"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
I personally don’t make much of Scott’s ability to reason. This is the same man who said in March that “woke supremacy,” whatever that is, “is as bad as white supremacy.” There is no world in which recent efforts at enlightenment can be equated to enslavement, lynching and mass incarceration. None.
It seems to me that the disingenuousness on the question of racism is largely a question of language. The question turns on another question: “What, to you, is America?” Is America the people who now inhabit the land, divorced from its systems and its history? Or, is the meaning of America inclusive of those systems and history?
When people say that America is a racist country, they don’t necessarily mean that all or even most Americans are consciously racist. However, it is important to remember that nearly half the country just voted for a full-on racist in Donald Trump, and they did so by either denying his racism, becoming apologists for it, or applauding it. What do you call a country thus composed?
Historically, however, there is no question that the country was founded by racists and white supremacists, and that much of the early wealth of this country was built on the backs of enslaved Africans, and much of the early expansion came at the expense of the massacre of the land’s Indigenous people and broken treaties with them.
Gathering the dead after the Colfax massacre, published in Harper’s Weekly, May 10, 1873
Eight of the first 10 presidents personally enslaved Africans. In 1856, the chief justice of the United States wrote in the infamous ruling on the Dred Scott case that Black people “had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect.”
The country went on to fight a Civil War over whether some states could maintain slavery as they wished. Even some of the people arguing for, and fighting for, an end to slavery had expressed their white supremacist beliefs.
Abraham Lincoln said during his famous debates against Stephen A. Douglas in 1858 that among white people and Black ones “there must be the position of superior and inferior, and I, as much as any other man, am in favor of the superior position being assigned to the white man.”
Some will concede the historical point and insist on the progress point, arguing that was then and this is now, that racism simply doesn’t exist now as it did then. I would agree. American racism has evolved and become less blunt, but it has not become less effective. The knife has simply been sharpened. Now systems do the work that once required the overt actions of masses of individual racists.
. . . .
As Mark Twain once put it: “The difference between the almost right word and the right word is really a large matter. ’Tis the difference between the lightning bug and the lightning.”
Being imprecise or undecided with our language on this subject contributes to the murkiness — and to the myth that the question of whether America is racist is difficult to answer and therefore the subject of genuine debate among honest intellectuals.
Saying that America is racist is not a radical statement. If that requires a longer explanation or definition, so be it. The fact, in the end, is not altered.
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Read Blow’s full article at the link.
Four things that are clear to me:
The “history” that most of us in my generation learned in high school was “whitewashed;”
The monumental achievements of non-white Americans, women, and children which allowed this country to exist, prosper, and flourish have consistently been ignored or downplayed;
America still has race issues;
The GOP, in particular, has failed to come to grips with the issue of race in 21st century America (apologists Scott & Graham notwithstanding).
🇺🇸⚖️🗽Due Process For All Persons Under Law, Forever!
Grundoon From Walt Kelly’s “Pogo” SOURCE: Pininterest
Grundoon: A diapered baby groundhog (or “woodchunk” in swamp-speak). An infant toddler, Grundoon speaks only gibberish, represented by strings of random consonants like “Bzfgt”, “ktpv”, “mnpx”, “gpss”, “twzkd”, or “znp”. Eventually, Grundoon learns to say two things: “Bye” and “Bye-bye”. He also has a baby sister, whose full name is Li’l Honey Bunny Ducky Downy Sweetie Chicken Pie Li’l Everlovin’ Jelly Bean. [From the Walt Kelly comic strip “Pogo.”]
In a recent blog post, I discussed the difficulty in establishing asylum based on a political opinion expressed against MS-13. In the specific case discussed, the Board of Immigration Appeals reversed the Immigration Judge’s finding that the asylum-seeker had expressed a political opinion to MS-13 members.1 In reversing the Immigration Judge, the BIA specifically stated as to MS-13 that “the gangs are criminal organizations, and not political or governmental organizations and gang activities are not political in nature.” The BIA has repeatedly expressed this same view (using this or similar boilerplate language) in its decisions denying asylum. In the particular case discussed in my blog post, a split panel of the Second Circuit Court of Appeals could not find enough evidence of record to compel the majority to overturn the BIA’s conclusion.
The BIA is of course a part of the U.S. Department of Justice; its judges are appointed by and employed by the Attorney General. Former Deputy Attorney General Rod Rosenstein was one of the Department officials to make the following point to a class of new Immigration Judges in March 2019:
Immigration judges appointed by the Attorney General and supervised by the Executive Office for Immigration Review are not only judges. First, you are not only judges because you are also employees of the United States Department of Justice. It is a great honor to serve in this Department. In the courtyard just outside the entrance to this Great Hall, high up on the interior wall of the Main Justice building, there is a depiction of the scales of justice and an inscription that reads, “Privilegium Obligatio.” It means that when you accept a privilege, you incur an obligation. In this Department, our duty is in our name. We are the only cabinet agency with a name that articulates a moral value.
Justice is not measured by statistics. Our employees learn from day one that their duty is to gather the facts, seek the truth, apply the law, and respect the policies and principles of the Department of Justice.
The second reason that you are not only judges is that in addition to your adjudicative function – finding facts and applying laws – you are a member of the executive branch. You follow lawful instructions from the Attorney General, and you share a duty to enforce the law.2
The clear message being conveyed is “Don’t get any big ideas of judicial independence and neutrality; you work for ‘Team Justice,’ and you will behave accordingly.” Am I alone in thinking that the motto cited by Rosenstein, “when you accept a privilege, you incur an obligation,” here comes across as a boss reminding new employees where their loyalties lie rather than as a commitment to truth and justice?
As wrong as this message is when conveyed to judges who are supposed to enjoy the independence and neutrality to rule against the Department of Justice and the Attorney General when the facts and law compel such an outcome, let’s examine this view for the consistency of its application as to all DOJ employees. Presumably, the Board’s official stance that MS-13 is not a political organization and that its activities are criminal and not political in nature enjoys the Department’s seal of approval. In fact, other Department of Justice attorneys, working for the Office of Immigration Litigation, defend that view when the BIA”s decisions are reviewed on appeal by the Circuit Courts. I’m not aware of any Attorney General action to certify a BIA decision expressing this view in order to correct the Board’s position on this issue, or even to remand to the Board for further consideration of its position in light of other conflicting views within the Department.
Regarding such conflicting views, I was recently made aware of a criminal indictment drafted by the U.S. Attorneys’ Office in the Eastern District of New York.3 The indictment was filed in December, 2020, while the Trump Administration was still in office. The opening paragraph of the indictment states that MS-13 is a transnational criminal organization engaged in terrorist activity, and that its members use violence “in order to obtain concessions from the government of El Salvador, achieve political goals and retaliate for government actions against MS-13’s members and leaders.” (emphasis added).
The indictment contains a specific section titled “Political Influence in El Salvador.” The indictment states that a unit of MS-13, the Ranfla Nacional, “gained political influence as a result of the violence and intimidation MS-13 exerted on the government and population of El Salvador.” It continued that the organization exercised leverage on the Salvadoran government through its control on the level of violence. The indictment states that in 2012, MS-13 exercised its leverage to negotiate a truce with the ruling FMLN party and its rival 18th Street “to reduce homicides in El Salvador in return for improved prison conditions, benefits and money.” According to the indictment, MS-13 also negotiated a similar agreement with the rival ARENA party, promising to deliver votes in return for benefits. The indictment states that over time, “the Ranfla Nacional continued to negotiate with political parties in El Salvador and use its control of the level of violence to influence the actions of the government in El Salvador.”
The indictment also contains a section explaining the purpose of the Ranfla Nacional. The second specific goal listed is: “Influencing the actions of governments in El Salvador and elsewhere to implement policies favorable to MS-13.”
The attorneys who made the above claims in an indictment filed in Federal District Court are also employees of the U.S. Department of Justice. They are also members of the executive branch, following lawful instructions from the Attorney General, and sharing a duty to enforce the law. In the Second Circuit case I recently discussed, other Department of Justice attorneys in their brief to the court defended the Board’s decision by depicting MS-13 as “an institution that is entirely non-governmental – that is…a group of criminals who, in fact, reject the rules set out by the government.” Noticeably absent from the same brief was any mention that this “rejection of the rules set out by government” includes strategies to pressure said government into undertaking specific actions, as well as its entering into negotiations and ultimately agreements with political parties, the terms of which include MS-13’s delivering votes in return for the parties’ commitment to enacting beneficial policies.
So how can it be that attorneys in one office of the Department of Justice argue that MS-13 as an organization is engaged in exerting political influence to achieve its political goals, and at the same time, another group of attorneys within the same Department of Justice can sign orders sending victims of the same MS-13 to their death by employing a boilerplate sentence that MS-13 is not a political organization and its activities are not political in nature? And that the decisions of that latter group are then defended by a third group of Department attorneys on appeal who make no mention of the conflicting arguments? Let’s remember that, according to Rosenstein, these attorneys were taught from day one that their duties as Department of Justice employees include gathering the facts and seeking the truth.
In 1997, a very different BIA wrote the following in a decision that, although still binding as precedent, seems long forgotten:
immigration 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. In that regard, the handbook for trial attorneys states that “[t]he respondent should be aided in obtaining any procedural rights or benefits required by the statute, regulation and controlling court decision, of the requirements of fairness.” Handbook for Trial Attorneys § 1.3 (1964). See generally Freeport-McMoRan Oil & Gas Co. v. FERC, 962 F.2d 45, 48 (D.C. Cir. 1992)(finding astonishing that counsel for a federal administrative agency denied that the A.B.A. Code of Professional Responsibility holds government lawyers to a higher standard and has obligations that “might sometimes trump the desire to pound an opponent into submission”); Reid v. INS, 949 F.2d 287 (9th Cir. 1991)(noting that government counsel has an interest only in the law being observed, not in victory or defeat).4
This matter deserves the immediate attention of Attorney General Merrick Garland. The ability of asylum seekers to receive a fair review of their claims based on accurate information is a matter of life and death. At this early stage of the Biden Administration, it is critical that the Department send a clear message that the “obligation” mentioned in its motto is to serve an ideal of justice that is independent of the particular politics of those temporally in charge.
Copyright 2021 Jeffrey S. Chase. All rights reserved.
Matter of S-M-J-, 21 I&N Dec. 722, 727 (BIA 1997).
APRIL 29, 2021
Reprinted by permission.
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As most outside the nativist world know, the BIA’s position that Northern Triangle gangs aren’t political in nature and action is absurd! For Pete’s sake, these guys negotiate “peace treaties” with governments, control large swaths of territory, manipulate “public death rates” for political gain, aid or punish political candidates and police, collect taxes, control jobs, and have economic policies. Sure sounds like a quasi-governmental, clearly political entity to me. Somewhere, there is a dissent of mine in an old published CAT case saying approximately that.
At least at one point, gangs in El Salvador controlled more jobs than did the Salvadoran Government! No competent, unbiased group of adjudicators (not to mention supposed “experts”) could have reached the BIA’s ridiculous, clearly politicized conclusions!
Sadly, to date, Judge Garland has followed in the footsteps of his dilatory Dem predecessors by destroying lives, promoting injustice, and blowing the Dems’ best chance to build a progressive, due process oriented, human rights advancing judiciary that also would help resolve America’s failure to come to grips with the 1951 U.N. Refugee Convention and its key role in our legal immigration system as well as being a prerequisite to achieving racial justice in America.
Supposedly, these are the goals of the Biden Administration. Unfortunately, Garland, Monaco, and Gupta haven’t gotten the message, although it has been “delivered” time after time by numerous experts and advocates!
A few historical notes:
I was on the en banc BIA that decided Matter of S-M-J-, cited by Jeffrey. It was written by Judge Michael J. Heilman, a fellow Wisconsinite who once had worked for me at the “Legacy INS” General Counsel, following service as a State Department consular officer. That case “originated” on a three-member panel of Heilman, the late Judge Lauri Steven Filppu, and me. It reflects the “government wins when justice is done” message that I had incorporated into INS attorney training years earlier, as well as fealty to UN Handbook standards encouraged by the Supremes in INS v. Cardoza-Fonseca, and the “best practices” that bygone BIA was consciously and aggressively advancing.
Former DAG Rod Rosenstein was once a respected career prosecutor who served Administrations of both parties. Then, he “sold out” to the Trump Administration and its neo-fascists. Although that probably should have ended his legal career, he’s currently enjoying life in “big law” while those victims harmed and wronged by the illegal and unethical policies (or, in some cases their survivors) he furthered continue to suffer.
Radical progressive due process reforms @ EOIR, starting with wholesale personnel changes and revocation of restrictionist, racist, misogynist policies and practices is long overdue. Nearly two months into his tenure Judge Garland has yet to demonstrate awareness of the need for immediate, decisive action. Meanwhile the bodies continue to pile up and the “adverse decisions” from the Article IIIs bearing his name and tarnishing his reputation continue to roll in!
Actually, Judge, each wrong decision from the BIA represents a human life ruined, often irrevocably. Is that the type of “impact” on American justice that you intend to leave as your “legacy?”
EOIR HQ, Falls Church, VA (a/k/a “The Tower of Babel”) By Pieter Bruegel The Elder Public Domain
U.S. Supreme Court justices on Monday appeared reluctant to let people who have been allowed to stay in the United States on humanitarian grounds apply to become permanent residents if they entered the country illegally.
