☠️NEW KIND REPORT SHOWS CRISIS OF PERSECUTION OF WOMEN & CHILDREN IN NORTHERN TRIANGLE EXACERBATED BY PANDEMIC — More Evidence Of Legal, Factual, & Moral Bankruptcy Of Administration’s Bogus “Deterrence Policies” As Well As Grotesque Failure Of U.S. Courts At All Levels To Uniformly Require Granting Of Asylum To Qualified Refugee Women & Children!

 

pastedGraphic.png

*Cover photo by photojournalist Guillermo Martinez shows a boy in El Salvador wearing a protective mask from his home during a COVID-19 lockdown. Photo credit: Guillermo Martinez/APHOTOGRAFIA/ Getty Images

 

New Report: Dual Crises

 

 

 

Gender-Based Violence and Inequality Facing Children and Women During the COVID-19 Pandemic in El Salvador, Guatemala, and Honduras

 

 

 

Gender-based violence has long been one of the main drivers of migration from Central America to the United States. Widespread violence, including sexual abuse, human trafficking, and violence in the home and family, combined with a lack of access to protection and justice forces children and women to flee in search of safety. Drawing on existing research and interviews with children’s and women’s rights experts, this report lays out how the COVID-19 pandemic has exacerbated already pervasive forms of violence against children and women in Central America, as well as the deeply entrenched gender inequality that leaves children and women even more vulnerable to violence.

Here’s a link to the full report: http://us.engagingnetworks.app/page/email/click/10097/1093096?email=C9P0Zhj6QQc0L7Si0LDouAN%2BRR2ul1GhmZAK81VjEpg=&campid=z6owwwxd2r6ZkArzVWMSmA==

 

 

 

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

Successful implementation of the U.S. Strategy for Addressing the Root Causes of Migration in Central America must start by acknowledging that gender-based violence is a primary driver of migration and includes most violence against children.

Obviously, mindless, failed enforcement and deterrence-only policies that tell women and children to “suffer and die in place” rather than flee and seek asylum are absurdly out of touch with the realities of both human migration and the real situation in the Northern Triangle. This report shows that increased flight from the Northern Triangle probably has more to do with the aggravating effects of the pandemic on the already untenable situation of many women and children in the Northern Triangle than it does on any policy pronouncements, real or imagined, on the part of the Biden Administration.

An honest policy that recognizes the reality that gender-based persecution is a major driver of forced migration in the Northern Triangle would go a long way toward addressing the largely self-created situation at our Southern Border.

As many of us keep saying, to no visible avail, asylum isn’t a “policy option” for politicos and wonks to “discuss and debate.” It’s a legal and moral requirement, domestically and internationally, that we are currently defaulting upon!

Wonder why “democracy is on the ropes” throughout the world right now? Perhaps, we need look no further than our own horrible example!

A robust overseas refugee program in the region and a uniform, consistent, timely policy of granting asylum to qualified applicants applying at ports of entry at our borders would be a vast improvement. 

Sure, it would undoubtedly result in the legal immigration of more refugees and asylum seekers. That’s actually what refugee and asylum laws are all about — an important and robust component of our legal immigration system. 

Although our needs are not actually part of the “legal test for asylum,” the fact is, we need more legal immigrants of all types in America right now.

It should be a win-win for the refugees and for America. So why not make it happen, rather than continuing failed policy approaches that serve nobody’s interest except nativist zealots trying to inflame xenophobia for political gain?

An additional point: On February 2, 2021, to great ballyhoo, President Biden issued Executive Order 14010. A key provision of that order required that:

(ii) within 270 days of the date of this order, promulgate joint regulations, consistent with applicable law, addressing the circumstances in which a person should be considered a member of a “particular social group,” as that term is used in 8 U.S.C. 1101(a)(42)(A), as derived from the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

270 days have long passed. In fact, its been more than 300 days since that order. Yet, these regulations are nowhere in sight. Perhaps, that’s a good thing.

This doesn’t come as much of a surprise to “us old timers” who have “hands on” experience with the unsuitability of the DOJ regulation drafting process for this assignment. Indeed, this assignment is actually several decades “overdue,” having originally been handed out by the late former Attorney General Janet Reno prior to her departure from office in January 2020!

The problem remains lack of expertise. With the possible exception of Lucas Guttentag, I know of nobody at today’s DOJ who actually has the necessary experience, expertise, perspective, and historical knowledge to draft a proper regulation on the topic. Past drafts and proposals have been disastrous, actually seeking to diminish, rather than increase and regularize, protections for vulnerable women and others facing persecution on account of gender-based particular social groups.

Indeed, one proposal was even used by OIL as an avenue in attempting to “water down” the all-important, life saving “regulatory presumption of future persecution arising out of past persecution!” Talk about perversions of justice at Justice! Why? Because OIL had suffered a series of embarrassing, ego-deflating setbacks from Article III Courts calling out the frequent failure of the BIA and IJs to properly apply the basics of the presumption. Sound familiar?

At DOJ, the “normal solution to lack of expertise and competence” is to simply eliminate expertise and competence as requirements! In many ways, “good enough for government work” has replaced “who prosecutes on behalf of  Lady Justice” as the DOJ’s motto!

It’s also yet another reason why the DOJ is a horribly inappropriate “home” for the U.S. Immigration Courts!


😎Due Process Forever! 

PWS

12-16-21

👍🏼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.

. . . .

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

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

🏴‍☠️☠️⚰️LOSING FAITH IN THEIR OWN COMMITMENTS & COMPETENCE: Restoring The Rule Of Law At The Border Should Result In A Fairer, More Humane, More Realistic Asylum System, Encouraging Applicants To Apply Through Legal Channels, While Resulting In More Legal Immigration, Which America Needs, & Allowing CBP To Focus On Real Law Enforcement — Unfortunately, The Biden Administration Doubts Its Own Campaign Promises, As Well As Its Competence To Govern  — Administration Apparently Hopes Righty Courts Will Continue To “Force” Them To Carry Out “Miller Lite” Cruelty & Futility While Absolving Them Of Moral & Political Responsibility For The Ongoing Human Carnage!

“Floaters”
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” — According to the NYT, Biden immigration policy officials always shared this vision of “ultimate border deterrence” with Gauleiter Stephen Miller. Now, they are secretly relieved that Trump’s righty judges have “forced” them to continue running a lawless border and killing asylum seekers without legal process.
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.nytimes.com/2021/09/06/world/americas/mexico-migrants-asylum-border.html

Natalie Kitroeff
Natalie Kitroeff
Foreign Correspondent
NY Times
PHOTO: NY Times

By Natalie Kitroeff

Sept. 6, 2021, 5:00 a.m. ET

MATAMOROS, Mexico — When the Supreme Court effectively revived a cornerstone of Trump-era migration policy late last month, it looked like a major defeat for President Biden.

After all, Mr. Biden had condemned the policy — which requires asylum seekers to wait in Mexico — as “inhumane” and suspended it on his first day in office, part of an aggressive push to dismantle former President Donald J. Trump’s harshest migration policies.

But among some Biden officials, the Supreme Court’s order was quietly greeted with something other than dismay, current and former officials said: It brought some measure of relief.

Before that ruling, Mr. Biden’s steps to begin loosening the reins on migration had been quickly followed by a surge of people heading north, overwhelming the southwest border of the United States. Apprehensions of migrants hit a two-decade high in July, a trend officials fear will continue into the fall.

Concern had already been building inside the Biden administration that the speed of its immigration changes may have encouraged migrants to stream toward the United States, current and former officials said.

In fact, some Biden officials were already talking about reviving Mr. Trump’s policy in a limited way to deter migration, said the officials, who have worked on immigration policy but were not authorized to speak publicly about the administration’s internal debates on the issue. Then the Supreme Court order came, providing the Biden administration with the political cover to adopt the policy in some form without provoking as much ire from Democrats who reviled Mr. Trump’s border policies.

Now, the officials say, they have an opportunity to take a step back, come up with a more humane version of Mr. Trump’s policy and, they hope, reduce the enormous number of people arriving at the border.

. . . .

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

Read the rest of Natalie’s article at the link.

Who would have thought that neo-Nazi Stephen Miller would be the real winner of the 2020 election?

Stephen Miller Monster
When he ”wins,” America and humanity “lose.” But, apparently that’s “A-OK” with some Biden Administration officials who lack the expertise, ability, courage, and political will to establish the rule of law for asylum seekers at our Southern Border! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com.

Five decades of experience, including plenty of wall and fence building, civil detention, expedited dockets, restrictive interpretations, criminal prosecutions, family detentions, toddlers without lawyers, money to corrupt foreign governments, “don’t come, we don’t want you and care nothing about your lives messages,” in English and Spanish, says the Biden version of the “Miller Lite” approach will fail and ultimately expand the extralegal population of the U.S.

Of course, it also will kill more desperate humans in the desert, in Mexico, in squalid “camps,” and back in their home countries. Just so long as it’s “out of sight, out of mind.” The great thing about desert deaths is that often the bodies are never found or identified. Therefore, nothing can be proved, and it’s like these people “never happened.” It’s a real bureaucratic triumph! Foreign deaths are almost as good, as they seldom get much “play” in U.S. media and always can be blamed on something other than failed U.S. policies or foreign interventions.

I’d already observed that the DOJ’s “defense” of undoing Trump immigration policies seemed as half-hearted as it was ineffective. Perhaps their lackadaisical approach came right from the top!

And, the “policy geniuses” in the Biden Administration who think “Miller-Lite Time” will be a political “happy hour” (at humanity’s expense) should remember that the right will still successfully label them as “open borders” just as they did when Obama established himself as “deporter-in-chief!”

Meanwhile, their former progressive supporters will see through the false humane rhetoric. Does it really matter if we call individuals “foreign nationals” rather than “illegals” while we’re illegally exterminating them?

I’m afraid we know the answer to “Casey’s question:” NO!

Casey Stengel
”Sorry, Casey! Not only can’t anyone in the Biden Administration ‘play this game,’ they don’t even have the guts to suit up! They view a ‘forfeit’ to “Team Miller” as good as a ‘W.’ Remember, it’s not THEIR family, friends, or relatives dying at our border. It’s just ‘the other guys,’ so who cares? When it comes to U.S. immigration policy, foreign nationals all too often find that their lives and human dignity are just another form of expendable political capital.”
PHOTO: Rudi Rest
Creative Commons

🇺🇸Due Process Forever!

PWS

09-06-21

C-SPAN: PROFESSOR GEOFFREY HOFFMAN EXPLAINS FAILED SOUTHERN BORDER POLICIES & LOUSY JUDICIAL DECISIONS ENABLING THEM! — Watch Geoffrey Patiently Rebuff A Slew Of Uninformed Nativist “Call-Ins” — Truth Is, MPP & Illegal Use Of Title 42 Resulted In Over 6,300 Violent Incidents Of “rape, kidnapping, extortion, human trafficking and other assaults against migrants who were deported to Mexico or people who were prevented from seeking asylum at the U.S. border under Title 42!” — More “Inconvenient Truth” For Ill-Informed (& Rude) Nativists: Immigrants Of All Types, Including Undocumented, Are Keeping American Society & Our Economy Afloat & Are Our Hope For The Future!

Professor Geoffrey Hoffman
Professor Geoffrey Hoffman
Immigraton Clinic Director
University of Houston Law Center

Here’s the video of Geoffrey (approx. 40 minutes):

https://www.c-span.org/video/?514241-3/washington-journal-geoffrey-hoffman-discusses-biden-immigration-policy&live

Here’s the ugly truth about what two Administrations and some really bad Federal Judges have done to our vulnerable fellow humans seeking legal refuge at our borders:

https://www.nbcnews.com/news/latino/-live-fear-6000-migrants-mexico-violently-attacked-rcna1783

I refer to this as the “harsh reality that the nativist Ted Cruz ‘let ‘em enjoy the beaches in Cancun’ crowd doesn’t get!”

And, here’s the truth about migrants helping our nation thrive and who are a key component of our hopes for the future. Progressives and their allies must double down and act upon these truths to combat the type of ridiculous, dangerous, anti- American nativist lies and myths that were driving some of the misinformed callers, also pushed by the “insurrectionist wing” of the GOP:

https://urldefense.com/v3/__https://www.bushcenter.org/catalyst/state-of-the-american-dream/shi-undocumented-workers-rebuilding-america.html__;!!LkSTlj0I!RcKFXMY1liB3z78Z7LQwEgVggJK2JUSoGlwyO74myivmVNhy6BCynOqMpdYVknPMoicnXQ$

Significantly, this article came from the George W. Bush Institute, hardly a “left wing think tank.” 

“Geoffrey’s 40 minutes” shows that there is, indeed, an imminent threat to American democracy, leadership, and future prosperity out there. But, it definitely does not come from migrants! A nation where about 98% of the population came from immigrant lineage can’t afford to turn our backs on today’s immigrants.

🇺🇸Due Process Forever!

PWS

08-28-21

🧑🏽‍⚖️🇺🇸⚖️THE NATION: CHIEF U.S. DISTRICT JUDGE MIRANDA M. DU (D NV) COURAGEOUSLY & CORRECTLY  EXPOSED THE RACISM, WHITE SUPREMACY BEHIND OUR IMMIGRATION LAWS — Expect Appellate Judges At Both Ends Of The Spectrum To Discredit & Suppress “Uncomfortable Truths!” — “A lone federal judge cannot stop 100 years of bigoted policies, but if you want to know what a truly progressive legal analysis looks like, Judge Du just spelled one out.“

Chief Judge Miranda M. Du
Chief Judge Miranda M. Du
USDC Nevada
PHOTO: US Courts, Public Realm
Elie Mystal
Elie Mystal
Justice Correspondent
The Nation
PHOTO: The Nation

https://www.thenation.com/article/society/immigration-crime-law/

ELIE MYSTAL, Justice Correspondent, writes in The Nation:

. . . .

The opinion is thorough and well-reasoned, and Judge Du’s arguments are so obvious in retrospect that it’s kind of amazing they aren’t a staple of the immigration debate in this country. But this is where Judge Du’s background perhaps becomes important.

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Miranda Du was born in Ca Mau, Vietnam, in 1969. Her family fled the nation after the Vietnam War when she was 9, first to Malaysia, before eventually making its way to Alabama. She went to Berkeley for law school and was an employment lawyer in Nevada when Harry Reid and Barack Obama made her a federal district judge in 2011. I would imagine that Judge Du looks at the US immigration system with a fresh perspective, at least as compared to a person like me, who was born here and has been taught to just accept a background level of bigotry as an immutable fact of immigration law. One of the more striking parts of her opinion in this case is the section in which she calls out other courts for not doing this sooner. She essentially says that courts in other jurisdictions that have looked at Section 1326 have blindly accepted the government’s reasoning that the 1952 reauthorization cleansed the statute of its racial bias, without really looking at the 1952 Congress.

The opinion is brilliant, and I’m going to print it out so I’ll still have a copy of it when Justice Samuel Alito and the other conservatives on the Supreme Court reverse it and order Du’s opinion to be nuked from orbit. There is, practically speaking, no chance this ruling survives Supreme Court review. The high court will skate over the disparate impact analysis by saying that any person, regardless of race, who crosses the southern border will experience the same over-enforcement. Or the court will reverse the ruling of racist intent by finding, as other courts have, that the 1952 Congress did cleanse the statute of racism. Or they’ll find that the government does have a legitimate and permissible interest in discriminating against southern border crossers. After all, the Supreme Court found bigotry to be okay in Trump v. Hawaii, which upheld the Muslim ban, so finding a reason to uphold Section 1326 will be child’s play for the conservatives who like a little bigotry in their immigration rulings.

And that’s if the case even makes it to the Supreme Court, which it probably won’t. Judge Du’s ruling will first be appealed to the US Court of Appeals for the Ninth Circuit, and I could see it getting reversed there. It’s unlikely that other liberal judges will even want to open this can of worms. As I said, Judge Du relies on a disparate impact analysis, and I can think of at least three Supreme Court justices who might be in the mood to overturn disparate impact analysis altogether.

MORE FROM MYSTAL

WHY ARE WE STILL USING TRUMP’S BROKEN CENSUS?

Elie Mystal

A QUICK REMINDER THAT MANDATING VACCINES IS TOTALLY CONSTITUTIONAL

Elie Mystal

Judge Du is right about the bigotry inherent in our immigration laws, but conservatives like the bigotry and liberals will be afraid that trying to stop it will just piss off the conservatives.

But at least this opinion exists now. It’s out there, and future lawyers and judges can read it and maybe think differently about the core assumptions at the heart of our immigration system. A lone federal judge cannot stop 100 years of bigoted policies, but if you want to know what a truly progressive legal analysis looks like, Judge Du just spelled one out.

Now, President Biden just needs to read it and go out and nominate 100 judges who agree.

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

Read the full article at the link.

Biden could start by telling Garland to “redo” the U.S. Immigration Courts with well-qualified, expert, progressive judges in the “ Chief Judge Miranda Du” image! 

Different backgrounds and new, “real life” perspectives! That’s why two decades of appointments of almost exclusively prosecutors and government bureaucrats, to the exclusion of human rights experts and advocates, to the Immigration Judiciary has produced such unfair and disastrous results for humanity and American law! Similar to other “blind spots” in American law, it has also created misery and cost innocent lives.

For the most part, judges of all philosophies hate being confronted with “ugly truths” about the system they are a part of. Consequently, the impetus to sweep historical truth and logical legal reasoning under the carpet when it produces uncomfortable, unpopular, and highly controversial results is overwhelming on all sides of the judicial spectrum, with the exception of a few “brave souls” like Chief Judge Du.

One of the most obvious and disgraceful of these “dodges,” is the abject failure of the Article IIIs to confront head on the clear Fifth Amendment unconstitutionality of the Executive’s “captive Immigration Courts,” particularly as currently staffed and still operating in “Miller Lite, White Nationalist mode.” 

But, courageous decisions like this will be a part of our permanent legal history and come back to haunt today’s go along to get along Federal Judges, at all levels!

🇺🇸Due Process Forever!

PWS

08-23-21

👨🏽‍⚖️⚖️BIDEN NOMINATES HON. DAVID ESTUDILLO, FORMER IMMIGRATION/HUMAN RIGHTS LAWYER FOR US DISTRICT JUDGE , WD WA! — The Daily Kos Reports

 

Hon. David Estudillo
Hon. David Estudillo
Washington State Judge
Nominee for USDC WD WA
PHOTO: YouTube

 

 

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

As I always say: “Better Judges for a better America!” This a step forward, although we still have a long way to go to repair the extensive damage inflicted on the Federal Judiciary by Trump & McConnell.

Moreover, as I will discuss below, one of America’s most important (and readily “improvable”) judiciaries, one completely controlled by the Biden Administration, the U.S. Immigration Court, has actually taken steps backward in terms of progressive appointments under Garland. It’s like a new coach taking over in the 4th quarter of a game his team is losing 48-7 and saying “OK, let’s spot them another 17 points before we start playing to win!” Incredible, yet, sadly, true!

