"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.
Democrats were projected to retain control of the Senate on Saturday, clinching a narrow majority as they showed strength in battleground races in a daunting midterm year that handed President Biden a major victory as he looks to his next two years in office.
The final blow to Republican hopes of retaking the chamber came in Nevada, where on Saturday Sen. Catherine Cortez Masto (D) was projected to win reelection, edging past Adam Laxalt (R), a former state attorney general. Cortez Masto’s projected win ensures Democrats a 50th seat, with a runoff election still to come in Georgia on Dec. 6. Vice President Harris is empowered to cast tiebreaking votes in the Senate.
Control of the House was still up in the air on Saturday, as vote counting continued days after an election in which Democrats overperformed expectations in many contested areas across the country. Democratic control of the Senate dashes GOP hopes of a full takeover on Capitol Hill.
That’s welcome news for Biden, who was staring down the possibility of humbling defeats as the election neared. Now, the Senate, which oversees the confirmation of executive branch personnel and federal judges, will stay in his party’s corner. A Senate majority will also give the president and his party more say over legislative debates on domestic and foreign spending and other major issues.
Senate Majority Leader Charles E. Schumer (D-N.Y.) called the results a “vindication” for Democrats and their agenda, and said Republicans had turned off voters with extremism and “negativity,” including some candidates’ false insistence that the 2020 election had been stolen. “America showed that we believed in our democracy,” he told reporters in New York, while praising the quality of Democratic incumbents.
Cortez Masto announced she would deliver a victory speech on Sunday.
In Nevada, Cortez Masto’s win was part of a perfect record so far by incumbent senators seeking reelection in the midterms, as voters tilted strongly against upending the established order in the chamber. It was part of a strong showing by Democrats in battleground areas where Republicans fell short after emphasizing rising prices and concerns about crime during an era of one-party control in Washington.
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Importantly, Biden & Sen. Chuck Schumer will retain authority to appoint better qualified, progressive, Federal Judges from diverse backgrounds, schools, and experiences to counteract the toxic influx of poorly qualified far-right jurists, many ideologues hand-picked by the Federalist Society and the Heritage Foundation for their extremist, anti-democracy, far right views that threaten the credibility and the legitimacy of the Federal Judiciary.
Biden’s & Schumer’s attention and success at timely appointing and advancing exceptionally well-qualified Article III judges whose views support and advance the rule of law, equal justice for all, and reasonable legal interpretations has been one of the “under the radar” success stories of his first two years. For once, if perhaps a little late in the game, the Dems have treated Federal Judicial appointmentswith the same urgency, strategic thinking, and determination to fundamentally reshape the judiciary as the GOP!
If only Garland had paid the same attention to reforming, improving, and reshaping the Immigration Judiciary to make expertise, due process, fundamental fairness, and best judicial practices paramount after four years of highly questionable judicial appointments and “packing” of the BIAby Sessions and Barr in support of their nativist, anti-immigrant agenda!
Senator Cortez Masto’s victory also saves America from another round of Sen. Mitch McConnell (R-TN) as majority leader. Additionally, it’s a well-deserved setback for arrogant GOP Senate campaign honcho Rick Scott (R-FL) — a guy whose idea of America is to block all progress, steal from the poor, give to the rich, and never give an honest answer.
All and all, it’s a good night for American democracy, although the narrowness of Dem victories despite the obvious superiority of Dem candidates should serve as a warning sign that our nation is not out of the “far-right woods” by any means. Next, it remains critically important for the Dems to re-elect Sen. Raphael Warnock (D-GA, an outstanding and articulate spokesperson for democratic values over the spectacularly incoherent and unqualified Trump-backed GOP challenger Herschel Walker in December’s Georgia runoff. A one-vote “cushion” is critical in the event of death or incapacity of any of the Dem Senators.
Importantly, voters across America rejected every corrupt Trump election denier running on the GOP ticket for positions that would have given them control over state elections.
During her victory remarks on Tuesday night, Spanberger spoke of her “deep and abiding love for the country” and a “profound sense of responsibility.” The former CIA agent reiterated that the country was founded on “a dream” that it need not bound by the past or be ruled by kings and queens. Quoting Benjamin Franklin’s admonition that the constitutional convention delivered a republic “if you can keep it,” she declared, “We must all work hard to keep it.”
