals of 5 countries; pre-register at a port of entry via CBP One or a similar scheduling system (or arrive at a port of entry and demonstrate they could not access the system); or get rejected for asylum in a transit country.
During an asylum seeker’s initial screening interview with an asylum officer, the officer will determine whether the new rule applies to them. If so, they will fail their credible fear screening unless they can demonstrate they were subject to an exception such as a medical emergency, severe human trafficking, or imminent danger—which would “rebut the presumption” of ineligibility.
Migrants subject to the rule, who do not meet the exceptions above, would be held to a higher standard of screening than is typically used for asylum (“reasonable fear”). If a migrant meets that standard, they will be allowed to apply for asylum before an immigration judge—although the text of the proposed regulation is unclear on whether they would actually be eligible to be granted asylum.
Migrants who do not meet the credible or reasonable fear standard can request review of the fear screening process in front of an immigration judge.
Once the regulation is formally published in the Federal Register, the public will have 30 days to comment on the proposal. The administration is legally required to consider and respond to all comments submitted during this period before publishing the final rule, which itself must precede implementing the policy. Given the Biden administration’s expectation that the new rule will be in place for the expiration of the national COVID-19 emergency on May 11, and the potential end of the Title 42 border expulsion policy at that time, the timeline raises substantial concerns that the administration will not fulfill its obligation to seriously consider all comments submitted by the public before the rule is finalized.
Furthermore, the sunset date for the new rule, two years after it becomes effective, is after the end of the current presidential term—making it impossible to guarantee it will not be extended indefinitely.
In 2020, a Ninth Circuit Court of Appeals panel blocked the Trump administration’s asylum transit ban from being applied to thousands of asylum seekers who were unlawfully prevented from accessing the U.S. asylum process. The ban was later vacated by the D.C. District Court.
The American Immigration Council was a part of the Al Otro Lado v. Wolf class action lawsuit on behalf of individual asylum seekers and the legal services organization Al Otro Lado (AOL), which challenged the legality of the previous asylum transit ban as applied to asylum seekers who had been turned back at the U.S.-Mexico border.
Jeremy Robbins Executive Director American Immigration Council PHOTO: AIC websitel
The following statement is from Jeremy Robbins, Executive Director, The American Immigration Council:
“President Biden committed to restoring access to asylum while on the campaign trail, but today’s proposal is a clear embrace of Trump-style crackdowns on asylum seekers, many of whom are fleeing from globally recognized oppressive regimes. For over four decades, U.S. law has allowed any person in the United States to apply for asylum no matter how they got here. The new proposed rule would all but destroy that promise, by largely reinstating prior asylum bans that were found to be illegal.
“Not only is the new asylum transit ban illegal and immoral, if put into place as proposed, it would create unnecessary barriers to protection that will put the lives of asylum seekers at risk. While the rule purports to be temporary, the precedent it sets—for this president or future presidents—could easily become permanent.
“For generations, the United States has offered a promise that any person fleeing persecution and harm in their home countries could seek asylum, regardless of how they enter the United States. Today’s actions break from his prior promises and threaten a return to some of the most harmful asylum policies of his predecessor—possibly forever.”
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For more information, contact:
Brianna Dimas 202-507-7557 bdimas@immcouncil.org
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From the Lutheran Immigration & Refugee Services:
FOR IMMEDIATE RELEASE
February 21, 2022
Contact: Tim Young | tyoung@lirs.org
Washington, D.C. – In preparation for the end of Title 42 asylum restrictions, the Biden administration announced a new proposed rule severely limiting asylum eligibility for those who did not first seek protection in a country they transited through to reach the United States, or who entered without notifying a border agent. The proposed rule will be subject to a 30-day period of public comment before it can take effect.
The new rule mirrors a transit asylum ban first implemented under the Trump administration, which was ultimately struck down by federal judges in multiplecourts. The Immigration and Nationality Act (INA) provides that people seeking protection may apply for asylum regardless of manner of entry, and does not require them to have first applied for protection in another country.