The justices heard arguments in an appeal by a married couple from El Salvador who were granted so-called Temporary Protected Status of a lower court ruling that barred their applications for permanent residency, also known as a green card, because of their unlawful entry.
The case could affect thousands of immigrants, many of whom have lived in the United States for years. President Joe Biden’s administration opposes the immigrants in the case. The dispute puts Biden, who has sought to reverse many of his Republican predecessor Donald Trump’s hardline immigration policies, at odds with immigration advocacy groups and some of his fellow Democrats. read more
A federal law called the Immigration and Nationality Act generally requires that people seeking to become permanent residents have been “inspected and admitted” into the United States. At issue in the case is whether a grant of Temporary Protected Status, which gives the recipient “lawful status,” satisfies those requirements.
. . . .
Liberal Justice Sonia Sotomayor told Justice Department lawyer Michael Huston, “If you’re asking us to find the better reading of the statute, we should go by its terms: Those people have been admitted.”
. . . .
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Read the full article at the link.
Garland helps Biden deliver “tough noogies, go pound sand, your lives don’t matter” message to immigrants like Jose and Sonia and their supporters who might have had the illusion that better times were on the horizon with Biden’s election! Progressives find that when push comes to shove, Biden & Garland can be just as cruel, dumb, and counterproductive as Trump & Miller!
Any hope that advocates might have had of help, sympathy, or understanding for their green-card-qualified clients with decades of residence and citizen family members goes down the tubes early in Dem Administration. Biden-Harris humane rhetoric and promises prove just another illusion for progressives in Administration’s first High Court test!
But for Justice Sotomayor, the thinness of the Justices’ understanding of both immigration law and the human issues involved was alarming, yet basically predictable. What do a bunch of highly privileged, above the fray, judges who have never personally dealt with the stupidity, arbitrariness, and trauma of our immigration system, and never represented clients in Immigration Court, care about shutting hard working American residents, people of color, like Jose and Sonia, out of our system and disenfranchising them for no particular reason. The worst, most racially discriminatory “interpretations” are “available” to those judges, so why not use them? For them, it’s a wooden academic exercise played out with human lives that don’t matter because they are “the other.” Except for Sotomayor, going for the best, most practical, humane interpretation evidently never crossed the minds of these Justices.
As Justice Sotomayor correctly said: “If you’re asking us to find the better reading of the statute, we should go by its terms: Those people have been admitted.”
It’s not rocket science. Just common sense, humanity, and a clear understanding of the effect of legal interpretations on human lives. At the Supreme Court level, most decisions represent a “choice” rather than a “mandate.” That’s where having Justices who neither care to understand nor have to live with the consequences of their decisions really hurts people of color, immigrants, asylum seekers, and others not in the “power structure!” Better judges for a better America!
Meanwhile, advocates and progressives should never underestimate the ability of Dem Administrations to screw up immigration policy.
The panel held that substantial evidence did not support the immigration judge’s determination that Alvarado- Herrera failed to establish a reasonable fear of torture with the consent or acquiescence of a public official, given Alvarado-Herrera’s specific assertions of police complicity in the 18th Street gang’s violent acts. Noting that the asylum officer refused to credit Alvarado-Herrera’s assertions, which were based in part on media reports and common knowledge among Hondurans that it is well known that the police work for the gangs, that the police are allied with the 18th Street gang in particular, and that the police not only allow gang members to harm others but also provide information to gang members to help them find and kill people, the panel wrote that it was unclear what additional evidence the asylum officer expected Alvarado-Herrera to produce at that stage of the proceedings. The panel observed that non-citizens in reinstatement proceedings who express a fear of returning to their home country typically appear for a reasonable fear interview within a short time of their
ALVARADO-HERRERA V. GARLAND 5
apprehension by immigration authorities, and that many, like Alvarado-Herrera, are being held in detention facilities and do not have legal representation. The panel wrote that, as a result, they cannot realistically be expected to produce for the asylum officer’s review the kind of detailed country conditions evidence that would be introduced during a merits hearing before an immigration judge. The panel wrote that such a demand would be inconsistent with the purpose of a reasonable fear interview, which is simply to screen out frivolous claims for relief in as expeditious a manner as possible, and if a non-citizen provides an otherwise credible account concerning his fear of torture, his own statements can supply adequate support for claims about country conditions, at least for purposes of satisfying the ten percent threshold necessary to pass a reasonable fear screening interview. The panel remanded with instructions for the agency to provide Alvarado-Herrera a hearing before an immigration judge only as to the merits of his claim for protection under CAT.
2) 10th Cir. Says IJ Muffed Analysis Of Mexican CAT Claim!
“Maria Torres de Lopez, a native and citizen of Mexico, appeals the denial of her application for deferral of removal under the United Nations Convention Against Torture (CAT). Exercising jurisdiction under 8 U.S.C. § 1252(a), we grant the petition for review and remand for further proceedings. … [W]e are compelled to conclude it is more likely than not that El Tigre [of the Sinaloa Cartel] would be aware if Torres de Lopez is removed to Mexico, and that El Tigre and his direct associates would have both sufficient motivation and ability to locate Torres de Lopez anywhere in Mexico. But the evidence does not compel the conclusion that the Juárez or Sinaloa cartels have a sufficient institutional motivation to locate Torres de Lopez anywhere in Mexico. And the questions that remain are ones the IJ did not reach—if El Tigre or his direct associates found Torres de Lopez in Mexico, would they inflict any harm on her, would that harm be severe enough to constitute torture for CAT purposes, and would Mexican public officials instigate, consent to, or acquiesce in such harm? We may not answer those questions in the first instance and remand them to the IJ for initial consideration. … All this brings us to the fourth and fifth steps in the IJ’s framework—if El Tigre or his direct associates find Torres de Lopez, will they harm her and, if so, will the harm amount to torture? … [W]e must remand to the agency to conduct the inquiry into the fourth and fifth steps in the first instance. … We grant the petition for review and remand to the agency for further proceedings consistent with our decision.”
[Hats off to Stephen W. Spurgin!]
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Sadly, “reasonable adjudicator” wouldn’t encompass many of those currently serving in Garland’s holdover corps of Immigration Judges and his “Millerized & Trumpitized”BIA. In particular, the horrible job done by, and the bias against due process for those seeking CAT protection shown by, Attorneys General and the BIA over the past three Administrations is absolutely disgraceful.
Yet, it continues, unabated, today under Judge Garland! It’s basically “Jim Crow Justice” dressed up in a Sunday suit. One could almost imagine a picture of Chief Justice Roger Taney hanging in the BIA’s conference room.
Roger Taney PHOTO: Matthew Brady Public Realm Discredited CJ remains a hero to many Miller/Hamilton/Sessions holdovers at Garland’s DOJ because of his aggressive “Dred Scottification” of the other! One of Stephen Miller’s soul mates, this dude’s life was defined by his unyielding belief that all men aren’t created equal and that only powerful White Guys have a right to life, liberty, and the pursuit of happiness! And, that women don’t even exist before the law!
The obvious lack of competence in a “judiciary” regularly attempting to send individuals back to possible torture in violation of due process and the statute should prompt decisive corrective action from those in charge of this dysfunctional system. But, to date, it hasn’t!
Instead, what have Biden, Garland, & Mayorkas done? Continued the illegal practice of returning asylum seekers and others to possible death or torture without any process at all. Then, they have the gall to send their “flackies” out to claim that the “victims” are the “problem” for exercising their legal rights to seek protection, at a time that apparently is “politically inconvenient” for the Biden politicos to offer a system that provides that legally-required protection.
Looks pretty “Stephen Millerish” to me, not to mention “Catch 22!” How dare you cross our border seeking due process and turn yourself in to the Border Patrol when can go to a legal port of entry, present yourself, and be immediately sent back to death with no process at all! Don’t you understand how American “justice” works? Go back to your own countries from where you were forced to flee where, if you live long enough, you can’t apply under our non-existent overseas refugee system. Is that perfectly clear?
The Presidential election was over on Saturday, Nov. 7, 2020! Biden and Harris campaigned on a platform of immigration and human rights reforms that included ending the many illegal, inhumane, and counterproductive policies of Trump/Miller, restoring the rule of law, and re-establishing honesty and human dignity in immigration, asylum, and refugee processing.
Yet, in the 10 weeks between the conclusion of the election and the inauguration, “Team Biden” and those who were under serious consideration for leadership positions in the thoroughly broken and dysfunctional immigration bureaucracy came up with no viable plans to “hit the ground running” with the necessary dramatic, yet achievable, changes. That’s something that I submit hundreds of “practical experts” — all of them in the Democratic camp — could have achieved had they been tapped.
It certainly was no mystery that the border and the mess at DHS, EOIR, OIL, and the SG’s Office would have to be addressed immediately — “day one or day two stuff!” Nor, would it take any deep thinking to recognize that immigration would be the overarching issue connecting social justice, racial justice, economic recovery, court reform, foreign affairs, the environment, and public health.
Nor would it have taken much awareness to recognize that the GOP, who didn’t even bother advancing a platform or constructive ideas during the campaign, would make and “rev up” appeals to hate, fear, racism, White Nationalism, myths, fabrications, distortions, and outright lies about “security threats” (actually threats to “white culture and power”) posed by desperate individuals, many of color, merely seeking legal refuge and fair consideration under our legal system. So, getting the legal asylum and refugee systems functioning again should have been a top priority — simultaneous with COVID relief!
Additionally, there were dozens of smart journalists out there who were “on top” of the Miller/Trump White Nationalist nonsense, and had figured out how to cut through the BS and obfuscation to explain what the law and common sense requires, in understandable terms. Thus, the Biden team even had a “golden opportunity” to put together a group of “immigration/human rights/rule of law flackies” who could both educate insiders and in public run circles around the likes of Fox News, right wing radio, and magamoron White Nationalist nativists like Cruz, Cotton, Hawley, and McCarthy. All it would have taken is competence and courage — two qualities often in short supply in Dem Administrations when immigration, human rights, and due process are at stake.
Yet, nearly three months into the Administration, and a full five months after the election was decided, the Administration’s approach to this key issue can best, and most charitably, be described as “Amateur Night at the Bijou.”
During five months since the election, the Biden Administration has quickly moved to set up a chain of nationwide “recruiting centers” for the their Immigration Courts, immigration bureaucracy, refugee administration, human rights PR groups, and liaison with Hill Dems. Results have been astounding! PHOTO: Thomas Hawk Creative Commons
Most seriously, the Immigration Court and the rule of law remain in shambles — with Judge Garland failing to take the necessary elementary steps to reverse the Trump/Miller DOJ’s misogynist, racially driven assault on the rule of law for asylum seekers of color. This sends an ugly shockwave of failure throughout the Biden-Harris agenda and continues to de-stabilize an already shaky American justice system.
It also “pisses off” the Administration’s would-be friends and supporters while energizing its most vociferous enemies! Additionally, it demoralizes and disrespects those remaining at EOIR, many who have struggled though the last four years trying to hold some portions of the fort while waiting for salvation, potential allies — already on the in side — who will be necessary for the “reclamation project.”
Some have even taken the desperate step of anonymously reaching out to Courtside for help in raising consciousness about the astounding level of injustice, incompetence, and anti-immigration culture that Judge Garland is countenancing at EOIR. They just can’t wrap their heads around it!
As they have pointed out, Sessions, who once (in the distant past, before overt racism came part of the GOP platform) was deemed unfit by his own party for a Federal Judgeship because of his racist record, and his hench-people “hit the ground running” with their White Nationalist misogynistic agenda at EOIR. This was an agenda basically drafted by nativist groups. They moved rapidly and with purpose to remove, force out, disempower, isolate, and/or marginalize anyone at EOIR thought to harbor the heretical belief that asylum seekers, migrants, women of color, and their lawyers were humans or possessed any rights whatsoever. They obliterated any “best practices” — they few things that actually were working at EOIR. They also filled every vacant position with nativist toadies and hacks, packed the Immigration Courts and BIA with more “judges,” even as they were more than doubling the already huge backlog with their “Aimless Docket Reshuffling” and endless due-process- killing, yet fundamentally ineffective, enforcement nobly gimmicks.
Sessions even proudly announced his war on refugee women of color and their lawyers at am “EOIR training session” for “his judges,” drawing stunned silence from many, but also cheers from some “magamoron judges” in the audience. Somehow, over the years, indolent Article III Judges overlooked the obvious lack of ethics in Sessions’s performance as well as the crystal clear lack of Matthews v. Eldridgefundamental due process in a farcical “court” system. A “court parody” where the racist head prosecutor, who also asserted himself as the de facto head of DHS enforcement, urged “his judges” on to inflict ever more rapid and unlawful acts of desecration, dehumanization, and capricious treatment upon those they were supposed to be judging fairly and humanely.
Some of the “survivors” within EOIR expected Judge Garland, once a highly respected Court of Appeals Judge, former Supreme Court nominee, veteran of the DOJ in better times, and relatively recent descendent of immigrants, to put a quick end to the unconstitutional nonsense at EOIR, cast out the “Miller/Hamilton perps,” their many EOIR toadies, and the “go along to get alongs” who had created this disgraceful and dysfunctional mess at what was once supposed to be a “bastion of due process.” They expected Garland to bring in a team of respected “immigration/human rights/due process pros” and to elevate those in the system who had stood tall against the abuses of due process and humanity over the past four years.
Alas, those survivors quickly discovered that Garland is largely oblivious to the ongoing clown show at EOIR, the continuing human carnage it causes on a daily basis, the squandered potential to boost due process and racial justice in America, and the rapid erosion of his support and his image among those who courageously and often successfully fought the “Miller neo-Nazi plan” to dismantle the American justice system.
