"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
With perhaps the largest “talent pool” ever available to a Dem President, guess I’m not the only one to wonder about the source of some of the “talent” the Biden Administration relies upon, particularly in the “make or break” areas of immigration, human rights, due process, and racial justice! PHOTO: Thomas Hawk Creative Commons Amateur Night
Multiple House Democrats have expressed anger and frustration over President Biden’s decision to sign a resolution ending a Washington, D.C., crime bill, after they were led to believe he would veto the resolution and protect the bill.
According to The Hill, some of these Democratic Party lawmakers are so outraged over Biden’s decision that they’ve resorted to blasting the White House in expletive-laden epithets. One told the outlet that this is “F—ING AMATEUR HOUR.”
The same lawmaker claimed that the White House “f—ed this up royally.” Others said Biden’s decision was “disappointing.”
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You can read the full report at the link.
Those of us trying to get the Biden Administration to live up to its promises, follow basic asylum law, respect due process for asylum seekers and other immigrants, end the scofflaw rejection of legal asylum seekers at the border, and reform the most important Federal Court system totally under the Administration’s control — the dysfunctional “Trump weaponized” U.S. Immigration Courts — feel your pain and frustration!🤯
Led by a notorious insurrectionist, GOP cortège, in full regalia, heads into border battle against I-589-carrying “invaders” determined to exercise their rights under U.S. and international law. “Desperate people of color trying to do things the right way and threatening to invoke legal rights are the single greatest threat today to White Nationalist America,” said one cortège member! “Those seeking to use our laws as they were intended to gain the protection we promised, and then scheming to work hard, pay taxes, provide services, innovate, raise their families, enrich our culture, and contribute to the common good are an existential threat to American exceptionalism,” said one of the beclowned troupe! PHOTO: Public Domain
House Republicans, led by loudest maniac Jim Jordan, had high hopes of stealing some of President Joe Biden’s thunder after his historic surprise trip to Kyiv, Ukraine. “Oh, yeah,” you could hear them squeaking. “We’ll show him.” So in the best tradition of nativist, isolationist know-nothingism, they headed for the southern border to put on a show of hunting for the crisis of the hordes invading “our” country. What they got was … not that.
“As they rumbled along the entry port of San Luis, a dam along the Colorado River and more desolate sections of the U.S. border between Arizona and Mexico, though, their search came up empty,” a reporter on the scene described. “Hours later, immigration officials would spot a group crossing north, but it was long after Congress members had retired for the night.”
This was part of what they’re calling a “field hearing” by the House Judiciary Committee, explaining Jordan’s, ahem, leadership. (Seriously, they need to rethink having this guy as their mascot. Does anyone, could anyone, find this guy compelling?) The “convoy” included “more than a dozen congressional Republicans, a large contingent of staffers and a handful of reporters.” Having turned the trip into some kind of sick safari, the group thwarted their own goal.
“Jordan’s group was told that around 4,000 immigrants cross the U.S. border near Yuma each day, but its conspicuous presence thwarted the expedition’s goal of spotting immigrants attempting an unobtrusive entry.” You don’t say. They did spot a bus parked across the border, however. No one came out of it to make a run for the border.
No Democrats participated in what ranking committee Democrat Jerry Nadler called a “stunt hearing,” though he did say that some Democrats from the committee would go to the border next month to to “hear from the community and government officials on the ground.”
The big convoy also help put the lie to the GOP’s government spending obsession. This is the third trip to the border by some contingent of GOP House members in the new Congress, with Barely Speaker Kevin McCarthy having already gone to try to score points, as well as members of the Energy and Commerce Committee.
The Homeland Security Committee has what they’re calling a “border bootcamp” for Republican freshmen members, and the Oversight Committee has plans to go in the near future, too. That’s one way to stop illegal crossings: Just keep sending down convoys of GOP representatives to play border patrol.
All that’s pretty expensive. The GOP Judiciary Committee alone has requested $262,400 for travel this session. In 2022, with Democrats in charge of the committee, they spent $7,986.
When it comes to actual border policy rather than publicity and preening, they’ve got nothing. Or rather they’ve got an interparty fight, as Gabe Ortiz reported. Their first go at an immigration bill “was so extreme it derailed itself, after so-called moderates refused to sign on.”
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If the GOP were really serious about cutting wasteful spending, they could “ground” Jordan and his traveling White Nationalist circus!
Why would a Dem President curry favor for his border policies from an anti-democracy, White Nationalist, election-denying blowhard, eschewing the rule of law, human decency, and the expert advice of many who voted for him in the process? Got me on that one!
“The White House must be really proud of getting endorsements from guys like Jordan and Chad Wolf (a/k/a “Wolfman”),” one human rights wag reportedly quipped!
Democrats! Has there ever been a more frustrating party when it comes to human rights, backbone, and carrying out promises, not to mention using the brainpower and resources available to solve problems, rather than lamely “gimmicking” them? Honestly!🤯
In a (perhaps unexpectedly) shrewd move, House Judiciary Dems took a pass on this GOP clown show. It would be a good idea, however, for Dems to go to the border, without the Ringling Bros, Barnum & Bailey act, observe the human carnage caused by the wrong-headed (not to mention illegal) approach of the last two Administrations, and interact with some of those humans affected, including asylum seekers, local officials, residents, dedicated advocates, and NGO personnel. The latter two have been about the ONLY ones trying to uphold the rule of law and to inject some common sense and much needed humanity into this unnecessarily chaotic situation caused by our Government’s abandoning our legal and moral obligations toward those fleeing persecution — over two Administrations.
UNIVERSITY PARK, Pa. — Shoba Sivaprasad Wadhia, associate dean for Diversity, Equity, and Inclusion, Samuel Weiss Faculty Scholar, clinical professor of law, and director of the Center for Immigrants’ Rights Clinic at Penn State Law in University Park, will be appointed to the position of Civil Rights and Civil Liberties Officer (CRCL) in the Department of Homeland Security. This is a presidential appointment during which Wadhia will take a leave of absence from Penn State Law.
The Office for Civil Rights and Civil Liberties supports the Department of Homeland Security in providing security for the nation while “preserving individual liberty, fairness, and equality under the law.” CRCL also includes civil rights practices in the Department’s activities and takes step to advance them within the Department.
“This is a full circle moment for me,” said Wadhia, reflecting on her career as an immigration attorney, policy advocate where she engaged in legislative advocacy surrounding the creation of the Department of Homeland Security, and her work at Penn State where she teaches students about the role of federal agencies and the intersection of immigration and administrative law.
Victor Romero, interim dean of Penn State Law and the School of International Affairs, Maureen B. Cavanaugh Distinguished Faculty Scholar, and professor of law said, “We’re deeply proud of Shoba and all her accomplishments at Penn State Law, and we’re excited to see what she achieves in her new position as the Civil Rights and Civil Liberties Officer. She’s a shining example of excellence and leadership in the legal community. We wish her the best of luck during her appointment and eagerly wait for her to share her experiences with the students at Penn State Law upon her return.”
Wadhia looks forward to bringing her experience as CRCL Officer back to the classroom and sharing her work in Diversity, Equity and Inclusion, and contributions more broadly to Penn State Law and beyond. Her teaching courses include Asylum and Refugee Law, Center for Immigrants’ Rights Clinic, Immigration Law, and Law and (In)equity.
“Bringing back my experience at DHS will help me enrich the classroom experience for my students and broaden my lens on the internal work of agencies, and how institutions can respond or reform issues through an equity lens,” said Wadhia.
Her work has been published in numerous law journals, including Duke Law Journal, Emory Law Journal, Texas Law Review, Washington and Lee Law Review, Harvard Latino Law Review, Administrative Law Review, Howard Law Journal, Georgetown Immigration Law Journal, and Columbia Journal of Race and Law.
Wadhia is the founder and director of the Center for Immigrants’ Rights Clinic (CIRC), which has earned a national reputation for its high-quality work product and impact in the community. CIRC was honored with the Excellence in Legal Advocacy Award in 2017 by the American-Arab Anti-Discrimination Committee and named legal organization of the year in 2019 by the Pennsylvania Immigration Resource Center.