Krish O’Mara Vignarajah CEO Lutheran Immigrantion & Refugee Service
In response to the proposed asylum eligibility rule, Krish O’Mara Vignarajah, President and CEO of Lutheran Immigration and Refugee Service, said:
“This rule reaches into the dustbin of history to resurrect one of the most harmful and illegal anti-asylum policies of the Trump administration. This transit ban defies decades of humanitarian protections enshrined in U.S. law and international agreements, and flagrantly violates President Biden’s own campaign promises to restore asylum. Requiring persecuted people to first seek protection in countries with no functioning asylum systems themselves is a ludicrous and life-threatening proposal.
While the Biden administration has launched a smartphone app for asylum appointments and expanded a temporary parole option for an extremely limited subset of four nationalities, these measures are no substitute for the legal right to seek asylum, regardless of manner of entry. It is generally the most vulnerable asylum seekers who are least likely to be able to navigate a complex app plagued by technical issues, language barriers, and overwhelming demand. Many families face immediate danger and cannot afford to wait for months on end in their country of persecution. To penalize them for making the lifesaving decision to seek safety at our border flies in the face of core American values.
We urge the Biden administration to reverse course before this misguided rule denies protection to those most in need of it. Officials must recognize that decades of deterrence-based policies have had little to no impact in suppressing migration. Instead, they should focus on managing migration humanely through expanded parole programs, efficient refugee processing in the hemisphere, and an equitably accessible asylum system.”
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Lest anyone believe the absolute BS coming from the Biden Administration that they “had no choice” and that this “wasn’t the choice they wanted,” here’s an article setting forth the many southern border solutions that the Administration ignored or was too incompetent to carry out in their dishonest, immoral pursuit of the anti-asylum “vision” of Stephen Miller and other White Nationalists.
💡💡”There’s many things Biden could do. We published a resource called “Forty-Two Border Solutions That Are Not Title 42.” We could have done 142,” says immigration expert Danilo Zak in The Border Chronicle! The Biden Administration has ignored, failed, or is prepared to shrug off most of them!🤯
Danilo Zak Associate Director of Policy and Advocacy Church World Service PHOTO: The Border Chronicle
Zak was interviewed by Melissa Del Bosque of The Border Chronicle:
There are many changes that the Biden administration and Congress could make to alleviate suffering at the southern border. Immigration policy expert Danilo Zak recently published a report that offers several solutions, from rebuilding the refugee resettlement program to expanding nonimmigrant work visas to more countries in the Western Hemisphere.
Zak, formerly of the National Immigration Forum, is Associate Director of Policy and Advocacy for the nonprofit Church World Service. He spoke with The Border Chronicle about the increase of forcibly displaced people in the Western Hemisphere and the current situation at the border. “For many, there is no line to get into—no ‘right way’ to come to the U.S.,” Zak says.
Melissa Del Bosque Border Reporter PHOTO: Melissadelbosque.com
Notably, better, more robust, use of Refugee Programs established by the Refugee Act of 1980 is among Zak’s “top three.” This is something that I have been “touting” since Biden was elected, but where the Administration has failed to meet the challenge.
And, contrary to what the Administration and others might say, there is nothing unachievable about using refugee programs to deal with emergency humanitarian situations. Also, with respect to cases taking forever to process, no need for that nonsense. It’s a matter of poor bureaucratic execution rather than a defect in the legal authority.
The Refugee Act of 1980 (“RA 80”) is basically a modified version of the “emergency parole, resettle with NGOs, and petition Congress to adjust status” that was used on an ad hoc basis to resettle Indochinese refugees and others on an emergency basis prior to the RA 80. Except, that the criteria, resettlement mechanisms, and adjustment process were all “built in” to the statute. Consequently, although Congress was to be consulted in advance, that process was designed to run smoothly, efficiently, and on an emergency basis if necessary.