Vainly, they wait for Garland’s recognition of the heroic role of the National Association of Immigration Judges (“NAIJ”) in maintaining some vestiges of justice and professional training at EOIR and, most important, in publicly exposing, including to Congress, the ongoing fraud, waste and abuse of public trust carried out by the Trump/Miller kakistocracy at EOIR. They are distraught by Garland’s inexplicable failure to condemn “Billy the Bigot’s” totally outrageous actions in frivolously moving to “decertify” the NAIJ as punishment for their exposing his many illegal activities and abuses of honest government at EOIR.
They are absolutely incredulous that a “100 page study,” conducted by those having no real expertise in the Immigraton Court, would be viewed as a substitute for the immediate removal and replacement of dysfunctional personnel and a strong public commentment to root out injustice, racism, and misogyny, reject and repudiate bogus precedents, institute aggressive due process reforms, and promote true quasi-judicial independence at EOIR.
They are particularly puzzled by Garland’s permitting the conducting of idiotic clown shows — misnamed “Town Halls” — throughout the country further insulting and inflaming the long-suffering stakeholders and advertising EOIR’s continuing failure to run like a court and respect the input, expertise, and legitimate needs of those same “stakeholders.” They are baffled when there are so many great “due process role models” out there who could and should be sending the exact opposite message — that “the clown show is over” and the pros are now in charge of restoring justice and sanity @ EOIR!
They can’t fathom how anyone, let alone a former Article III Judge, could believe that judicial dockets across America can be micromanaged by non-judicial bureaucrats in Falls Church and DC who have never successfully managed a docket in their lives, know little about the harsh realities of today’s dysfunctional Immigration “Courts,” and who operate in blissful studied ignorance of the many localized factors that go into successful docket management at all other functioning court systems in America.
And, although it might be below Judge Garland’s “radar screen,” human lives are actually being destroyed and human suffering multiplied while he and his “spear carriers” diddle over how to fix EOIR! To quote some of the Hill Dems yesterday, “This is stupid!”
(Duh, who outside the Biden camp would have failed to predict that yesterday’s idiotic “two-step” on the refugee cap would go over worse than a lead balloon? The Biden immigration “advisors” might think that refugee lives don’t matter, but many Dems living in the real world and on the Hill don’t see it that way!)
Garland has also failed to place competent judicial leadership in charge of EOIR and the BIA and to make it clear that institutional disdain for due process, best practices, and human dignity will no longer be the ”order of the day” in America’s largest, and perhaps most important, Federal Court System. A rather atrocious start for an Administration struggling to put the Trump-Miller scofflaw White Nationalist agenda behind them!
Just how does one “pull that off” with a bunch of Miller cronies, and Sessions/Barr nativist judges (many incompetent to fairly apply and interpret basic asylum, immigration, and due process laws) still dominating the scene in America’s most dysfunctional and dehumanizing “judiciary.” While Judge Garland might have forgotten this during his “above the fray” tenure in the “judicial ivory tower,” leadership, priorities, and symbolism are really important in government! Right now, they are all headed 100 mph in the wrong direction at the DOJ — for no obvious reason!
Garland, supposedly the “people’s” chief lawyer, has also failed to push Mayorkas and the White House for a restoration of the legal asylum system at the border! In 100 days, Mayorkas and Garland could have supplemented the Asylum Officer corps with retirees and private sector refugee/asylum experts and gotten them down to the border to do honest, efficient credible fear screening. Obviously, reopening timely legal screening at legal ports of entry would reduce the incentives for crossing the border elsewhere.
They also could have energized human rights and pro bono NGOs to represent those “screened in.” Garland could have gotten both sitting and retired Immigration Judges with strong records of granting asylum (check TRAC, it’s all set out in plain view) working on these cases, while clearing the dockets of hundreds of thousands of backlogged cases going nowhere in any event. See Greg Chen & Professor Peter Moskowitz.
Garland could have appointed competent Appellate (or even “Appellatte”) Immigration Judges at the BIA (acting, if necessary until final selections can be made) to issue positive precedents on asylum, CAT, withholding, cancellation of removal, adjustment of status, administrative closure, and docket management to stop the endless nonsense and idiotic, justice-killing, enforcement gimmicks and “Aimless Docket Reshuffling” imposed by the Trump/Miller crowd of malicious incompetents.
Secretary Mayorkas and Secretary Becerra could have invoked and energized the now largely dormant refugee resettlement apparatus in the private/NGO sectors to temporarily resettle arriving children and families in a humane, orderly and efficient manner.
Yesterday’s stunning“unforced error” on refugee processing is just the latest example that Biden’s advisors don’t “get” immigration and need to be replaced with experts; experts who understand the fundamentals, believe in the generous, humane, restore the rule of law platform he and Harris ran on, and can explain it in clear, compelling terms. The “right folks” are “out there” — that’s the problem, “out there” instead of inside solving problems and moving the train in the right direction.
It’s not rocket science:
Immigration is good. 98% of Americans are immigrants or descended from immigrants. That immigration has produced some scoundrels, insurrectionists, liars, and ingrates like the Trumps, Cruzes, Cottons, McCarthys, Taylor-Greenes, Millers, Kobachs, etc., of our world doesn’t change that overall equation;
Refugees and asylees (refugees granted status at our border or in the US when our legal system is functioning — it isn’t now) are essential components of legal immigration;
We need and must have significantly more legal immigration, particularly if we want to maintain a robust economy and a dynamic, innovative society, in light of population losses from the pandemic and low birth rates;
Applying the Refugee Act of 1980 in a fair, generous, humane manner that furthers due process of law isn’t “an option” for debate or a matter for more “studies” — there are more than enough of the latter our there anyway. The problem is that the folks who did them and can solve the problems remain on the outside rather than running EOIR! It’s a legal and moral imperative! Garland’s function isn’t coming up with more failed, illegal gimmicks to avoid granting asylum or aid misguided law enforcement, make a few cosmetic changes to appease advocates, or engage in more boneheaded “revolution by evolution” (see Obama Administration) approaches at EOIR! It’s getting our legal asylum system functioning again at EOIR and also at USCIS in a robust, competent manner with real, independent, expert judges and professional judicial administrations who can do the job;
That also means publicly and virtuously standing up for the legal and Constitutional rights of the most vulnerable among us — per MLK Jr. — and having the guts and presence to “take it to” magamorons like Miller, Cruz, Cotton, McCarthy, and other GOP White Nationalist hate mongers who are destroying our nation and poisoning the well of our democracy with their xenophobic myths and “solutions” that actally are “crimes against humanity!” When in power, those folks had no problem publicly advancing and even touting their racist lies and ethnic slurs, as they continue to do! Why is Garland “swallowing the whistle” on rooting out and condemning institutionalized racism, misogyny, dehumanization of the other, incompetence, and scofflaw behavior @ EOIR?
Obviously, those advisors who told Biden to release the “Miller-level” refugee cap yesterday believed in neither the Biden election platform nor the positives of robust legal immigration. They also lacked the knowledge and self-confidence to “sell” an honest, realistic, humane human rights and immigration agenda that is the key to our national future. They also were woefully ignorant about and totally “misplayed” the strong political and public support for refugees and the critical role that immigration and human rights advocates play within the Democratic Party.
Currently, the inability of the Biden Administration to bring competence, positivity, the rule of law, and creative thinking to their immigration/human rights program is weighing down and “sucking much of their air” from the many things they are getting right.
It’s past time to end “Amateur Night at the Bijou” and bring in the pros. Before it’s too late!
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever! Judge Garland, End the Disgraceful EOIR Clown Show, Now🤡🦹🏿♂️🏴☠️!
6) No, they can’t. Casey would be right home with the gang at EOIR HQ and also @ “Main ‘Justice.’”
If you got 100%, congratulations, you have won the “Amateur Night at the Bijou” competition. Although that makes you over-qualified to become an “Appellatte Immigration Judge” you will receive a free Starbucks coupon redeemable for a latte of your choice, to be issued only tomorrow!
WASHINGTON – Jose Sanchez and Sonia Gonzalez have lived in the United States legally for two decades under a program that lets immigrants from nations enduring natural disasters and armed conflict temporarily avoid returning to their native countries.
But when the New Jersey couple applied for green cards – which would let them remain permanently – they were denied because they initially entered the country illegally.
The Salvadorans sued in 2015 and the Supreme Court will hear their appeal Monday in a case that has drawn little attention in Washington even as it has raised significant questions about the Biden administration’s approach to immigration – not to mention the status of hundreds of thousands of immigrants living in a state of limbo.
. . . .
“Look, this is a no brainer,” said Paul Wickham Schmidt, a Georgetown University law professor and former immigration judge. “Why waste time on it? The administration has indicated they’d like to regularize many [TPS beneficiaries] and…instead they’re defending a gimmick cooked up by Stephen Miller,” Trump’s onetime policy adviser.
. . . .
“Integrate them into our society rather than leaving them in permanent limbo – in theory, that’s what the Biden administration says it wants to do,” said Schmidt, the former immigration judge. “Only here’s their first chance to make it happen and they don’t connect the dots.”
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Read John’s complete article at the above link.
Yeah, I know this brain-dead position originated in the Obama Administration. I’d never accuse the Obama Administration of overall having a wise, informed, or consistent approach to immigration. But, the “precedents” at issue here were issued under Trump. SeeMatter of H-G-G-, 27 I. & N. Dec. 617 (AAO 2019); Matter of Padilla Rodriguez, 28 I. & N. Dec. 164 (BIA 2020).
Any time you see folks like Ira Mehlman @ FAIR or Christopher Hajec @ Immigration Reform Law Institute endorsing a position you can bet that there is a link to the cruel, White Nationalist policies of Stephen Miller and his cronies in the Trump Administration. If you had any doubt that the position being taken by the Garland DOJ was stupid policy, Mehlman’s and Hajec’s endorsements, and the organizations they represent, should resolve them.
Ignoring your potential friends and supporters; embracing the “racist right.” Interesting way to get started on what was promised to be a “smarter, kinder, more humane” approach to immigration policy. Can anyone really tell me what Judge Garland is doing over @ DOJ? The once highly regarded jurist who testified before Congress and was only a Mitch McConnell away from a seat on the Supremes seems to have all but disappeared into a bureaucratic fog of incompetence, bad lawyering, and missed opportunities @ the DOJ!
Look, after four years of senselessly, wastefully, and disgracefully trying to dump on long-time, contributing members of our society in TPS, like Jose & Sonia, the Trump Administration (thankfully for America) never removed any of them. The idea that the Biden Administration will do so is absurd.
So these folks are here for the duration. With Congress in deadlock, the most practical, legal, readily available way of getting tens of thousands of hard-working residents like Jose and Sonia fully integrated into our society and on their way to citizenship is simply by following the clear statutory language as other Circuit Courts have done. These are individuals who actually have met all the criteria of our legal immigration system! Most now have families with U.S. citizens. Why on earth would we want to keep those we should welcome in limbo? It’s cruel, counterproductive, and stupid!
For a much more scholarly and nuanced approach to DOJ’s wrong-headed handling of this case, check out this article in Just Security by my friend, renowned immigration expert, former senior executive in the Clinton and Obama Administrations (we actually met while working on the Refugee Act of 1980 in the Carter Administration — back when we were young), emeritus Professor David A. Martin:
I also note with pleasure that counsel of record for Jose and Sonia is Jamie W. Aparisi, who appeared before many times at the Arlington Immigration Court.
All this being said, the Supremes still mightpreserve this couple’s future and save the Garland DOJ from themselves. In past cases, faced with clear statutory language, the Supremes have required the Government to do something radically sensible:follow the law!See, e.g., Pereira v. Sessions, 138 S.Ct. 2105 (2018) (notice to appear).
So, who knows? Justice (not to be confused with the Department of “Justice”) as well as common sense and human decency could again prevail!
TIJUANA—In the weeks after Joe Biden’s inauguration, migrants across the city of Tijuana began to leave the various shelters and apartments where they’d been living in favor of an open-air encampment just north of the city’s center. It’s not a cheerful place; people have little to eat and there’s no running water. But it has a crucial location: It’s right next to the El Chaparral Port of Entry, the nearest legal crossing into the United States. Anticipating that the doors to the U.S. might soon open, they set up at the very foot of the country’s entrance.
In February, Rosemeri, an asylum seeker from El Salvador, says she pitched a tarp next to just two others. By early March, it had grown into a shantytown of more than 1,000 people, and today as many as 2,000 migrants — most of them families with children — brave the elements each day and night. Together, the makeshift community decided on a name for the tent city: La Esperanza, The Hope.
Rosemeri, like most people in the camp, is not a new arrival to Tijuana. She left her home in El Salvador in 2019, fleeing threats against her life from the gang that controls her neighborhood. Her plan was to request asylum in the U.S. But by the time she arrived at the southern border last April, a month into the Covid pandemic, it had been closed indefinitely to asylum seekers by a Trump administration public health order. Since then, she and tens of thousands of others have had no choice but to wait in northern Mexico, shuffling from shelter to shelter for months, hoping for a change in policy.
“We are Salvadorans, Hondurans, Haitians, Cubans, Mexicans, Nicaraguans,” she told me of the residents of La Esperanza. “We are here, all of us, waiting.”