As a moderate, Spanberger has managed to balance fidelity to Democratic causes such as investment in green energy and the preservation of abortion rights with an independent, reform-minded streak that sometimes put her at odds with party leadership. (Speaker Nancy Pelosi, for example, has not allowed a floor vote on Spanberger’s bill that would ban House members and their spouses from holding individual stocks.)
With this win, Spanberger reaffirms her status as a rising star in the party. Her formula — bipartisan problem solving, strong national security credentials, anti-corruption crusading and support for women’s reproductive rights — has proved successful. But she also had another advantage: a Democratic record of legislative success, including the infrastructure bill, the Chips and Science Act, an expansion of veterans’ health care and measures to reduce prescription drug prices.
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Rep-Elect Hillary Scholten Democrat Michigan 3rd District
Here’s what Hillary had to say in her victory statement:
It’s a new day in West Michigan. I have officially been elected to represent West Michigan in Congress.
Make no mistake: this is a historic victory. We flipped a crucial House seat from red to blue, elected West Michigan’s first-ever Democratic Congresswoman, and sent a strong message that will not tolerate anti-democratic, anti-American extremism here.
I am a proud fourth-generation West Michigander. I know we’re a community that values service over self, building up over tearing down, and unity over division. We’re a community that cares for its poor, supports its vulnerable, and welcomes the stranger. A community where differences are not feared, but valued.
My promise to you is that I will never forget where I come from or who I work for. I will always show up for my community and look forward to getting to work serving West Michiganders.
Forever thankful,
Hillary
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By sharp contrast, the GOP has no known values: divide, bully, lie, demean, hate, misinform, blame, deny, discriminate, humiliate, oppress, smear, shame. Those aren’t values: just highly negative attributes!
The GOP did claim concern about inflation and the economy. But, they offered no coherent plan for addressing it in any practical, bi-partisan manner.
Instead, they promised to wreck Government, mindlessly oppose anything Biden proposes, and even threatened to collapse the worldwide economy by “playing chicken” with the artificially-created “debt ceiling.”
To the extent that any GOP candidate could explain their economic “plan” (most couldn’t or wouldn’t), it was a muddled variation of proven-to-fail “trickle down economics.” Yup, the same nonsense and bureaucratic doublespeak that has destroyed the British economy and led the Conservatives to be a laughingstock of “unstable government by clowns🤡!” Basically slash programs that benefit everybody to reward fat-cats with more un-needed and unfunded tax breaks.
Do we really need to make guys like Musk, Zuckerberg, Bezos, McConnell, and the “geniuses” who invented “cryptocurrency” richer? Make sense? Of course not! I doubt that there is a shortage of “investment capital” in the U.S. right now.
Is preventing IRS from processing returns in a timely manner and collecting back-taxes owed really the key to reducing budget deficits? Preposterous! Yet GOP pols say so!
Undoubtedly, we need prudence, responsibility, and focus in government spending — from both parties. As working mothers, Abigail and Hillary know a thing or two about making responsible fiscal decisions and insuring that their constituents get the most bang for each hard-earned tax dollar spent. And neither is afraid to speak out against “fraud, waste, and abuse” in any and all forms!
As former Federal civil servants, they recognize the need for cutting waste and getting more value for each dollar. In that respect, I think that requiring competent management, accountability, expertise, innovative customer service, and focused enforcement in the hugely expensive yet highly wasteful, ineffective, and often counterproductive immigration bureaucracy would be a good starting point for achieving much more without drastic resource increases.
It doesn’t hurt that Abigail and Hillary are really really smart and use their brains to help others and society rather than for self-aggrandizement or to lord it over others. Tough as they are, they are also nice, kind, and compassionate. In other words, non-ideologues.
Go, Abigail and Hillary! Make America the best that we can be: A diverse society and powerful nation where everyone can reach their full potential, independence, and self-sufficiency, not just the “chosen few!”