As the latest census shows an increasingly diverse America, the Article III Federal Judiciary remains an embarrassing backwater of “non-diversity.” This was intentionally aggravated by Trump & McConnell who, as noted above, elevated primarily White ultra right wing men, many with thin or questionable qualifications, to the Federal Bench!

As stated above:

It is crucial that the more than 1.1 million immigrants and nearly 1 million Latinx people in Washington feel that they are represented on the courts by people who share their experiences and identities.

Evidently, AG Merrick Garland and his team @ DOJ haven’t gotten that message. So far, Garland’s appointments to the Immigration Court, and the composition of his BIA, look more like Stephen Miller’s, Billy Barr’s, and Jeff “Gonzo Apocalypto” Sessions’s “skewed whitewashed vision” of America than they do the real America. That’s particularly true when you consider the American communities whose lives and futures are existentially affected (primarily adversely) by substandard and biased EOIR decisions that continue to be cranked out under Garland. This is despite a few moves by Garland to “kill off” the most horrible of the many bad precedents cranked out by the AG and the BIA during the Trump regime.

Judge Estrada sounds like just the type of individual that Garland should be appointing to the U.S. Immigration Court and the BIA. Compare Judge Estrada’s experience, qualifications, and “real life” background and human engagement with the lackluster profiles of Immigration Judges recently appointed by Garland and with many of those appointed to the Immigration Court and the BIA over the past two decades.

There are plenty of diverse, extraordinarily talented, courageous, practical experts out there in the NDPA to reform and improve the EOIR Judiciary at all levels! Many haven’t applied in the past (or have had their applicants rejected in favor of lesser-qualified candidates) because of the White Nationalist, xenophobic, nativist tone set by Sessions and Barr. Indeed, I spoke over the weekend to one of the leading progressive immigration/human rights experts in America who felt that way. Obviously, I encouraged that “NDPA superstar” to submit the applications — not just for EOIR but also for the Article III Judiciary which also needs to get its act together on human rights, immigration, and racial justice.

Garland & team need to reform and improve the selection criteria, involve outside expert input, and then actively recruit the “best and the brightest” from the NDPA to remake and elevate the Immigration Judiciary! As I have mentioned before, my colleagues in the Round Table and I have done more outreach, cajoling, inspiring, and recruiting among the progressive immigration and human rights community to apply for EOIR jobs than have those at DOJ and elsewhere in the Administration whose job it should be to do just that! It’s ridiculous, and it’s wrong!

No wonder things continue to be an ungodly mess at EOIR despite mountains of blueprints, action plans, and other readily achievable reform recommendations and proposed improvements produced by practical experts in the immigration/human rights/racial justice community! The Immigration Judiciary cries out for diverse, progressive, talented, practical scholar “role models” drawn from the NDPA! 

Lucas Guttentag, are you listening somewhere out there? Don’t get co-opted by the DOJ bureaucracy that overall failed to stand up to Trump and his gang of insurrectionists! Don’t let the new leadership at DOJ “de-prioritize or back burner” essential, long overdue, achievable EOIR reforms! Expose “Obamathink revolution by evolution” as the ridiculous and dangerous nonsense that it is (and always was)! Fight for your ideals, speak out, and shake up this disastrously broken and unfair system with the progressive change we need! At this point in your distinguished career, what do you have to lose? Those who consciously chose “not to rock the boat” at EOIR in the past, when human lives, due process, and human dignity were at stake, now share in the responsibility for its sinking!

🇺🇸Due Process Forever!

PWS

08-16-21

😎👍🏼GOOD NEWS @ JUSTICE, EVEN AS LATEST REPORT SHOWS MASSISIVE FAILURE 👎🏽🤮 @ EOIR! — Poor Judging, Politicized Practices, Unhelpful Precedents, Uncontrollable Backlogs, Lousy Technology — Can Lucas Guttentag, New Senior Counselor To DAG Lisa Monaco Get Garland, Monaco, & Gupta To Make The Personnel Changes & Other Long-Overdue Progressive Reforms Necessary To Save This System From Collapse?  — “”How can you have a fair game when the referee is unfair,” Asks Asylum Expert Professor Karen Musalo!

 

Dean Kevin Johnson reports for ImmigrationProf Blog:

https://lawprofessors.typepad.com/immigration/2021/08/immigration-law-professor-named-senior-counselor-on-immigration-policy-in-bidens-justice-department.html

Immigration Law Professor Named Senior Counselor on Immigration Policy in Biden’s Justice Department

Monday, August 2, 2021

By Immigration Prof

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Good immigration news from Washington D.C.!Immigration law professor Lucas Guttentag has been named senior counselor on immigration policy and report to the Department of Justice’s Deputy Attorney General Lisa Monaco. Guttantag served in the Obama administration as a senior adviser on immigration policy, including as senior counselor to the secretary of Homeland Security.Anita Kumar for Politico states that “Guttentag will not only help dismantle Trump-era policies but will coordinate Biden policy among various agencies and departments.”

Kumar writes that “[p]rior to entering the administration, Guttentag served as law professor at Stanford Law School and lecturer at Yale Law School. He launched the Immigration Policy Tracking Project in 2017 to develop and maintain a complete record of Trump administration immigration actions.

In total, Trump made more than 400 alterations to immigration policy during his time in office, according to the Migration Policy Institute, a think tank with staffers across the political spectrum that provides data and analysis on immigration policy. The Immigration Policy Tracking Project put that number closer to 1,000.”

KJ

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Meanwhile, Tyche Hendricks reports @ KQED News on the ongoing mess @ EOIR:

https://www.kqed.org/news/11883227/backlogged-immigration-courts-could-get-help-from-biden-plan-but-some-want-a-total-overhaul

If you are an immigrant requesting asylum or fighting deportation before the federal immigration court in San Francisco, it’s likely to take nearly three years for your case to be resolved — the average processing time, as of June, was 1,057 days.

That’s because the San Francisco court’s 26 judges are working their way through close to 76,000 cases — the third highest number of pending cases in the country, after New York and Miami. Nationwide, the backlog has grown to an unprecedented 1.3 million cases, more than twice what it was when President Donald Trump took office.

What’s at stake, says Doris Meissner, a senior fellow at the Migration Policy Institute in Washington DC, is the credibility of the entire immigration system — both for the individuals whose futures are on the line, and for broader public confidence.

. . . .

The epic case backlog results from a convergence of factors.

Immigration enforcement, which had increased under President Barack Obama, ballooned during the presidency of Donald Trump. Trump ended Obama-era prosecution priorities that focused on immigrants with serious criminal histories, and instead pursued deportation of any undocumented immigrant. As of last December, more than 98% of the cases in immigration court were for people whose only charge was an immigration violation, according to an analysis by the Transactional Records Access Clearinghouse at Syracuse University.

Also in the past several years, a much larger share of the migrants arriving at the U.S.-Mexico border are people requesting asylum, rather than trying to evade border authorities to come work or join family in the U.S. And if migrants can establish a “credible fear” of persecution in a screening interview with an asylum officer, they can’t be quickly removed from the country. Instead, their cases go straight into the immigration court system.

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But that court system is chronically underfunded, with not enough judges or support staff, according to a 2019 report by the American Bar Association. While the Trump administration hired more judges and imposed a case completion quota on judges meant to speed up their work, neither made a dent in the backlog. Meanwhile the ABA report found that hiring practices became politicized and the administration’s policies threatened due process.

On top of all of that came the COVID-19 pandemic, which led to months of closed courts, suspended hearings and delayed processing.

While many state and federal courts moved quickly to conduct hearings over video conference calls, the Executive Office of Immigration Review, as the immigration court system is known, was behind the curve, according to longtime San Francisco immigration judge, Dana Leigh Marks, who is the executive vice president of the National Association of Immigration Judges.

“What the pandemic and quarantine restrictions revealed is just how abysmally prepared EOIR has been from the technology aspect,” said Marks, speaking in her role with the NAIJ, the judge’s union. “And we do not have universal electronic filing… so there’s roughly a million cases or more that are still paper-based. And that really makes hearings from a judge’s home much more problematic.”

. . . .

Advocates for asylum seekers are also looking forward to seeing new regulations from the Biden administration in another area: establishing clear eligibility standards for asylum so as to prevent future instances where an attorney general can override decades of case law, as Sessions did in the case of a Salvadoran woman fleeing domestic violence, known as the Matter of A-B-.

Karen Musalo, director of the Center on Gender and Refugee Studies at UC Hastings in San Francisco, said she was relieved when Garland reversed that ruling in June, but she called that just a first step in restoring fairness to the asylum system.

“What is much more important is asylum regulations that specifically look at aligning U.S. law with international norms,” she said. “We need to get the law back on track.”

‘What is much more important is asylum regulations that specifically look at aligning U.S. law with international norms. We need to get the law back on track.’Karen Musalo, Center on Gender and Refugee Studies at UC Hastings

That regulation is being drafted jointly by the departments of Justice and Homeland Security and is expected by late October, she said.

Musalo also called on the Biden administration to improve training and oversight for immigration judges, who are appointed to the bench by the U.S. attorney general. The fact that asylum grant rates vary wildly between judges suggests that rulings can be influenced by political leanings more than an impartial application of the law, she said.

“You could have very good rules and laws, but if you don’t have fair, unbiased, competent, professional individuals applying the rules in the law, you don’t solve the problems,” she said. “How can you have a fair game when the referee is unfair?”

. . . .

Legal organizations including the American Bar Association, the American Immigration Lawyers Association and NAIJ, the judges’ union, have long called on Congress to overhaul the immigration courts by taking them out of the Department of Justice altogether. And this summer there’s a move to do just that.

Rep. Zoe Lofgren, D-San Jose, the chair of the House immigration subcommittee, will soon introduce a bill to make the immigration court system a so-called Article I court, akin to federal tax court or bankruptcy court. Staff involved in drafting the bill say the new system would better protect due process of law and would be shielded from political pressure from presidents, be they Democratic or Republican.

Some observers, including Meissner and Musalo, say such a change is needed but they aren’t convinced the bill could win enough support to pass.

But Marks, the immigration judge, says the current dysfunction shows how badly the immigration courts are compromised and how urgently they need independence from the Department of Justice.

“It’s an uncomfortable and inappropriate placement for a neutral court system. And that’s the inherent structural flaw that we need Congress to fix,” she said. “I really feel like it is an idea whose time has come… now.”

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You can read Tyche’s complete article at the link.

With deep experience in advocacy, Government, academics, senior management, and scholarship, Lucas is definitely the person for this job! A proven problem solver, to be sure! Many congrats, Lucas! Your appointment is like a breath of fresh air at what has been a mostly “stale show” at Justice so far!

Karen Musalo
Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law

Nevertheless, as Professor Karen Musalo cogently points out, without better judges and leaders at EOIR — high caliber, proven progressive experts “in the  Guttentag-Musalo mold,” — any favorable regulatory or even legislative changes will likely founder. As currently staffed and led, EOIR simply lacks the expertise, independence, moral/intellectual leadership, courage, and “judicial firepower” to achieve a progressive, practical, due-process-compliant immigration and human rights system. Due process, fundamental fairness, and a correct application of U.S. asylum law — one that honors Cardoza-Fonseca and Mogharrabi — can only be realized by replacing “Club Denial @ EOIR” — actively encouraged and promoted by Sessions and Barr, with competent, expert, progressive judges committed to fair and humane treatment of asylum seekers and other migrants under law.

Simply adding more judges to an incredibly broken system, without correcting the legal, personnel, and judicial administration issues that led to this massive (largely self-created) dysfunction will not solve the problem! Lucas knows this as well as anyone! So does Judge Dana Marks, who actually litigated and won the landmark “well-founded fear” case INS v. Cardoza-Fonseca before the Supremes!

Hon. Diana Leigh Marks
Hon. Dana Leigh Marks
U.S. Immigration Judge
San Francisco Immigration Court
Past President, National Association of Immigration Judges

But even with experts like Lucas at DOJ, Ur Jaddou, John Trasvina, and Judge Ashley Tabaddor in place at DHS, it’s going to take a huge additional infusion of progressive expertise at EOIR, DHS, HHS, and throughout Government to get immigration and refugee policy under control. 

GOP Administrations have proved willing to make the bold, often-criticized personnel and policy moves necessary to carry out a nativist, restrictionist, anti-immigrant agenda. Their “response” to criticism has basically been: “We’re in power, you’re not! So, go pound sand!”

Will the Biden Administration “break the Dem mold” and be bold and visionary enough to make the available, necessary, yet potentially controversial, moves to restore and improve due process and efficiency to the Government immigration bureaucracy? Will Lucas finally be able to get Team Garland to see and realize the cosmic importance of developing a progressive Immigration Judiciary: One that will eventually provide the “Article III ready” judicial candidates who will bring balance and quality to the Article III system perverted by four years of Trump-McConnell extremest right-wing, ideological, far out of the mainstream, judicial picks? Contrary to the timid, ineffective, ultimately destructive Obama Administration approach, EOIR is “a boat that needs to be rocked” — big time!

It’s an ambitious task to be sure. But, those with the vision and courage to accomplish it might well go down in history as the saviors of  American democracy. It’s that important!

🇺🇸Due Process Forever!

PWS

08-03-21

☠️🤮⚰️DUE PROCESS MOCKED: UNDUE POLITICAL INFLUENCE IN IMMIGRATION COURT LEADS TO IMPROPER DENIAL OF LIFE-SAVING PROTECTION TO KIDS! — “Political influence from the executive branch combined with local environmental pressures can affect how immigration judges rule. Most importantly, these influences can lead to some children not receiving asylum when they might otherwise be entitled to it.”

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

Unaccompanied immigrant minors wait on July 2, 2019 in Los Ebanos, Texas to be transported to a U.S. Border Patrol processing center after entering the U.S. to seek political asylum. John Moore/Getty Images

US immigration judges considering asylum for unaccompanied minors are ‘significantly influenced’ by politics

July 13, 2021 8.30am EDT

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The news over the past months has been saturated with stories about another “surge” of unaccompanied minors crossing the southern border of the U.S.

In March 2021, the number of unaccompanied minors apprehended in the U.S. reached an all-time monthly high of 18,890. This surpassed the previous monthly high of 11,681 in May 2019.

One question not addressed in many of these stories is: How many of these children actually receive asylum and are allowed to stay in the country?

The people who make those decisions are immigration judges. Their decisions are supposed to be based on whether these children have fears of being persecuted in their home countries and whether these fears are realistic.

But our research examining the period from early October 2013 until the end of September 2017 shows that these judges were influenced by factors outside of the case. Political factors such as ideology, political party of the president who appointed them and who was president at the time they decided the case significantly influenced whether these children were allowed to stay in the country.

Aside from political factors, immigration judges are also influenced by local contexts, such as unemployment levels, the number of uninsured children and size of Latino population in the places where they work.

Unaccompanied minors and asylum

Under U.S. law, an unaccompanied minor is a child under 18 years old who does not have lawful immigration status and no parent or legal guardian in the country who can provide care or custody.

Unaccompanied minors cannot be refused entry or removed from the country without legal process because of the 1993 Supreme Court case Reno v. Flores. In 2008, new legislation allowed asylum officers to grant these children asylum at the U.S. border. If the asylum officer denies asylum to the minor, the minor may request asylum before an immigration judge.

Because immigration judges are not appointed under Article III of the Constitution, as federal judges are, they have less independence than those federal judges. According to current Justice Department rules, immigration judges are appointed by the attorney general and they act as his or her delegates.

Political pressure

In order to learn what factors affect the grant of relief to unaccompanied minors, we obtained data on their asylum applications from Oct. 2, 2013 to Sept. 29, 2017, covering over 10,000 cases from 280 different judges in 46 counties and 27 states.

Only 327 of the unaccompanied minors actually received asylum; 2,867 were deported and 455 chose to voluntarily leave.

An additional 6,645 children were allowed to stay in the country. Of those, 3,589 had their case administratively closed, which allows judges to suspend the case indefinitely without hearing and deciding on it. The remaining 3,056 had their case terminated, which means that the case against the child was dismissed.

The fate of unaccompanied minors entering the US

A review of about 10,000 asylum applications for unaccompanied minors from October 2, 2013 to September 29, 2017 found the majority of the minors were allowed to stay (in green), most because a judge either dismissed or indefinitely suspended the case against them. Only 327 were granted asylum.

Bar charts grouped to show significantly more unaccompanied minors were allowed to stay.

2,000 cases

2,867

455

3,589

3,056

327

Removed

Voluntarily Departed

Administrative Closure

Case dismissed

Received asylum

Chart: The Conversation/CC-BY-ND Source: Daniel Braaten and Claire Nolasco Braaten Get the data

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We ran a statistical analysis of political factors that may influence immigration judges’ decision: judicial ideology, political party of the appointing president and whether the decision was made before or during the Trump administration.

Following previous research on immigration judge’s ideology, we determined a judge’s ideology by considering their prior work experiences. Based on this research, we determined that some experiences, such as working for immigration agencies, are associated with more conservative views on immigration and asylum issues.

Conversely, work experiences in an immigration or non-immigration-related nonprofit or academia are associated with more liberal views. Our analysis showed that immigration judges with more liberal judicial ideology were more likely to rule in favor of granting asylum to these children.

Judges’ ideology can influence asylum decisions

Immigration judges who are more liberal tended to allow unaccompanied children to stay in the U.S. more often, compared to more conservative judges. Ideology was determined from each judge’s prior work and ranges from 1-11, most conservative to most liberal.

Area chart showing how children allowed to stay rose with more liberal judges.

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0

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100%

Likelihood unaccompanied minor is allowed to stay

Data from 2013-2017

Chart: The Conversation/CC-BY-ND Source: Daniel Braaten and Claire Nolasco Braaten Get the data

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We also found that judges who were appointed by a Democratic attorney general were more likely to rule in favor of the minors.

Political party of attorney general who appointed the judge

Immigration judges appointed by Democrats were more likely to allow unaccompanied minors seeking asylum to stay in the U.S. than those appointed by Republicans.

Bar charts showing judges appointed by Democrats were more like to allow unaccompanied children to stay in the U.S., but GOP-appointed numbers were also above 62%.

Republican

62.9%

Democratic

69.5%

Data from 2013-2017

Chart: The Conversation/CC-BY-ND Source: Daniel Braaten and Claire Nolasco Braaten Get the data

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Finally, statistical analysis showed that immigration judges were less likely to grant relief during the eight months of the Trump administration compared to the last three years of the Obama administration.

President at the time the case was decided

Immigration judges were more likely to allow unaccompanied minors seeking asylum to stay in the U.S. during the Obama administration than during the Trump administration.