Prior to joining Penn State, Wadhia was deputy director for legal affairs at the National Immigration Forum in Washington, D.C., where she provided legal and policy expertise on multiple legislative efforts, including the creation of the Department of Homeland Security, comprehensive immigration reform, immigration enforcement, and immigration policy post 9-11. Wadhia has also been an associate with the immigration law firm Maggio Kattar of P.C. in Washington, D.C., where she represented individuals and families in asylum, deportation, family, and employment-based immigration. She is a 1999 graduate of Georgetown University Law Center.
LAST UPDATED MARCH 1, 2023
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Many congrats, Shoba, and thanks for taking on this important challenge! Like your PSU Law colleagues, we’re all proud of you!
As one member of our Round Table quipped upon hearing the great news about Shoba: “Love Shoba! And then for comparison, look at who EOIR has running its agency.”
All the best to you in your new position, Shoba! And, thanks again for doing this for the cause of justice in America!
“Juana,” a client of the Asylum & Convention Against Torture Clinic and Annunciation House in Texas, after she won asylum and was released from detention in spring 2019.
Asylum and Convention Against Torture Appellate Clinic Celebrates 20th Anniversary
February 17, 2023
Twenty years ago, Cornell Law School established its Asylum and Convention Against Torture Appellate Clinic. Since then, some 200 students have represented close to 100 clients. In a system where the vast majority of asylum seekers lose their appeals, the clinic has won an estimated sixty-six percent of its cases.
“Because of the complexity of immigration law, it is very hard to win asylum for someone,” says clinic codirector Stephen Yale-Loehr, professor of Immigration Law Practice. “We are fortunate that we have excellent students who work tirelessly to save their clients from persecution or torture.”
Emily Rivera ’23, who is taking the clinic for a second year, writes, “This has been the most rewarding experience of my law school career. From working on federal court appeals to submitting request releases on behalf of detained clients, I have had the chance to engage in work that I am deeply passionate about.”
The experience has inspired careers in immigration law—and also deeply informed alumni’s work in other areas. Neethu Putta ’19, who took the clinic for two years as a student and now contributes to its work as an adjunct professor, observes, “The clinic taught me how to artfully frame issues and tell a client’s narrative in a way that leaves the court no choice but to find for them. As a practicing commercial litigator, I now use those skills daily.”
Clinic codirector Estelle McKee, clinical professor of law (Lawyering), notes that the clinic offers students a unique glimpse into the lives of individuals whose paths they would otherwise never cross. “Our clients are brave; many have undergone unspeakable persecution and torture, and have embarked on treacherous journeys to protect their families,” she says. “Their experiences and persistence offer students deep insight into the importance of zealous advocacy.”
McKee shares some comments sent to her by clinic clients. A Salvadoran asylum-seeker wrote, “I sincerely want to thank you for all your willingness, commitment, responsibility, and the respect with which you offer me your help. Few people do what you did for me, so I will be forever grateful to you.” [translated from Spanish]
Another reflection comes from a Cameroonian client who had been found “not credible” by an immigration judge and was ailing in a for-profit prison when the clinic took up his case. Against the odds, McKee and her students were able to get the case reopened and will represent this asylum-seeker as he returns to court. He says, “I continue to appreciate your care and concern and effort to my case… [Y]ou have really been a blessing to me… I will never forget you.”
For the professors as well, the experience has been unforgettable. Says Yale-Loehr, “The clinic has been a highlight of my legal career. I feel honored to have worked with so many excellent students over the years to help persecuted people win asylum and start a new life in the US.”
McKee adds, “There is nothing like clinical teaching. Not only does it present the opportunity to provide the representation so desperately needed by underserved populations, but it also enables a teacher to help shape the next generation of lawyers while also having an impact on the development of the law.”
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Clinical education has been the biggest development in modern legal education — applied scholarship, practical skills, changing lives, problem solving, and developing the law, all before students join the bar! No better way to learn than at the chaotic, high-stakes “retail level” of our justice system. As I often tell students, “If you can win one of these cases, in this environment, everything else in law and many of the challenges of life will be a piece of cake!”
Immigration and human rights clinics, like Cornell and many others, have been at the very forefront of innovation and the clinical teaching movement. That’s why many of the “superstars” of clinical teaching are now being “tapped” by their institutions for leadership positions as Deans, Associate Deans, Assistant Deans, etc.
Where U.S. law remains “behind the eight ball:” Bringing these extraordinarily well-qualified “practical scholars,” leaders, and administrators onto the Federal Bench and in key leadership positions within the Government’s struggling legal bureaucracy, particularly in the dysfunctional agencies responsible for immigration, human rights, racial justice, due process, and equal justice. And, what passes for “policy making” on these issues in the Biden Administration is nothing short of a preventable and embarrassing humanitarian disaster!
Nowhere is this glaring disparity more obvious than between the dynamic talent and creativity in the private sector and the “backward looking, stuck in a rut, timid, uninspired” leadership inflicted on the public by these downward-spiraling, hugely wasteful and inefficient USG bureaucracies and the poorly-conceived and too often disingenuous “policies” (actually cruel “recycled Stephen Miller Lite gimmicks”) coming out of the West Wing!
🇺🇸 America needs change. And that requires some new faces, courage, innovation, and better solutions from the USG!The talent is available! Why are we being subjected to “Amateur Night at the Bijou” — or worse?
The Biden Administration has looked in some mighty strange places to assemble its amazingly inept human rights/immigration team. Why didn’t they try clinical programs and NGOs where the “real talent” is? That’s a question that the ghosts of dead and damaged legal asylum seekers might be asking for a long time to come! PHOTO: Thomas Hawk Creative Commons Amateur Night
“Good enough for government work” might be the mantra for Garland’s EOIR — but, it doesn’t ‘cut it’ with Article III Courts, even the conservative, non-immigrant-friendly 5th Circuit!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
Dan Kowalski reports for LexisNexis Immigration Community:
“Francis Zamaro-Silverio petitions for review of the denial by the Board of Immigration Appeals (“BIA”) of cancellation of removal and voluntary departure. The BIA held that Zamaro-Silverio had been convicted of a crime involving moral turpitude (“CIMT”) and thus found her ineligible for those forms of discretionary relief. Because the BIA did not perform the proper analysis, we grant review, vacate, and remand for determination of whether Zamaro-Silverio’s conviction was for a CIMT. … The BIA found that Garcia-Maldonado controlled the outcome for Zamaro-Silverio. But in the wake of Mathis, that analysis is incorrect. The proper focus is now on the minimum conduct prohibited by the statute, not on Zamaro-Silverio’s particular actions. The minimum conduct that can trigger liability under ZamaroSilverio’s statute of conviction is the failure to remain at the scene of the accident and provide one’s name and other information. See Tex. Transp. Code § 550.021(a)(4). Thus, Zamaro-Silverio’s deportability hinges on whether failure to share information is a CIMT. Villegas-Sarabia, 874 F.3d at 877. Garcia-Maldonado does not reach this question, and, similarly, the BIA did not answer it. Given that “our ordinary rule is to remand to ‘giv[e] the BIA the opportunity to address the matter in the first instance in light of its own expertise,’” we go no further. Negusie, 555 U.S. at 517 (quoting Orlando Ventura, 537 U.S. at 17) (alteration in original). Therefore, the petition for review is GRANTED. We VACATE and REMAND to the BIA with instruction to determine whether the failure to share information under § 550.021(a)(4) is a CIMT.”
The Fifth Circuit precedent that the BIA failed to apply here, Villegas-Sarabia v. Sessions, 874 F.3d 871, 877 (5th Cir. 2017), was issued in 2017, before this respondent was even convicted. Yet, the BIA erroneously applied the pre-2017 version of Circuit law to deny her application. How is this competent adjudication from what is supposed to be a “specialized court” of expert adjudicators?
Remarkably, the BIA was even given a chance to correct its obvious error through a motion to reconsider filed while this petition for review was pending with the Circuit. Astoundingly, the BIA denied the motion to reconsider and “stuck with” a decision that violated Circuit precedent. What a way to (not) “run the railroad.”🚂
The Fifth Circuit panel in this case, Judge Jerry E. Smith (Reagan) (opinion), Judge Edith Brown Clement (Bush II), and Judge Cory T. Wilson (Trump) are all GOP appointees, among the most conservative Federal Judges in America — right out of “The Federalist Society Hall of Fame!”