“Dulce Zaragoza, a native and citizen of Mexico and a lawful permanent resident of the United States, pleaded guilty to the Indiana offense of criminal neglect of a dependent after locking her six-year-old son in a closet for six hours. She was sentenced to one year in jail suspended to time served plus 30 days, with the remainder of the sentence to be served on probation. After completing her sentence, she traveled abroad and presented herself for admission when she returned. The Department of Homeland Security (“DHS”) found her inadmissible based on the neglect conviction, which the agency classified as a “crime involving moral turpitude.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). She was placed in removal proceedings. Zaragoza fought removal on several grounds, with her arguments expanding as the proceedings progressed. Before the immigration judge, she argued that the Indiana neglect offense does not qualify as a crime involving moral turpitude. The judge disagreed and entered a removal order, and Zaragoza appealed to the Board of Immigration Appeals (“BIA” or “the Board”). In the meantime, she petitioned the state court to modify her sentence. Her purpose was to bring herself within the so-called “petty offense” exception to inadmissibility, which is available to first-time offenders sentenced to six months or less. Id. § 1182(a)(2)(A)(ii)(II). The state court obliged and reduced her one-year sentence to 179 days. With that order in hand, Zaragoza argued before the BIA that Indiana’s neglect offense is not a crime involving moral turpitude, and regardless, the petty-offense exception applies. The BIA rejected both arguments, agreeing with the immigration judge that the Indiana offense is categorically a crime involving moral turpitude, and further holding that the sentence-modification order was not effective to establish Zaragoza’s eligibility for the petty-offense exception. For the latter conclusion, the Board relied on a recent decision of the Attorney General declaring that state-court sentence modification orders are effective for immigration purposes only if based on a legal defect in the underlying criminal proceeding. Matter of Thomas & Thompson (“Thomas”), 27 I. & N. Dec. 674, 690 (Att’y Gen. 2019). Zaragoza sought reconsideration, this time adding two more arguments: (1) the phrase “crime involving moral turpitude” is unconstitutionally vague; and (2) the Attorney General’s decision in Thomas is impermissibly retroactive as applied to her. The BIA disagreed on both counts. Zaragoza petitioned for review in this court, reprising the entire array of arguments she presented to the Board. We agree with the BIA’s resolution of all issues but one: applying Thomas in Zaragoza’s case is an impermissibly retroactive application of a new rule. We therefore remand to the BIA for further proceedings consistent with this opinion.”
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Commentary from Kevin A. Gregg, ESQ:
Kevin A. Gregg
• 1st
Partner at Kurzban Kurzban Tetzeli & Pratt P.A. & Host of Immigration Review Podcast
2d • Edited •
2 days ago
Crimmigration attorneys, get your motions ready.
At least in Chicago! Matter of Thomas and Thompson CANNOT be applied retroactively in the Seventh Circuit!
Sentence modifications/clarifications/European vacations obtained pre-T&T and that comply with Matter of Cota Vargas/Song/Estrada must be recognized for immigration purposes!
Also, when will A.G. Garland weigh in on Matter of Thomas and Thompson? The time is now.
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When the BIA starts not with the correct legal concept that retroactivity is disfavored in the law, but rather with “how can we best help DHS Enforcement and/or curry favor and job security from our political ‘handlers’ at DOJ,” “bad things are going to happen.” And, they do, over and over!
There are plenty of well-qualified “practical scholars” out here who understand retroactivity in the immigration context and would get these basic questions right in the first instance without bothering the Courts of Appeals or generating disorder, inconsistency, and unnecessary backlog! Why hasn’t Garland recruited them to be the “New and Improved BIA” that would actually be driven by legal expertise, practical scholarship, due process, and fundamental fairness? The latter are qualities that EOIR and DOJ claims it seeks in Immigration Judges. But, it’s not the reality that practitioners too often actually face in todays dysfunctional, inefficient, and hopelessly backlogged EOIR.
The public and those subject to substandard judging and often dehumanizing treatment by EOIR are suffering — amazingly, now more than ever! When will Garland do his job and reform his courts to conform to due process, fundamental fairness, best interpretations of law, and best practices?
The latter desirable qualities, actually necessary for any legitimate judiciary, are certainly NOT descriptive of today’s broken EOIR! Garland and his lieutenants might consider themselves “above the fray!”