While “Congress bashing” is now a favorite pastime of the Executive, Judiciary, and media, in 1980 Congress actually provided a mechanism to regularize the processing of type of refugee flows now facing the U.S. The statutory flexibility and the legal tools to deal with these situations are in RA 80.
A subsequent Congress even added the “expedited removal” and “credible fear” process so that initial asylum screening could be conducted by expert Asylum Officers at or near the border and those “screened out” would be subject to expeditedremoval without full hearings in Immigration Court. Clearly, there was never a need for the Title 42 nonsense for any competent Administration.
Basically, if an Administration can run a large-scale parole program, which the Biden Administration did for Afghanistan and is doing now for Cuba, Nicaragua, Venezuela, and Haiti, it can run a legal refugee program beyond our borders, even in a “country in crisis” if necessary.
The idea that a statutory scheme specifically designed to have the flexibility deal with future mass refugee situations couldn’t be used to deal with the current humanitarian situation in the Western Hemisphere is pure poppycock!
Also unadulterated BS: The Biden Administration’s proposal to make the “end of asylum” at the southern border “temporary,” for two years! In 2025, the Biden Administration might not even be in office. If there is a GOP Administration, you can be sure that the demise of asylum at the border will become permanent, with or without legislation.
Also, what would be an Administration’s rationale for resuming asylum processing at the southern border in two years. Surely, there will be some other “bogus border crisis” cooked up to extend the bars. And, if there is no such crisis, the claim will be that the bars are “working as intended” so what’s the rationale for terminating them.
The argument that complying with the law by fairly processing asylum seekers regardless of race, ethnicity, religion, or manner of arrival, as the law requires, might actually encourage people to apply for protection will always be there — hanging over cowardly politicos afraid of the consequences of granting protection. Fact is, the current Administration has so little belief in our legal system and their own ability to operate within in, and so little concern for the human lives involved, that they are scared to death of failure. That’s not likely to change in two years — or ever!
PHOENIX – Nearly a month into a seemingly worldwide shutdown, it may be hard to find an everyday business or public area that has not been closed because of COVID-19. Many companies have allowed their employees to work from home, but businesses deemed essential are still in operation.
This includes grocery stores, fuel stations, banks, transportation systems, pharmacies – and most U.S. immigration courts.
The coronavirus pandemic has upended the daily routines of hundreds of millions of Americans.
Yet for migrants in federal custody waiting for their cases to be heard, their reality has not changed much.
As of March 28, Immigration and Customs Enforcement’s average daily population – the total number of individuals in ICE detention across the current fiscal year (Oct. 1 through Sept. 30), divided by the number of days into the fiscal year – was 43,026.
Three out of four Arizona immigration courts – in Phoenix, Eloy and Florence – remain open. A fourth, in Tucson, was closed due to a water main break. All hearings scheduled through May 1 for immigrants who are not in federal detention, as well as cases under the Migrant Protection Protocols docket scheduled through May 1, have been postponed by the Department of Justice.
Yet all detained migrants still remain in federal custody.
All non detained hearings scheduled through April 10 have been postponed in all 63 immigration courts. But immigration judges and court staff from various professional associations say that’s not nearly enough. They have filed a lawsuit against ICE and the Department of Justice’s Executive Office for Immigration Review (EOIR), which oversees all U.S. immigration court cases.
Immigration attorney Pamela Florian, chairwoman of the American Immigration Lawyers Association’s Arizona chapter, said she and her associates fear for their own well-being as well as the health of their clients.
“Detainees who are in the Arizona detention facilities are at a higher risk because of the conditions that they live in,” Florian said, “and we don’t want to be the ones bringing in the virus to them because we are still forced to continue with our hearings during a pandemic.”
The associations are also looking for the EOIR to provide detained immigrants and legal counselors with protective gear, such as N95 masks, eye protection and gloves, to be used when they meet in facilities that require such gear. The lawyers fear that if they are not provided with the equipment and can’t access them independently, they will not be able to meet with their clients when necessary.