Even the most far-right GOP Federal Judges have a “bottom line” that the BIA can’t manage to remain above.
Somewhat ironically, Dem Attorney General Merrick Garland, once nominated for the Supremes by President Barack Obama, appears to have no such bottom line for the BIA’s sloppy, unprofessional “any reason to say no and deny” judging! Unfortunately, it’s symptomatic for a Dem Administration that just doesn’t care very much when it comes to due process, fundamental fairness, and justice for migrants! Garland’s tolerance for bad judging is also clogging the Circuit Courts with unnecessary litigation generated by the BIA’s substandard performance!
Although he famously has reassigned most of the “high profile” work of the DOJ to various “Special Counsel,” curiously, Dem AG Merrick Garland, a former Article III Judge, doesn’t seem to have the time or the skills to fix the festering due process, bias, quality control, and professionalism problems in “his” wholly-owned “court” system — EOIR! So, the systemic injustice and chaos continue, unabated! PHOTO: Wikipedia Commons
When Judge Jerry E. Smith and his colleagues have the integrity to stand up for the legal rights of a respondent, even one who has committed a crime, but a Democratic AG doesn’t have the courage to bring fair and professional judging and quality control to EOIR (after two years on the job), progressives and advocates ought to be asking what the heck they voted for in 2020? I doubt that it was this awful, entirely preventable, mess!
Asylum seekers must wait for appointments in U.S. for everyone, or leave some behind.
By Andrea Castillo
WASHINGTON — Inside a tent near the Rio Grande in Matamoros, Mexico, Jeyson woke up before 3 a.m. every day for a month to fill out applications to request asylum for his family of four through a U.S. government mobile app.
The 25-year-old from Venezuela eventually secured appointments for himself and his wife, but the slots filled up so quickly that he couldn’t get two more for their children. They weren’t worried, though — they had heard about families in similar situations being waved through by border officials.
Instead, he said, a U.S. Customs and Border Protection agent told them recently that because each member of the family did not have an appointment, “you two can enter, but not your children.” Jeyson asked The Times to withhold his last name out of fear for his family’s safety.
Now, many families like Jeyson’s have found themselves confronted with a seemingly impossible decision: Wait indefinitely for enough appointments for the whole family, or split up. It is unclear how many migrants have been put in this position.
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“We already risked it all,” he said. “What can we do? We are hopeful that we can get three appointments. Three, in the end, is less than four.”
Advocates said some parents have decided to leave their children with extended family or friends in order to keep their appointments.
Jeyson said a couple from his encampment did just that, leaving their five children at the border bridge and entering the U.S. after managing to get only two appointments.
Children who are unaccompanied by a parent are exempt from Title 42. Those in the care of adults who are not their legal guardians — even if they are extended family — are separated until a guardian can be properly vetted. Jeyson said he watched as the children walked up to a border agent and were taken into custody.
Felicia Rangel-Samponaro, director of the Sidewalk School, a nonprofit that offers education, medical care and other assistance to migrants in Mexican border towns, has organized sessions with parents at various shelters and encampments in Matamoros and Reynosa to explain what will happen if they send their child across the border unaccompanied.
“We don’t want them to think you cross and then your child crosses and will come back to you a day later,” she said. “We were surrounded by parents who were showing us, one after the other, [who] have an appointment but their child does not.”
Rangel-Samponaro recommended to parents that they cancel their appointments and restart their search. But some parents told her they would separate from their kids anyway.
“Family separation has never stopped,” she said, referencing the Trump administration’s “zero tolerance” border policy that led to thousands of migrant children being taken from their parents. “The only difference here is that CBP One is now doing it instead of the other ways it’s been done since 2018.”
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Read Andrea’s complete article at the link.
Let’s start with one undisputed fact: The number of appointments available on CBP One is pathetically, ridiculously inadequate for the KNOWN number of potential applicants waiting in Mexico! Why would this be after the Administration has had over two years to work on this perhaps challenging, yet very solvable problem?
Unnecessary delay is just another form of “bureaucratic deterrence through incompetence” used by the Trump Administration and, inexcusably, continued under Biden.
Just how bonkers is this DHS-created problem? Dependents are included on a primary asylum seeker’s application. Consequently, in most cases one application covers the entire family.
And, dependents don’t have to “prove” independent eligibility for asylum. Therefore, anything beyond biographical information and perhaps proof of relationship is unnecessary.
There is absolutely no reason for requiring a separate “appointment” for each family member. The current system is “pure harassment and deterrence through bureaucratic incompetence.”
In Immigration Court, a family of five required only ONE asylum hearing slot — NOT FIVE!
Most legal asylum seekers at the border want to “do things the right way” — present themselves to DHS and submit an application. It’s neither profound nor “illegal.”
The BEST way of getting applicants to use the ports of entry is to work with experts and NGOs to establish a user-friendly, generous, timely system that prioritizes the many strong claims and grants them promptly at the Asylum Office rather than feeding them into a backlogged and dysfunctional EOIR.
In other words, if you BUILD a fair, credible, user-friendly legal application system at legal ports of entry, applicants will USE it. That the Trump White Nationalists destroyed our legal, statutory refugee and asylum systems was well-known at the time. Indeed, Biden and Harris campaigned on a pledge fix the system and restore legal asylum!
Instead, the Administration failed to utilize the skills and experience of experts to have a planned fix ready on “day one.” Since then, over more than two years, they have inexplicably ignored expert advice, wasted time, squandered resources, and bobbled through a bewilderingseries of mindless “Stephen Miller Lite deterrence gimmicks,” including “dedicated dockets,” prioritizing the wrong cases, “Aimless Docket Reshuffling” on steroids, a“Miller Lite holdover” BIA known for hostility to asylum seekers, ignoring the need for pro bono representation, failing to train and deploy enough Asylum Officers to the border, and not working with advocates, NGOs, and asylum seekers to prescreen cases, start granting asylum and moving qualified refugees (and their families) through the system and into durable legal status prior to the lifting of Title 42.
The CBP One screwup is just the latest in a string of “unforced errors” by the Biden Administration that abuse asylum seekers without any systemic benefits to anyone — “random acts of cruelty and stupidity!” This app was obviously designed by non-users for use by USG “gatekeepers” without any idea of what its like to be an asylum seeker stuck in Mexico.
Indeed, it appears that the app’s developers have little idea of how the legal asylum system works. Talk about “amateur night at the Bijou!”
Perhaps, the Biden Administration should have used a different method for selecting the so-called “developers” of their failed “CBP One App!” PHOTO: Thomas Hawk Creative Commons Amateur Night
“Family separation” has never stopped; now it has been“automated” — by a Dem Administration that has abandoned humanity and betrayed its campaign promises! Inexcusable!
“I’m gone, but my ‘evil spirit’ lives on in the West Wing! They have even ‘one-upped’’ me with a ‘family separation app’ called CBP One! Never has inflicting gratuitous cruelty been so easy!” Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
The Biden proposal has picked up somewhat tepid endorsements from the likes of Trumpsters DHS official Chad Wolf and leading GOP insurrectionist Rep. Jim Jordan (R-OH). Tells you all you really need to know about just how cruel and counterproductive these harebrained proposals are!
These are the folks that the Biden administration is pandering to while ignoring and disrespecting experts and asylum advocates who have centuries of collective experience working on asylum and the border. They also have plenty of good ideas for real asylum/human rights/border reforms that will combat cruelty and promote orderly compliance with the rule of law. The Biden Administration just isn’t interested in, or perhaps capable of, “doing the right thing.”
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Here’s the text of my “custom revision” of the standard comment posted on the website:
I am a retired US DOJ attorneywith more than 35 years ofgovernment experience, all of it in the immigration field, mostly in senior positions. I have been involved in immigration and human rights, in the public and private sectors, for five decades
My last 21 years were spent as an EOIR Judge: eight years as an Appellate Immigration Judge on the BIA (six of those years as BIA Chair), and 13 years as an Immigration Judge at the (now legacy) Arlington Immigration Court. I was involved in the enactment of the Refugee Act of 1980 as well as developing implementing regulations and setting precedents thereunder.