Trump

54%

Obama

67.7%

Data from 2013-2017

Chart: The Conversation/CC-BY-ND Source: Daniel Braaten and Claire Nolasco Braaten Get the data

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Why did politics and judges’ ideology play into their decisions?

We believe it’s because immigration judges are subject to political pressure from the president, indirectly, because they are appointed by the attorney general, who is also a presidential appointee and carries out the president’s policies and wishes.

Local environment

Pressure from the executive branch was not the only factor we concluded had influenced whether these children got to stay in the U.S. or were turned away. Aside from political and ideological values, judges may also have been influenced by their local contexts.

For example, we found that immigration judges in places with more Latinos were more likely to let these children stay. Conversely, immigration judges in states with lots of poor children were less likely to let these children stay than judges in states with relatively fewer poor kids.

Latino population in the county

In counties with larger Latino populations, judges were more likely to allow unaccompanied minors seeking asylum to stay in the U.S. The horizontal axis shows the percentage of the county’s population that is Latino.

20% Latino

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Data from 2013-2017

Chart: The Conversation/CC-BY-ND Source: Daniel Braaten and Claire Nolasco Braaten Get the data

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Asylum decisions can be life-or-death matters. Although immigration judges consider the requirements of asylum law, they are also influenced by nonlegal factors when making decisions.

Political influence from the executive branch combined with local environmental pressures can affect how immigration judges rule. Most importantly, these influences can lead to some children not receiving asylum when they might otherwise be entitled to it.

[The Conversation’s Politics + Society editors pick need-to-know stories. Sign up for Politics Weekly.]

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Republished under Creative Commons license.

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Go to this link for the original article with pictures and graphs:  https://theconversation.com/us-immigration-judges-considering-asylum-for-unaccompanied-minors-are-significantly-influenced-by-politics-160071

This article confirms two things I have said over and over:

  1. Garland’s failure, to date, to replace the BIA with better qualified progressive judges with expertise gained by representing asylum seekers; plus
  2. His “giveaway” of 17 critical Immigration Judge positions to those selected by “Billy the Bigot” Barr under badly flawed procedures;

will unquestionably cost some children and other refugees their lives. Immigration Judge positions are life or death — we need an Attorney General who treats them that way!

Immigration Judge appointments, particularly those at the appellate (BIA level), need to be treated by Democratic Administrations with the same care, seriousness, and strategy as Article III judicial appointments, perhaps more! Few Article III Judges, including the Supremes, affect more lives and have a bigger impact on America’s future than Immigration Judges. 

The last two GOP Administrations “got” the negative power for destruction and dehumanization inherent in a “captive” court system that actively pursues misguided nativist policies and receives only sporadic supervision and attention from the Article IIIs. By contrast, the Obama Administration failed to “mine EOIR’s potential” for progressive due process advancements and building a corps of dynamic, courageous progressive judges.  

So far, while perhaps exceeding the passively inept approach of the Obama Administration, the Biden Administration has also failed to achieve the radical, yet logical and obvious, reforms and decisive personnel actions necessary to undo the damage caused by the White Nationalist xenophobia of the Trump kakistocracy. 

The Immigration Courts have the potential to become “model progressive courts” that could lead the way to better practices and more constitutionally and legally sound jurisprudence throughout the Federal Judiciary. Whether the Biden Administration grasps and acts boldly on that potential, or squanders it as past Democratic Administrations have done, remains to be seen.

But, that question is far from “academic.” The survival of our democratic republic is likely to depend to a great extent on whether the Biden Administration can bring in the progressive experts who finally will “get EOIR right!”

🇺🇸Due Process Forever!

PWS

07-16-21

THE EVER-AMAZING NICOLE NAREA @ VOX “GETS IT” — Too Bad The Folks Running Immigration Policy Don’t! — “Knowledge about US deportation and detention policy didn’t have any significant effect on their intentions to migrate. . . . it made them more likely to think outcomes and legal procedures in the American immigration system are unfair.” 

Nicole Narea
Nicole Narea
Immigration Reporter
Vox.com

https://www.vox.com/policy-and-politics/22451177/biden-border-immigration-enforcement-detention-deportation

Nicole writes @ Vox News: 

President Joe Biden has taken some steps toward reversing his predecessor’s legacy of broad, indiscriminate immigration enforcement, including a recent announcement that it will no longer detain immigrants at two locations under scrutiny for alleged abuses.

But Republicans are adamant that increased immigration enforcement be a prerequisite to any broader immigration reform.

“There’ll be no immigration reform until you get control of the border,” Sen. Lindsey Graham (R-SC) told Roll Call last month.

There are now nearly 40 percent more people in immigration detention compared to when Biden first took office, and his administration is continuing to turn away most migrants arriving on the border under pandemic-related restrictions put in place by his predecessor, President Donald Trump, which have led to the expulsions of more than 350,000 people this year alone.

But research shows that the threat of detention and deportation in the US doesn’t dissuade migrants from making the journey to the southern border, especially if they are victims of violence and may be seeking to escape the “devil they know” in their home countries.

“Managing migration at the border, particularly the kind of migration we’re seeing now, from a strictly deterrence, enforcement lens is just not sustainable in the long run and is not having the impact that people think it should have,” Theresa Cardinal Brown, managing director of immigration and cross-border policy at the Bipartisan Policy Center, said. “That’s why we need to rethink our paradigm for how we talk about migration and everything that we do at the border.”

. . . .

Knowledge of US immigration detention, however, did have an unintended effect on survey takers in Ryo’s experiment — it made them more likely to think outcomes and legal procedures in the American immigration system are unfair. That is worrisome, given that perceptions of fairness are significant predictors of people’s willingness to obey the law and cooperate with legal authorities, Ryo said.

“We really ought to be concerned about the extent to which generating these kinds of perceptions of unfairness can backfire in terms of more people disregarding our laws and undertaking that dangerous journey in order to get to our border and try to cross it,” she added.

. . . .

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First, let me congratulate Nicole on her spectacularly high level reporting and mastery of the English language: Clear, accessible, well-organized, informative, persuasive. Compare Nicole’s prose with the vapid, often misleading nonsense and gibberish spouted by legislators, government officials, bureaucrats, and right wing White Nationalist shills of all types. Just yesterday, Trump and his pathetic “wannabe” Greg Abbott were down at the border spouting their unadulterated, fact-free, racist  blather and restrictionist nonsense (when Trump wasn’t rambling on incoherently about the “Big Lie” or himself). I encourage everyone to read Nicole’s full article at the link! 

“Enforcement only doesn’t work” has been one of the key “themes” of Courtside since “Day 1.” The answer has also been clear — due process, fundamental fairness, racial equity, practical scholarship leading to durable solutions. 

The converse of “enforcement only doesn’t work” is also true:  A more realistic, more generous legal immigration system that advances due process and equality while taking advantage of “market factors” that attract and drive migration would also lead to more efficient and effective enforcement. Many, perhaps the majority, of those we are now wasting time and money on cruel and ultimately futile attempts to detain, deter, and remove would actually be a huge benefit to our nation if they were allowed to migrate legally on either a permanent or temporary basis.  

I’ve been saying for a long time now that convincing folks that our legal system is basically bogus — falsely promising a fairness and dignified treatment we aren’t delivering — merely serves to drive migrants to enter the “extralegal” or “black market” system that helps support our economy. The real “beneficiaries” of “mindless immigration enforcement” and a dysfunctional legal system are smugglers, cartels, and exploitative employers. Also, obviously, corrupt GOP politicos benefit from having a permanent, disenfranchised, traumatized, largely non-White “black market labor pool” to prop up their economy while serving as an easy target to “whip up” their racist base. 

Bad policies, driven by ignorance, myths, bias, cowardice, and racism will continue to produce lousy results — for the migrants and for our nation. Smarter, more courageous, more intellectually honest legislators and public officials are necessary. Whether voters will be wise enough to elect them remains to be seen.

🇺🇸Due Process Forever!

PWS

07-01-21

 

VICE PRESIDENT HARRIS THINKS RULE OF LAW DOESN’T APPLY TO RICH NATION THAT ILLEGALLY TURNS DESPERATE REFUGEES AWAY, SUGGESTS GUATEMALANS SHOULD DIE IN PLACE! — “Deterrence Statement” Won’t Stop Migration, Won’t Appease Nativist-Restrictionists, But Will Cost Her Support From Human Rights Progressives Who Helped Elect Her!  — There Will Be No Workable Solutions At Our Southern Border Without a Functional, Robust Legal Asylum System That Complies With Due Process!

Vice President Kamala Harris
Vice President Kamala D. Harris
Vice President of the United States — She thinks that laws are for others and that platitudes solve problems.
(Official Senate Photo)

VICE PRESIDENT HARRIS THINKS RULE OF LAW DOESN’T APPLY TO  RICH NATION THAT ILLEGALLY TURNS DESPERATE REFUGEES AWAY, SUGGESTS GUATEMALANS SHOULD DIE IN PLACE! — “Deterrence Statement” Won’t Stop Migration, Won’t Appease Nativist-Restrictionists, But Will Cost Her Support From Human Rights Progressives Who Helped Elect Her!  — There Will Be No Workable Solutions At Our Southern Border Without a Functional, Robust Legal Asylum System That Complies With Due Process!

By Paul Wickham Schmidt

Courtside Exclusive

June 9, 2021

Every individual, regardless of status, has a legal right to apply for asylum at our border. This law was enacted on 1980 to carry out our legal obligations under the U.N. Convention and Protocol on the Status of Refugees, to which we have been party since 1968. 

Right now, the U.S. has neither a legal asylum system operating at ports of entry nor does it have a functioning refugee program in Central America. Borders were illegally closed and legal immigration avenues were suspended by the White Nationalist Trump Administration on various pretexts involving false narratives about COVID, labor market impact, and national security, among others. At one point Trump even made the absurdist claim that America is “full!”

The Biden Administration has peddled rhetoric about re-establishing legal immigration. But, to date they have neither re-established the rule of law for asylum seekers at our Southern Border nor have they instituted an operational refugee program for Central America. 

How bogus is the Biden/Harris continuation of the COVID facade for closing the border? Well, I didn’t hear much mention from Harris in Guatemala of COVID as a reason not to come or any promise to restore the legal asylum system once the “fake COVID emergency” is resolved.

So, there is no legal way for those in Guatemala and other countries to seek refuge in the U.S. Ignoring requests from experts and humanitarian NGOs, the Biden Administration has also stubbornly failed to repeal biased “precedents” from the Trump DOJ designed to make it difficult for refugees fleeing Latin America, particularly women, to qualify for legal protection despite the fact that their lives and safety will be in danger if returned. 

Our scofflaw actions actually leave refugees needing protection no choice but to cross the border surreptitiously. We have suspended the rule of law for legal asylum seekers, while dishonestly claiming that they, not we, are the “law breakers.” After nearly 50 years in and sometimes out of the immigration bureaucracy, I know bureaucratic doublespeak when I hear it.

Remarkably, Vice President Harris seems to have cribbed her public statements on Guatemalan asylum from Gauleiter Stephen Miller. Even more astoundingly, Miller’s influence on the Biden Administration’s failing immigration policies, particularly at Garland’s dysfunctional EOIR, continues to far exceed that of the diverse coalition of progressive experts, human rights advocates, and civil rights leaders who helped elect Biden and Harris! Talk about disrespect and being taken for granted!

In other words, America has totally “welched” on our legal and moral obligations to refugees and asylum seekers. Yet, incredibly, Harris warns them to stay in places where their lives and safety are in immediate danger, rather than taking a calculated risk of finding safety in the United States.

Since the U.S. no longer has a rule of law for asylum seekers or refugees, this usually means trying to enter with the aid of paid smugglers who offer them something the U.S. is unwilling to provide — a realistic possibility of refuge in time to save their lives! It’s certainly “not rocket science!” But, disturbingly, it appears to be above Harris’s pay grade!

As smugglers point out, the possibility of getting to the interior of the U.S., and there finding “do it yourself” refuge in our intentionally-created and often exploited “underground population,” actually far exceeds the chance of being granted asylum, even when we had a “somewhat” functioning asylum system. That’s largely because our law has long been improperly politically “gamed” (by Administrations of both parties) against asylum seekers from Central America. 

So, nobody actually knows how many would qualify for asylum under a fair and unbiased system. We’ve never had the moral courage to set up such a procedure. Instead, we have used imprisonments, family separations, racist rhetoric, criminal prosecutions, and skewed legal denials from “captive courts” tilted in favor of DHS enforcement as “deterrents” to desperate refugees from our own Hemisphere.

Our nation fears complying with our own laws! Not much of a “profile in courage” here!

The Vice President concedes that the “in place” assistance she is offering to individuals in some of the world’s most corrupt and lawless countries is unlikely to have any impact for years to come. And, that’s assuming that the Biden Administration’s aid plan is better than those that have failed in the past, which it well might be. It certainly will be better than the insane cruelty and improper “enforcement only” efforts of the Trump Administration.

She is correct that most, but not all, Guatemalans would prefer to live in Guatemala if that were possible. But, the problem she insists on “papering over” is that survival in Guatemala currently is not reasonably likely for many Guatemalans. Unless and until Congress creates a more realistic legal immigration system, there is simply no realistic opportunity for many Guatemalans other than to apply for asylum at the border. 

While asylum law would not cover them all, a proper interpretation and application through a re-established and meaningfully reformed system, overseen by expert judges (currently eschewed by Garland’s dysfunctional Immigration Courts) could admit many more legally and timely than the current non-existent system or past ones intentionally skewed against asylum seekers in a futile, improper attempt to use the legal process as a “deterrent.” It would also encourage and motivate asylum seekers to apply at legal ports of entry rather than crossing surreptitiously.

Yet Harris’s “clear message” (of non-hope) to the oppressed people in the Northern Triangle is for them to “die in place,” while awaiting long-term solutions that might or might not ever happen. Meanwhile, the world’s richest nation lacks the will and determination to re-establish a legal asylum screening and adjudication system at our Southern Border. 

Harris also wants the desperate masses “yearning to breath free” to know that the beacon of freedom no longer burns in America. We think it would be better if they died where they are, largely out of our sight and out of our mind.

We resent their efforts at survival, forcing us listen to their screams at our border for help that we prefer to deny (in violation of our legal obligations). We are bothered by the stench of the dead and annoyed by the news media’s incessant reporting on the Administration’s continuing failures of legality and humanity. Better (for us, not them) if they don’t come.

It’s an interesting “lesson” on racial and immigrant justice, as well as gender justice, from a Vice President who apparently prefers “inspiring” future generations to taking the tough, courageous moral and legal stands necessary to preserve and protect the current ones!

The Vice President might be correct on the rudiments of a better and more realistic long-term migration and economic plan for the Northern Triangle. But, her failure to recognize the essential first step of making the existing legal asylum asylum system work, and her unwillingness to tell Garland and Mayorkas to stop the foot-dragging and start complying with our laws and our Constitution, will doom her efforts long before they could ever have any positive impact.

The Southern Border is a big challenge. The solution has eluded all of Harris’s male predecessors, including her current boss, for the last half-century. 

It requires an end to “Milleresque” platitudes and an honest recognition of the human realities of forced migration. It cries out for a strong knowledgeable leader who will re-establish the legal asylum system already in the law, insist that for the first time in our history it be operated by experts with robust humanitarian protection goals, real progressive expert judges, and full constitutional due process. It demands an end to the mindless dehumanization and demeaning of asylum seekers and recognition that those granted asylum are legal immigrants, a source of strength, and a benefit to our nation, not a phenomenon to be demonized and feared.

It requires a robust refugee program in the Northern Triangle that takes the pressure off the border asylum system until needed changes in the legal immigration system can be pushed through Congress and the longer-term improvements in infrastructure and governance in the Northern Triangle take effect.

It also requires a leader with the comprehensive knowledge and moral courage to defend robust legal refugee and asylum systems and more legal immigration from the onslaught of racially-charged, myth-based attacks from White Nationalists and nativists that are sure to follow. She would also have to deal with pushback from an entrenched immigration bureaucracy and weak leadership from Garland and others who have continued to feed the problems rather than solve them.

Unfortunately for Vice President Harris, our nation, and, most of all, the forced migrants whose lives and humanity are on the line every day, right now the job appears to be bigger than the person.

🇺🇸Due Process Forever!

PWS

06-09-21

`

TRASVINA RESTORES “PD” @ ICE; 6TH CIR. REJECTS CASTRO-TUM! BUT GARLAND’S FAILURES @ EOIR CONTINUE TO HAMPER BIDEN ADMINISTRATION, CAUSE CONFUSION, INCREASE BACKLOGS!  — “In performing their duties, including through implementation of this memorandum, OPLA attorneys should remain mindful that ‘[i]mmigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done.’” 

John D. Trasvina
John D. Trasvina
Principal Legal Adviser
ICE — Finally, some common sense, practical scholarship, leadership, and “good government” from someone in the Biden Administration’s Senior Immigration Team! Not surprisingly, it’s from one of the few who has actually “walked the walk” on the relationship between racial justice and immigrants’ rights. He appears to be the “right person” for ICE. Would he have been a better choice to clean up the mess at DOJ?
PHOTO: Wikipedia

 

https://www.ice.gov/doclib/about/offices/opla/OPLA-immigration-enforcement_interim-guidance.pdf

   MEMORANDUM FOR: FROM:

SUBJECT:

May 27, 2021 All OPLA Attorneys

John D. Trasvifia Principal Legal Advisor

JOHN D TRASVINA

DigitallysignedbyJOHN0 TRASVINA

Date:2021.05.27 07:04:19 -07’00’

Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities

On January 20, 2021, President Biden issued Executive Order (EO) 13993, Revision ofCivil Immigration Enforcement Policies and Priorities, 86 Fed. Reg. 7051 (Jan. 20, 2021), which articulated foundational values and priorities for the Administration with respect to the enforcement of the civil immigration laws. On the same day, then-Acting Secretary ofHomeland Security David Pekoske issued a memorandum titled, Review o fand Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities (Interim Memorandum).

The Interim Memorandum did four things. First, it directed a comprehensive Department of Homeland Security (DHS or Department)-wide review of civil immigration enforcement policies. Second, it established interim civil immigration enforcement priorities for the Department. Third, it instituted a 100-day pause on certain removals pending the review. Fourth, it rescinded several existing policy memoranda, including a prior U.S. Immigration and Customs Enforcement (ICE) Office ofthe Principal Legal Advisor (OPLA) memorandum, as inconsistent with EO 13993.2 The Interim Memorandum further directed that ICE issue interim guidance implementing the revised enforcement priorities and the removal pause.