The early months of Biden’s administration have been shadowed by a major increase in immigration, with border agents encountering more than 100,000 people attempting to cross unauthorized in February and more than 170,000 in March, a 15-year high. Critics on the right blame the president’s welcoming rhetoric, saying that after Donald Trump’s hard-line tack toward the border, it’s no wonder migrants are rushing in under supposedly softer leadership. But migrants themselves have a very different view: The issue isn’t Biden extending a hand; it’s that he hasn’t figured out what he wants to do — and has kept the legal pathway closed in the meantime.
Despite promising a new approach, Biden has left the effective asylum ban in place, with few exceptions. Realizing they have no prospect for legal entry into the U.S. anytime soon, many migrants like the ones here, stuck in Tijuana without a safe home to return to, are making the painful decision to try to cross the border outside the proper channels.
“We want to do this the right way,” insists Rosemeri.
The problem for people like her is that there is currently no “right way.” The Biden administration says this is all a work in progress. “We’re in the middle of a global pandemic, and it’s going to take time to rebuild robust asylum processing infrastructure at our borders,” an administration spokesperson told me in an interview last month. The White House did not respond to specific questions for this story.
Republicans in Washington have been saying Biden is too lenient, but people on the ground in Mexico suggest the root of the recent rise in unauthorized border crossings is actually the president’s prolonged maintenance of the most restrictive of his predecessor’s policies: the near-complete cutting off of asylum, a form of legal immigration.
. . . .
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Read Jack’s much longer full article at the link. It’s one of the few accurate, insightful pieces of reporting I’ve seen on the “overhyped yet generally mis-understood” human catastrophe at continuing to unfold at our southern border.
The problem starts, but by no means ends, with Judge Garland’s mind-boggling failure to grasp and take steps to end the deadly clown show @ EOIR! You can’t re-establish the rule of law and enforce the Constitution with inept holdover bureaucrats and unqualified Trump-Miller appellate judges in charge of the critical “retail level” of the American justice system!
Get some real, expert judges, competent judicial administrators, and fearless legal leadership, dedicated to human rights, fundamental fairness, and due process for all, into key positions @ EOIR before this system gets any further out of control, creates additional disorder throughout our legal system, and destroys more human lives!
The folks who can start fixing this are out there. Some of them (sitting Immigration Judges like Judge Dana Leigh Marks, Judge Amiena Khan, Judge Noel Brennan, Judge, Janette Allen, Judge Dorothy Harbeck, Judge Mimi Tsankov, and others) are even on the payroll outside the DC area. Many others in the private sector should already have been vetted and on the job solving problems, at least on a temporary basis!
(Let’s start, but not end, “Project Restore Due Process & Asylum Integrity,” with, say, Dean Kevin Johnson, Associate Dean Jaya Ramji-Nogales, Professor Karen Musalo, Michelle Mendez, Professor Ingrid Eagly, Marielena Hincappie, Lauren Wyatt, Professor Phil Schrag, Professor Andy Schoenholtz, Heidi Altman, Professor Debbie Anker, Judge (Ret.) Ilyce Shugall, Judge (Ret.) Rebecca Jamil, Professor Michele Pistone, Claudia Valenzuela, Claudia Cubas, Professor Jill Family, Professor Raquel Aldana, Professor Mary Holper, Liz Gibson, Greg Chen, Professor Peter Moskowitz, Laura Lynch, Dree Collopy, Professor David Baluarte, Professor Maureen Sweeney, Professor Lenni Benson, Eleanor Acer, Adina Appelbaum, Professor Elora Mukherjee, Professor Erin Barbato, Aaron Reichlin-Melnick, Jason “The Asylumist” Dzubow, Professor Alberto Benitez, Professor Paulina Vera, Professor Cori Alonso Yoder, Professor Kari Hong, Professor Denise Gilman, Tess Hellgren, Simon Sandoval-Moshenberg, Professor Laurie Ball Cooper, Associate Dean Jayesh Rashod, Ben Winograd, Associate Dean David Baluarte, and work from there! All of them are head, shoulders, knees, and toes above the current EOIR senior management and Appellate Judges on the BIA.)
Recently, I made these points in speaking to a group of retired lawyers who had no prior background in immigration law. At the end, one of them said: “The fix you described doesn’t sound that difficult. Why hasn’t it happened?” BINGO!
It’s not rocket science! But apparently “above the pay grade” for “Team Biden!”That’s a shame for American justice, any international leadership capability we might still have on this issue, and, most of all, for the vulnerable human beings that Biden, Mayorkas, and Garland have left “twisting in the wind.”
The Biden/Garland Image of Legal Asylum Seekers & Their Supporters” “Twisted by the Wind” By Ron Strathdee
I can assure the Biden folks that continuing the Trump/Miller policies and leaving their “plants and toadies” in place won’t win a single GOP vote — on anything! Truth, facts, the law, and human decency play no role in today’s GOP. You could shoot everyone dead at the border (as opposed to sending them back to Mexico and the Northern Triangle to die) and magamorons like Cruz, Hawley, and Cotton will still claim that you have an “open borders policy.”
However, your lack of positive action on asylum and refugee issues will continue to anger and betray your own supporters and mobilize them to oppose your “tone-deaf” and ineffectual policies, in court, in the media, and in politics. Doesn’t sound like a smart move to me!
Here’s the real irony. Liberal House Dems have invested in a DOA legislative effort (already “shot down” by Speaker Pelosi) to expand the Supremes. Meanwhile, over at the DOJ,Judge Garland is squandering his chance to completely rebuild and refocus the nearly 600 strong (now totally dysfunctional) Immigration Judiciary into something really special (in a good, rather than an evil, way).
That happens to be the most powerful and readily achievable way of creating a progressive, due process oriented, intellectually dominant, expert “model judiciary” that will remake the “retail level” of American justice, save human lives, advance correct practical, sensible applications of the law and the Constitution that will actually save lives, teach “best practices,” promote racial justice, and change the face of American justice for the better.
Better judges for a better America! It starts with the foundational “retail level” of our justice system — the Immigration Courts. Unlike packing the Supremes, it’s realistically achievable with courageous focused leadership (not the current failed group and indifferent leadership from Judge Garland.)
“Personnel is policy” — big time! Too bad for all of us that Judge Garland doesn’t seem to “get it.”
In that, his “grasp of the obvious” seems to be several levels below that of Trump, Miller, the Federalist Society, the Heritage Foundation, and Mitch McConnell. Think what you might, that gang has run circles around Dem politicos for years. Jeff “Gonzo Apocalypto” Sessions and Billy Barr “got” the importance of expanding the BIA and the Immigration Judiciary and “packing” them with many unqualified anti-asylum restrictionists who would do their bidding in undermining and destroying American justice and “Dred Scottifying” the “other,” particularly those of color, with a solid dose of mind-numbing misogyny thrown in.
To date, (with a few exceptions, like removing former Director James McHenry) Garland has failed to remove or transfer these unqualified jurists (and incompetent administrators) and start bringing in better ones, even though he has the available tools to have commenced by now. Indeed, several Miller cronies are still wandering around the Falls Church Tower in key positions, while other members of the Trump Administration’s “Asylum Denial Club” continue to crank out nativist injustice at the BIA. A number are notorious for their overtly hostile attitudes toward female asylum seekers of color and their attorneys. Yet, asylum seekers and their lawyers continue to suffer unjust and unprofessional treatment at EOIR while their abusers continue unabated in Garland’s name!
Aggressively “removing the deadwood” also sends strong messages throughout the system that the “dehumanize, deny, and deport culture” ingrained and actively encouraged at EOIR over the past four year is over!
Meanwhile, over at the broken SG’s Office, Garland is getting ready to defend one of the stupidest, most legally inane, and insanely counterproductive from a policy standpoint positions in recent memory (and that’s saying something given the performance of the Trump SG) in Sanchez v. Mayorkas . The Garland DOJ is actually committing “unforced error” by defending a clearly wrong interpretation of the TPS statute that will unnecessarily screw long-time law-abiding TPS holders, many of them spouses of U.S. citizens, who could otherwise qualify for legal immigration under current law. Shafting the VERY INDIVIDUALS the Biden Administration pledged to help and keeping them in “eternal legal limbo” while unnecessarily outraging their lawyers and potential allies. What sense does that make? If “Team Garland” can’t recognize and pick the “low hanging fruit” in the battle to restore legality and sanity to our immigration system, it’s going to be a long four years.
Professor David Martin, one of the top minds in American law, in any field, and a “vet” of past Dem Administrations, laid out the possible solutions in a crystal clear manner in Just Security. But, apparently when you’re caught up in running “Amateur Night at the Bijou” you can’t be bothered to listen to the experts who have “been there before” and learned from their experiences!
Judge Garland is recruiting folks for his SG’s Office who will continue to make the same wrong-headed arguments on immigration cases that the past two Administrations did. No Immigration or human rights expertise necessary. Check your common sense and humanity at the door. PHOTO: Thomas Hawk Creative Commons
This could be our “last clear chance” to save American democracy! Right now, it’s going to waste! That’s something that should outrage and motivate all of us who believe that “due process for all persons” means exactly what it says!
Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
“Every woman knows what I’m talking about. It’s the presumption that makes it hard, at times, for any woman in any field; that keeps women from speaking up and from being heard when they dare; that crushes young women into silence by indicating, the way harassment on the street does, that this is not their world. It trains us in self-doubt and self-limitation just as it exercises men’s unsupported overconfidence.”
Rebecca Solnit, Men Explain Things to Me
On April 5, the U.S. Court of Appeals for the Ninth Circuit issued a published decision in Rodriguez Tornes v. Garland. The opening sentences of the decision are heartbreaking:
Since the age of five, Petitioner has been told that men will beat her if she does not submit. Her mother demanded that she learn how to do housework, how to accept spousal abuse, and how “to obey everything that [her] husband would say.” She beat Petitioner with various objects almost daily, in part to prepare her for future beatings from her husband.
But along with the darkness there was also hope. The decision’s opening paragraph concludes: “Yet Petitioner came to believe that ‘there should be equality in opinions[] and in worth’ between men and women. She became a teacher.”
Remarkably, over all the years that followed, the Petitioner’s hope survived the most brutal attempts to crush her into silence and submission. As her mother had foreseen, she endured unspeakable and repeated forms of physical and psychological torture, including beatings and rape, at the hands of her husband. Yet she continued to express the belief in her rights as an equal, and was brutally punished each time she did so, in an attempt to destroy the part of her capable of forming such belief. Neither the police nor her own family offered her any possibility of protection.
When she finally succeeded in escaping to the U.S., her abuse continued, merely transferred to the hands of another domestic partner with whom she had three children in this country. In 2017, our government deported both her and her latest abuser. Facing the prospect of continued harm in her native Mexico, her still unbroken hope guided her to the U.S. once again, where she was placed into removal proceedings.
Her hope was briefly rewarded when an Immigration Judge granted the Petitioner asylum, ruling that her persecution was on account of her feminist political opinion. The Immigration Judge alternatively held that asylum was warranted on account of the Petitioner’s membership in the particular social group consisting of “Mexican females,” which formed at least one central reason for her persecution.
It isn’t clear why ICE appealed the IJ’s decision. On appeal, the BIA acknowledged the Petitioner’s honesty and the ongoing, systemic nightmare of violence she endured because of her gender and unbroken belief that she possessed rights. And yet the BIA chose to act like a rubber stamp for the administration it served, and found a way to reverse the IJ’s well-reasoned decision. According to a concurring opinion of the circuit court, the BIA managed this by suggesting that the Petitioner’s brutal suffering was motivated by her “personal relationship” with her abuser. According to the concurrence, the BIA supported this conclusion by relying on the decision of former Attorney General Jeff Sessions in Matter of A-B-.
Of course, asylum applications require an individualized analysis of the facts of the specific case under consideration. Matter of A-B- involved a different asylum seeker from a different country who experienced different facts than this petitioner. So in citing A-B- to reach a conclusion so at odds with the facts of this case, the BIA’s judges were signaling their choice of a specific policy objective over their duty to neutrally apply law to specific facts.
Among the facts the BIA chose to ignore was the opinion of an expert who drew “on more than three decades of research, writing, legal representation, and lawmaking” in support of her conclusion. The expert, Prof. Nancy Lemon of the Univ. of Cal. – Berkeley Law School, explained how all of the weapons at abusers’ disposal are “tied to social belief systems that ‘men are entitled to dominate and control women because the male sex is considered superior.’” Prof. Lemon went into great detail in explaining the political nature of the mistreatment. Of course, it mattered not to the Board.
In discussing this case, an esteemed colleague pointed to a decision that the same court issued more than three decades ago. In 1987, in an opinion authored by Judge John T. Noonan, Jr., a conservative Reagan appointee, the Ninth Circuit concluded that a Salvadoran woman subjected to repeated sexual abuse and other violence by a sergeant in the Salvadoran military had been persecuted on account of her political opinion where the abuser threatened to falsely label her a “subversive if she refused to submit to his abuse.”1 In the words of Judge Noonan, the fact that the persecutor gave the asylum seeker “the choice of being subjected to physical injury and rape or being killed as a subversive does not alter the significance of political opinion…” The decision reversed the conclusion of the BIA that “the evidence attests to mistreatment of an individual, not persecution,” precisely the same finding the Board used more than three decades later in denying Ms. Rodriguez Tornes of her grant of asylum.