I state unequivocally that these unnecessary proposed regulatory changes are a disavowal of more than four decades of U.S. (and international) asylum law as well as a shocking betrayal of the promise by the Biden Administration to stand up for the rights of legal asylum seekers and end the White Nationalist attempt by the Trump Administration to kill asylum without legislation.
The proposed rule is contrary to well-established United States law regarding the right to seek asylum in our country. There is absolutely no basis in law for the proposed “presumption of denial” for those who seek asylum outside a port of entry or who have transited other countries (as most have) without seeking asylum.
Indeed, the Administration’s approach is in direct contravention of the INA, which establishes rigorous criteria for designating “safe third countries” for asylum seekers. Only Canada has met those rigorous criteria to date, and even then only for a very limited class of applicants.
The idea that Mexico or other countries in Central America that asylum seekers customarily transit on the way to our southern border are “safe havens” for asylum seekers is patently absurd and counterfactual! Indeed, all legitimate experts would say that these are some of the most dangerous countries in the world — none with a fairly functioning asylum system.
Individuals are specifically entitled by the RefugeeAct of 1980, as amended, to access our asylum system regardless of how they enter, as has been the law for decades. They should not be forced to seek asylum in transit to the United States, especially not in countries where they may also face harm. The ending of Title 42—itself an illegal policy—should not be used as an excuse to resurrect Trump-era categorical bans on groups of asylum seekers.
As you must be aware, those policies were designed by xenophobic, White Nationalist, restrictionists in the last Administration motivated by a desire to exclude and discriminate against particular ethnic and racial groups. That the Biden Administration would retain and even enhance some of them, while disingenuously claiming to be “saving asylum,” is beyond astounding.
The rule will also cause confusion at ports of entry and cause chaos and exacerbate backlogs in our immigration courts. Even worse, it will aggravate the already unacceptable situation by making it virtually impossible for most asylum seekers to consult with pro bono counsel before their cases are summarily rejected under these flawed regulations.
People who cannot access the CBP One app are at serious risk of being turned away by CBP, even if the rule says otherwise. Additionally, every observer has noted that the number of “available appointments” is woefully inadequate. In many cases, observers have noted that this leads to “automated family separation.” Rather than fixing these problems, these proposed regulations will make things infinitely worse.
Additionally, as was demonstrated by the previous Trump Transit Ban, the rule is likely to create confusion and additional backlogs at the immigration courts as individual judges attempt to apply a complicated, convoluted rule.
Under the law, the U.S. Government has a very straightforward obligation: To provide asylum seekers at the border and elsewhere, regardless of nationality, status, or manner of coming to the U.S., with a fair, timely, opportunity to apply for asylum and other legal protections before an impartial, expert, adjudicator.
The current system clearly does not do that. Indeed,EOIR suffers from an “anti-asylum,” often misogynist “culture,” lacks precedents recognizing recurring asylum situations at the border (particularly those relating to gender-based persecution), and tolerates judges at both levels who lack asylum expertise, are not committed to due process and fundamental fairness for all, and, far from being experts, often make mistakes in applying basic legal standards and properly evaluating evidence of record, as noted in a constant flow of “reversals and rebukes” from Circuit Courts.
We don’t need moremindless“deterrence” gimmicks. Rather, it’s pasttime for the Administration to reestablish a functioning asylum system.
🇺🇸Due Process Forever! The treachery of an Administration that abandons humane values, and fears bold humanitarian actions, never!
Heidi Altman Director of Policy National Immigrant Justice Center PHOTO: fcnl.orgRev. Craig Mousin Ombudsperson Refugee and Forced Migration Studies, Grace School of Applied Diplomacy DePaul University PHOTO: DePaul Website
FEBRUARY 23, 2023 CRAIG B. MOUSIN SEASON 1 EPISODE 34
Lawful Assembly Podcast
Episode 34: Support Humanitarian Asylum Welcome
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LAWFUL ASSEMBLY PODCAST
Episode 34: Support Humanitarian Asylum Welcome
FEB 23, 2023 SEASON 1 EPISODE 34
Craig B. Mousin
In this interview, Rev. Craig B. Mousin, an Adjunct Faculty member of DePaul University’s College of Law, Refugee and Forced Migration Studies Program, and the Grace School of Applied Diplomacy interviews Heidi Altman, the Policy Director of the National Immigrant Justice Center (www.immigrantjustice.org). Ms. Altman discusses a proposed rule that will effectively preclude most asylum-seekers from safely and effectively applying for asylum in the United States. She advocates for humanitarian asylum welcome. She previously served as the legal director for the Capital Area Immigrants’ Rights Coalition and was a Teaching Fellow in the immigration clinic at Georgetown University Law School.
ACTION STEPS
1. Invite friends and family to learn how the proposed rule will undermine refugee protection and encourage them to respond to their elected representatives and the Biden administration urging withdrawal of the proposed rule.
2. The Sanctuary Working Group of the Chicago Religious Leadership Network currently serves and advocates alongside newly arrived asylum seekers in the Chicagoland area. There are many impactful ways you can help asylum seekers, from providing sponsorship and temporary housing to covering legal fees and advocating for policy change. Interested individuals, faith communities, or organizations may contact CRLN staff/consultant David Fraccaro at davidfraccaro99@gmail.com to talk about ways to partner together in supporting and protecting our newest neighbors.
Craig Mousin volunteers with the National Immigrant Justice Center. We welcome your inquiries or suggestions for future podcasts. If you would like to ask more questions about our podcasts or comment, email us at: mission.depaul@gmail.com
Thanks, Craig and Heidi for a very interesting and informative session!
T. Swift. Loss of chance to attend her latest concert due to Ticketmaster SNAFU caused immediate bipartisan Congressional outrage and hearings! Loss of chance to plead for life because of DHS CBP One App SNAFU, not so much! Dehumanization of our fellow humans degrades our society. LOS ANGELES – Swift at 2019 iHeartRadio Music Awards on March 14, 2019 in Los Angeles, California. (Photo by Glenn Francis/Pacific Pro Digital Photography) Creative Commons License.
Here are “my takeaways:”
Asylum seekers have a legal right, established by the Refugee Act of 1980 and international conventions, to seek asylum at our border or in the U.S., regardless of status and/or nationality;
The Trump and Biden Administrations have abrogated this right without legislation;
The Trump Administration’s anti-asylum actions and intentional dehumanization of asylum seekers was rooted in White Nationalist nativism;
Despite recognition during the 2020 campaign of the invidious motivation for Trump’s anti-asylum policies, the Biden Administration has retained, or even enhanced, the dehumanization and denial of rights to asylum seekers at the border;
Over the past two Administrations, acceptance of the basic rights and obligations of the U.S. toward asylum seekers, incorporated in the Refugee Act of 1980, has been eliminated or reduced to a superficial “shell” (“asylum in name only,” as some advocates have termed Biden’s latest proposed anti-asylum border policies);
By abandoning the framework set forth in the Refugee Act of 1980, the Trump and Biden Administrations have re-injected the ad hoc approach,disorder, nationality bias, and ideological preferences at the border that the Refugee Act of 1980 was specifically enacted to eliminate;
There is much under-appreciated support for welcoming, fairly treating, and helping refugees and asylum seekers among Americans in communities throughout our nation;
NGOs and experts have dozens of great ideas for restoring and improving the legal right to seek asylum in fair, humane, non-discriminatory ways which they have shared or are happy to share with the Biden Administration;
The Biden Administration to date has shown little if any interest in adopting and implementing better humanitarian solutions for asylum seekers at the border;
Both parties lack leaders with the integrity and courage to stand up for the legal and human rights of asylum seekers;
We must continue to discuss ways to break the cycle of dehumanization, cruelty, and scofflaw treatment of asylum seekers and replace it with enhanced humanitarian procedures and a welcoming culture, in accordance with the Refugee Act of 1980, the U.N. Convention and Protocol, and the very best traditions of our nation of immigrants.
NEW YORK (The Borowitz Report)—Fox News Channel announced that it has completed its acquisition of the Speaker of the House, Kevin McCarthy.
Rupert Murdoch, the network’s majority owner, said that he was “delighted” by the purchase of McCarthy and noted that Fox had snapped him up at an attractively low price.
“It helped that there were no other bidders,” he said.