On February 18, 2021, ICE Acting Director Tae D. Johnson issued ICE Directive No. 11090.1,

1

On January 26, 2021, a federal district court issued a temporary restraining order (TRO) enjoining DHS and its components from enforcing and implementing Section C ofthe interim Memorandum titled, Immediate JOO-Day Pause on Removals. See Texas v. United States, — F. Supp. 3d —, 2021 WL 247877 (S.D. Tex. 2021); see also Texas v. United States, 2021 WL 411441 (S.D. Tex. Feb. 8, 2021) (extending TRO to February 23, 2021). On February 23, 2021 , the district court issued an order preliminarily enjoining DHS from “enforcing and implementing the policies described in … Section C.” Texas v. United States, 2021 WL 723856 (S.D. Tex. Feb. 23, 2021). In light of the expiration of the 100-day period described in Section C, that case has been dismissed as moot. Similarly, in light ofthe preliminary injunction, and the fact that the 100-day period described in the Interim Memorandum has now expired, this interim OPLA guidance does not implement Section C of the Interim Memorandum.

2 The Interim Memorandum revoked, as inconsistent with EO 13993, the memorandum from former Principal Legal Advisor Tracy Short, Guidance to OPLA Attorneys Regarding the Implementation ofthe President’s Executive Orders and the Secretary’s Directives on Immigration Enforcement (Aug. 15, 2017). OPLA attorneys should no longer apply that prior guidance.

FOR OFFICIAL USE ONLY

Office o fthe Principal Legal Advisor

U.S. Department of Homeland Security 500 12th Street, SW

Washington, DC 20536

U.S. Immigration

and Customs Enforcement

www.1ce.gov

1

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Interim Guidance: Civil Immigration Enforcement and Removal Priorities (Johnson Memorandum). And, on May 27, 2021, Acting General Counsel Joseph B. Maher issued a memorandum titled, Implementing Interim Civil Immigration Enforcement Policies and Priorities (Maher Memorandum). In accordance with these memoranda, and pending the outcome of the Secretary’s review and any resulting policy guidance, I am providing this additional interim direction to OPLA attorneys to guide them in appropriately executing the Department’s and ICE’s interim enforcement and removal priorities and exercising prosecutorial discretion.

Prosecutorial discretion is an indispensable feature of any functioning legal system. The exercise ofprosecutorial discretion, where appropriate, can preserve limited government resources, achieve just and fair outcomes in individual cases, and advance the Department’s mission of administering and enforcing the immigration laws ofthe United States in a smart and sensible way that promotes public confidence. In performing their duties, including through implementation ofthis memorandum, OPLA attorneys should remain mindful that “[i]mmigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done.” 3 As a result, they are both authorized by law and expected to exercise discretion in accordance with the factors and considerations set forth in the Interim Memorandum, the Johnson Memorandum, the Maher Memorandum, and in this guidance at all stages of the enforcement process and at the earliest moment practicable in order to best conserve prosecutorial resources and in recognition o f the important interests at stake.

I. Enforcement and Removal Priority Cases

The Johnson Memorandum identifies three categories of cases that are presumed to be enforcement and removal priorities for ICE personnel. Subject to preapproval from supervisory personnel, other civil immigration enforcement or removal actions also may be deemed priorities. OPLA attorneys assigned to handle exclusion, deportation, and removal proceedings are directed to prioritize agency resources consistent with those presumed priorities and other matters approved as priorities under the Johnson Memorandum or by their Chief Counsel. The presumed priority categories are:

1. NationalSecurity.Noncitizens.4 whohaveengagedinoraresuspectedof

3 Matter ofS-M-J-, 21 l&N Dec. 722, 727 (BIA 1997) (en bane). In remarks delivered at the Second Annual Conference of United States Attorneys more than 80 years ago, Attorney General Robert H. Jackson said, “[n]othing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor. Your positions are ofsuch independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just Although the government technically loses its case, it has really won ifjustice has been done.” Robert H. Jackson, The Federal Prosecutor, 24 J. AM. JUD. Soc’Y 18, 18-19 (1940).

4 Consistent with ICE guidance, this memorandum uses the word “noncitizen” to refer to individuals described in section 10l(a)(3) ofthe Immigration and Nationality Act (INA). See Memorandum from Tae Johnson, ICE Acting Director, Updated Terminologyfor Communications and Materials (Apr. 19, 2021). OPLA attorneys should familiarize themselves with this ICE guidance and use the appropriate terminology set forth therein when engaged in outreach efforts, drafting internal documents, and communicating with stakeholders, partners, and the general

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ten-orism or espionage or terrorism-related or espionage-related activities, or whose apprehension, arrest, or custody, is otherwise necessary to protect the national security ofthe United States..5

2. Border Security. Noncitizens who were apprehended at the border or a port ofentry while attempting to unlawfully enter the United States on or after November 1, 2020, or who were not physically present in the United States before November 1, 2020.

3. Public Safety. Noncitizens who have been convicted of an “aggravated felony,” as that term is defined in section 101(a)(43) of the Immigration and Nationality Act (INA), or who have been convicted ofan offense for which an element was active pa1ticipation in a criminal street gang, as defined in

18 U.S.C. § 52 l(a), or who are not younger than 16 years of age and intentionally participated in an organized criminal gang or transnational criminal organization to further the illegal activity ofthe gang or transnational criminal organization; and are determined to pose a threat to public safety.6

Neither the presumed priorities nor the guidance regarding other priority cases subject to preapproval are intended to require or prohibit taking or maintaining a civil immigration enforcement or removal action against any individual noncitizen. Rather, OPLA attorneys are expected to exercise their discretion thoughtfully, consistent with ICE’s important national security, border security, and public safety mission. Civil immigration enforcement and removal efforts involving a noncitizen whose case fits within the three areas just listed are presumed to be a justified allocation ofICE’s limited resources. Enforcement and removal efforts may also be

justified in other cases, under appropriate circumstances. 7 Prioritization of finite agency

public. Formal legal terminology (e.g., “alien,” “alienage”) should continue to be used by OPLA attorneys when appearing before judicial and quasi-judicial tribunals, and when quoting or citing to sources of legal authority or other official documents like immigration forms.

5 For purposes of the national security presumed enforcement priority, the tenns “terrorism or espionage” and “terrorism-related or espionage-related activities” should be applied consistent with (I) the definitions of”terrorist activity” and “engage in terrorist activity” in section 212(a)(3)(B)(iii)-(iv) of the INA, and (2) the manner in which the term “espionage” is generally applied in the immigration laws. In evaluating whether a noncitizen’s “apprehension, arrest, and/or custody, or removal is otherwise necessary to protect” national security, officers and agents should determine whether a noncitizen poses a threat to United States sovereignty, territorial integrity, national interests, or institutions. General criminal activity does not amount to a national security threat.

6 In evaluating whether a noncitizen currently “pose[s] a threat to public safety,” consideration should be given to the extensiveness, seriousness, and recency ofthe criminal activity, as well as to mitigating factors, including, but not limited to, personal and family circumstances, health and medical factors, ties to the community, evidence of rehabilitation, and whether the individual has potential immigration relief available. See Johnson Memorandum at 5.

7 As reflected in the Johnson Memorandum, Field Office Director (FOD) or Special Agent in Charge (SAC) approval is generally required in advance ofcivil immigration enforcement or removal actions taken by ICE officers and agents in cases other than presumed priority cases. Where exigent circumstances and public safety concerns make it impracticable to obtain pre-approval for an at-large enforcement action (e.g., where a noncitizen poses an imminent threat to life or an imminent substantial threat to property), approval should be requested within 24 hours following the action. See Johnson Memorandum at 6.

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resources is a consideration in all civil immigration enforcement and removal decisions, including but not limited to the following:

• Deciding whether to issue a detainer, or whether to assume custody of a noncitizen subject to a previously issued detainer;

• Deciding whether to issue, reissue, serve, file, or cancel a Notice to Appear (NTA);

• Deciding whether to focus resources only on administrative violations or conduct;

• Deciding whether to stop, question, or arrest a noncitizen for an administrative violation of the civil immigration laws;

• Deciding whether to detain or release from custody subject to conditions or on the individual’s own recognizance;

• Deciding whether to settle, dismiss, oppose or join in a motion on a case, narrow the issues in dispute through stipulation, or pursue appeal in removal proceedings;

• Deciding when and under what circumstances to execute final orders of removal; and

• Deciding whether to grant defe1Ted action or parole.

This non-exhaustive list ofcivil immigration enforcement and removal decisions identifies opportunities at every stage ofthe process to ensure the most just, fair, and legally appropriate outcome, whether that outcome is a grant of relief, an order of removal, or an exercise of discretion that allows the noncitizen to pursue immigration benefits outside the context of removal proceedings. This memorandum provides interim guidance regarding the following enforcement decisions within OPLA’s purview: filing or canceling an NTA; moving to administratively close or continue proceedings; moving to dismiss proceedings; pursuing appeal;

joining in a motion to grant reliefor to reopen or remand removal proceedings and entering stipulations; and taking a position in bond proceedings, as discussed below..8 While discretion may be exercised at any stage of the process and changed circumstances for an individual denied prosecutorial discretion at one stage may warrant reconsideration at a later stage, discretion generally should be exercised at the earliest point possible, once relevant facts have been established to properly inform the decision.

8 While resources should be allocated to the presumed priorities enumerated above, “nothing in [the Interim M]emorandum prohibits the apprehension or detention ofindividuals unlawfully in the United States who are not identified as priorities herein.” Interim Memorandum at 3. See also Johnson Memorandum at 3 (“[J]t is vitally important to note that the interim priorities do not require or prohibit the atTest, detention, or removal ofany noncitizen.”); Maher Memorandum at 3 (“Neither the presumed priorities nor the guidance regarding other priority cases subject to preapproval are intended to require or prohibit taking or maintaining a civil immigration enforcement action against an individual noncitizen.”). OPLA may dedicate its resources to pursuing enforcement action against a noncitizen who does not fall into one of the presumed enforcement priorities where the FOD or SAC has approved taking enforcement action in the case, where the NTA-issuing agency has exercised its own discretion to prioritize the noncitizen for enforcement under the Interim Memorandum, or where the ChiefCounsel, in their discretion, decides that OPLA resources should be committed to the case.

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This memorandum is intended to provide guidance pending completion ofthe DHS-wide comprehensive review of civil immigration enforcement and removal policies and practices contemplated in the Interim Memorandum. To that end, additional guidance will be fo1thcoming.

II. Prosecutorial Discretion

OPLA will continue to fulfill its statutory responsibility as DHS’s representative before the Executive Office for Immigration Review (EOIR) with respect to exclusion, deportation, and removal proceedings. See 6 U.S.C. § 252(c). In that capacity, prosecutorial discretion plays an important role in OPLA’s enforcement decision making. The following general guidance on prosecutorial discretion should inform how OPLA attorneys apply the enforcement priorities of DHS and ICE.

OPLA attorneys may exercise prosecutorial discretion in proceedings before EOIR, subject to direction from their chain ofcommand and applicable guidance from DHS. In exercising such discretion, OPLA attorneys will adhere to the enduring principles that apply to all o f their activities: upholding the rule oflaw; discharging duties ethically in accordance with the law and professional standards of conduct; following the guidelines and strategic directives of senior leadership; and exercising considered judgment and doing justice in individual cases, consistent with DHS and ICE priorities.

Prosecutorial discretion is the longstanding authority o f an agency charged with enforcing the law to decide where to focus its resources and whether or how to enforce, or not to enforce, the law against an individual. In the context of OPLA’s role in the administration and enforcement of the immigration laws, prosecutorial discretion arises at different stages of the removal process, takes different forms, and applies to a variety ofdeterminations. As the Supreme Court explained more than two decades ago when discussing the removal process, “[a]t each stage the Executive has discretion to abandon the endeavor . . . .”.9

OPLA’s policy is to exercise prosecutorial discretion in a manner that furthers the security ofthe United States and the faithful and just execution ofthe immigration laws, consistent with DHS’s and ICE’s enforcement and removal priorities. While prosecutorial discretion is not a formal program or benefit offered by OPLA, OPLA attorneys are empowered to exercise prosecutorial discretion in their assigned duties consistent with this guidance. Among other decisions, the exercise of discretion also generally includes whether to assign an attorney to represent the department in a particular case. See 8 C.F.R. § 1240.2(b) (creating expectation that DHS will assign counsel to cases involving mental competency, noncitizen minors, and contested removability, but that otherwise, “in his or her discretion, whenever he or she deems such assignment necessary or advantageous, the General Counsel may assign a [DHS] attorney to any other case at any stage of the proceeding”) (emphasis added). OPLA Chief Counsel are permitted to exercise this discretion on my behalf, in appropriate consultation with their chain of command.

In determining whether to exercise prosecutorial discretion, OPLA should consider relevant aggravating and mitigating factors. Relevant mitigating factors may include a noncitizen’s length

9 Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 47 1, 483-84 ( 1999). FOR OFFICIAL USE ONLY

  OPLA Guidance Regarding Civil Immigration Enforcement and Removal Policies and Priorities Page 6 of 13

of residence in the United States; service in the U.S. military; family or community ties in the United States; circumstances ofarrival in the United States and the manner oftheir entry; prior immigration history; current immigration status (where lawful permanent resident (LPR) status generally warrants greater consideration, but not to the exclusion ofother noncitizens depending on the totality ofthe circumstances); work history in the United States; pursuit or completion of education in the United States; status as a victim, witness, or plaintiff in civil or criminal proceedings; whether the individual has potential immigration relief available; contributions to the community; and any compelling humanitarian factors, including poor health, age, pregnancy, status as a child, or status as a primary caregiver ofa seriously ill relative in the United States. Relevant aggravating factors may include criminal history, participation in persecution or other human rights violations, extensiveness and seriousness ofprior immigration violations (e.g., noncompliance with conditions of release, prior illegal entries, removals by ICE), and fraud or material misrepresentation. Where a criminal history exists, OPLA should consider the extensiveness, seriousness, and recency ofthe criminal activity, as well as any indicia of rehabilitation; extenuating circumstances involving the offense or conviction; the time and length ofsentence imposed and served, ifany; the age ofthe noncitizen at the time the crime was committed; the length oftime since the offense or conviction occurred; and whether subsequent criminal activity supports a determination that the noncitizen poses a threat to public safety. These factors are not intended to be dispositive or exhaustive. Discretion should be exercised on a case-by-case basis considering the totality ofthe circumstances.

Requests for prosecutorial discretion may be made in accordance with the instructions provided in Section IX of this guidance. Where a request for prosecutorial discretion is made, the OPLA attorney handling the case must document that request in PLAnet, identifying the requester and the substance of the request and uploading any supporting documentation consistent with standard operating procedures (SOPs). 10 Based on my experience working with you over the past few months, I believe strongly in the professionalism, legal skill, and judgment of OPLA’s attorneys, working through their supervisors to advise our clients and manage an enormous workload with limited resources. I trust and expect that all OPLA field attorneys, under the leadership ofourChiefCounsel, will work strenuously to ensure the timely and appropriate exercise ofdiscretion in meritorious removal cases. That being said, given the tremendous importance of achieving just and correct outcomes on these issues, it is entirely pe1missible for any OPLA attorney to raise prosecutorial discretion decisions through their chain ofcommand to OPLA headquaiters (HQ) for additional review or discussion.

Appropriate exercises ofprosecutorial discretion are in the mutual interest of both the person benefitting from the exercise ofdiscretion and the government itself. This mutual interest is no less significant because a noncitizen does not affirmatively request prosecutorial discretion. In the absence of an affirmative request for prosecutorial discretion by a noncitizen or a noncitizen’s representative, OPLA attorneys should nonetheless examine the cases to which they are assigned to determine independently whether a favorable exercise ofdiscretion may be

10 If the case involves classified information, the OPLA attorney must transmit such information only in accordance with the DHS Office ofthe ChiefSecurity Officer Publication, Safeguarding Classified & Sensitive But Unclassified Information Reference Pamphlet (Feb. 2012, or as updated), and all other applicable policies governing the handling ofclassified information.

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appropriate. This affirmative duty to evaluate assigned cases is central to an OPLA attorney’s job. Chief Counsel should include in their local SOPs ways to address these cases including how

OPLA attorneys should document their affirmative consideration ofprosecutorial discretion in PLAnet.

III. Notices to Appear

When a legally sufficient, appropriately documented NTA has been issued by a DHS component consistent with the component’s issuing and enforcement guidelines, 11 it will generally be filed with the immigration court and proceedings litigated to completion unless the Chief Counsel exercises prosecutorial discretion based on their assessment of the case. 12 As prosecutorial discretion is expected to be exercised at all stages of the enforcement process and at the earliest moment practicable, it may be appropriate for the Chief Counsel to conclude that a legally

sufficient, a ro riatel documented administrative immi ration case warrants non-filin of an

NTA_ (b)(S) (b)(5)

(b)(S) Where an NTA is issued but not filed with the immigration court pursuant to this section, OPLA should document the reasoning for this position in PLAnet and the OPLA Field Location should work with its local Enforcement and Removal Operations (ERO) Field Office to cancel the NTA and inform the noncitizen of the cancellation. 13

IV. Administrative Closure and Continuance of Proceedings

In the past, OPLA had broad authority to exercise prosecutorial discretion by agreeing to

administrative closure of cases by EOIR. However, due to conflicting court of appeals decisions

11 This includes NTAs submitted to OPLA by ICE operational components as well as U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP) for review. “Appropriately documented” in this context means that, in OPLA’s litigation judgment, sufficient information has been provided by the NTA-issuing component to carry any DHS burden of proof. See INA§ 240(c), 8 C.F.R. § 1240.8.

12 Separate and apart from the enforcement priority framework outlined in the Interim Memorandum and Johnson Memorandum, certain noncitizens have an established right to be placed into removal proceedings. See, e.g., 8 C.F.R. §§ 208. l4(c)(l) (requiring referral for removal proceedings ofa removable noncitizen whose affirmative asylum application is not granted by USCIS); 216.4(d)(2) (requiring NTA issuance to noncitizen whose joint petition to remove conditional basis ofLPR status is denied by USCIS); 216.S(f) (same; USCIS denial ofapplication for waiver of the joint petition requirement). In other cases, USCIS may issue an NTA on a discretionary basis to a noncitizen who wishes to pursue immigration benefits before the immigration court. Although such cases do not fall within the priority framework, absent an affirmative request by the noncitizen prior to the merits hearing for the favorable exercise of prosecutorial discretion to dismiss removal proceedings, OPLA attorneys should generally litigate them to completion. If such noncitizens are ordered removed, requests for prosecutorial discretion would then most properly be made to ERO for evaluation in accordance with the Department’s and ICE’s stated priorities.

13 The NTA cancellation regulation vests immigration officers who have the authority to issue NTAs with the authority to also cancel them. 8 C.F.R. § 239.2(a). The regulation expresses a preference for certain NTAs to be cancelled by the same officer who issued them “unless it is impracticable” to do so. Id. § 239.2(b). Given the enormous size ofthe EOIR docket, current OPLA staffing levels, and complexities associated with routing any significant number ofNTAs back to specific issuing officers stationed around the country, it would be impracticable to require OPLA attorneys to do so. By contrast, the local ERO Field Offices with which OPLA Field Locations routinely interact are well suited to assist with this function promptly and efficiently.