In 1993, Justice Samuel Alito, then sitting at the Third Circuit, wrote that “we have little doubt that feminism qualifies as a political opinion within the meaning of the relevant statutes.”2 28 years later, the Ninth Circuit cited Justice Alito’s words in Rodriguez Tornes, adding that it had reached the same conclusion in its own unpublished 1996 decision.3 These were obviously not the decisions of liberal judges forwarding a political agenda. To the contrary, these judges were able to transcend political ideology by neutrally applying law to facts; this is what judges do. As a result, the law of asylum has progressed to increasingly provide asylum protection to victims of domestic abuse. Immigration Judges appointed by both Republican and Democratic administrations have followed suit, authoring well-reasoned decisions granting asylum in numerous cases of domestic abuse, including this one.
Yet over the same period of time, the BIA has stubbornly refused to budge from its 1980s position that domestic abuse is simply a personal matter not linked to a political opinion within society. In the words of Jeff Sessions in Matter of A-B-, the vile abuse was simply due to the abuser’s “preexisting personal relationship with the victim.”4
When a mother feels compelled to begin abusing her five year old daughter to prepare her to obey her husband one day, can the inevitable spousal abuse that follows really be dismissed as just a personal matter? And when the record contained Prof. Lemon’s evidence (because expert testimony is evidence) of “a correlation between patriarchal norms that support male dominance and violence against women by intimate partners,” what unsupported overconfidence did the BIA’s judges rely on in explaining that they know better?
The BIA decided this case during the Trump Administration. For those hoping that the change in administration will usher in a change in the Board’s view, it bears noting that neither the Clinton nor Obama administrations brought about a sea change in the Board’s approach to domestic violence claims. Under Clinton, the BIA issued Matter of R-A-,5 a precedent that essentially precluded the granting of asylum to domestic violence victims based on their membership in a particular social group. The decision was vacated by then-Attorney General Janet Reno, who promised more enlightened regulations on the issue that never arrived. Similar regulations were rumored to be in the works under Eric Holder, but again did not materialize. The BIA’s one grudging concession to the political climate of the Obama era, Matter of A-R-C-G-, was later vacated by Jeff Sessions. While the BIA discussed a second decision under Obama expanding on the narrow holding of A-R-C-G-, it too never came to be.
Based on that history, it seems safe to say that without drastic action by Attorney General Merrick Garland, the BIA will continue issuing the same denials for the same reasons as before. For every individual such as Ms. Rodriguez Tornes who is able to succeed on appeal, there are countless more who merely end up as stratistics, deported to face more of the horrendous abuse that drove them here in the first place. The Ninth Circuit recently had to correct the BIA’s determination that attempted gang rape did not constitute persecution,6 and last year, reversed the Board erroneous rejection of a domestic violence victim’s particular social group on the grounds that it contained a few too many words.7 The BIA continues to be composed of the exact same group of judges who issued each of those decisions.
It is the role of the BIA to reach fair decisions by applying the applicable law to the individual facts. Doing so in the domestic violence context would require the Board to finally recognize opposition to systemic male oppression as a political opinion warranting asylum. Instead, for decades the BIA has enforced the offensive, outdated message to women seeking protection from such abuse that “this is not their world.” The time has come to finally put an end to this sad substitute for true administrative appellate review.
Notes:
Lazo-Majano v. INS, 813 F.2d 1432 (9th Cir. 1987).
Fatin v. I.N.S., 12 F.3d 1233, 1242 (3rd Cir. 1993).
Moghaddam v. I.N.S., 95 F.3d 1158 (9th Cir. 1996) (unpublished).
Diaz-Reynoso v. Barr, 968 F.3d 1070 (9th Cir. 2020).
Copyright 2021, Jeffrey S. Chase. All rights reserved.
Republished by permission.
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Different style, but the same message as I delivered yesterday about the BIA’s institutionalized racist misogyny and the strange tolerance that Attorney General Merrick Garland has exhibited to date for this type of grotesque judicial misconduct.
And, this is on top of the astounding, largely self-inflicted 1.3 million case backlog and total dysfunction generated by the BIA’s failures combined with the “maliciously incompetent” effort by DOJ politicos and EOIR bureaucrats to disguise a “deportation railroad” as “administrative review!” Leaving aside all the legal travesties, the mal-administration and waste of public resources alone would be more than enough to require the immediate replacement of EOIR “upper (mis)management” and the entire BIA with qualified judicial professionals and professional judicial administrators.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Jeffrey and I are hardly the first to expose the charade of “appellate review” at the BIA. Two decades ago, following the “Ashcroft Purge,” administrative scholar and former GOP House Counsel Peter Levinson published his seminal work “The Facade of Quasi-Judicial Independence In Immigration Appellate Adjudications” documenting the mockery of due process and legitimate judicial practices being foisted off on the public by DOJ politicos.
In the two decades since, legislators, DOJ Officials, and Article III Judges have done their utmost to ignore and paper over the glaring constitutional and administrative disasters identified by Peter. Not surprisingly, during that time the BIA and the Immigration Courts have descended into a slimy mass of disastrous bias, injustice, and judicial and administrative incompetence unequaled in American Justice since the heyday of the First Era of Jim Crow.(We are now in the “New Era of Jim Crow.”)
Of course, we need an independent Article I Immigration Court as a matter of the highest national priority. But, it’s not on schedule to happen tomorrow, even though it should! In the interim, Judge Garland could fix lots of the festering problems in this system. I gotta wonder if and when he is going to wake up and pay attention to the “assembly line injustice” being cranked out by “his” Immigration Courts?
GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Paulina Vera
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Thanks to Professors Benitezand Vera for the great work for the NDPA that they are doing and the values they are instilling in their students. Just think what due process could look like in the Immigration Courts if all judges, trial and appellate, reflected those same values!
The concepts are actually very straightforward.
The Attorney General is a litigant before the Immigration Court. He or she can insert themselves in the process if they choose, to represent the Government as a litigant. But, the Attorney General should be treated as any other litigant — at arm’s length.
Individuals appearing before the Immigration Court are entitled to a fair and impartial independent adjudicator. As long as the Attorney General exercises control over the selection of judges, evaluates their performance, and can review and arbitrarily change their decisions, on his or her own whim, the system will remain unconstitutional and fundamentally unfair.
Interesting that law students see so clearly, recognize, and can articulate what Federal Judges, all the way up to the Supremes, legislators, and our Attorney General all fail to acknowledge and act upon. Hope for the future! But without better-qualified legislators, judges, and Executive Branch officials, will our justice system survive long enough to get to the future? Not without some very fundamental changes!
Every day, individuals have their constitutional, statutory, and human rights stomped upon, mocked, and abused by the broken Immigration Courts. Sometimes, Circuit Courts intervene to provide some semblance of justice in individual cases; other times they turn a blind eye to injustice and fundamentally unfair decision-making in the totally dysfunctional Immgration Courts.
But, nobody, but nobody, except members of the NDPA appears to be willing to recognize and act on the overall glaring constitutional and operational defects in the current Immigration “Courts” — that don’t resemble “courts” at all. That’s something that should concern and outrage every American committed to racial justice, equal justice for all, fundamental fairness, and constitutional due process!
EOIR and the U.S. Immigration Courts are an ongoing national disgrace — a festering sore upon democracy!🤮 Every day, they inflict unnecessary pain and suffering on those humans being abused by their fundamental unfairness and institutionalized chaos.!
How many ruined human lives ⚰️ and futures ☠️is it going to take for someone in the “power structure” to wake up and take notice!
The Democratic senator has spent years calling for more public defenders and fewer corporate attorneys getting federal judgeships. Now Joe Biden agrees.
For years, Sen. Elizabeth Warren (D-Mass.) has been a lonely voice in the Senate on the need to put people with all kinds of different legal backgrounds into lifetime federal judgeships.
“We face a federal bench that has a striking lack of diversity,” she said at a 2014 event on this topic, hosted by Alliance for Justice, a progressive judicial advocacy group. “President Obama has supported some notable exceptions but … the president’s nominees have thus far been largely in line with the prior statistics.”
Warren wasn’t talking about diversity in terms of demographics like race or gender; Obama made history on those fronts with his judicial nominees. She was talking about the problem with presidents and senators ― in both parties ― routinely picking corporate attorneys and prosecutors who went to Ivy League schools to be federal judges.
If you want the nation’s courts to reflect the people they serve, Warren has argued, we need judges who have been public defenders and civil rights attorneys, people familiar with the legal needs of everyday Americans who may be living on low incomes or otherwise marginalized. A diversity of legal professionals on the federal bench means more informed decisions on issues related to economic justice and civil rights.
At last, the times are catching up with Warren.
President Joe Biden is signaling he’s ready to make professional diversity central to his judicial selection process. He hasn’t nominated anyone yet, but White House counsel Dana Remus wrote to Democratic senators in December urging them to recommend court picks to the White House as soon as possible, and said that Biden is “particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.”
Top Democrats in the House are putting a spotlight on the issue too, even though they don’t have a say in confirming federal judges.
“Unfortunately, we have a lot of work to do when it comes to judicial diversity,” House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) said in a Thursday subcommittee hearing on this subject. “There are ways in which the federal judiciary of 2021 looks uncomfortably similar to the federal judiciary of 1921 … Somehow, despite all our progress, today’s federal judges remain, for instance, overwhelmingly male, white, former prosecutors or corporate lawyers who went to a handful of law schools.”
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Read the complete article at the link.
Biden is “particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.”
That’s basically a description of scores of immigration/human rights experts out here in the New Due Process Army (“NDPA”). Yes, they should be a primary source of appointees to the Article III Judiciary! Absolutely! But, they should also be appointed to the BIA and the Immigration Courts — now!
At present, the Immigration Courts are “administrative courts,” not part of the Article III Judiciary; therefore, Senate confirmation isn’t necessary. They are “administered” by a now “evil-clown-like” 🤡🦹🏿♂️ DOJ bureaucracy called “EOIR.” We need to get the right progressive scholars and “disciples of due process” on the Immigration Bench — immediately, without further delay!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Immigration Courts are one of most powerful tools in American law. Also, Constitution be damned, until we get a long overdue Article I independent Immigration Court, they are completely controlled by the AG — Judge Merrick B. Garland. This is a big, big deal — nearly 600 judgeships, almost the size of the entire U.S. District Court system, are at stake!
Sessions and Barr quickly figured: Why not aggressively weaponize EOIR to undermine American democracy, institutionalize racism and misogyny, and promote White Nationalist authoritarianism? And, that’s exactly what they did — to the max. Using EOIR judgeships to reward some of their unqualified, white, nativist buddies in the process was an “added bennie.”
G. Reaper Approaches ICE Gulag With “Imbedded Captive Star Chamber” Run By EOIR, For Their “Partner” Reaper Image: Hernan Fednan, Creative Commons License
Even the totally incomprehensible incompetence with which they administered EOIR fulfilled their “negative dream.” Dysfunctional Immigration Courts became an important tool for debilitating the entire U.S. justice system and “Dred Scottifying” (dehumanizing) persons of color before the law.
Those with compelling cases for relief, many pending for years, were shuffled off to the end of the docket. Or, if they did get a hearing, incompetent or compromised “judges” at the trial and appellate levels often arbitrarily denied their claims for bogus reasons. This disgraceful mess of a “court” actually penalized those with strong cases for relief — many who should have been done and joined our society years ago instead linger in the largely self-created EOIR “backlog” of 1.3 million cases. Or, theyare condemned to endless litigation to vindicate their rights in a system intentionally rigged against them.
“Justice” Star Chamber Style
Looking for the underpinning for the idea that people of color have reduced rights to vote, political participation, and that their lives don’t really matter? Look no further than the ongoing “Dred Scottification” of asylum applicants and other people of color in Immigration Court, now enshrined in a number of bogus “precedents” issued by White Nationalist AGs and their wholly-owned BIA!
BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
And, their job was “easy as pie” following the indolent stewardship of their Dem predecessors. When the latter finally got around to filling judicial vacancies at EOIR, every couple of years, they handed them out almost exclusively to government “insiders” — like they were “length of service” pins! Better-qualified progressive, due-process-oriented, experts, scholars, advocates, and others in the private/NGO/academic sector — folks who actually could have brought badly needed professionalism, excellence, and order to a system careening out of control — were basically “shut out” by the Dems. Interesting way to reward your potential allies!
The Dems’ “diverse recruiting program” for the Immigration Judiciary was to advertise the positions for about 10 minutes on the “insider online bulletin board” known as “USA Jobs.” Then, after an average two-year long, excruciatingly wasteful and mindless “Rube Goldberg-designed evaluation” by layer after layer of bureaucrats — few, if any of them actual sitting Immigration Judges — participating, in most cases they basically just selected “the next ICE prosecutor, EOIR staffer, or OIL litigator up.” But, the “beauty” of this system is that with so many layers of bureaucracy involved, nobody could be held accountable for the actual selections! Talk about a “finger-pointers’ dream.”
Oh yeah, and of course there was no room for public input and/or participation in this process. Some of the newly anointed judges actually had rather less-than-stellar reputations in the immigration community at large. Many would have drawn blank stares if mentioned to a panel of acknowledged immigration and human rights experts. Few were “household names,” except perhaps in a negative sense. No matter to the Obama folks!
During the Obama Administration, I attended a so-called “training-session” at an Immigration Judge Conference — this was “in person,” although for a number of years we got “home-video grade” training CDs. There, curiously, one of these “newbies” was selected to “educate” a group of us, many of us with decades of experience in the field and some with actual teaching credentials under their belts. Our “instructor” referred to the Government as “us,” to the respondent and counsel as “them,” and bragged that “our big wins from OIL” would make it easier to deny asylum.