But, even as Fox moved McCarthy onto its corporate ledger, some Wall Street analysts predicted that the network would rue the day that it acquired the congressman.
“Kevin McCarthy will be Rupert Murdoch’s worst investment since MySpace,” one analyst said.
Legal asylum seekers from Central America might have thought that cruelty, illegality, and stupidity went out with the Trump Administration. They were wrong! Now Biden proposes to lawlessly “presume denial” of asylum — with no legal basis — and dump legal asylum seekers of color from his “disfavored nations” back into Mexico, whose asylum system is dysfunctional and where abusive treatment of asylum seekers has been well documented and recognized by a Federal Court! Women suffering from gender-based persecution are particular targets of this Administration’s campaign against humanity! Artist: Monte Wolverton Reproduced under license
Many groups issued immediate statements of outrage and protest at this cruel, lawless, and intellectually dishonest betrayal! I set forth two of them here:
From the American Immigration Council:
PRESS RELEASE
Department of Justice and Department of Homeland Security Release Details of Dangerous New Asylum Transit Ban
WASHINGTON, Feb. 21, 2023—Today, the U.S. Department of Justice and the U.S. Department of Homeland Security released a Notice of Proposed Rulemaking (NPRM) that will implement a new asylum transit ban—one of the most restrictive border control measures to date under any president. The policy will penalize asylum seekers who cross the border irregularly or fail to apply for protection in other nations they transit through on their way to the United States.
As described in the NPRM, the proposed asylum transit ban rule would all but bar asylum for any non-Mexican who crosses the U.S.-Mexico border between ports of entry, unless they had previously applied for—and been denied—asylum in another country before arrival.
Specifically:
The rule would apply to all non-Mexican migrants (except unaccompanied minors) who had not been pre-approved under one of the Biden administration’s parole programs, which are currently open only to certain nationals of 5 countries; pre-register at a port of entry via CBP One or a similar scheduling system (or arrive at a port of entry and demonstrate they could not access the system); or get rejected for asylum in a transit country.
During an asylum seeker’s initial screening interview with an asylum officer, the officer will determine whether the new rule applies to them. If so, they will fail their credible fear screening unless they can demonstrate they were subject to an exception such as a medical emergency, severe human trafficking, or imminent danger—which would “rebut the presumption” of ineligibility.
Migrants subject to the rule, who do not meet the exceptions above, would be held to a higher standard of screening than is typically used for asylum (“reasonable fear”). If a migrant meets that standard, they will be allowed to apply for asylum before an immigration judge—although the text of the proposed regulation is unclear on whether they would actually be eligible to be granted asylum.
Migrants who do not meet the credible or reasonable fear standard can request review of the fear screening process in front of an immigration judge.
Once the regulation is formally published in the Federal Register, the public will have 30 days to comment on the proposal. The administration is legally required to consider and respond to all comments submitted during this period before publishing the final rule, which itself must precede implementing the policy. Given the Biden administration’s expectation that the new rule will be in place for the expiration of the national COVID-19 emergency on May 11, and the potential end of the Title 42 border expulsion policy at that time, the timeline raises substantial concerns that the administration will not fulfill its obligation to seriously consider all comments submitted by the public before the rule is finalized.
Furthermore, the sunset date for the new rule, two years after it becomes effective, is after the end of the current presidential term—making it impossible to guarantee it will not be extended indefinitely.
In 2020, a Ninth Circuit Court of Appeals panel blocked the Trump administration’s asylum transit ban from being applied to thousands of asylum seekers who were unlawfully prevented from accessing the U.S. asylum process. The ban was later vacated by the D.C. District Court.
The American Immigration Council was a part of the Al Otro Lado v. Wolf class action lawsuit on behalf of individual asylum seekers and the legal services organization Al Otro Lado (AOL), which challenged the legality of the previous asylum transit ban as applied to asylum seekers who had been turned back at the U.S.-Mexico border.
Jeremy Robbins Executive Director American Immigration Council PHOTO: AIC websitel
The following statement is from Jeremy Robbins, Executive Director, The American Immigration Council:
“President Biden committed to restoring access to asylum while on the campaign trail, but today’s proposal is a clear embrace of Trump-style crackdowns on asylum seekers, many of whom are fleeing from globally recognized oppressive regimes. For over four decades, U.S. law has allowed any person in the United States to apply for asylum no matter how they got here. The new proposed rule would all but destroy that promise, by largely reinstating prior asylum bans that were found to be illegal.
“Not only is the new asylum transit ban illegal and immoral, if put into place as proposed, it would create unnecessary barriers to protection that will put the lives of asylum seekers at risk. While the rule purports to be temporary, the precedent it sets—for this president or future presidents—could easily become permanent.
“For generations, the United States has offered a promise that any person fleeing persecution and harm in their home countries could seek asylum, regardless of how they enter the United States. Today’s actions break from his prior promises and threaten a return to some of the most harmful asylum policies of his predecessor—possibly forever.”
###
For more information, contact:
Brianna Dimas 202-507-7557 bdimas@immcouncil.org
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From the Lutheran Immigration & Refugee Services:
FOR IMMEDIATE RELEASE
February 21, 2022
Contact: Tim Young | tyoung@lirs.org
Washington, D.C. – In preparation for the end of Title 42 asylum restrictions, the Biden administration announced a new proposed rule severely limiting asylum eligibility for those who did not first seek protection in a country they transited through to reach the United States, or who entered without notifying a border agent. The proposed rule will be subject to a 30-day period of public comment before it can take effect.
The new rule mirrors a transit asylum ban first implemented under the Trump administration, which was ultimately struck down by federal judges in multiplecourts. The Immigration and Nationality Act (INA) provides that people seeking protection may apply for asylum regardless of manner of entry, and does not require them to have first applied for protection in another country.
Krish O’Mara Vignarajah CEO Lutheran Immigrantion & Refugee Service
In response to the proposed asylum eligibility rule, Krish O’Mara Vignarajah, President and CEO of Lutheran Immigration and Refugee Service, said:
“This rule reaches into the dustbin of history to resurrect one of the most harmful and illegal anti-asylum policies of the Trump administration. This transit ban defies decades of humanitarian protections enshrined in U.S. law and international agreements, and flagrantly violates President Biden’s own campaign promises to restore asylum. Requiring persecuted people to first seek protection in countries with no functioning asylum systems themselves is a ludicrous and life-threatening proposal.
While the Biden administration has launched a smartphone app for asylum appointments and expanded a temporary parole option for an extremely limited subset of four nationalities, these measures are no substitute for the legal right to seek asylum, regardless of manner of entry. It is generally the most vulnerable asylum seekers who are least likely to be able to navigate a complex app plagued by technical issues, language barriers, and overwhelming demand. Many families face immediate danger and cannot afford to wait for months on end in their country of persecution. To penalize them for making the lifesaving decision to seek safety at our border flies in the face of core American values.
We urge the Biden administration to reverse course before this misguided rule denies protection to those most in need of it. Officials must recognize that decades of deterrence-based policies have had little to no impact in suppressing migration. Instead, they should focus on managing migration humanely through expanded parole programs, efficient refugee processing in the hemisphere, and an equitably accessible asylum system.”
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Lest anyone believe the absolute BS coming from the Biden Administration that they “had no choice” and that this “wasn’t the choice they wanted,” here’s an article setting forth the many southern border solutions that the Administration ignored or was too incompetent to carry out in their dishonest, immoral pursuit of the anti-asylum “vision” of Stephen Miller and other White Nationalists.
💡💡”There’s many things Biden could do. We published a resource called “Forty-Two Border Solutions That Are Not Title 42.” We could have done 142,” says immigration expert Danilo Zak in The Border Chronicle! The Biden Administration has ignored, failed, or is prepared to shrug off most of them!🤯
Danilo Zak Associate Director of Policy and Advocacy Church World Service PHOTO: The Border Chronicle
Zak was interviewed by Melissa Del Bosque of The Border Chronicle:
There are many changes that the Biden administration and Congress could make to alleviate suffering at the southern border. Immigration policy expert Danilo Zak recently published a report that offers several solutions, from rebuilding the refugee resettlement program to expanding nonimmigrant work visas to more countries in the Western Hemisphere.