“If we don’t have the required PPE (personal protective equipment) that is in shortage right now at the national level, not seeing our clients or being deprived of that does raise due process concerns because we need to be able to prepare our clients for their hearings,” Florian said.
Immigration lawyer Margarita Silva has been defending both detained and non detained immigrants for 18 years. On March 20, she arrived at an Arizona ICE detention facility to meet with a client with a makeshift collection of PPE that she provided herself.
Silva said that she and her colleagues began to bring their own protective gear to meet with clients in detention centers after they were told by ICE that they would not be allowed in without them.
“I had a friend who had just had a baby in November, and she’s like, ‘Well, I have some masks. You can have a couple,’” Silva said. “And then my husband uses protective eyewear for some of his jobs, and so he said, ‘Well, here you can use these.’ And I ended up getting some nitrile gloves.”
Silva was allowed into the facility wearing her provisional gear. She mentioned that a few of her colleagues have been wearing prescription sunglasses and swimming goggles to meet with clients in custody.
“There was no scrutiny at all,” Silva said. “They had a sign out front that said they were going to take our temperatures before we went in, and that if you had a fever, nobody was getting in. I went in with a group of about 10 people. Nobody’s temperature was taken.”
However, she said she was more shocked to learn she and her colleagues were the only ones in the facility wearing personal protective equipment.
“That was the other weird thing, was that it (the PPE requirement) only applied to the immigrants’ attorneys,” Silva said. “None of the guards were wearing it (protective gear). None of the admin staff were wearing it. Medical personnel inside the facility weren’t wearing any of this. Detainees aren’t wearing any of it.”
The immigration lawyers suing the EOIR also insist the Department of Justice make it possible for them to communicate with their detained clients to promote a safer environment, as the limited phone calls they currently have access to are simply not enough.
Silva said she and her associates have been given the green light to attend all Arizona detained cases by phone at this time. In the past, she said, attorneys had to submit a written request to a judge if they wanted to attend a short hearing by phone, which lawyers who lived far from facilities did frequently.
If the EOIR can’t meet their demands, the professional bar associations said, it must release the detained immigrants with “inadequate access to remote communication” with their legal representatives or immigration courtrooms.
Immigration attorneys and detained immigrants differ on whether detainees should be released at this time, Silva said. Many feel the courts should be closed entirely, she added, but others are frustrated that immigrants in custody will not be released as a result.
“A large amount of these people could be released safely, either on their own recognizance or on bond,” Silva said. “A lot of (immigrants in custody) are not people that would have been considered dangerous. They have houses and families to go to. So it’s not like they would just be wandering the streets. These are people that had jobs.”
Although non detained immigrants may not mind having their cases put on hold for the time being, she said, many want their cases to move forward if they’re forced to remain in custody.
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Video by Frankie McLister/Cronkite News
Meanwhile, the American Immigration Lawyers Association has taken the lead in the effort to temporarily suspend immigration courts. The organization initially joined with the National Association of Immigration Judges and the American Federation of Government Employees Local 511 to publish a statement on March 15 that expressed concerns for the health and safety of immigration prosecutors and attorneys.
Since then, 73 other organizations have joined their efforts to close the courts by addressing a letter to U.S. Attorney General William Barr. The letter, signed by organizations including the Arizona Coalition to End Sexual and Domestic Violence and Amnesty International USA, called on Barr to immediately close all U.S. immigration courts.
As the president of the National Association of Immigration Judges, Judge A. Ashley Tabaddor oversees a union of judges that works to improve the immigration court system and promotes the well-being of its members.
“It’s really a historic event that we have prosecutors and the defense attorney organizations come together with the judges, all agreeing that the immigration courts across the country should close temporarily and immediately to allow for the public health officials to get a handle on” the outbreak, said Tabaddor, whose court is in Los Angeles.
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Read Kelly’s full article at the link.
Not surprising that an organization like EOIR which has institutionalized the dehumanization of others — treating human lives as “production statistics” and touting cutting corners, skewed decisions, and unfair deportations as a “deterrent” — would eventually start “devouring its own.”