Other “instructors” parroted cringingly mind boggling mis-statements of asylum law — apparently designed to fit into OIL’s preferred litigation positions. And, incredibly, this was with the “founding mother” of U.S. Asylum Law, Judge Dana Leigh Marks, who had argued and won the landmark “well-founded-fear” case INS v. Cardoza-Fonseca before the Supremes, effectively muzzled and holding her head in the audience.
In 21 years on the bench, during “EOIR training,” I was lectured to by a variety of BIA Attorney Advisors, OIL Attorneys, politicos, DHS Officials, State Department Officials, Ethics Officers, stress managers, and an occasional NGO advocate. Never, did I get to hear my colleague Judge Marks’s views on the development of asylum law since Cardoza. Sure, that didn’t stop us from carrying on a dialogue elsewhere, as we did. But, we were pretty much “on the same page.” The folks who needed to hear what Judge Marks had to say didn’t.
Hon. Dana Leigh Marks U.S. Immigration Judge San Francisco Immigration Court Past President, National Association of Immigration Judges
And, we wonder why Dems inevitably screw up immigration law, and end up defending highly regressive actions and “designed to fail” policies — try “baby jails,” indefinite detention, and non-English-speaking toddlers “representing themselves” in Immigration Court. I kid you not! Each of the foregoing were things that the Obama DOJ vigorously advanced and defended before Federal Courts!🤮
Will Judge Garland figure it out before it’s too late? Or, as his Obama predecessors did, will he fritter away his time with “more sexy,” but actually far less important initiatives and lofty ideals that will be effectively undermined by failing to create a progressive, expert, well functioning, professional Immigration Judiciary.
Judge Merrick B. Garland, U.S. Attorney General Official White House Photo Public Realm
Racial justice, equal justice, and due process for all persons in America start in the Immigration Court. And, right now they are dying there! If Judge Garland doesn’t pay attention, grasp the moment, aggressively clean house, and take the long overdue, radical, courageous actions to build a better Immigration Judiciary, the whole U.S. justice system might well come crashing down upon him! And, he will have only himself to blame!
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever! A Better EOIR for A Better Federal Judiciary! A Better Federal Judiciary For A Better America! Not rocket science! But, it does require vision, recognition of the problem, and the courage to solve it!
Tom Ricker, Policy Director, The Quixote Center, tomr.quixote@gmail.com, (301) 922-8909
Biden’s Invisible Wall: New Report Describes the Hardships that Title 42 Expulsions Create for Haitian Migrant Families and Calls on Biden to Stop Expelling Migrants to Haiti
San Diego, California, March 25, 2021 — Today, one year after the “Title 42” policy was enacted, the Haitian Bridge Alliance, Quixote Center and UndocuBlack release the report, The Invisible Wall: Title 42 and its Impacts on Haitian Migrants, and call on the Biden-Harris Administration to immediately revoke Title 42 and end expulsions to Haiti. According to Guerline Jozef, Executive Director of Haitan Bridge Alliance, “Most if not all of the expulsions to Haiti are per the Title 42 policy, which was adopted under a false pretext of the coronavirus pandemic. Title 42 is Trump’s invisible wall that effectively closed the U.S.-Mexico border to migrants.” “Our Report,” says Ms. Jozef, “presents the voices and hardships of Haitian migrant families who have been abused in immigration custody and then expelled under the Title 42 policy without the opportunity to seek legal counsel or request asylum or other protection.”
On February 1, 2021, the first day of Black History Month, the U.S. government drastically expanded removals and expulsions to Haiti. Rather than dismantle the Trump Administration’s invisible wall, the Biden-Harris Administration doubled down. More Haitians have been removed per the Title 42 policy in the weeks since President Joe Biden took office than during all of Fiscal Year 2020. The Report provides the narratives of Haitian families who were apprehended at the U.S. Mexico border within the last year under the Title 42 policy and were subject to expulsion to Haiti or Mexico.
The Report explains how Haitian migrants are expelled under the Title 42 policy without being informed whether or when they will be expelled, and without the opportunity to seek asylum or other forms of protection. “Abigale” (name changed), a Haitian woman interviewed for the Report, describes the cruelty of immigration officials during her family’s expulsion, “None of the officers ever confirmed that we were being deported. No one would even say the word deportation. None of them, through this whole process. All the families were crying on the bus, for over an hour. My husband and others kept asking what was going on, if they were deporting us. They would not tell us anything despite our desperation. It was all extremely emotional.”
“The Biden-Harris Administration has continued cruelty against immigrants,” said Patrice Lawrence, Co-director of the UndocuBLack Network. “We hope that this will not be their legacy. It is cruel to use Title 42 as a loophole for deporting immigrants in general and Black migrants in particular. It is a euphemism for removals and deportation of immigrants which the Trump Administration deemed expendable in the wider context of its eugenic agenda of creating a Whiter America and atmosphere of nativism. The invisible wall named Title 42 keeps at bay brown and Black people fleeting war, violence, poverty and disasters under the pretext of protecting Border Protection officers from COVID-19 and to minimize the number of persons in congregate settings, such as immigration detention centers. The Biden-Harris Administration continues to ignore the cry and plight of immigrants that are being forced to board a plane and are taken to the very places they escaped from. The xenophobic language of the previous Administration might be gone, but the practices still remain.”
“There is no sound public health rationale for the Title 42 ban on migrants,” says Tom Ricker, Policy Director with the Quixote Center. “The idea for the policy came not from public health officials, but from the Trump White House. The entire justification for the Title 42 policy is the claim that the United States lacks the capacity to safely detain people. Yet, the United States is holding people for weeks only to then put them on crowded planes. How do you deny someone asylum who has been placed in detention – with no legal representation at all – based on the argument that there is no capacity to detain them?”
The Report also describes the high security risks that Haitian migrants face when they are expelled to Haiti or Mexico. As one woman who was recently expelled to Haiti under Title 42 describes, “Now the country is in more turmoil so I’m even more afraid to leave [my home]. If these people find us, they would just kill us this time around.”
“Haitian migrants flee violence, instability and persecution in Haiti, then travel a long and treacherous journey to the U.S.-Mexico border seeking safety and security in the United States,” says Nicole Phillips, Legal Director of Haitian Bridge Alliance. “Instead of security, they are abused by immigration officers and – under the Title 42 policy – summarily expelled back to the country they fled without any chance to seek protection. As this Report explains, these expulsions are not only tragic, they are illegal.”
The authors offer nine recommendations. “First,” says Ms. Phillips, “the Title 42 policy must be revoked immediately. It is also critical that asylum processing resumes, while migrants are released to shelter in place with their loved ones in the United States rather than being detained. Incarceration must stop.”
Same old song! Where’s Vice President Kamala Harris on this one?
🇺🇸🗽⚖️Due Process Forever! Treat Haitians as persons with constitutional and human rights. End the racist travesties embodied in U.S. immigration policy that fuel racial injustice throughout America!☠️
Leon Krauze in the WashPost tells us what’s really happening at the border. WARNING: It has little to do with the myths and false narratives being peddled by the GOP, the Administration, and the media.
The current emergency at the border has found the U. S. media at its most solipsistic. Coverage seems more focused on whether the emergency should be called “a crisis” (it should) and what the political fallout for the Biden administration will be. With few exceptions — like the remarkable work of MSNBC’s Jacob Soboroff or Politico’s Sabrina Rodriguez — many news outlets seem utterly uninterested in the stories of the migrants themselves.
This is wrong because it fails to provide one crucial piece of the puzzle: the very concrete context of human suffering.
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This by no means excuses the stories of anguish and confinement that have emerged over the last few weeks from within the facilities set up by the Biden administration to deal with the number of young migrants crossing the border, nor does it absolve the president himself from delivering on his promise of a humane immigration system, diametrically opposed to Trump’s cruel policies, designed in collaboration with unapologetic racist xenophobes like Stephen Miller.
The Biden administration can and should do better. But the current debate cannot ignore the very concrete despair facing thousands of immigrant families who, under the direct threat of violence or abuse, chose to push their young children to the United States, in search of safety.
If the alternative was famine, gang violence, kidnapping, rape or sexual slavery, wouldn’t you bet it all on the journey north? If more people understood this, the political debate and the coverage surrounding the crisis would be much more empathetic and we would get closer at delivering concrete, humane solutions.
Now, let’s hear more “simple truth” from Suzanne Gamboa over at NBC News:
Suzanne Gamboa, Political Editor, NBCLatino, NBC NewsDate: October 21, 2013 Place: Washington, DC Credit: Maria Patricia Leiva/OAS Creative Commons License
America’s immigration impasse — an endless loop across different administrations — is largely self-inflicted, because Congress has repeatedly failed to acknowledge one simple thing: Immigration happens.
Accordingly, immigration laws must be continually adjusted, reformed and revised, experts say.
“People will always want to come to the U.S., and the U.S. will always need people,” said former Commerce Secretary Carlos Gutierrez, who was a top immigration adviser to President George W. Bush.
Until there is a system that allows enough legal immigration to meet the economy’s needs, there will be illegal immigration, Gutierrez said.
“That’s just part of how our economy is set up. It’s part of demographics,” Gutierrez said. “Our birthrate is not high enough to be able to fill the needs of our economy.”
The coronavirus pandemic reinforced the importance of immigrant labor to the American economy, including labor by the undocumented.
All of those people and many other immigrants, including young immigrants — often called “Dreamers” based on never-passed proposals in Congress called the DREAM Act — will play a key role in helping the economy recover from its pandemic bust.
But immigration requires periodic calibration, and the economics and the changing patterns are lost in the politics.
“People are going to move — as they are all around the world — where they think they can find places to better feed their children. That’s the bottom line, and that’s the history of migration to the United States,” said Luis Fraga, director of the Institute for Latino Studies at the University of Notre Dame.
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Everyone should read the rest of the stories at the above link.
Degrading Ourselves As A Nation Won’t Stop Human Migration
By Judge (Ret) Paul Wickham Schmidt
“Courtside” Exclusive
March 26, 2021
Notwithstanding the endlessly disingenuous and self-centered alarmist rhetoric coming from all directions on the border mess, often mindlessly regurgitated by the press (not just Fox News), the real “crisis” involves the human lives at stake and the unnecessary human misery we are causing by failing to establish, professionally staff, and fairly and competently operate the legal refugee and particularly asylum systems required by law. This “due process crisis” actually has devastating and debilitating practical effects, starting with the dysfunctional immigration, refugee, and asylum system and the beyond dysfunctional Immigration Courts.
Heck, we don’t even pretend to comply with Constitutionally-required due process of law for asylum seekers who present themselves to us seeking life-saving refuge. Most of those who show up at legally-established border ports are told that the border is “closed” and that there is no way for them to apply. OK, so they attempt to cross between ports and immediately present themselves to the Border Patrol. But, they also are told there is no way to apply and are orbited back to some of the most dangerous countries in the world without any process whatsoever, let alone due process of law. Who are we kidding with all our dishonest pontificating about “the rule of law?”
It’s a strange way to implement the statutory command that any foreign national “irrespective of . . . status, may apply for asylum,” along with a constitutional guarantee that “No person shall . . . be deprived of life, liberty, or property without due process of law.” Gee, you don’t even need one of those fancy Ivy League law degrees to understand that language. You just have to be able to read, comprehend, and act.
What you do have to do to get where we are today is to view asylum seekers and other migrants (predominantly people of color) as less than human — “non-persons” in a constitutional sense. It’s what some of us call “Dred Scottification of the other” and it has accelerated over the past four years — not just in immigration.
The whole idea of a “court system” being run by the Executive who also is the chief of enforcement is beyond constitutionally preposterous. It’s a “negative tribute” to the Supremes and other Article III life-tenured judges who have grown so distant from their own humanity and immigration stories as to become willfully blind to the ongoing farce that constitutes “justice” and “due process of law” for asylum seekers and other immigrants in the U.S.
Today’s nearly non-existent “asylum system” is a deadly and illegal “catch 22,” with the Supremes sitting in their marble palace refusing to do the primary task that justifies their continued existence: enforce the Constitution against Government misbehavior and in favor of the “little guys” and the “vulnerable.” No thanks, not up to the job!
The real tragedy is that there are plenty of folks out here with the knowledge, integrity, courage, and ability to establish a legal system that would actually comply with out laws, our Constitution, and further offer the hope of constructively addressing some problems before refugees arrive at our borders. But, they remain “benched,” even by the Biden Team. So the “good guys”are going to keep attacking the corrupt and broken system in court and at the polls for as long as it takes to get some course correction — years, decades, centuries — ask most African Americans how long it takes to achieve the true justice that America promises to all, but historically has only delivered to some.
In the long run, a fair system would undoubtedly accept many more legal refugees and asylum seekers. That’s what happens in refugee situations — it’s the core of what we call “forced migration” — when you sign on to international conventions intended to prevent the “next holocaust,” and you fairly and humanely apply the rules meant to protect refugees and those who face torture. And, as they have in the past, the overwhelming number of refugees and asylees, like the overwhelming majority of immigrants (essentially all of us, except Native Americans) will adapt, fit in, and contribute to the health, wealth, and future of our nation. They will change, but so will we — ultimately for the better!