Zak, formerly of the National Immigration Forum, is Associate Director of Policy and Advocacy for the nonprofit Church World Service. He spoke with The Border Chronicle about the increase of forcibly displaced people in the Western Hemisphere and the current situation at the border. “For many, there is no line to get into—no ‘right way’ to come to the U.S.,” Zak says.
Melissa Del Bosque Border Reporter PHOTO: Melissadelbosque.com
Notably, better, more robust, use of Refugee Programs established by the Refugee Act of 1980 is among Zak’s “top three.” This is something that I have been “touting” since Biden was elected, but where the Administration has failed to meet the challenge.
And, contrary to what the Administration and others might say, there is nothing unachievable about using refugee programs to deal with emergency humanitarian situations. Also, with respect to cases taking forever to process, no need for that nonsense. It’s a matter of poor bureaucratic execution rather than a defect in the legal authority.
The Refugee Act of 1980 (“RA 80”) is basically a modified version of the “emergency parole, resettle with NGOs, and petition Congress to adjust status” that was used on an ad hoc basis to resettle Indochinese refugees and others on an emergency basis prior to the RA 80. Except, that the criteria, resettlement mechanisms, and adjustment process were all “built in” to the statute. Consequently, although Congress was to be consulted in advance, that process was designed to run smoothly, efficiently, and on an emergency basis if necessary.
While “Congress bashing” is now a favorite pastime of the Executive, Judiciary, and media, in 1980 Congress actually provided a mechanism to regularize the processing of type of refugee flows now facing the U.S. The statutory flexibility and the legal tools to deal with these situations are in RA 80.
A subsequent Congress even added the “expedited removal” and “credible fear” process so that initial asylum screening could be conducted by expert Asylum Officers at or near the border and those “screened out” would be subject to expeditedremoval without full hearings in Immigration Court. Clearly, there was never a need for the Title 42 nonsense for any competent Administration.
Basically, if an Administration can run a large-scale parole program, which the Biden Administration did for Afghanistan and is doing now for Cuba, Nicaragua, Venezuela, and Haiti, it can run a legal refugee program beyond our borders, even in a “country in crisis” if necessary.
The idea that a statutory scheme specifically designed to have the flexibility deal with future mass refugee situations couldn’t be used to deal with the current humanitarian situation in the Western Hemisphere is pure poppycock!
Also unadulterated BS: The Biden Administration’s proposal to make the “end of asylum” at the southern border “temporary,” for two years! In 2025, the Biden Administration might not even be in office. If there is a GOP Administration, you can be sure that the demise of asylum at the border will become permanent, with or without legislation.
Also, what would be an Administration’s rationale for resuming asylum processing at the southern border in two years. Surely, there will be some other “bogus border crisis” cooked up to extend the bars. And, if there is no such crisis, the claim will be that the bars are “working as intended” so what’s the rationale for terminating them.
The argument that complying with the law by fairly processing asylum seekers regardless of race, ethnicity, religion, or manner of arrival, as the law requires, might actually encourage people to apply for protection will always be there — hanging over cowardly politicos afraid of the consequences of granting protection. Fact is, the current Administration has so little belief in our legal system and their own ability to operate within in, and so little concern for the human lives involved, that they are scared to death of failure. That’s not likely to change in two years — or ever!
“Any reason to deny, any reason to deny, any reason to deny, any reason to deny, any reason to deny, any reason to deny, any reason to deny . . . .” https://www.flickr.com/photos/rasputin243/ Creative Commons License
Dan Kowalski reports for LexisNexis Immigration Community:
“For decades, the authoritarian regime in Cuba has utilized its police force to intimidate and physically assault political dissidents and peaceful demonstrators throughout the island. Ignacio Balaez Serra, a Cuban immigrant seeking asylum in the United States, maintains he experienced this abuse first-hand after multiple arrests, imprisonments, and beatings by the Cuban police. Serra seeks review of the Board of Immigration Appeals’ (“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of Serra’s application for asylum, withholding of removal under the Immigration and Nationality Act (“INA”), and relief under the United Nations Convention Against Torture and Other Cruel Inhumane or Degrading Treatment or Punishment (“CAT”) (together, “Application”). The IJ denied Serra’s Application, finding Serra’s testimony “not credible.” In reaching this adverse credibility determination, the IJ cited two inconsistencies between Serra’s hearing testimony and Application. The first purported inconsistency dealt with the timing of Serra’s passage of a kidney stone; specifically, whether he passed it on the day he was beaten by Cuban police or several days thereafter. The second pertained to the number of countries Serra passed through en route to the United States; he listed ten countries in his written Application but later testified that he traveled through “about 11 or 12.” The IJ also reached his adverse credibility determination based on Serra’s perceived non-responsiveness to certain questions. On appeal, the BIA rejected the IJ’s finding that Serra was non-responsive but affirmed the IJ’s adverse credibility determination based on the two inconsistencies alone. After careful review and with the benefit of oral argument, we conclude the record lacks substantial evidence that would allow us to affirm the adverse credibility determination. We therefore reverse and remand. … [T]he IJ perceived two instances of non-responsiveness and two discrepancies in the record, resulting in an adverse credibility determination. The BIA rejected the IJ’s findings of non-responsiveness. Thus, the IJ’s adverse credibility determination hinged only on two purported inconsistencies in the record. But upon consideration of the totality of the circumstances, it is clear these inconsistences are unsupported by reasonable, substantial, and probative evidence—and thus cannot form the basis for an adverse credibility determination. Therefore, we grant Serra’s petition. We further vacate the BIA’s decision and the IJ’s opinion and remand this case to the IJ to rule on Serra’s applications for asylum, withholding of removal, and relief under CAT in accordance with this opinion. In doing so, the IJ must ensure that all relevant factors are considered—and the totality of the circumstances ascertained—before reaching a conclusion as to credibility. PETITION GRANTED, VACATED and REMANDED.”
[Hats off to Marty High and Joshua Carpenter and Jonathan Morton for amici American Immigration Council and Immigration Justice Campaign!]
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Super congrats to NDPA superstar litigators Marty High, Joshua Carpenter, and Jonathan Morton.
This respondent was a unrepresented before the IJ. Thus, we see another example of how EOIR routinely mistreats pro se litigants and why counsel is a due process necessity even in a very straightforward asylum case like this. Obviously, here, the IJ played the role of “co-counsel” to the ICE Assistant Chief Counsel. Yet, AG Garland has intentionally established “dedicated dockets” and bogus “adjudication timelines” that have been shown to reduce opportunities for representation and diminish the chances of success for asylum seekers.
To borrow a memorable phrase used by my late BIA colleague Appellate Judge FredW. Vacca, “this pathetic attempt at an adjudication” by EOIR was actually defended before the Circuit by the DOJ’s OIL. The glaring problems with immigration and asylum adjudication at DOJ begin at EOIR, but by no means end there.
This case isn’t “rocket science,” nor is it legally or factually complicated. It’s a very straightforward asylum grant to somebody persecuted by Cuba, where, in the words of the 11th Circuit, “[f]or decades, the authoritarian regime . . . has utilized its police force to intimidate and physically assault political dissidents and peaceful demonstrators throughout the island!”
I also note the statutory provision on credibility that the IJ completely bolluxed here and the “any reason to deny” BIA then “rubber stamped” (in part, even while noting that some of the IJ’s analysis was wrong) was part of the REAL ID Act, passed in 2005. That’s 15 years before the the IJ hearing in this case! Heck, I used to give training classes for incoming EOIR JLCs where decisions very much like this IJ’s were used as “teaching examples” of how NOT TO APPLY Real ID! EOIR not only isn’t making “progress,” it’s actually stuck in reverse!
Having spent eight years as an Appellate Judge at the BIA and having reviewed thousands of records, I know that when an IJ goofs up one part of the analysis it’s often indicative of an overall careless, flawed analysis that should be viewed with considerable skepticism. Yet, here the IJ’s “clear error,” acknowledged by the BIA, in basically inventing “unresponsiveness” doesn’t appear to have inspired the BIA to critically examine the rest of the adverse credibility ruling below. On the contrary, it appears to have spurred the BIA to find “any other reason to deny” despite the indication that this was an inaccurate and unreliable analysis by an IJ having a bad day.