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on the validity ofMatter ofCastro-Tum, 27 I&N Dec. 271 (A.G. 2018) (limiting administrative closure by EOIR adjudicators to circumstances where a previous regulation or judicially approved settlement expressly authorizes such an action), the availability ofadministrative closure as a form ofprosecutorial discretion for ICE and a tool ofdocket management for EOIR is limited in certain jurisdictions for certain types of cases. 14 Nevertheless, OPLA retains authority to handle pending cases on EOIR’s docket by deciding whether to agree to a continuance for “good cause shown” under 8 C.F.R. § 1003.29, see also Matter ofL-A-B-R-, I&N Dec. 405 (A.G. 2018) (interpreting this regulation), and whether to seek, oppose, or join in a motion for dismissal of proceedings pursuant to 8 C.F.R. § 1239.2(c).

The presumed priorities outlined above will be a significant factor informing the position that OPLA attorneys take in response to continuance motions made by noncitizens in removal proceedings. Indeed, given the comprehensive review of immigration enforcement and removal policies and practices directed by Section A ofthe Interim Memorandum, OPLA attorneys are authorized to take the general position that “good cause” exists in cases in which noncitizens who fall outside the presumed priorities seek to have their cases continued to await the outcome of that comprehensive review. 15 Continuing cases in these circumstances may conserve OPLA resources in cases where the ultimate arrest, detention, and removal of a noncitizen are unlikely. Accordingly, while immigration judges (Us) will make case-by-case assessments whether continuance motions are supported by “good cause shown” under 8 C.F.R. § 1003.29, and OPLA attorneys should assess each continuance motion on its own terms, in the absence ofserious aggravating factors, the fact that a noncitizen is not a presumed priority should weigh heavily in favor of not opposing the noncitizen’s motion. Before opposing a continuance in such cases, OPLA attorneys should confer with their supervisors. The reason for opposing the motion should also be documented in PLAnet.

V. Dismissal of Proceedings

With approximately 1.3 million cases on the immigration courts’ dockets nationwide, and the varied procedural postures of such cases, including many set for future merits hearings on re.lief or protection from removal, OPLA will cover, at a later date and in a comprehensive fashion, how to address the potential dismissal ofproceedings consistent with its limited resources and DHS and ICE guidance. The size ofthe court backlog and extraordinary delays in completing cases impede the interests ofjustice for both the government and respondents alike and underminepublicconfidenceinthis importantpillaroftheadministrationofthenation’s

14 Compare Hernandez-Serrano v. Barr, 981 F.3d 459 (6th Cir. 2020) (agreeing with Castro-Tum), with Arcos Sanchez, 2021 WL I774965, — F.3d — (3d Cir. 2021) (rejecting Castro-Tum and finding that EOIR regulations giving broad case management authority to its adjudicators includes administrative closure authority), Meza Morales v. Barr, 973 F.3d 656 (7th Cir. 2020) (Coney Barrett, J.) (same), and Romero v. Barr, 937 F.3d 282 (4th Cir. 2019) (same). Notwithstanding this variation in circuit law, administrative closure remains available under Castro-Tum for T and V nonimmigrant visa applicants. See 8 C.F.R. §§ I214.2(a) (expressly allowing for administrative closure for noncitizens seeking to apply for T nonimmigrant status), 1214.3 (same; V nonimmigrant status).

15 This does not imply that “good cause” cannot exist in cases ofnoncitizens who fall into the presumed priority categories or are otherwise a civil immigration enforcement or removal priority. OPLA attorneys retain discretion to, as appropriate, agree to continuances in such cases.

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immigration laws. In advance of future guidance, cases that generally will merit dismissal in the absence of serious aggravating factors include:

I. MilitaryServiceMembersorImmediateRelativesThereof16

A favorable exercise of prosecutorial discretion (i.e., concurrence with or non-opposition to a motion for dismissal ofproceedings without prejudice) generally will be appropriate if a noncitizen or immediate relative is a current or former member (honorably discharged) of the Armed Forces, including the U.S. Army, Air Force, Navy, Marine Corps, Coast Guard, and Space Force, or a member of a reserve component of the Anned Forces or National Guard, particularly if the individual may qualify for U.S. citizenship under sections 328 or 329 ofthe I N A . _1 1

2. Individuals Likely to be Granted Temporary or Permanent Relief

When a noncitizen has a viable avenue available to regularize their immigration status outside of removal proceedings, whether through temporary or pennanent relief, it generally will be appropriate to move to dismiss such proceedings without prejudice so that the noncitizen can pursue that relief before the appropriate adjudicatory body. 18 This may be appropriate where, for instance, the noncitizen is the beneficiary of an approved Form 1-130, Petition for Alien Relative, and appears prima facie eligible for either adjustment of status under INA section 245 or an immigrant visa through consular processing abroad, including in conjunction with a provisional waiver of unlawful presence under 8 C.F.R. § 212.7(e), immediately or in the near future; appears prima facie eligible to register for Temporary Protected Status (TPS);.19 or is a child who appears prima facie eligible to pursue special immigrant juvenile status under INA section 101(a)(27) and 8 C.F.R. § 204.11. In such a circumstance, the exercise of prosecutorial discretion itselfcan help to promote the integrity ofour immigration system by enhancing the ability of certain noncitizens to come into compliance with our immigration laws.

3. Compelling Humanitarian Factors

The favorable exercise ofprosecutorial discretion- including agreeing to dismissal of proceedings without prejudice-generally will be appropriate when compelling humanitarian factors become apparent during NTA review or litigation of the case. While some factors will weigh more heavily than others, this can include cases where, for instance, the noncitizen has a serious health condition, is elderly, pregnant, or a minor; is the primary caregiver to, or has an

16 See Email from Kenneth Padilla, DPLA, Field Legal Operations, to all OPLA attorneys, Refresher Guidance Regarding United States Veterans and Military Service Members in Removal (Nov. 18, 2019).

17

citizenship. See ICE Directive 16001 .2, Investigating the Potential U S. Citizenship o fIndividuals Encountered by

Relatedly, OPLA attorneys must continue to follow ICE guidance related to the evaluation of claims to U.S. ICE (Nov. 10, 2015).

18 DHS regulations expressly contemplate joint motions to tenninate removal proceedings in appropriate cases in which the noncitizen is seeking to apply for U nonimmigrant status. See 8 C.F.R. § 214.14(c)(I)(i).

19 Stipulation to TPS in such cases may also be an option, in the exercise ofdiscretion. Cf Matter ofD-A-C-, 27 I & N . D e c . 5 7 5 ( B I A 2 0 I 9 ) ( d i s c u s s i n g d i s c r e t i o n a r y a u t h o r i t y o f I J s t o g r a n t T P S ) ; S e c t i o n V I I , i n fr a .

FOR OFFICIAL USE ONLY

  OPLA Guidance Regarding Civil Immigration Enforcement and Removal Policies and Priorities Page 10of13

immediate family or household member who is, known to be suffering from serious physical or mental illness; is a victim ofdomestic violence, human trafficking, or other serious crime;.20 came to the United States as a young child and has since lived in the United States continuously; or is party to significant collateral civil litigation (e.g., family court proceedings, non-frivolous civil rights or labor claims).

4. Significant Law Enforcement or Other Governmental Interest

Where a noncitizen is a cooperating witness or confidential informant or is otherwise significantly assisting state or federal law enforcement, it may be appropriate in certain cases to agree to the dismissal ofproceedings without prejudice. “Law enforcement” in this context includes not only conventional criminal law enforcement, but also enforcement of labor and civil rights laws. In exercising discretion related to law enforcement equities, OPLA attorneys should be guided by the perspectives of the relevant investigating agency components (e.g., the Office ofInspector General, Office for Civil Rights and Civil Libe1ties, Depa1tmentofJustice Immigrant and Employee Rights Section, Department of Labor, National Labor Relations Board, Equal Employment Opportunity Commission, other federal agencies, ERO, Homeland Security Investigations, and any relevant state counterparts). Additionally, such law enforcement entities may have tools at their disposal that OPLA does not, including stays of removal, deferred action, T and U nonimmigrant status law enforcement certification, and requests for S nonimmigrant classification. In any event, national security, border security, and public safety are paramount in deciding whether to continue litigating removal proceedings.

5. Long-TermLawfulPermanentResidents

A favorable exercise of prosecutorial discretion should also be considered for LPRs who have resided in the United States for many years, paiticularly when they acquired their LPR status at a young age and have demonstrated close family and community ties. Dismissal ofsuch cases that do not present serious aggravating factors will allow the noncitizen to maintain a lawful immigration status and conserve finite government resources.

When OPLA agrees to dismissal of removal proceedings as an exercise ofprosecutorial discretion in the categories above, the reasoning for this position should be recorded in PLAnet.

VI. Pursuing Appeal

In our immigration system, DHS initiates removal proceedings while IJs and the Board of Immigration Appeals (BIA) exercise the Attorney General’s delegated authority to adjudicate issues ofremovability and reliefand protection from removal. OPLA attorneys continue to possess the discretion to take legally viable appeals ofIJ decisions and make appropriate legal arguments in response to noncitizen appeals and motions..2 1 Appellate advocacy should generally

20 See generally ICE Directive No. 10076.1, Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs (June 17,2011).

21 OPLAheadquartersdivisionsshouldcontinuetocoordinatewithimpactedDHSOfficeoftheGeneralCounsel (OGC) headquarters and component counsel offices when preparing briefs and motions in significant litigation.

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   OPLA Guidance Regarding Civil Immigration Enforcement and Removal Policies and Priorities Page 11 of13

focus on priority cases- national security, border security, and public safety. Of course, other considerations, such as significant aggravating and mitigating factors and the need to seek clarity on an important legal issue, are appropriate for OPLA attorneys to take into account, consistent with direction from their respective Chief Counsel.

Consistent with any local guidance issued by their respective Chief Counsel,.22 OPLA attorneys may waive appeal in a case that is not a priority. OPLA attorneys may also decline to appeal where there is little likelihood ofsuccess before the BIA. While OPLA attorneys may reserve appeal to ensure the articulation ofa fully reasoned decision by an IJ to help inform whether the appeal should ultimately be perfected, OPLA attorneys may also waive appeal, where appropriate, in the interest ofjudicial efficiency and in recognition of limited resources.

OPLA Field Locations generally coordinate appellate advocacy before the BIA with the Immigration Law and Practice Division (ILPD)..23 OPLA Field Locations and ILPD should continue to work together, along with any other relevant OPLA HQ divisions, to craft strong and nationally consistent appellate work product. Again, in committing OPLA resources to perfecting appeal and drafting appellate pleadings, Field Locations and ILPD should focus their efforts on presumed priority cases. Furthermore, to ensure efficiency in litigation, OPLA attorneys should generally limit briefing schedule extension requests before the BIA and should not request briefing extensions in detained matters without prior approval from a supervisor. However, it is permissible to agree to briefing extension requests filed by non-detained noncitizens whose cases are not presumed priorities.

VII. Joining in Motions for Relief and Motions to Reopen and Entering Stipulations

In order to conserve resources and expedite resolution of a case- as well as where doing so would fulfill the duty to do justice and achieve the best outcome- OPLA attorneys have the discretion to join motions for relief (oral or written), consistent with any local guidance issued by their respective Chief Counsel. An OPLA attorney should be satisfied that the noncitizen qualifies for the reliefsought under law and merits reliefas a matter ofdiscretion or qualifies

22 ChiefCounsel should review existing local practice guidance to ensure that it confonns to current interim enforcement priorities and amend such guidance where necessary. Similarly, any new local practice guidance should conform to this memorandum and the presumed priorities.

23 See Gwendolyn Keyes Fleming, Promoting Excellence in OPLA ‘s Advocacy Before the Board o fimmigration Appeals (Feb. 22, 2016); Email Message from Kenneth Padilla and Adam Loiacono, Final Rule – Appella..t.,e,,.,..,,,,._ _,

Procedures and Decisional Finality in Immif!ration Proceedinf!s; Administrative Closure (Jan. 22, 2021).l(b)(S) b)(S)

(b)(S) IFurther, special procedures apply in the context ofnational security and human rights violator cases. See Email Message from Rjah Ramlogan, OPLA Supplemental Guidance on the Proper Handling ofNational Security and Human Rights Violator Cases (May 28, 2015), as supplemented and modified by OPLA Memorandum, Proper Handling o f OPLA National Security (NS) Cases (May 21, 2015) and OPLA Memorandum, Proper Handling ofOPLA Human Rights Violator (HRV) Cases (May 2I, 20I5).

FOR OFFICIAL USE ONLY

  OPLA Guidance Regarding Civil Immigration Enforcement and Removal Policies and Priorities Page 12of13

24

under law for protection from removal when agreeing to such motions.. Such decisions to join

in motions should be made in a manner that facilitates the efficient operation ofOPLA Field Locations in immigration court. The same applies with respect to narrowing disputed issues through stipulation in order to promote fair and efficient proceedings.

OPLA intends to address in future.guidance when to join in motions to reopen cases with final removal orders. In the meantime, OPLA should continue addressing requests for joint motions to reopen on a case-by-case basis, giving favorable consideration to cases that are not priorities and where dismissal would be considered under Section V, supra.

VIII. Bond Proceedings

OPLA attorneys appearing before EOIR in bond proceedings must follow binding federal and administrative case law regarding the standards for custody redeterminations. 25 OPLA attorneys should also make appropriate legal and factual arguments to ensure that DHS’s interests, enforcement priorities, and custody authority are defended. In particular, in bond proceedings OPLA attorneys should give due regard to custody determinations made by an authorized immigration officer pursuant to 8 C.F.R. § 236. l(c)(8), while not relinquishing the OPLA attorney’s own responsibility to consider and appropriately apply the factors and considerations set forth in the Interim Memorandum, the Johnson Memorandum, the Maher Memorandum, and this guidance. Where a noncitizen produces new information that credibly mitigates flight risk or danger concerns, OPLA attorneys have discretion to agree or stipulate to a bond amount or other conditions of release with a noncitizen or their representative, and to waive appeal of an IJ’s order redetermining the conditions ofrelease in such cases..26

24 See, e.g., INA §§ 208 (asylum), 240A(a) (cancellation of removal for certain pennanent residents), 240A(b) (cancellation of removal and adjustment of status for certain nonpermanent residents), 240B (voluntary departure), 245 (adjustment ofstatus), 249 (registry). Additionally, OPLA attorneys represent DHS in cases where noncitizens apply for withholding of removal under INA section 241(b)(3) and protection under the regulations implementing U.S. obligations under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). See, e.g. , 8 C.F.R. §§ 1208.16-.18. Withholding and CAT protection both impose significant burdens ofproof(i.e., qualifying mistreatment must be “more likely than not” to occur). When a noncitizen moves to reopen their proceedings to pursue such non-discretionary protection, and the motion is supported by evidence that strongly suggests the noncitizen will be able to meet their burden, OPLA attorneys should ordinarily not oppose reopening and can also consider joining in such motions, as resources permit

25 See, e.g., Matter ofR-A-V-P-, 27 l&N Dec. 803, 804-05 (BIA 2020) (assessing whether respondent had met burden to demonstrate that he did not pose a risk of flight in INA section 236(a) discretionary detention case); Matter ofSiniausl«is, 27 I&N Dec. 207 (BIA 2018) (addressing interplay between flight risk and dangerousness considerations in INA section 236(a) discretionary detention case involving recidivist drunk driver); Matter of Kotliar, 24 l&N Dec. 124 (BIA 2007) (discussing general parameters of INA section 236(c) mandatory detention).

26 DHS and EOIR regulations recognize that, as a prerequisite for even being considered for discretionary release by an ICE officer under INA section 236(a), a noncitizen “must demonstrate to the satisfaction ofthe officer that such release would not pose a danger to property or persons, and that the [noncitizen] is likely to appear for any future proceeding.” 8 C.F.R. §§ 236.1(c)(8), 1236.l(c)(S) (emphasis added). Additionally, prior to agreeing to non­ monetary conditions of release, OPLA attorneys should consult with their local ERO Field Offices to ensure that such conditions are practicable (e.g., GPS monitoring, travel restrictions).

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  OPLA Guidance Regarding Civil Immigration Enforcement and Removal Policies and Priorities Page 13 of13

IJ custody redetermination decisions that are factually or legally erroneous are subject to appeal to the BIA. Decisions on whether to appeal or to continue to prosecute an appeal should be guided by the presumed priorities and the sound use of finite resources. See Section VI, supra. It may also be appropriate for an OPLA Field Location to seek a discretionary or automatic stay under 8 C.F.R. § 1003.l 9(i) in conjunction with a DHS bond appeal, particularly where issues of public safety are implicated. OPLA Field Locations should work closely with ILPD and other relevant OPLA HQ divisions to identify instances where use ofthis authority may be warranted..27

IX. Responding to Inquiries

Each OPLA Field Location should maintain email inboxes dedicated to receiving inquiries related to this memorandum, including requests for OPLA to favorably exercise its discretion, and socialize the existence and use ofthese mailboxes with their respective local immigration bars including non-governmental organizations assisting or representing noncitizens before EOIR. OPLA Field Locations and sub-offices should strive to be as responsive to such inquiries as resources permit.

X. Oversight and Monitoring

This memorandum serves as interim guidance, and OPLA’s experience operating under this guidance will inform the development of subsequent guidance aligning with the outcome of the comprehensive review directed by the Interim Memorandum. It is therefore critical that prosecutorial discretion decision-making information be promptly and accurately documented in PLAnet and that SOPs be implemented to ensure consistent PLAnet recordkeeping. Field Legal Operations (FLO) should issue such SOPs within two weeks ofthis memorandum. FLO’s regular review ofPLAnet and the SOPs will form the basis ofrecommendations on process improvements, if and as necessary.

Official Use Disclaimer

This memorandum, which may contain legally privileged information, is intended For Official Use Only. It is intended solely to provide internal direction to OPLA attorneys and staff regarding the implementation of Executive Orders and DHS guidance. It is not intended to, does not, and may not be relied upon to create or confer any right or benefit, substantive or procedural, enforceable at law or equity by any individual or other party, including in removal proceedings or other litigation involving DHS, ICE, or the United States, or in any other form or manner whatsoever. Likewise, this guidance does not and is not intended to place any limitations on DHS’s otherwise lawful enforcement of the immigration laws or DHS’s litigation

prerogatives.

27 Existing OPLA guidance on automatic and discretionary stays remains in effect. See, e.g., Barry O’Melinn, Revised Proceduresfor Automatic Stay ofCustody Decisions by Immigration Judges (Oct. 26, 2006).