Sure, America wouldn’t be as white, “Christian” (to the extent that adherence to a nominal Christian denomination, rather than actually performing Christ’s extremely difficult, self-sacrificing, risky, compassionate mission, defines Christianity), and nominally heterosexual as it was when White Nationalist myths and whitewashed history ruled the roost. But, it would be a better nation — one that actually has a chance of prospering, realizing the full potential of all its residents, and leading the world in the 21st century. A nation that could devote more human, natural, and monetary resources to building and exporting greatness, rather than to an endless stream of cruel, inhuman, stupid, and wasteful enforcement and deterrence gimmicks.
Bottom line, folks are going to come to America, as they have throughout history. Some will stay, some won’t. But, come they will, unless and until those like Trump and the GOP create such a mess that our own people start fleeing to foreign shores. Immigration, regardless of status, is a sign of strength. Xenophobia a sign of fatal weakness.
Our real choice isn’t whether we want to “close” borders, bar refugees, and abuse children as the Cottons, Cruzes, Millers, and Hawleys advocate. It’s whether we create a robust, orderly, rational legal system to screen, regulate, and distribute the inevitable flow or whether, as we have for the past decades, we force millions to reside and work underground — part of an “extralegal” or “black market” system that pols of both parties and those who profit from that underground system have created.
Sprawling mismanaged enforcement bureaucracies, dysfunctional “courts,” armies of publicly-paid lawyers defending the indefensible, for-profit civil prisons, big agriculture, hospitality giants, loads of upwardly mobile professionals who need child care to pursue careers, communities that live off of marketing ethnic culture, meat packing conglomerates, architects and construction firms who are “building America,” even news media fixated on hyping the problem rather than fixing it (see, e.g., yesterday’s Biden press conference), the list of those who profit from a talented, hard working, reliable, loyal, yet politically and socially disenfranchised, workforce is endless.
Even the GOP’s “Cotton-Cruz crowd” benefits from having an imaginary enemy to rant and rail and gin up hate against — safe in the knowledge that the tanking of our economy, upheaval of society, and possible threat to their privilege that would result from realizing their disingenuous call to boot the entire undocumented population will never happen. Their kids and grandkids can continue to reap the privilege that comes from exploiting an essential, yet politically neutered, workforce. It’s really more about institutionalizing racism to maintain economic and political power over the eventual non-white majority that drives their bogus and ugly narratives.
We can degrade ourselves as a nation, but it won’t stop human migration!
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever! It’s a vision based on a written promise, not a “pipe dream!”
Anna Marie Gallagher, Esquire Executive Director CLINIC PHOTO: CLINIC website
I wake every morning to follow news of our sisters and brothers, thinking especially of the children, who have set out from places like El Salvador, Guatemala, Honduras, Venezuela, Cuba, Nicaragua and Haiti–even as far as Cameroon and the Democratic Republic of the Congo–to seek protection at our doorstep. My heart aches for them and I pray for their safety.
Today’s readings remind us of our obligation, as followers of Christ, to speak the truth and follow the light. The truth is that people are suffering, both young and old, and desperately seeking safety and welcome in our country. Yet U.S. authorities and policies are often hostile to receiving them. Their arrival at our doors is deemed a “crisis.” As followers of Christ, we must and we will stand up, act bravely and generously, to speak the truth and welcome them.
The real crisis is not at the border, but within the families forced to make the difficult decision to leave, and in the hearts of those who refuse to follow Jesus’ light. We, as Christians, must walk in the path of light as Jesus instructs, and do the right thing. We must make room at our table and remember that we all belong to each other. We must take Jesus’ words to heart and remember to love the mother, the father and the child at the border as if they were our own.
This is not a crisis for us, although it certainly is for the men, women, and children who are fleeing. For us it is an opportunity to act out our faith precisely as Jesus taught.
As these sojourners leave their homes in search of safety, they may repeat a prayer similar to this: “Even though I walk in the dark valley I fear no evil; for you are at my side.” The rhythm of the words and their meaning must comfort them, knowing that God is their companion. What happens when they arrive here is up to us. We could look to God and ask what He would do, but we already know the answer.
Anna Gallagher is Executive Director of the Catholic Legal Immigration Network, Inc. (CLINIC).
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Unfortunately, too many folks promote a bogus picture of what’s at stake at our border. The “alternatives” they trumpet are basically increasing family separation and suffering in Mexico or somewhere else as pointed out in this Politico article by Jack Herrera:
The result is a new form of family separation — but instead of happening at the hands of federal agents in American government facilities, it’s taking place, family by family, in camps like the one Janiana lives in. The fact that minors won’t be expelled like everyone else has rapidly spread by word of mouth across the length of the border. And while many families choose to stick together, the pressure to separate weighs heaviest on the most vulnerable — families who fear death, whether from persecutors who have followed them to the border, or from extreme hunger.
For Janiana, the possibility of being sent back to Honduras reads as a death sentence. She shows me the scars from her torture at the hands of a powerful gang back home that her family got on the wrong side of. Fearing further reprisals, Janiana fled with her sister’s children, a teenage nephew and teenage niece as well as the niece’s several-month-old son. The children haven’t been reconnected with their mother yet, who successfully entered the U.S. to begin the process of claiming asylum in 2019, before the pandemic. Staying in Mexico, Janiana says, was never an adequate long-term solution and increasingly feels intolerable. She says the family already tried to make a new life in the southern state of Oaxaca, but danger pursued them there, where her nephew was murdered.
Today, Janiana says her only hope is that the U.S. will begin to accept asylum seekers again, especially as the country gets a better hold over the pandemic. At the moment, she says with resignation, “all we can do is wait.” Though there is one painful exception on her mind: If she were somehow able send the baby across alone, he might be allowed to stay.
“It breaks my heart to even think about it,” she says.
Why not get the trained Refugee Officers, Asylum Officers, Immigration Judges, ORR child services officers, and pro bono lawyers in place to comply with our legal obligations in a robust, timely, fair, and efficient manner?
Why not put experts, like Wendy Young of Kids in Needs of Defense, who understand how our system should work in charge of the welfare of the children? Why not put someone who understands the practical and legal needs at the border, like former Immigration Judge Ilyce Shugall, in charge of the Immigration Court response? Why not put someone like retired Judge Paul Grussendorf, who has also been an Asylum Officer and a UNHCR representative, in charge of the Asylum Office response? Why not put retired Assistant Chief Immigration Judge Robert Weisel, who worked with the UNHCR after retirement, in charge of coordinating the response with NGOs and the private sector?
Yes, the Trump regime definitely left a dismantled and dysfunctional immigration bureaucracy and structure behind. But, just repeating that time after time sounds more like an excuse than a plan or a solution.
Sure, it won’t happen overnight. But, it won’t happen at all without different folks in charge at the “retail level.” I see little evidence of any progress on a real long-term plan and the short-term response is also an unnecessary mess, given that the Biden Team has had more than four months since the election to get a new structure and new personnel in place.
While there are a few “bright spots,” like Michelle Brané and Katie Tobin, I sincerely doubt that the group in charge right now is capable of solving the practical problems in rebuilding and improving our asylum and immigration systems. Nowhere is that more obvious than at EOIR, where the dysfunctional “clown show” 🤡 stumbles on, for no apparent reason.
Many of us keep trying, to no avail, to warn Judge Garland that he literally is sitting on a powder keg with the fuse lit and burning.💣 I guarantee that the next “manufactured crisis” will be when the current group of asylum cases coming from the border hit the broken, dysfunctional, ridiculously and unnecessarily backlogged, grotesquely mismanaged, ill-prepared, and anti-asylum-biased “Immigration Courts.” Waiting for the inevitable disaster, rather than bringing in a new “A Team” from the NDPA to start solving the problems now, is a monumental mistake by Judge G.
Why not fix the system to run the way it should, rather than spreading myths, throwing spitballs, and ignoring the unfolding human tragedy that can’t be solved with draconian enforcement and lame “don’t come” messages directed at forced migrants fleeing for their lives?
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” 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)Gabe Gutierrez NBC News Correspondent Atlanta, GA
Reminds me of the essay I recently posted from my friend, Don Kerwin at CMS:
The number of unaccompanied children and asylum-seekers crossing the US-Mexico border in search of protection has increased in recent weeks. The former president, his acolytes, and both extremist and mainstream media have characterized this situation as a “border crisis,” a self-inflicted wound by the Biden administration, and even a failure of US asylum policy. It is none of these things. Rather, it is a response to compounding pressures, most prominently the previous administration’s evisceration of US asylum and anti-trafficking policies and procedures, and the failure to address the conditions that are displacing residents of the Northern Triangle states of Central America (El Salvador, Guatemala, and Honduras), as well as Venezuela, Cuba, Haiti, and other countries…
The real immigration crisis is not at the border, but in the failure to respond effectively to the conditions driving forced migration, to establish orderly and viable legal immigration policies, to legalize the increasingly long-tenured undocumented population, and to reform and invest sufficiently in the US asylum and immigration court systems.
Donald M. Kerwin Executive Director Center for Migration Studies
It also echoes the words of veteran journalist Marc Cooper, posted by my friend Dan Kowalski over on LexisNexis Immigration Community:
When I was in Mexico reporting on the exodus, I would talk with dozens of migrants who were just a an hour or two away from starting their trek and, to a person, not one of them said they paid any attention to new US laws and regs as they were determined to cross no matter what. And no matter the sacrifices.
Dan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)
Even the WashPost editorial page writers “get” the reality of human migration in a way the nativist fear-mongers never will:
Yet despite fearmongering by Republicans, the current influx is neither a public health emergency nor a national security threat. The vast majority of those allowed to enter the country will join relatives here while their asylum claims plod along. That wait is too long — it can stretch to three years or more — and the administration insists it will shrink the backlog. It has also earmarked $4 billion in aid from the pandemic relief bill for Central America — with strings attached to prevent its misuse — to attack the conditions that make life miserable there and drive migrants to seek refuge in this country.
Dumping Asylum Seekers in Honduras Artist: Monte Wolverton Reproduced under license
Still, sadly, facts and reality seem largely irrelevant here.
Despite denials from Secretary Mayorkas, the Biden Administration appears to be believing Kevin McCarthy’s BS on some level.
Thursday, the Administration basically negotiated a “lite version” of Trump’s “Let ‘Em Die in Mexico” — essentially trading AstroZenica vaccine (which wasn’t approved for use in the U.S. anyway) for Mexico’s agreement to step up harsh enforcement measures against migrants crossing their Southern Border and to warehouse families arbitrarily rejected without due process by the U.S. under our bogus CDC directive. We already have seen how well that works out!
A girl peers out from an encampment at the U.S.-Mexico border where she and several hundred people waited to present themselves to U.S. immigration to seek asylum. / Photo by David Maung
Any way you cut it, the realities of human migration, the lives of the desperate individuals involved, the views of human rights experts and advocates, and our supposed commitment to international conventions, the rule of law, and Constitutional Due Process take a back seat when the “bogus border debate” shifts into high gear.
There is actually a very simple truth here: “Forced migration” is not “optional!” In fact, a number of forced migrants prefer “death in the attempt” to “death in place.”
Therefore, all the “deterrents,” “border militarization,” “Baby Jails,” and “stay home statements” won’t ultimately stop the inexorable flow (although they might temporarily divert, modulate, or vary it— usually just enough for the “powers that be” to declare “victory at sea” as a result of their failed policies while ignoring the human carnage and lost opportunities they leave behind).
Professor Philip G. Schrag Georgetown Law Co-Director, CALS Asylum Clinic, Author of “Baby Jails”
Sure, there is a timing factor. Weather, the “business plans” and propaganda of smugglers (Trump’s “enforcement only” policies have been a boon for them in more ways than one, not only boosting their fees, but diverting enforcement resources away from the “real” law enforcement problems at the border involving drugs and human exploitation), and Biden’s pledge to restore humanity and the rule of law to America all factor into the equation in some way.
But, they are not the the primary causes of forced migration, except to the extent that climatechange (ignored and worsened by Trump and the GOP) has aggravated the poverty and economic disorder in the Northern Triangle by destroying the livelihoods of many farmers and making their land essentially worthless.
Tone-deaf GOP politicos like McCarthy and Sen. Rob Portman (R-OH) apparently think the solution is to continue to mock the rule of law, violate the Constitution, and simply declare the Southern Border closed forever, al a Stephen Miller. Let families and children “die in place” in their home countries, die on the journey at the hands of other governments, or rot forever in Mexico — “Out of sight, out of mind.” As long as it isn’t happening in our country and being covered by our news outlets, who cares about human lives? That was certainly the Trump approach!
That’s hardly a “solution,” except in neo-Nazi or Soviet-era terms. The harshest and most inhuman approaches will, as they have in the past and continue to do, fail to stop desperate humans who want to survive from doing what’s necessary to save their lives and preserve their families’ futures, even when that interferes with the GOP’s “whitewashed” version of “American greatness.”
The solution involves following Constitutional due process, re-establishing the rule of law (including a radical “reform and replace” of our dysfunctional Immigration Courts), and adhering to our international obligations, both in letter and spirit. It also requires an expanded, much more robust, legal immigration system that reflects the demands of our economy, the needs of migrants, and the realities of human migration, particularly from Latin America. Like it or not, there will be more immigration.
As I have said before: “There are many ways in which we can diminish our own humanity, but none of them will stop human migration.”
Will G. Reaper Become The Lasting Image of America’s 21st Century Human Rights & Racial Justice Failures In The Eyes Of The Rest Of Humanity & Future Generations? Image: Hernan Fednan, Creative Commons License
Contrary to the GOP blather, immigration, voluntary, forced, coerced, legal, extra-legal, white, non-white, Christian, non-Christian, is what the real America is all about, for better or worse. Overall, immigration is a positive force for America.