It also appears from the Circuit’s decision that there might have been interpretation issues before both the IJ and the Asylum Office. That makes the IJ’s “cherry picking” and “excessive focus on insignificant testimonial inconsistencies” particularly egregious.
The 11th Circuit decision here was written by U.S. District Judge Rodolfo A. Ruiz II, SD FL, sitting by designation. Judge Ruiz is a Trump appointee. He was joined on the panel by Judge Jill Pryor (Obama) and Judge Charles R. Wilson (Clinton) of the 11th Circuit. Thus, apparently the abysmal performance of EOIR is one of the few things capable of uniting and creating “bipartisan agreement among Article III Judges!”
Perhaps Senator Gillibrand is right, and she will be able to obtain sufficient bipartisan support for her Article I Immigration Court bill, which would remove this system from the DOJ’s chronic mismanagement. Seehttps://immigrationcourtside.com/2023/02/17/⚖️🗽-teas-coffee- Because the current situation at EOIR, the continuing indifference to injustice, and its damage to human lives and the law is totally unacceptable!
Also, what about the legal and judicial resources consumed on this and similar cases? Wouldn’t it be great if both the USG and the private sector could “redeploy” them to making the immigration justice system work, rather than correcting sophomoric, yet life threatening, errors? (Admittedly, describing the errors made by DOJ attorneys at all three levels here as “sophomoric” could be viewed as a slight to sophomores everywhere.)
Not only is EOIR’s “any reason to deny” system patently unjust, it’s a colossal waste of public resources! “Bureaucracy 101” — “Get it right at the initial level of the system.”
Of course the battle here hasn’t concluded. The remand gives EOIR yet another opportunity to screw up. Given EOIR’s current indifference to quality and fairness, I wouldn’t count on them to “get it right this time around” — even with Judge Ruiz basically providing them with the correct answer!
The ordeal of Farooqi, who covers politics and national news for News One in Pakistan, exemplifies a global epidemic of online harassment whose costs go well beyond the grief and humiliation suffered by its victims. The voices of thousands of women journalists worldwide have been muffled and, in some cases, stolen entirely as they struggle to conduct interviews, attend public events and keep their jobs in the face of relentless online smear campaigns.
Stories that might have been told — or perspectives that might have been shared — stay untold and unshared. The pattern of abuse is remarkably consistent, no matter the continent or country where the journalists operate.
Farooqi says she’s been harassed, stalked and threatened with rape and murder. Faked images of her have appeared repeatedly on pornographic websites and across social media. Some depict her holding a penis in the place of her microphone. Others purport to show her naked or having sex. Similar accounts of abuse are heard from women journalists throughout the world.
. . . .
This article is part of “Story Killers,” a reporting project led by the Paris-based journalism nonprofit Forbidden Stories, which seeks to complete the work of journalists who have been killed. The inspiration for this project, which involves The Washington Post and more than two dozen other news organizations in more than 20 countries, was the 2017 killing of the Indian journalist Gauri Lankesh, a Bangalore editor who was gunned down at a time when she was reporting on Hindu extremism and the rise of online disinformation in her country.
New reporting by Forbidden Stories found that shortly before her slaying, Lankesh was the subject of relentless online attacks on social media platforms in a campaign that depicted her as an enemy of Hinduism. Her final article, “In the Age of False News,” was published after her death.
. . . .
Until news organizations recognize the purpose of harassment campaigns and learn to navigate them appropriately, experts say, women will continue to be forced from the profession and the stories they would have reported will go untold.
“This is about terrifying female journalists into silence and retreat; a way of discrediting and ultimately disappearing critical female voices,” Posetti said. “But it’s not just the journalists whose careers are destroyed who pay the price. If you allow online violence to push female reporters out of your newsroom, countless other voices and stories will be muted in the process.”
“This gender-based violence against women has started to become normal,” Farooqi said. “I talk to counterparts in the U.S., U.K., Russia, Turkey, even in China. Women everywhere, Iran, our neighbor, everywhere, women journalists are complaining of the same thing. It’s become a new weapon to silence and censor women journalists, and it’s not being taken seriously.”
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“Not being taken seriously” aptly describes the attitude and actions of the Biden Administration toward some women seeking asylum on the basis of gender-based violence. Certainly, our Government could and should do better at recognizing and prioritizing refugee and asylum status for this vulnerable group.
Yet, even this “slam dunk” case took nearly six months to adjudicate. Seems like it could and should have been granted at the interview in a well-functioning system. Better yet, most Afghan refugees could have been screened overseas and admitted in legal refugee status, thus avoiding the backlogged asylum system and freeing both USG and private bar resources for more difficult cases.
Once, America was in the forefront of setting precedents that protected female refugees. See, e.g., Matter of Kasinga, 21 I&N Dec. 357 (1996) (FGM, opinion by Schmidt, Chair). Now, not so much, despite our nation’s heavy involvement with Afghanistan. Apparently, the “powers that be” are afraid that consistently and aggressively supporting refugee protection for women fleeing Afghanistan and other dangerous countries would “encourage” them to actually seek legal protection here thereby upsetting right-wing nativists and misogynists.
Yet, incredibly, the Biden Administration proposes to send up to 30,000 rejected NON-MEXICAN border arrivals per month to Mexico without fair examination of their potential asylum claims. To date, BIA precedents, regulations, and policy statements have NOT recognized the well-documented, clear and present dangers for journalists, women, and particularly female journalists, in Mexico. Consequently, I’d say that there is about a 100% chance that some female journalists seeking asylum will be illegally returned to death or danger, whether in Mexico or their native countries.
Just can’t make this stuff up. Yet, it’s happening in a Dem Administration!
AG Merrick Garland did vacate former AG Jeff “Gonzo Apocalypto” Sessions’s lawless and misogynistic decision in Matter of A-B-. That action “restored” the BIA’s 2014 precedent decision in Matter of A-R-C-G-, recognizing that gender-based domestic violence could be a basis for granting asylum.
However, the BIA didn’t elaborate on the many forms that gender-based persecution can take, nor did they provide binding guidance to Immigration Judges on how these cases should be handled in accordance with due process, fundamental fairness, and best practices.
Garland and his BIA have failed to follow up with any meaningful guidance or amplification of A-R-C-G- for Immigraton Judges. That’s even though many women fleeing Latin America come from countries where gender-based violence is rampant and the governments make little or no effective efforts to control it — sometimes police and other corrupt officials even join in the abuses.
Consequently, life or death protection for female asylum seekers remains a disgraceful and wholly unacceptable “crap shoot.” Outcomes of well prepared and copiously documented asylum cases often depend more on the attitude of the Immigration Judge or BIA Appellate Judge hearing the case than on the law and facts.
Also, without a knowledgeable lawyer, which the Government does not provide, an applicant has virtually no chance of winning a gender-based protection case in today’s EOIR. Additionally, those in immigration detention or placed on Garland’s “accelerated/dedicated” dockets are known to have particular difficulty obtaining pro bono counsel.
Anti-asylum IJs, some of whom were known for their negative attitudes toward female asylum seekers — many of those who actually “cheered” Sessions’s biased and wrong reversal of hard-won asylum protection for women in EOIR courts — remain on the bench under Garland at both levels.
To their credit, some have changed their posture and now grant at least some gender-based cases. But, others continue to show anti-asylum, anti-female bias and deny applications for specious reasons, misconstrue the law, or just plain use “any reason to deny” these claims, without any fear of consequences or meaningful accountability.
Many advocates and experts would say that female asylum applicants still face “trial by ordeal” in Garland’s “overly Trumpy” EOIR. Despite campaign promises, the Biden Administration has done little to champion the cause of gender-based refugees and asylum seekers — at the Southern Border or elsewhere. Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Whether or not such egregious errors and non-uniform applications of asylum law get reversed at the BIA again depends on the composition of the BIA “panel” assigned to the case. (Not all “panels” have three Appellate Judges; some are “single member” panels). Significantly, and inexplicably, a group of Trump-holdover BIA Appellate Judges known for their overt hostility to asylum applicants (with denial rates approaching 100%) and their particular hostility to gender-based claims, remains on the BIA under Garland. There, they can “rubber stamp” wrong denials while sometimes even reversing correct grants of protection by Immigration Judges below! Talk about a broken and unfair system!