FOR OFFICIAL USE ONLY

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

https://www.opn.ca6.uscourts.gov/opinions.pdf/

21a0127p-06.pdf

Garcia-DeLeon v. Garland, 6th Cir., 06-11-21, published

PANEL: MOORE, CLAY, and STRANCH, Circuit Judges.

KEY QUOTE:

Here, we squarely confront this question and conclude that 8 C.F.R. § 212.7(e)(4)(iii), in conjunction with 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii), provides IJs and the BIA the authority for administrative closure to permit noncitizens to apply for and receive provisional unlawful presence waivers. Administrative closure is “appropriate and necessary” in this circumstance for the disposition of Garcia’s immigration case. Absent administrative closure, Garcia and other noncitizens in removal proceedings who are seeking permanent residency would be unable to apply for a provisional unlawful presence waiver despite the authorizing regulation.

Permitting administrative closure for the limited purpose of allowing noncitizens to apply for provisional unlawful presence waivers pursuant to 8 C.F.R. § 212.7(e)(4)(iii) will not lead to non-adjudication of immigration cases. Thus, the concern raised in Hernandez-Serrano that a general authority to grant administrative closure results in non-adjudication of immigration cases is not present. Administrative closure for the purpose of applying for a provisional unlawful presence waiver “bring[s] an end to the removal process” and permits “the non-citizen [to] voluntarily depart the U.S. for an immigrant visa appointment abroad.” Pet. Br. at 14. Generally, a noncitizen will, upon USCIS’s approval of their provisional unlawful presence waiver, seek to recalendar and terminate their removal proceedings. See, e.g., Romero, 937 F.3d at 287 (“Romero advised that if his case were administratively closed, then once the waiver had been approved, he intended to move to re-calendar and terminate removal proceedings so that he could then go through the consular process in Honduras.”); see also Ariel Brown, Immigr. Legal Res. Ctr., I-601A Provisional Waiver: Process, Updates, and Pitfalls to Avoid, at 7 (June 2019), https://www.ilrc.org/sites/default/files/resources/i- 601a_process._updates._and_pitfalls_to_avoid_june_2019.pdf (advising noncitizens to move to recalendar and then terminate their removal proceedings upon approval of their provisional unlawful presence waiver or upon receiving their immigrant visa). 

**********

After five months, John Trasvina is the first Biden Administration senior official in to take any responsible, practical steps to deal with the out of control Immigration Court backlog of 1.3 million that continues to grow under Garland’s flailing non-leadership at DOJ. But, he can’t do it by himself.

Without some progressive reforms at EOIR (and I’m NOT talking about an ill-thought-out uncoordinated “Dedicated Docket” or putting more Barr picks on the already compromised Immigration Bench, both of which are likely to build backlog and further reduce quality from its already “sub-basement levels”), the backlog and systemic denials of due process in Garland’s failed Immigration Courts will continue to grow.

That means some new progressive leadership at EOIR and some progressive judges at both the trial and appellate levels. Judges who know how to “leverage” PD with recalcitrant attorneys on both sides.

It also requires an immediate recession by Garland of Sessions’s abominable precedent Matter of Castro-Tum that has been panned by experts and rejected, at least in some form, by every Circuit that has considered it. Additionally, as a practitioner just reminded me, it will depend on whether Trasvina has the will, status, and power to force compliance on what are likely to be some resistant ICE Chief Counsels and Field Office Directors. In the past, local DHS officials have sometimes simply ignored or undermined PD policies with which they disagreed. So, stay tuned!

The quote from the Trasvina memo in the headline above comes from Matter of S-M-J-, 21 l&N Dec. 722, 727 (BIA 1997) (en banc), a leading “Schmidt BIA” case! Compare this with the White Nationalist absurdist nonsense put out by Sessions about prosecuting every case, no matter how absurd, marginal, or counterproductive, to a conclusion. Sessions spewed forth total, unadulterated BS! 💩

No, and I mean NO, other law enforcement agency in America (save the Trump DHS) operates in such an irresponsible, dishonest, and unrealistic manner! Particularly one whose bad policies and lack of self-restraint helped build a largely unnecessary backlog of 1.3 million cases. Indeed, according to the latest TRAC report, a simply astounding 96% of pending Immigration Court cases involve individuals without criminal charges! https://trac.syr.edu/immigration/quickfacts/?category=eoir. This suggests that with competent  leadership at DOJ and EOIR the backlog could be, and already should have been, dramatically slashed without adversely affecting ICE’s legitimate enforcement priorities!

“The  government wins when justice is done.” Wow! What a novel idea! Sounds like something right out of one of my old speeches to newly-hired INS prosecutors when I was the Deputy General Counsel at INS.

Probably, no coincidence that BIA Appellate Judge Michael J. Heilman, who wrote S-M-J-, once worked with me at INS General Counsel (although, as the record will show, by the time we both became “independent appellate judges” at a BIA that for a brief time functioned more like a “real court of independent experts” — as opposed to the current “deportation railroad” —  our views often diverged).

The 3rd, 4th, 6th, and 7th Circuits have rejected Sessions’s, malicious, racist, incorrect and idiotic, backlog-building decision in Castro-Tum. At the time of the Trasvina memo it appeared that the 6th Circuit was “trending in favor of” Castro-Tum, but the more recent 6th Circuit case featured above emphatically rejects Castro-Tum as applied to those seeking “provisional waivers.” 

So, the 6th is a little confusing. As I read it, there is no Administrative Closing for those approved for SIJS status and waiting for numbers. But, Administrative Closing is available for a “provisional waiver.” This doesn’t make any sense to me. But, what really doesn’t make sense is the unnecessary confusion caused by Garland’s failure to act and his continuation of improper White Nationalist, anti-due process, “worst practices” instituted by his Trumpist predecessors. 

To my knowledge, no Circuit has endorsed Castro-Tum in its entirety. Yet, Garland inexplicably and mindlessly has neither vacated Castro-Tum nor has he directed OIL to stop defending this legally incorrect, backlog-building, due-process-killing “Sessions-Miller” bogus “precedent.” “Part IV” of the Trasvina memo describes the unnecessary confusion and potential for more “Aimless Docket Reshuffling” caused by Garland’s failure to rescind Castro-Tum and reinstate “Administrative Closing” as an essential docket management (and due process) tool in Immigration Court.

Trasvina “gets it” (at least so far). Garland, Monaco, Gupta, Clarke, not so much! Maybe Trasvina should have been the AG!

As a practitioner recently put it:  “Repubs are bold, Dems are wimps when it comes to EOIR!” To date, Garland, Monaco, Gupta, and Clarke seem determined to follow in the footsteps of their ineffective predecessors! If they don’t get smarter, braver, bolder, and much more aggressively progressive, they will continue to fail American democracy in our hour of great need!

🇺🇸🗽⚖️Due Process Forever!

PWS

06-05-21

NOT ROCKET SCIENCE, 🚀 BUT BIDEN ADMINISTRATION LACKS EXPERT PROGRESSIVE LEADERSHIP WHO “GETS IT” — Will VP Harris Be Able To Break Out Of The “Death Spiral” ☠️ Of “Proven, Guaranteed To Fail” Racist Immigration Deterrence? — “It’s Groundhog Day at the border, and Biden is mindlessly laying the foundation for more problems in a few years. We’ve watched it all play out before. Immigration deterrence doesn’t work.” 

“Floaters”
“Floaters — How The World’s Richest Country Responds To Asylum Seekers”. — “The reality of racial justice and the rule of law for people of color at our Southern Border is rather sobering, as the Biden Administration fails to usher in needed progressive reforms. How many more people will die because this Administration won’t follow the Constitution, The Refugee Act, and our international obligations? We’ll never achieve racial justice so long as dehumanization of people of color is our official policy, carried out by a broken and dysfunctional DOJ!”
EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
Vice President Kamala Harris
Vice President Kamala D. Harris
Vice President of the United States — “Will she be able to get beyond the mistakes of the past and put rationality, humanity, and the rule of law in place at the Southern Border. So far, the results of her leadership are NOT encouraging for those who believe in progressive, humanitarian, legal policies.”
(Official Senate Photo)

https://www.washingtonpost.com/opinions/2021/06/03/immigration-mexico-guatemala-kamala-harris-biden-border-reform/

Opinion by James Fredrick in WashPost

June 3 at 3:44 PM ET

James Fredrick is a multimedia journalist based in Mexico City and covers migration, crime, politics and sports.

. . . .

Obama tried deterring migrants with his characteristic lawyerly tact. Trump did it with his cruel, petty impulsiveness. Biden is doing it with his folksy toughness. The styles are different, but the results of immigration deterrence will always be the same.

We’re trapped in this cycle because the U.S. government refuses to listen to migrants. Having met hundreds of migrants during my years reporting in Mexico and Central America, it’s obvious why deterrence doesn’t work: What’s at home is worse than anything the United States could threaten. Most migrants don’t want to leave home. But they do because violent death or crippling destitution is all that’s left.

Failing to actually come up with a solution, we of the “greatest country on Earth” become tremendously feeble and defensive at the arrival of a few thousand immigrant children. But there is another way.

We must treat immigration as a civil and humanitarian issue, not a criminal one. Criminalizing people fleeing violence, persecution, climate change or economic hardship exacerbates these problems. So decriminalize border crossings and rebuild border facilities as welcome centers, not jails. Border Patrol and Customs and Border Protection agents at the border should be social workers, not cops.

If Trump’s family separation atrocity showed us anything, it’s that millions of Americans want to help immigrants in need. The United States should cooperate more with these groups. There are already large networks around the country that can provide housing, food, legal services, education and medical services to immigrants. Why rely on expensive armed border agents instead of willing, motivated humanitarian groups?

Immigration laws should also address the challenges of the 21st century. In addition to decriminalizing border crossings, our immigration laws rely on outdated quotas and corrupt, abusive worker programs. Asylum law is a relic of the Cold War and doesn’t reflect the world today.

Finally, Washington should stop making the problems worse with bad foreign policy. Despite numerous abuses, scandals and criminal allegations involving Honduran President Juan Orlando Hernández, the Biden administration refuses to denounce him, though many think he is responsible for the conditions Hondurans are fleeing. In fact, Biden administration officials are working with Hernández to try to prevent Hondurans from fleeing. He’s just one example in a long history of U.S. meddling to prop up corrupt, abusive, U.S.-friendly regimes. No amount of U.S. dollars in aid can make up for bad foreign policy.

President Biden can’t stop the crisis today. After all, he helped create it. But he can make sure this is the last “border crisis” we face.

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

Read the complete op-ed at the link.

Ah, “mindlessly” — one of my favorite terms, usually applied these days to Garland and his inept team at DOJ! Actually, Frederick isn’t the only one to figure this out! 

The problem remains, as I have stated over and over, the toxic failure of the Biden Administration to bring progressive experts in immigration, human rights, civil rights, and “applied due process” into Government and empower them to solve the problems! It’s bizarrely compounded by the disgraceful unwillingness of those few in the Biden Administration, like Vanita Gupta and Kristen Clarke, who actually know better, to speak up for racial justice, social justice, human rights, and human dignity at the DOJ! 

Unless VP Harris wakes up, convinces her boss, and brings in the progressive experts, she’s headed for the abyss, taking thousands of vulnerable refugees and, perhaps, American democracy down with her! 

Refusal to listen: to migrants, their representatives, experts, our “better angels,” and common sense! The same problems, over and over, Administration after Administration, decade after decade! The same “built to fail” policies repeated! 

The truth is in front of the Biden Administration! But, like Garland, Mayorkas, and others leading the way over the cliff, Biden and Harris can’t see it! They appear to have “tuned out” those desperately trying to keep them from plunging over the precipice! So tragic, so unnecessary, so threatening to American democracy and the future of humanity!

🇺🇸🗽Due Process Forever!

PWS

06-05-21

🇺🇸🗽⚖️GEORGE W. BUSH INSTITUTE REPORT: GENDER VIOLENCE ☠️⚰️DRIVES CONTINUING REFUGEE FLOW TO U.S. — Dishonesty Of Sessions’s Misogynistic Attack In Matter Of A-B- 🤮 Exposed Again! — Yet, Garland Fails To Take Action To End Misogyny, Anti-Asylum Culture @ EOIR, Even As He Also Fails To Insist On The Restoration Of The Rule Of Law @ Our Borders! —  WHY?🤯

 

Gender Violence in Central America
Gender Violence continues to to be endemic in Latin America! Yet, shockingly, its victims, refugee women of color, can expect little protection in Garland’s Immigration Courts still applying Jeff Sessions’s inaccurate, misogynistic precedent in Matter of A-B- and continuing to be staffed by too many “judges” selected or promoted by the Trump Administration because of their perceived willingness to support anti-asylum policies targeting many women of color! Recently Garland outraged progressives by appointing 17 “Miller/Barr Holdovers” to powerful, life or death, Immigration Judge positions while eschewing better-qualified progressive experts from the private sector who could bring diversity and gender and racial justice to his dysfunctional Immigration “Courts!” 
PHOTO: UNHCR website

https://www.dallasnews.com/opinion/commentary/2021/06/03/abuse-of-women-and-children-at-root-of-immigration-crisis/

Abused women at border
Migrant women carry children in the rain at an intake area after turning themselves in upon crossing the U.S.-Mexico border, late Tuesday, May 11, 2021, in La Joya, Texas. The U.S. government continues to report large numbers of migrants crossing the U.S.-Mexico border with an increase in adult crossers. But families and unaccompanied children are still arriving in dramatic numbers despite the weather changing in the Rio Grande Valley registering hotter days and nights. (AP Photo/Gregory Bull)(Gregory Bull)
Natalie Gonnella-Platts
Natalie Gonnella-Platts
Director, Women’s Initiative
George W. Bush Institute
PHOTO: Bush Institute
Jenny Villatoro
Jenny Villatoro
Associate, George W. Bush Institute-SMU Economic Growth Initiative
PHOTO: George W. Bush Institute

By Natalie Gonnella-Platts and Jenny Villatoro In the Dallas Morning News:

When U.S. Border Patrol found him in the Texas desert, 10-year-old Wilton was crying, “they abandoned me.” Exhausted and alone, his image went viral — a poignant visual of the struggle faced by thousands seeking safety.

But Wilton’s story actually began in Nicaragua when his mother, Meylin, wasn’t able to get legal protection from an abusive partner. Mother and son fled to the United States, seeking asylum, but were expelled under a public health rule and sent to Mexico, where they were kidnapped, according to an account in El Pais. Meylin’s brother in Miami could pay only half the ransom — enough for Wilton alone to be released.

Although Meylin was ultimately released and reunited with her son, the tale that led to Wilton’s arrival at the border as an unaccompanied minor isn’t unique. It illustrates the fact that gender-based violence, revictimization and lack of justice affect children, families and communities thousands of miles away. It also highlights the importance of a safe and legal pathway into the United States for survivors of gender-based violence and other asylum-seekers. For many, arriving at the U.S. border seeking asylum is the only legal pathway available.

Immigration reform in the United States is essential to assuring that we have a secure and efficient border, a system flexible enough to handle changes in migrant flows, and the capacity to treat each migrant with dignity. But more needs to be done in the migrants’ home countries, too, so that they are not forced to flee for their safety in the first place.

Any comprehensive plan on Central America and immigration reform should address gender inequity and gender-based violence.

They are not siloed issues to acknowledge only when horrific stories of femicide and human trafficking force us to pay attention. Rather, they are deeply entangled with broader challenges of corruption and poverty. Proposed solutions shouldn’t overlook the impact of gender-based violence on migrant flows, economic development, education and health.

Fourteen of the 25 most dangerous places for women are in the Western Hemisphere, including countries within Central America. Patriarchy and gang violence subject women and girls to abhorrent actions of abuse and control.

Honduras and El Salvador saw some of the highest incidences of femicide within Latin America in 2019, at rates of 6.2 and 3.3 per 100,000, respectively. In Guatemala, adolescent girls are at a high risk of being “disappeared,” with 8 out of every 10,000 girls between the ages of 15 and 17 reported missing each year.

COVID 19-related lockdowns are being exploited by gangs looking to strengthen control: El Salvador alone has seen a 70% increase in gender-based violence since the beginning of the pandemic. And lockdowns have forced vulnerable individuals to stay in close proximity to their perpetrators. Guatemala, Honduras and El Salvador reported an increase in intrafamily violence, with El Salvador reporting an increase in intrafamily femicides as well.

Justice systems and access to services need to be strengthened to ensure adequate protection for all under the law. Legal protections often are inhibited by weak institutions, corruption and a culture of impunity toward perpetrators.

According to a 2017 national survey, two-thirds of Salvadoran women over the age of 15 have experienced violence, but only 6% have ever reported it. While laws against child marriage exist across the region, in some countries about 1 in 3 young women are in a union before age 18. Post-trauma support and efforts that inform Central American women of their rights and agency are critical interventions that could help women like Meylin.

Females have been disproportionately affected by the devastating impact of hurricanes Eta and Iota, but the status of women and girls is chronically overlooked in response efforts, exacerbating the risk of violence.

Women and girls must be seen and heard. Greater focus on gender and age-disaggregated data collection and in tracking the effectiveness and efficiency of legal systems is crucial. And women and their lived experiences need to be more fully represented at all leadership levels.

Finally, direct outreach to local communities should be a priority for U.S. government and private sector-led programs. This includes resource and capacity support for advocates and organizations that serve as lifelines for those affected by violence, often at great personal risk. Engagement with men and boys is equally imperative.

How can anyone be expected to thrive when her day-to-day priority is simply to survive? The United States needs to recognize that gender-based violence and gender inequity drive migration.

Immigration reform must include strategies to address the root causes of migration from Central America in effective and lasting ways to prevent situations like Wilton’s and Meylin’s. Women and girls must be front and center in these solutions.

Natalie Gonnella-Platts serves as the director of the Women’s Initiative at the George W. Bush Institute.

Jenny Villatoro is an associate for the George W. Bush Institute-SMU Economic Growth Initiative.

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“Deterrents” and illegally abusing asylum seekers DON’T WORK! It’s not that difficult a concept. Indeed, these misguided attempts at deterrence have been failing consistently under Administrations of both parties for the past four decades. One would think that an “enlightened nation” would try a different approach rather than simply repeating the costly failures of the past in various forms.

What we need are functioning refugee and asylum systems, led and staffed by progressive experts, operating from INSIDE Government, that will grant status to qualified refugee women in a fair and timely manner and set favorable precedents even while separately addressing the endemic problems in the “refugee-sending countries.” Of course, it will result in more legal immigration of refugees and asylum seekers to the U.S. That’s a good thing for both us and those individuals, not something to be feared or unlawfully and dishonestly “deterred!”

With stagnating population growth, we should welcome and facilitate legal immigration of courageous, talented, dedicated refugee women from all countries and their children through the refugee, asylum, and a much more robust legal immigration system! 