Here’s a great essay on the positive nature of immigration by Pedro Gerson on Slate. Pedro isthe director of the Immigration Law Clinic at the Louisiana State University Law Center, and a former immigration staff attorney at the Bronx Defenders. The latter organization has been home to a number of notable members of the NDPA.
Pedro Gerson Director, Immigration Law Clinic LSU Law Center SOURCE: Twitter
As Pedro says, human migration to America will continue notwithstanding GOP xenophobes. The only question is whether we will have the wisdom and courage to work with and take advantage of its power in constructive, creative, forward looking ways, rather than trying to “recreate Jim Crow!”
Or, will we continue, as GOP restrictionists urge, to squander resources, goodwill, and human potential on futile efforts to eradicate what is perhaps the oldest and most fundamental phenomenon of human existence?
🇺🇸🗽⚖️Due Process Forever! Restore the rule of law! Fix The Disgraceful, Dysfunctional Immigration Courts, Judge Garland! End White Nationalist racism!
Donald M. Kerwin Executive Director Center for Migration Studies
In a new essay for the Center for Migration Studies of New York (CMS), CMS’s Executive Director Donald Kerwin writes:
The number of unaccompanied children and asylum-seekers crossing the US-Mexico border in search of protection has increased in recent weeks. The former president, his acolytes, and both extremist and mainstream media have characterized this situation as a “border crisis,” a self-inflicted wound by the Biden administration, and even a failure of US asylum policy. It is none of these things. Rather, it is a response to compounding pressures, most prominently the previous administration’s evisceration of US asylum and anti-trafficking policies and procedures, and the failure to address the conditions that are displacing residents of the Northern Triangle states of Central America (El Salvador, Guatemala, and Honduras), as well as Venezuela, Cuba, Haiti, and other countries…
The real immigration crisis is not at the border, but in the failure to respond effectively to the conditions driving forced migration, to establish orderly and viable legal immigration policies, to legalize the increasingly long-tenured undocumented population, and to reform and invest sufficiently in the US asylum and immigration court systems.
Thanks Don for speaking out against the scandalous GOP complete “border BS,” all too often parroted by the so-called “mainstream press.” Read the rest of Don’s essay at the link.
Don has spent his entire career solving migration and human rights problems. The Biden Administration and everyone who believes in American democracy should listen to “practical experts” like Don, rather than ignorant, racially-motivated GOP politicos and White Nationalist nativists spouting the “same old, same old” myths, fear-mongering, and unhelpful “non-solutions.”
If xenophobic rhetoric, cruelty, officially-sanctioned child abuse, evading our own legal and humanitarian responsibilities, and “enforcement only” were the “solutions,” the “problem at the Southern Border” — which has existed in one form or another for over a half century, would long ago have been solved. We can’t solve humanitarian situations that create forced migration with unilateral law enforcement gimmicks and cruelty toward the humans fighting for their lives. Human migration long pre-existed the formation of nation states and establishment of national boundaries.
Administration after administration, of both parties, have squandered time and taxpayer money on unsuccessful efforts to “enforce their way” out of forced migration situations. Contrary to GOP blather, Democratic Administrations have been almost as fixated as the GOP with unsuccessfully “detaining, deterring, and enforcing” their way out of human problems that demand more thoughtful human solutions.
All Administrations at some point prematurely claim that their efforts have “succeeded.” None actually have succeeded in addressing the causes of the migration. Therefore, none of these “false solutions” proves “durable.”
Significantly, Don is one of the few commentators to fully grasp the integral connection between the Trump regime’s complete destruction of the integrity of the Immigration Courts and its lawless, yet highly ineffective, border policies.
Real solutions don’t kill, harm, and maim refugees and forced migrants, encourage criminal cartels and corrupt foreign officials to prey on them, and stack up desperate humans in dangerous conditions just across the border because US Government officials were too biased and incompetent to operate under any semblance of the rule of law.
We can abide by our own laws, international norms, our Constitution, human decency, and common sense. It isn’t rocket science.
But, it does require a combination of expertise, courage, humanity, and practical problem solving that has been conspicuously absent from our governing structure since 2017, and severely undervalued before that.
Also, it’s certainly not that the Biden Administration has suddenly re-established due process and the rule of law at the border. Far from it!
The vast majority of those arriving at the border, even those who are applying at legal ports of entry, are unceremoniously and summarily removed without any process at all, let alone due process of law. This is all based on a largely bogus Trump-initiated exercise of authority by the CDC to use COVID-19 as a pretext to suspend the rule of law and constitutional due process at the border.
Moreover, we shouldn’t forget that even with the Biden Administration’s gradual efforts to re-establish a legal process for asylum seekers, unaccompanied children are still being held in Government detention for far longer than the 72-hours permitted under law. This problem won’t be solved, as some GOP nativists incredibly suggest, by dumping kids back across the Mexican Border, returning them to danger in their home countries without regard to their individual situations, or forcing them to turn to smugglers to make their way to relative safety in the interior of the U.S.
Nor will it be solved by long-term detention in disgraceful and inhumane “Baby Jails!” Ask my Georgetown Law colleague and author Professor Phil Schrag of the CALS Asylum Clinic about that!
Interestingly, some of the biggest complainers spreading the “open borders myth” are Greg Abbott and other Texas GOP politicos who have prematurely “reopened their state” in the middle of a pandemic in blatant contravention of best medical and public health advice. So, you can summarily dismiss their “crocodile tears” and bogus “hand wringing” about public health and safety.
That’s particularly true since the GOP is just coming off a massive example of how their incompetent mis-governance of Texascaused unnecessary misery and loss of life among Texas residents as a result of a highly predictable and long-foreseen “weather emergency.” Why does the mainstream media often continue to treat these “political hacks,” who couldn’t “govern” their way out of a paper bag, as credible spokespersons on anything, let alone human rights situations of which they have no expertise whatsoever?
🇺🇸🗽⚖️Due Process Forever! Re-Establish The Rule Of Law, Including Full, Robust Humanitarian Protections At The Border& In Our Disgracefully Dysfunctional Immigration “Courts.”
The Wrong Answer to the Right Question: How to Address the Failure of Protection for Gender-Based Claims?
By Professor Karen Musalo, Bank of America Professor of International Law, Director of the Center for Gender & Refugee Studies, UC Hastings
In 1996 I was honored to litigate the first case at the Board of Immigration Appeals (BIA), Matter of Kasinga,[1] that opened the door to protection for women fleeing gender-based harms. To qualify for recognition as a refugee under U.S. law, an individual must establish “persecution or a well-founded fear of persecution” on account of one of five grounds – “race, religion, nationality, political opinion or membership in a particular social group.”[2] This definition in the 1980 Refugee Act essentially adopts the standard set forth in the 1951 UN Refugee Convention[3] and its 1967 U.N. Refugee Protocol,[4] which the U.S. ratified in 1968.
The woman seeking asylum in the Kasinga case fled female genital cutting and forced marriage. In a ground-breaking decision, the BIA ruled that cutting was persecution, and it was “on account of” her membership in a gender-defined social group. In so ruling, the BIA was following the guidance that UNHCR has issued over a number of years, noting that the absence of gender as a protected ground should not impede protection for women fleeing persecution, because the particular social group ground encompasses gender-defined groups.[5]
The Kasinga decision was a breakthrough for women, and a highwater mark in U.S. adjudicators following international guidance. It also raised expectations that U.S. law would continue to evolve and extend protection to women fleeing the many forms of gender-based violence to which they are subject. However, that has not been the case, and there have been retreats from protection across administrations, although undoubtedly we witnessed the most dramatic attempts to end protection in gender claims during the Trump administration, which issued extremely limiting Attorney General decisions, such as Matter of A-B- I,[6] and Matter of A-B- II –[7] as well as regulations[8] – currently enjoined[9]—that explicitly rule out gender-based claims.
The Biden administration has committed itself to reviewing the issue of protection for those fleeing gender-based violence.[10] As we consider how to remedy the issue, some argue for a legislative amendment to the refugee definition, adding gender as a sixth ground to the statute’s five protected grounds of race, religion, nationality, political opinion and membership in a particular social group. This is the wrong solution. It would not only repeat the errors of the past (amending the refugee definition in 1996, discussed below), but it would also fail to adequately protect survivors of gender-based violence. At the same time, it would lead to the quite foreseeable consequence of leaving many deserving asylum seekers outside the ambit of refugee protection. It is also likely to signal to other Convention State parties that unless they also add a sixth ground, they could deny protection to women and girls without running afoul of the treaty’s obligations.
In order to prescribe a remedy, one first has to diagnose the illness; in order to understand why the sixth ground solution is wrong, we need to examine what occurred after Kasinga that limited protection in subsequent claims involving women fleeing gender-based persecution. . . . .
**********************
Read the rest of Karen’s outstanding analysis at the link.
Here’s a question from last summer’s “Jeopardy style” final exam in Immigration Law & Policy @ Georgetown Law:
A: Judge Schmidt’s favorite case.
Q: What is Matter of Kasinga?
Happy to say that everyone got that one right! Of course, I wrote the decision in Matter of Kasinga!
Karen’s bottom line: “We should be working to bring the U.S. into compliance with UNHCR’s social group interpretation, rather than surrendering to its flawed interpretation, by adding a sixth ground.”
The key is better Federal Judges, from the Immigration Courts all the way up to the Supremes: Judges who are “practical scholars” in human rights and applied due process; judges who have represented asylum seekers, particularly women, and understand their plight.
That’s a nice gesture. But, as I always say, actions are what really counts. So here are actions that Judge Garland can take immediately as Attorney General to finally fulfill the promise of Matter of Kasinga:
Vacate the atrocious, misogynist, perversion of asylum law (not to mention facts of record) by Sessions in Matter of A-B-;
Appoint some female “practical scholars in human rights” to appellate judgeships on the BIA.
That’s how to really honor Women’s History Month!
To understand the human impact of Sessions’s grotesque misconstruction of asylum law and the relevant facts in Matter of A-B-, check out this video short featuring Karen and others along with Ms. A-B-: https://www.youtube.com/watch?v=QRQpXRWlQL0
I generally agree with Karen’s concerns about specific gender-based legislation potentially having an unintended negative effect. That is certainly the fate of past unsuccessful attempts to include gender-based asylum in the regulations.
They essentially were “hijacked” by DOJ litigators and enforcement-oriented policy officials looking for ways to facially appease women’s rights groups, while actually proposing to restrict eligibility and make it easier for OIL and the SG’s Office to defend denials of asylum. They also sought to create hyper-technical requirements that would have effectively made it impossible for any unrepresented individual to properly set forth a “cognizable particular social group.”
These, in and of themselves, are reasons for removing the Immigration Courts from the DOJ and creating an independent Article I structure. The “ultimate insult to injury” was when EOIR enthusiastically participated in Stephen Miller’s currently-enjoined attempt to completely write gender-based asylum out of the law. Absurdly, that came at a time when gender-based persecution has become endemic throughout the world!
Not surprisingly, the DOJ, a prosecutorial agency at heart, is most often interested in “litigation strategies” to make it easier for the Government to successfully defend the burgeoning immigration litigation in Federal Court, rather than guaranteeing justice for asylum seekers and other migrants. Quite ironically, what would really reduce the volume of civil immigration litigation is more practical, expert decision making from better qualified Immigration Judges at the “retail level” of the system.
Gimmicks to “game” the Federal Court system against asylum seekers and other migrants by skirting due process and fundamental fairness have actually contributed to, rather than reduced, the amount of civil immigration litigation the Circuits. It has also generated many avoidable “Circuit conflicts” that require attention on Supremes’ limited docket. The failure of the DOJ, the Immigration Courts, and the Federal Courts to recognize and protect the due process rights of asylum seekers and other migrants has directly carried over into the failure of our justice system to achieve equal justice under law for racial minorities.
“Institutionalized racism” is inextricably linked to “Dred Scottification” of migrants of color in the Immigration Courts! The Biden Administration can’t solve the former without addressing the latter!
Bad judging and skewed policies on the “retail level” create multiple problems that adversely affect the entire Federal Justice system. I guarantee that they will not be solved by more restrictionist gimmicks and and unduly narrow and tone-deaf interpretations by judges and policy officials who lack the necessary expertise in immigration and human rights laws and the real-life understanding and perspective of the human consequences of the choices that judges make on a daily basis.
But, I also think that in addition to better judges, it is important to revise the statutory language to make it more explicitly inclusive and clarify that gender-based asylum, family based asylum, and other protected groups are examples, but not limits, of those covered by “particular social group.” Also, the statute should reverse the BIA’s stilted restrictionist interpretations (all too often incorrectly given “deference” by Circuit Courts shirking their duty) of “nexus” as a vehicle to deny asylum rather than an expansive concept that can and should be used to extend life-saving protections where necessary.
Otherwise, as Trump, Sessions, Barr, and Miller demonstrated, needed protection becomes largely a matter of who is appointing the judges at any particular point in time. Protection must and should be more durable — for all refugees including, but not limited, to those seeking gender-based protection!
Better Federal Judges are the beginning, but by no means the end, of what is needed to make due process, fundamental fairness, and genuine refugee protections the hallmarks of American law. They are also required to turn institutionalized racism into equal justice for all persons in America, regardless of race, religion, gender, or other defining personal characteristics.
🇺🇸⚖️🗽Due Process Forever! Asylum Laws Must Protect, Not Reject!🧑🏽⚖️🛡