With an incredible backlog of 2.1 million cases, approximately 800,000 of them asylum cases, wrongly decided EOIR cases can “kick around the system” among the Immigration Courts, the BIA, and the Circuits for years. Sometimes, a decade or more passes without final resolution! Imagine being a pro bono or “low bono” attorney handling one of these cases! You “win” several times, but the case still has no end. And, you’re still “on the hook” for providing free legal services.
It’s no wonder that, like his predecessors over the past two decades, Garland builds EOIR backlog exponentially — without systematically providing justice or instituting long overdue personnel and management changes! It’s also painfully clear that, also like their predecessors, Garland and his political lieutenants have never experienced the waste and frustrations of handling pro bono litigation before the dystopian “courts” they are now running into the ground!
Meanwhile, Biden’s promise and directive that his Administration promulgate regulations containing standards for gender-based asylum cases that would promote fairness and uniformity within his OWN courts and agencies remains unfulfilled — nearing the halfway point of this Administration! Apparently, some politicos within the Administration are more fearful of predictable adverse reactions from right-wing nativists and restrictionists than they are anxious to “do the right thing” by listening to the views of the experts and progressives who helped put them in office in the first place!
Thus, abused women and other refugees and asylum seekers, and their dedicated supporters, many of whom have spent “professional lifetimes” trying to establish the rule of law in these cases, face a difficult conundrum. In America today, neither major political party is willing to stand up for the legal and human rights of refugees, particularly women fleeing gender-based persecution.
As an “interested observer,” it seems to me that something’s “got to give” between so-called “mainstream Dems” and progressive immigration/human rights advocates. The latter have devoted too much time, energy, courage, and expertise to “the cause” to be treated so dismissively and disrespectfully by those they are “propping up.” And, that includes a whole bunch of Biden Administration politicos who were nowhere to be found while immigration advocates were fighting, often successfully and against the odds, on the front lines to save democracy during the “reign of Trump.”
That was a time when immigrants, asylum seekers, people of color, and women were the targets for “Dred Scottification” before the law. I have yet to see the Biden Administration, or the Dem Party as a whole, take a strong “active” stand (rhetoric is pretty useless here, as the Administration keeps demonstrating) against those who would use misapplications of the law, ignoring due process, demonization, and refusal to recognize the humanity of migrants as their primary tool to undermine and ultimately destroy American democracy!
Immigrants, including refugees, are overall a “good story” — indeed the real story of America since its founding. That Dems can’t figure out how to tell, sell,advance, and protect the immigrant experience that touches almost all of us is indeed a national tragedy.
Hello friends,
As we move deeper into 2023, you may be, like we are, still
processing 2022 (or 2019, let’s be honest). For immigration, the
new year comes with its own challenges as a divided Congress
makes policy decisions difficult and a shift to the 2024 presidential
race takes hold. Nevertheless, we have to remain hopeful that
progress can still be made. And you can be part of that! To remind
yourself of what happened last year and learn what issues our
government can focus on, check out our special edition of Téa’s
Coffee where she goes to the Senate to meet New York Senator
Kirsten Gillibrand.
We hope you enjoy this issue as much as we do,
-The Immigrant Food Team
Check out the full issue
Several “quick takes” from Tea’s interview with Senator Gillibrand:
She has introduced an “Article I Immigration Court Bill” in the Senate and believes it’s the type of bipartisan initiative that might interest enough GOP legislators to form a “working bipartisan majority.” A similar bill introduced by Rep. Zoe Lofgren (D-CA) in the last House received a hearing and was favorably voted out of Committee, but was never taken up by the full House, see, e.g., https://lofgren.house.gov/media/press-releases/house-judiciary-committee-passes-lofgren-s-legislation-reform-us-immigration;
Sen. Gillibrand’s biggest fear for American democracy is “demonization and racism” of which immigrants and asylum seekers are prime targets;
She thinks the “biggest danger” comes from “White supremacist groups” — basically right-wing domestic terrorists.
Both Tea’s 2022 summary and the interview with Sen. Gillibrnd are well worth the watch and can be accessed at links above.
“Social Justice/Business/Courageous Leadership Dynamo”🌪 Tea Ivanovic was recently recognized as one of “Forbes 30 Under 30” by Forbes Magazine and a “Woman Who Means Business” by Washington Business Journal! She is an “NDPA New Generation Super-Star” 🌟 to watch, for sure! And, from a “DMV standpoint,” Tea is a proud Virginia Tech Hokie alum and a former varsity tennis player. Certainly, a person of unlimited talents who has chosen to use them for the public good! You can check out my previous “Courtside profile” of Tea here: https://immigrationcourtside.com/2022/09/10/🇺🇸🗽👍🏼-immigrant-nation-teas-truth-wisdom-americans-views-on-immigrants-and-immigration-are-overwhelmingly-positive/
Lindsay Toczylowski Executive Director, Immigrant Defenders “ I always tell the new immigration attorneys at Immigrant Defenders Law Center to never forget just how stacked against our clients the odds are in immigration court.“
Lindsay Toczylowski
• 1st
Executive Director at Immigrant Defenders Law Center
13h • Edited •
13 hours ago
This is an idea that Yliana Johansen-Méndez and I have been talking about for a long time and I am so excited to see it come to fruition at Immigrant Defenders Law Center. We need more Spanish speaking attorneys ready to fight for our communities, and there simply are not enough to fill the need that exists currently. So, let’s change that.
That was the simple idea behind the ImmDef Spanish Immersion Project for Lawyers. Give people an opportunity to become the lawyers we need. Please share widely and encourage those interested to apply quickly – we anticipate this inaugural class will fill quickly! #jobposting#immigrationlaw#socialjustice#SpanishForLawyers
Here’s the link for more information about this innovative program:
Compare this creativity and action with the moribund bureaucracies and weak, unimaginative, timid leadership at DHS, EOIR, and DOJ. The wrong folks are running the immigration bureaucracy, and doing a really lousy job of it!
This Administration might “nominally claim” to recognize the importance of representation for asylum seekers and other immigrants and to encourage it; but, their actions tell a much different story.
The dysfunctional chaos at EOIR, culture of denial, “Aimless Docket Reshuffling” on steroids, poor personnel and staffing choices, failure to establish a constructive dialogue with NGOs and the pro bono bar, and the simply jaw-dropping, avoidable “extreme user unfriendliness of almost everything at EOIR” has been a huge “turn off” for those who might be considering taking on pro bono, or even low bono, cases. If anything, some practitioners have told me that they are cutting back on their Immigration Court work because it has become so stressful, all encompassing, and discouraging.
EOIR shouldNOT be operating in this insane manner in a Dem Administration! But, unhappy fact is that it is!
Here’s a chance to be on the front lines of the fight for democracy and social justice in America! Check out Immigrant Defenders Law Center!
GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Professor Paulina Vera
Professor Alberto Benitez, Director of the GW Law Asylum Clinic reports:
On February 1, 2023 Immigration Clinic client, R-W-, was granted asylum by the Arlington Asylum Office. The interview was June 6, 2022, and we received the approval notice yesterday. R-W- was a women’s rights attorney in Afghanistan. Among her duties, she trained law students to help women access justice using the legal system and was training to become a prosecutor to try cases involving violence against women. When the Taliban entered Kabul, she had to quit her job at the organization she worked at and stop her training program. Because she feared being targeted based on her advocacy and her education, R-W- fled Afghanistan on her third evacuation attempt. The stress of her situation caused her to experience depression, anxiety, and fainting spells, which all required medical attention. Now that R-W- is in the United States, she is feeling better health-wise and is researching law school programs, as she hopes to continue practicing as an attorney. The above is what R-W- wrote in her affidavit in support of her asylum application. R-W can now begin the process of bringing her husband to the USA. He remains in Afghanistan.
Please join me and Professor Vera in congratulating Alex Chen and Julia Addison, who worked on the case.
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Great news! Thanks for passing it on, my friend!
This is the essence of why we have asylum laws and the heart of great legal education that teaches “practical scholarship” and real-life problem solving at the “retail level” of our justice system.
Congrats and deep appreciation for all involved. Also grateful that Ms. R-W- is part of our nation and that we can benefit from her courage, skills, and example.