Debi Sanders
Debi Sanders ESQ
“Warrior Queen” of the NDPA
PHOTO: law.uva.edu

Thanks to NDPA warrior-queen Debi Sanders for sending in this item. This report should be great evidence for those litigating to halt the Garland misogyny mess at EOIR and, sadly, to some extent in U.S. Courts of Appeals that have chosen to sweep both reality of what’s happening in the Northern Triangle and the patent unconstitutionality of a system governed by bogus precedents entered or promoted by AG’s affiliated with DHS Enforcement who also packed and reshaped the immigration “judiciary” in the image of nativist restrictionists! However, compelling as it is, the report only adds to the existing body of documentation of the dishonest approach by Administrations of both parties to Latin American asylum claims, particularly those of women and children.

For Pete’s sake, first and second year law students know that the EOIR travesty is unconstitutional! Why are life-tenured Article III Judges covering it up? Hopefully, history will take note of their mal-performance on the bench! These guys are life-tenured! So, what’s their excuse for not upholding the Constitution against clear Congressional and Executive abuses?

Hard for me to say this. But, former President George W. Bush is doing more for human rights, gender rights, civil rights, and immigrants rights’ than Garland or anyone else at the Biden DOJ! At least he speaks out publicly for the humanity and contributions of migrants and for their fair and generous treatment, which is more than any member of the Biden Administration has done as they continue to mistake softening the rhetoric with taking firm action to reverse White Nationalist policies and replace them with readily achievable progressive ones.

George W. Bush
030114-O-0000D-001.President George W. Bush. Photo by Eric Draper, White House. “Why is this guy willing to speak up for immigrants’ rights . . . .

Meanwhile, despite pleas from nearly every expert, progressive, human rights, immigrants’ rights, and gender rights group in the U.S., Garland continues to allow Sessions’s wrong, toxic, and misogynistic decision in Matter of A-B – to remain in place and threaten the lives of female refugees while ignoring the misogynistic, anti-asylum, culture inculcated by Sessions and Barr at EOIR that continues to flourish and daily dish out abuse to migrants and their representatives without meaningful consequences. 

Judge Merrick Garland
“ . . . while this guy continues to apply misogynistic precedents, eschew progressive experts, recycle failed ‘Aimless Docket Reshuffling’ gimmicks, and allow the Trump-era anti-asylum culture to continue to flourish at EOIR and DOJ?” Attorney General Merrick B. Garland
Official White House Photo
Public Realm

What, indeed, is someone like AAG Vanita Gupta doing with herself at Garland’s anti-progressive, and anti-due-process mess at DOJ? Why are folks like her and Assistant Attorney General Kristen Clarke there in the first place if they aren’t going to stand up to Garland’s tone-deaf, inept approach to gender rights, human rights, and racial justice @ EOIR? How, on earth, do you lead a “Civil Rights Division” while turning a blind eye to grotesque violations of civil and human rights going on daily in your “Boss’s” wholly owned “court” system that functions like no “real court” in America? What’s DAG Lisa Monaco doing presiding over a gender disaster at EOIR? It’s straight out of “Jim Crow!” 

James “Jim” Crow
James “Jim” Crow
Symbol of American Racism, still right at home at Garland’s EOIR!
Woman Tortured
“She struggled madly in the torturing Ray” — “Do Garland, Monaco, Gupta, & Clarke work in ‘sound-proofed offices’ where they can’t hear our tortured screams and moans? What’s wrong with those guys? We’re suffering and dying while they are fiddling and diddling!”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

And, I wouldn’t say that Vice President Harris is looking very good either, as she “swallows the whistle” on notorious scofflaw human rights violations that she was well aware of from her time in the Senate! Doesn’t anyone in the Biden Administration have the backbone to speak up for human rights, human decency, and restoring the rule of law? Is it REALLY our position that following the Constitution, our statutory laws, and the international treaties to which we are party is beyond the capabilities of the U.S. Government? If so, what, may I ask, is the difference between us an any third world dictatorship where laws have no meaning?

Vice President Kamala Harris
Vice President Kamala D. Harris. “Our first African-American, AAPI, child of immigrants VEEP seems curiously deaf and indifferent to the gross abuses being heaped on migrants and women of color at EOIR and at our Souther Border! What’s her excuse for turning her back on the progressive, human rights, gender equality groups that helped put her in office. Why is she remaining silent as Garland continues to appoint Billy Barr’s hand-selected non-progressive, non-diverse Immigration Judges to a life-determining “judiciary” that the Biden Administration wholly controls? How can you create a progressive, diverse, Article III Judiciary that will promote racial equity when you’re unwilling to apply those values and selection criteria to a huge judiciary that you actually control? What message are you sending to ‘next generation progressive attorneys of color’ when you allow Garland to ignore them in favor of lesser qualified candidates? Why aren’t you out there actively recruiting more attorneys of color and other underrepresented groups for the Immigration Judiciary rather than allowing Garland to use same-old, same old bogus “USA Jobs Phantom recruitments?” Lots of unanswered questions here!
Vice President of the United States
(Official Senate Photo)

I can’t figure it out! But, I do know that Garland’s lousy stewardship at EOIR, failure to speak out for fundamental fairness, usher in progressive changes, and restore due process @ EOIR has reached “crisis proportions” affecting our entire justice system and threatening democracy!

Hopefully, progressive advocacy, human rights, and civil rights groups will keep up the pressure and demands for long, long, long overdue and readily achievable changes at EOIR: in leadership, precedents, culture, and administration of justice! (Get this: Garland just created yet another bogus “Dedicated Docket” without a functional e-filing system to make it work! That’s “Aimless Docket Reshuffling 101,” as anyone who has actually had to deal with the mess in his Immigration Courts could tell him. But, he’s apparently not interested!) Right now, it’s an unmitigated “disaster zone” continuing to spiral downward!

There is a direct link between the “Dred Scottification of the other” that Garland countenances at EOIR and the overall failure of our justice system to deal effectively with institutionalized racism! The U.S. has a long, disreputable history of treating women and persons of color as “non persons” under the Constitution. Much of it traces to our immigration laws where “the others” are routinely dehumanized, stereotyped, demonized, and abused by those who falsely claim to be furthering the “rule of law!” We will NOT achieve racial justice for all in America until we deal with the festering wounds intentionally inflicted on women, children, and people of color in our immigration system, at EOIR, and illegally continuing at our borders! 

By choice, Garland now “owns” the misogynistic, anti-due-process, anti-asylum disaster @ EOIR. Make him deal with it in a constructive way!

🇺🇸🗽⚖️🧑🏽‍⚖️Due Process Forever! Garland’s continued tolerance of misogyny and the anti-due-process, anti-asylum culture at EOIR, NEVER! Stop Garland’s continuing misogynistic nonsense before more refugee women and people of color needlessly die! What’s it going to take finally to get some “real justice @ Justice?”

PWS

06-05-21

 

☠️🤮👎🏻⚰️OUTRAGEOUS “MILLER LITE” JUSTICE! — NO WONDER GARLAND WANTED TO KEEP HIS “JUDICIAL PICKS” SECRET! — It’s A “Two Sharp Sticks In The Eyes” Putdown Of The Human Rights/Immigration Advocacy Community That Helped Boost Biden & Harris To Their Jobs!  — Tired Of Being Ignored, Disrespected, & Take For Granted? — Had Enough Of The Consistent Stupidity, Mind-Numbing Ineptitude, & Total Contempt For Constitutional Due Process @ EOIR Under Both The Dems & The GOP? 

Stephen Miller Monster
It’s “Miller Lite Time” @ Garland’s DOJ as this Dude gets the last laugh over immigration/human rights/due process advocates and experts who worked for Biden’s election! — Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

Every member of the NDPA should be outraged by Garland’s treachery:

https://www.justice.gov/eoir/file/1392116/download

Here’s the latest farcical roster of prosecutors, government attorneys, and non-immigration experts to be inflicted on migrants and their attorneys:

NOTICE

U.S. Department of Justice

Executive Office for Immigration Review

Office of Policy

5107 Leesburg Pike

Falls Church, Virginia 22041

Contact: Communications and Legislative Affairs Division

Phone: 703-305-0289 Fax: 703-605-0365 PAO.EOIR@usdoj.gov @DOJ_EOIR

www.justice.gov/eoir

May 6, 2021

EOIR Announces 17 New Immigration Judges

FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced 17 new Immigration Judges (IJs), including one Assistant Chief Immigration Judge (ACIJ) and six Unit Chief Immigration Judges (UCIJs). ACIJs are responsible for overseeing the operations of their assigned immigration courts. In addition to their management responsibilities, they will hear cases. UCIJs serve as IJs in formal judicial hearings conducted via video teleconference and supervise the staff assigned to their virtual courtroom. IJs preside in formal judicial hearings and make decisions that are final unless formally appealed.

After a thorough application process, Attorney General Merrick B. Garland appointed Megan B. Herndon, Wade T. Napier, Tamaira Rivera, David H. Robertson, Elizabeth Crites, Bryan E. DePowell, Nicholle M. Hempel, Kathy J. Lemke, Martinque M. Parker, David M. Paxton, Bryan D. Watson, Kenya L. Wells, and Mark R. Whitworth to their new positions; then-Acting Attorney General Monty Wilkinson appointed Adam Perl to his new position; then-Acting Attorney General Jeffrey A. Rosen appointed William H. McDermott to his new position; and then-Attorney General William P. Barr appointed Elliot M. Kaplan and Jeb T. Terrien to their new positions.

Biographical information follows:

Megan B. Herndon, Assistant Chief Immigration Judge, Richmond Immigration Adjudication Center

Megan B. Herndon was appointed as an Assistant Chief Immigration Judge to begin supervisory immigration court duties and hearing cases in April 2021. Judge Herndon earned a Bachelor of Arts in 1999 from Occidental College and a Juris Doctor in 2002 from the University of San Diego School of Law. From 2020 to 2021, she served as Senior Regulatory Coordinator, Office of Visa Services, Bureau of Consular Affairs, Department of State (DOS), in the District of Columbia. From 2018 to 2020, she served as Deputy Director of Legal Affairs, Office of Visa Services, Bureau of Consular Affairs, DOS. From 2015 to 2018, she served as Chief of the Legislation and Regulations Division, Office of Visa Services, Bureau of Consular Affairs, DOS. From 2013 to 2015, she served as a Section Chief, Immigration Law and Practice Division, Office of the Principal Legal Advisor (OPLA), Immigration and Customs Enforcement (ICE), Department of Homeland Security (DHS), in the District of Columbia and Falls Church, Virginia. From 2009 to 2013, she served as an Appellate Counsel, OPLA, ICE, DHS, in Falls

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Church. From 2007 to 2009, she served as an Assistant Chief Counsel, OPLA, ICE, DHS, in San Diego. From 2002 to 2007, she served as an Assistant Chief Counsel, OPLA, ICE, DHS, in Los Angeles, entering on duty through the Attorney General’s Honors Program. Judge Herndon is a member of the District of Columbia Bar and State Bar of California.

Wade T. Napier, Unit Chief Immigration Judge, Richmond Immigration Adjudication Center

Wade T. Napier was appointed as a Unit Chief Immigration Judge to begin supervisory immigration adjudication center duties and hearing cases in April 2021. Judge Napier earned a Bachelor of Science in 2001 from Transylvania University and a Juris Doctor in 2005 from Northern Kentucky University–Salmon P. Chase College of Law. From 2008 to 2021, he served as an Assistant U.S. Attorney for the Eastern District of Kentucky, in Lexington. In 2008, he served as a Staff Attorney for a Trial Court Judge, in Boone County, Kentucky. From 2005 to 2007, he worked in the Claims Litigation Department of Great American Insurance Company, in Cincinnati. Judge Napier is a member of the Kentucky Bar.

Tamaira Rivera, Unit Chief Immigration Judge, Richmond Immigration Adjudication Center

Tamaira Rivera was appointed as a Unit Chief Immigration Judge to begin supervisory immigration adjudication center duties and hearing cases in April 2021. Judge Rivera earned a Bachelor of Science in 1991 from Florida State University, a Juris Doctor in 1995 from California Western School of Law, and a Master of Laws in 2004 from The George Washington University Law School. From 2019 to 2021, she was an Immigration Practitioner with Advantage Immigration PA, in Orlando, Florida. From 2017 to 2019, she served as an Assistant Chief Counsel, Office of the Principal Legal Advisor (OPLA), Immigration and Customs Enforcement (ICE), Department of Homeland Security (DHS), in Orlando. From 2012 to 2017, she served as an Assistant Chief Counsel, OPLA, ICE, DHS, in San Antonio. From 2010 to 2012, she served as an Attorney Advisor and Special Assistant U.S. Attorney, U.S. Air Force, in San Antonio. From 2009 to 2010, she served as a Senior Democracy Fellow, U.S. Agency for International Development, in the District of Columbia. From 2007 to 2009, she was a Senior Associate Attorney and Program Manager with BlueLaw International LLP, in the District of Columbia. From 1996 to 2006, she served as a U.S. Air Force Judge Advocate, in the following locations: Madrid, Spain; Tucson, Arizona; San Antonio; and Okinawa, Japan. Judge Rivera is a member of the District of Columbia Bar and the Florida Bar.

David H. Robertson, Unit Chief Immigration Judge, Richmond Immigration Adjudication Center

David H. Robertson was appointed as a Unit Chief Immigration Judge to begin supervisory immigration adjudication center duties and hearing cases in April 2021. Judge Robertson earned a Bachelor of Science in 1986 from James Madison University, a Juris Doctor in 1989 from the University of Richmond School of Law, and a Master of Laws in 1999 from the Judge Advocate General’s Legal Center and School. From 1990 to 2020, he served as a U.S. Army Judge Advocate in various locations throughout the U.S. and Germany. During that time, from 2010 to 2020, he served as a Military Judge in the following locations: Fort Bliss, Texas; Fort Bragg, North Carolina; Kaiserslautern, Germany; and Fort Stewart, Georgia. While serving as a Military Judge, he also presided over trials in Kuwait and Afghanistan. From 2004 to 2006, he served as a Regional Defense Counsel; from 1999 to 2001, as a Senior Defense Counsel; from 1995 to

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1997, as a Prosecutor; and from 1993 to 1995, as a Defense Counsel. From 1995 to 1996, he deployed to Bosnia-Herzegovina, and from 2007 to 2008, he deployed to Kosovo. In 2020, he retired in the rank of Colonel. Judge Robertson is a member of the Virginia State Bar.

Elizabeth Crites, Immigration Judge, Chicago Immigration Court

Elizabeth Crites was appointed as an Immigration Judge to begin hearing cases in April 2021. Judge Crites earned a Bachelor of Arts in 2005 from Ball State University and a Juris Doctor in 2009 from the University of Illinois Chicago John Marshall Law School. From 2016 to 2021, she served as an Assistant Chief Counsel, Office of the Principal Legal Advisor, Immigration and Customs Enforcement, Department of Homeland Security, in Chicago. From 2009 to 2016, she was an Associate Attorney with Broyles, Kight & Ricafort PC, in Chicago. Judge Crites is a member of the Illinois State Bar.

Bryan E. DePowell, Immigration Judge, Adelanto Immigration Court

Bryan E. DePowell was appointed as an Immigration Judge to begin hearing cases in April 2021. Judge DePowell earned a Bachelor of Arts in 2007 from the University of Hawai’i at Manoa and a Juris Doctor in 2009 from Widener University Commonwealth Law School. From 2019 to 2021, he served as a Deputy Prosecuting Attorney, Felony Trials Division – Office of Prosecuting Attorney, City and County of Honolulu. From 2018 to 2019, he served as Chief Counsel for the House Minority Research Office, State of Hawai’i, in Honolulu. From 2012 to 2018, he was an Associate Attorney with Crisp and Associates LLC, in Harrisburg, Pennsylvania. Judge DePowell is a member of the Hawaii State Bar and the Pennsylvania Bar.

Nicholle M. Hempel, Immigration Judge, Houston – Greenspoint Park Immigration Court

Nicholle M. Hempel was appointed as an Immigration Judge to begin hearing cases in April 2021. Judge Hempel earned a Bachelor of Arts in 1996 from California State University, Fresno and a Juris Doctor in 2000 from Chicago-Kent College of Law. From 2010 to 2021, she served as an Assistant Chief Counsel, Office of the Principal Legal Advisor, Immigration and Customs Enforcement, Department of Homeland Security, in Los Angeles. From 2003 to 2010, she served as an Assistant State Attorney with the Cook County State’s Attorney’s Office, in Chicago. From 1998 to 2003, she served as a Law Clerk for the First Municipal District, Circuit Court of Cook County, in Chicago. Judge Hempel is a member of the Illinois State Bar.

Kathy J. Lemke, Immigration Judge, Portland Immigration Court

Kathy J. Lemke was appointed as an Immigration Judge to begin hearing cases in April 2021. Judge Lemke earned a Bachelor of Arts in 1994 from the University of Chicago and a Juris Doctor in 1997 from Arizona State University School of Law. From 2019 to 2020, she served as the City Prosecutor for Phoenix. From 2009 to 2019, she served as an Assistant U.S. Attorney for the District of Arizona, in Phoenix. From 2004 to 2009, she served as an Assistant City Prosecutor for Phoenix. In 2003, she served as a Deputy County Attorney for Pinal County in Florence, Arizona. From 1998 to 2003, she served as a Deputy County Attorney for Maricopa County, in Phoenix. Judge Lemke is a member of the State Bar of Arizona and the District of Columbia Bar.

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Martinque M. Parker, Immigration Judge, Houston – Greenspoint Park Immigration Court

Martinque M. Parker was appointed as an Immigration Judge to begin hearing cases in April 2021. Judge Parker earned a Bachelor of Arts in 2005, a Bachelor of Science in 2006 from the University of Georgia, and a Juris Doctor in 2011 from the University of Arkansas at Little Rock William H. Bowen School of Law. From 2017 to 2021, she served as an Assistant Chief Counsel, Office of the Principal Legal Advisor, Immigration and Customs Enforcement, Department of Homeland Security, in Lumpkin, Georgia. From 2011 to 2017, she served as a Deputy Prosecuting Attorney, in Little Rock, Arkansas. Judge Parker is a member of the Arkansas Bar and the State Bar of Georgia.

David M. Paxton, Immigration Judge, Houston – Greenspoint Park Immigration Court

David M. Paxton was appointed as an Immigration Judge to begin hearing cases in April 2021. Judge Paxton earned a Bachelor of Science in 1998 from Texas State University, a Master of Business Administration in 2004 from the University of Texas at Austin, and a Juris Doctor in 2009 from Santa Clara University School of Law. From 2015 to 2021, he served as an Assistant U.S. Attorney for the Southern District of Texas, in McAllen and Corpus Christi. From 2011 to 2015, he served as a Deputy District Attorney for the San Luis Obispo County District Attorney’s Office, in San Luis Obispo, California. From 2010 to 2011, he served as a Special Assistant U.S. Attorney for the Criminal Division of the Northern District of California, in San Jose. From 1997 to 2004, he served as a Systems Engineer for Advanced Micro Devices and Legerity Inc., in Austin, Texas. Judge Paxton is a member of the State Bar of California.

Bryan D. Watson, Immigration Judge, Atlanta – W. Peachtree Street Immigration Court Bryan D. Watson was appointed as an Immigration Judge to begin hearing cases in April 2021. Judge Watson earned a Bachelor of Arts in 1993 from the University of Missouri, a Juris Doctor in 1996 from the University of Missouri, a Master of Arts in 2006 from Air University, and a Master of Science in 2014 from the National Defense University. From 2019 to 2021, he served as the Chief Trial Judge of the U.S. Air Force Trial Judiciary, at Joint Base Andrews, Maryland. From 2017 to 2019, he served as the Commandant of the U.S. Air Force Judge Advocate General’s School, at Maxwell Air Force Base, Alabama. From 2014 to 2017, he served as the General Counsel of the White House Military Office, in the District of Columbia. From 1996 to 2021, he served as a U.S. Air Force Active Duty Judge Advocate, in the following locations: Moody Air Force Base, Georgia; Francis E. Warren Air Force Base, Wyoming; Langley Air Force Base, Virginia; Maxwell Air Force Base, Alabama; Randolph Air Force Base, Texas; Joint Base Andrews, Maryland; Aviano Air Base, Italy; and the Pentagon, White House, Bolling Air Force Base, and Fort McNair, District of Columbia. He retired from the U.S. Air Force in 2021 as a Colonel. Judge Watson is a member of the State Bar of Georgia and the Missouri Bar.

Kenya L. Wells, Immigration Judge, Houston – Greenspoint Park Immigration Court

Kenya L. Wells was appointed as an Immigration Judge to begin hearing cases in April 2021. Judge Wells earned a Bachelor of Science in 2007 from Texas A&M University and Juris Doctor in 2010 from the University of Texas School of Law. From 2017 to 2021, he served as an Assistant U.S. Attorney with the U.S. Attorney’s Office for the District of Columbia. From 2010 to 2016, he served as an Assistant District Attorney with the New York County District Attorney’s Office, in New York. Judge Wells is a member of the New York State Bar.

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Mark R. Whitworth, Immigration Judge, Houston – Greenspoint Park Immigration Court

Mark R. Whitworth was appointed as an Immigration Judge to begin hearing cases in April 2021. Judge Whitworth earned a Bachelor of Journalism in 1985 and a Juris Doctor in 1993, both from the University of Texas at Austin. From 2003 to 2021, he served as an Assistant Chief Counsel, Office of the Principal Legal Advisor, Immigration and Customs Enforcement, Department of Homeland Security, in Harlingen, Texas. From 2001 to 2003, he served as an Assistant District Counsel with the former Immigration and Naturalization Service, Office of the District Counsel, Department of Justice, in Harlingen. From 1994 to 2001, he served as an Assistant Attorney General and an Assistant Managing Assistant Attorney General for the Texas Office of the Attorney General, in Harlingen. From 1993 to 1994, he was an Associate Attorney with Roerig, Oliveira and Fisher LLP, in Brownsville, Texas. Judge Whitworth is a member of the State Bar of Texas.

Adam Perl, Immigration Court, New York – Broadway Immigration Court

Adam Perl was appointed as an Immigration Judge to begin hearing cases in April 2021. Judge Perl earned a Bachelor of Arts in 2006 from Florida International University and a Juris Doctor in 2011 from St. Thomas University School of Law. From 2018 to 2021, he served as a Deputy Chief Counsel, Office of the Principal Legal Advisor (OPLA), Immigration and Customs Enforcement (ICE), Department of Homeland Security (DHS), in New York. From 2016 to 2018, he served as an Assistant Chief Counsel, OPLA, ICE, DHS, in Newburgh, New York; from 2014 to 2016, he served as an Assistant Chief Counsel, in New York; and from 2011 to 2014, he served as an Assistant Chief Counsel, in Los Angeles. Judge Perl is a member of the Florida Bar.

William H. McDermott, Immigration Judge, New York – Federal Plaza Immigration Court

William H. McDermott was appointed as an Immigration Judge to begin hearing cases in April 2021. Judge McDermott earned a Bachelor of Arts in 2007 from Long Island University and a Juris Doctor in 2011 from The Catholic University of America Columbus School of Law. From 2019 to 2021, he served as the Deputy State’s Attorney for Wicomico County, Maryland. From 2011 to 2019, he served as an Assistant State’s Attorney, Deputy State’s Attorney, and Ad Interim State’s Attorney, in Worcester County, Maryland. Judge McDermott is a member of the Maryland State Bar.

Elliot M. Kaplan, Unit Chief Immigration Judge, Richmond Immigration Adjudication Center

Elliot M. Kaplan was appointed as a Unit Chief Immigration Judge to begin supervisory immigration adjudication center duties and hearing cases in April 2021. Judge Kaplan earned his Bachelor of Arts in 1998 from Antioch University, a Master of Business Administration in 1982 from Whittier College, and a Juris Doctor in 1982 from Whittier Law School. From 2019 to 2020, he was Of Counsel to Kutak Rock LLP, in Kansas City, Missouri. From 2004 to 2019, he was in private practice, in Kansas City. From 1995 to 2003, he was a Partner and Founder of Daniels & Kaplan PC, in Detroit and Kansas City. From 1991 to 1994, he was Of Counsel to Berman, DeLeve, Kuchan & Chapman LLC, in Kansas City. From 1990 to 1991, he was Of Counsel to DeWitt, Zeldin & Bigus PC, in Kansas City. From 1985 to 1990, he was Of Counsel to Husch, Eppenberger, Donohue, Cornfeld & Jenkins, in Kansas City. From 1983 to 1985, he was Assistant General Counsel and Assistant Secretary of Air One Inc., in St. Louis. Judge Kaplan is a member of the Missouri Bar.

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Jeb T. Terrien, Unit Chief Immigration Judge, Richmond Immigration Adjudication Center

Jeb. T. Terrien was appointed as a Unit Chief Immigration Judge to begin supervisory immigration adjudication center duties and hearing cases in April 2021. Judge Terrien earned a Bachelor of Science in 1994 from The University of Virginia and a Juris Doctor in 1997 from Tulane Law School. From 2009 to 2021, he served as a Managing Assistant U.S. Attorney and Assistant U.S. Attorney for the Western District of Virginia, in Harrisonburg. During that time, from 2014 to 2015, he served as an Assistant Director, National Advocacy Center, Office of Legal Education, Executive Office for U.S. Attorneys, Department of Justice, in Columbia, South Carolina. From 2004 to 2008, he served as an Assistant U.S. Attorney for the Southern District of Ohio, in Cincinnati, and the Northern District of West Virginia, in Martinsburg. From 2000 to 2004, he served as a Regional Drug Prosecutor for the Commonwealth of Virginia in Halifax, Charlotte, and Campbell Counties. From 1999 to 2000, he served as an Assistant Attorney General with the Virginia Attorney General’s Office, in Richmond. From 1998 to 1999, he served as an Assistant Commonwealth’s Attorney for the Accomack County Commonwealth’s Attorney’s Office in Accomac, Virginia. Judge Terrien is a member of the Virginia State Bar.

— EOIR —

Communications and Legislative Affairs Division

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There’s a powerful message here NDPA! Elections DON”T matter, nor does your expertise, dedication, and hard work! Maybe it will be time to act on that message during the next election cycle. Stephen Miller? Judge “MillerLite?” What’s the real difference?

Here are some “early reactions” from the NDPA:

I just looked quickly, but was there only one new IJ coming from private practice?  When I looked up the firm, it doesn’t practice immigration law.

I didn’t recognize any names.  Shouldn’t the goal be to hire those with a scholarly understanding of immigration law, including at least some who have demonstrated a creative approach to asylum?

My take is why not put new IJ hiring on pause until the agency has figured out how it intends to move forward?  EOIR should have their new Chief IJ in place, have revamped the IJ training, have figured out what AG precedents it intends to vacate, etc.  Also, the quotas are still in place.

When new IJs with no immigration law background come on board, should they feel they can’t continue a case to study the law or consult with a colleague because they have to complete 4 cases that day to avoid being fired?

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

Ah, Justice from “Miller Lite” Justice @ Justice. What a “poke in they eyes with a sharp stick” to the immigration/human rights bar!

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

Thanks for sharing Judge Schmidt. In addition to the new hires, it’s deeply concerning that AG Garland’s DOJ is expanding its use of secretive and inaccessible immigration adjudication centers- opening a new location in Richmond, Virginia.

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

Of 14 IJs appointed under Biden (Acting AG Wilkinson or AG Garland), 7 have worked for ICE, 5 have been prosecutors of other types, 2 have worked for ICE and been prosecutors, and 2 have worked as immigration defense attorneys (though these two have also worked for ICE).

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

It is completely baffling.  Two working theories: 1) EOIR is just so far down Garland’s radar that he just doesn’t care or have time to care; or 2) he has made a political decision to “hang tough” on immigration for the optics and to stave off Rethuglican encroachment in the mid-terms.

Neither theory speaks well of him.

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

I don’t see how dissing the immigration/human rights bar is the key to success for the Dems in the midterms. I personally know lots of NDPA members who “busted tail” and donated lots of time and money to getting Biden & Harris elected. Don’t think that the “elections don’t matter for human rights/immigration/due process/racial justice” is going to “energize the base” for the midterms. 

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

I have essentially lost hope that anything will change….

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I guess this answers the question of whether establishing an independent, progressive, due process focused Immigration Judiciary within the Executive Branch is possible. Obviously, it isn’t! Litigation and Article I appear to be the only solutions.

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What is that old adage, “the more things change the more they stay the same”???

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

🇺🇸🗽⚖️Due Process Forever! We need to translate Garland’s blatant disrespect, ignorance, and failure to stand up for racial justice, an end to misogyny, and progressive expertise in the Immigration Judiciary into action and resistance to his “Miller Lite” vision for the DOJ!

 

PWS

05-06-21

 

🤮👎🏻SHOCKING BETRAYAL@ “JUSTICE” — GARLAND DISSES PROGRESSIVE EXPERTS WITH SECRET APPOINTMENTS OF 17 UNQUALIFIED IMMIGRATION JUDGES! — New AG’s Open Contempt For Racial Justice, Due Process, Human Rights Enrages Advocacy Community Who Believed & Supported Biden-Harris Campaign Pitch!  — THE REINCARNATION OF “DEEP THROAT” @ EOIR “BLOWS WHISTLE” ON NEW AG’S ATROCIOUS FAILURE TO TAKE SERIOUSLY MOCKING OF DUE PROCESS, INSTITUTIONALIZED RACISM, MISOGYNY, LACK OF SCHOLARSHIP, AVERSION TO PRACTICAL PROBLEM SOLVING IN AMERICA’S DEADLY, DYSFUNCTIONAL STAR CHAMBERS!⚰️☠️🏴‍☠️

Deep Throat
Reincarnated @ EOIR? — Creative Commons License
Deep Throat
Deep Throat — Well, there used to be theaters below the EOIR HQ Tower @ Falls Church, but I don’t think they ever showed this feature film. Is “DT” a girl, a boy, a man, a woman, a group, or something else? We’ll never know! The “Adults Only” tag is a reminder that “adult supervision” remains missing @ the EOIR Clown Show. And, apparently, Judge Garland has no intention of providing it! — Creative Commons License

 

Courtside Exclusive

By Paul Wickham Schmidt

May 4, 2021

Recently, some of America’s top legal minds were “wordsmithing” their “practical scholarly” advice on what actions Judge Garland should take to begin straightening out his EOIR mess. Common sense steps to slash the largely self-created Immigration Court backlog of an astounding 1.3 million cases actually could and should have been taken within hours of Garland’s swearing in as Attorney General. But, unknown to these experts, the battle they steadfastly had been fighting for the past four years in behalf of due process, common sense, and humanity in a broken system already was lost.

Basically, Garland and his team had secretly delivered the “big middle finger” to progressives earnestly seeking to assist and guide them in the right direction on long overdue reforms at Garland’s incredibly backlogged, totally dysfunctional, anti-due-process, Immigration “Courts” that don’t fit any known American definition of “court.” For while the wheels of scholarly, problem-solving brainpower were grinding away, Garland had cavalierly and clandestinely handed out 17 of the most important (and certainly most readily available to progressive judicial candidates) Federal Judicial positions to unqualified insiders and prosecutors basically “in the Stephen Miller White Nationalist pipeline.” Adding insult to injury, Garland and his lieutenants covered up their disgraceful actions. But, thanks to a reincarnated “Deep Throat” @ EOIR (see, Watergate for newer generations), we now know the truth.

According to “Deep Throat 2021,” (“DT-21”) it’s worse than I previously thought about Immigration Judge appointments. (And, I thought it was bad.) Garland actually secretly appointed 17 new IJs in April, but EOIR hasn’t released the names publicly because they (rightly) fear “the blowback” from Dems and progressives. 

So, who is Team Garland” trying to please? “Gauleiter” Stephen Miller? “Billy the Bigot” Barr? Gene Hamilton? Donald Trump? Jeff “Gonzo Apocalypto” Sessions? Chad “Wolfman” Wolf? Ken “Cooch Cooch” Cuccinelli? “Teddy the Traitor” Cruz? Tom “Blacks & Hispanics Should be Pickin’” Cotton? 

The 17 include some for the VTC black box “court” in Richmond. The only one that went public was a story a judge himself placed. That’s apparently the one that Dan Kowalski and I picked up. According to sources, none of Garland’s new judges are good for due process or for progressive, expert, independent judging.

Also, there’s a rumor that the open BIA position is going to go to an “EOIR insider,” not someone from the outside who could help restore due process and fundamental fairness.

Let’s see, so far the Biden Administration has had exactly zero progressive Federal Judges confirmed by the Senate. Meanwhile, over at DOJ, Garland has handed out these 17 powerful judgeships with life or death authority serving on the front lines of racial justice in America to non-progressives apparently recommended and tapped by his restrictionist predecessor.

Make sense? Only if you’ve watched past Dem Administrations’ inept handling of the Immigration Courts.

In positive news, there’s “internal chatter” that EOIR Deputy Director Carl C. Risch, a political hack “burrower” from the Trump Administration, is leaving EOIR.

But, “DT-21” is still gravely concerned that “Millerite” BIA Chair David Wetmore (Maury Roberts must be turning over in his grave) has yet to be removed with his “probationary period” set to expire at the end of this month. What, exactly, have been Wetmore’s contributions to human rights scholarship, “applied due process,” fundamental fairness, racial justice, and fair treatment of female asylum seekers that justify his continued tenure as essentially the “Chief Justice of Immigration?”

Garland’s malfeasance at EOIR is not just disappointing, but totally outrageous! On Tuesday, he disingenuously asked the House for more money to promote civil rights while running Star Chambers of institutionalized racism that are undermining the American justice system at the critical “retail level.”

Star Chamber Justice
“Civil Rights” in Garland’s Star Chambers have a peculiar meaning! — Creative Commons License

 

Those advocates who almost single handedly kept the American justice system afloat by successfully challenging many of the unconstitutional racist actions of the Trump immigration kakistocracy once again find themselves “on the outside looking in.” Meanwhile, Judge Garland, who was hiding out above the fray @ the DC Circuit, treats them as “chopped liver” while continuing White Nationalist, anti-due-process policies and precedents initiated by Trump and his cronies.

How out of touch is Garland’s proposal to the House yesterday to address the Immigration Court backlog by casting 100 new Immigration Judges into this mess? (Presumably, these positions will be handed out “like candy” to more non-expert, non-diverse, non-due-process oriented insiders and former government prosecutors.) Well, even with many more Immigration Judges on the bench (more than twice as many as at the end of the Obama Administration), it’s been about two decades since EOIR has decided more cases than it has docketed! That’s how “Aimless Docket Reshuffling” by DOJ politicos and EOIR bureaucrats builds uncontrollable backlogs!

Assume the highly unlikely, that under Garland, without any more quotas, corner cutting, or other anti-due-process gimmicks, the existing nearly 600 judges could keep “even” with new filings. Then, once selected, trained, and on duty (a process that took the Obama Administration an astounding average of two years), “Garland’s 100 new judges” could devote themselves to “backlog reduction.” At the DOJ’s quota of 700 cases per judge, the new judges could decide 70,000 cases per year. At that rate, it would take them approximately two decades (or five 4-year Administrations) to “wipe out” the backlog.

Sound like a plan? Only if you don’t understand the fundamental, endemic problems plaguing EOIR and have no “real life experience” representing individuals whose hopes, lives, and futures are being ground to dust by EOIR malfeasance on a daily basis!

Folks, this has to stop! Keep pressing those constitutional arguments that eventually will bring Garland’s corrupt, dysfunctional system to a screeching halt. And keep pushing for legislation to take this ungodly mess out of the DOJ. Also, keep reminding President Biden who helped get out the vote and get him his job. And, where is our African/Asian American/daughter of immigrants Vice President while this outrage at “Justice” is playing out?

How do supposedly progressive women legal luminaries like Lisa Monaco and Vanita Gupta justify their role in Garland’s misogynist, due process farce @ EOIR?

Woman Tortured
“She struggled madly in the torturing Ray” — Lisa Monaco & Vanita Gupta have wandered into a strange vision of “justice” for refugee women of color @ “Justice!”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

As for “DT-21,” he/she/them remains as enigmatic, unverifiable, unabashed, and unafraid as ever! This is a 21st Century “patriot” tired of the abuse of due process, racism, incompetence, and misogyny that EOIR has fostered over Administrations of both parties. EOIR under Garland is a progressive’s continuing nightmare!

Does “DT-21” lurk in the shadows of a parking garage, beyond the view of security cameras, as did the famous 1970’s namesake? Or, at the outskirts of an interstate rest area? Perhaps in a dark unwatched corner of an overcrowded Zoom chat room?

And, while you’re at it, say a prayer for Linda Lovelace (1949-2002), the original “Deep Throat” (1972), who later said she was an abused spouse coerced into a career as an adult actress that she eventually rejected. Somehow, there is a tie-in between Lovelace’s exploitation in the 1970s and the systemic mistreatment of asylum seeking domestic violence victims that went into high gear during the Trump regime and continues unabated under Garland! Interestingly, before her untimely death in 2002, Lovelace became an anti-porn activist who testified before the Attorney General’s Commission on Pornography (a/k/a “The Meese Commission”) in 1986.

Stay tuned for more “truth from the Tower.” You certainly won’t get it from “Team Garland.”

Due Process Forever!

PWS

05-04-21