But, my already over-stuffed e-mailbox is “lighting up” with EOIR horror stories from experienced, long-time practitioners who are questioning whether they can continue practicing in the hostile, lawless, “no due process,” “no customer service,” “no common sense,” “blame the victim” environment that Garland has allowed to mushroom, and sometimes even encouraged, at EOIR.
I mentioned the term “Dedicated Docket” at an Executive Session of a major NGO recently. The anger and disgust that it provoked from those actually “doing the job” of fighting for justice in Garland’s broken system was palpable!
Why is a Democratic Administration that is, despite beating expectations in the midterms, still hanging on by a thread, inflicting this type of disrespect, pain, and suffering on its own loyal supporters? How will this self-created legal, Constitutional, human rights disaster play out moving toward 2024!
“The EOIR HQ Tower” needs a complete shake-up and replacement ofthose who have demonstrated their inability to get the job done with those who can! The latter are out here. But, the worse Garland lets his system get, the harder and most costly (dollars and lives) it will be to fix it!
Waiting for Merrick Garland and his “Clueless Crew” at DOJ to fix the dysfunctional Immigration Courts will be an exercise in futility. https://creativecommons.org/licenses/by-sa/3.0
Garland is a disgraceful failure as our nation’s top lawyer; Congress is deadlocked and uninterested in solving immigration and human rights problems; Federal Courts, these days often “stacked” with far-right ideologues, too often look the other way at gross violations of due process, overt racism, misogyny, and bad interpretations as long as it’s “only migrants of color” (“non-persons” in the view of some) and their lawyers whose lives are being trashed. At best, the Circuits provide widely inconsistent review and results — perhaps not quite as bad as EOIR, but still far beyond anything that would be acceptable if migrants were actually treated as “persons” as the Constitution clearly provides.
I receive some desperate anecdotal complaints about the absurdly broken system and unprofessional conduct by some IJs and EOIR officials here at “Courtside.”
Here’s a recent one from a long-time practitioner that more or less sums up Garland and the Biden Administration’s incredibly disreputable mal-administration of EOIR:
Everything at EOIR is such a disgrace. It is now very difficult for me to appear before IJs, as I have complete contempt for the agency. It is so much worse now than when Trump was in charge. But of course, EOIR could care less, and obviously, this IJ could care less as well…
“Much worse now than when Trump was in charge!” Let that sink in folks!
As I’ve said before, “This just isn’t right!” But, we seem to be dealing with three branches of “Government” who have simply turned their collective backs on the Constitution, the rule of law, common sense, and the fundamental obligations of decency that human beings owe to each other. They also deny the truth: That immigrants are and will continue to be an essential part of the fabric of our society.So, many have asked me “What’s the answer?”
Storm the fort “from the inside!” Use your superior knowledge, organizational, and problem solving skills to get on the Immigration Bench and get paid to do things the right way, help force systemic change over time, save some very deserving lives, and help preserve and improve our democracy at the same time.
One of the few advantages of working in an “out of control” system is this: there isn’t much control. That often motivates sloppy work, corner-cutting, and a “who cares” approach.
But, it can also motivate and allow those with the skills and moral integrity to “do the right thing,” to put due process first, solve problems (satisfying), and institute “best practices” rather than worst practices in YOUR courtroom, even if only on a case-by-case basis. And, guess what? Things that “work” and efficiently resolve problems in your courtroom do impact the rest of the system!
Eventually, it can lead to demands to stop doing things the same old wrong and unfair way and start start treating others fairly and with dignity. Surprisingly, despite persistent bureaucratic myths to the contrary, doing things the right way and treating everyone fairly is more efficient than repeating the same old mistakes, based on the same old discredited “deterrence myths,” over and over. Recognizing and timely granting deserving cases is the very best, totally overlooked, way of cutting backlog and forcing the system to be more efficient without stomping on anyone’s rights or humanity!
Sure, the EOIR system only superficially claims to be interested in efficiency. What they really want is the “appearance of efficiency” with the ability to shift blame for problems to the “victims” of their incredibly poor performance!
But, eventually enough folks in the right places can get the idea that doing things the right way could actually be better for the system than repeating past mistakes and covering up. The latter gets stressful, even for politicos and bureaucrats who have made careers out of avoiding accountability and responsibility. And, there are certainly plenty of those in today’s EOIR and DOJ.
So here are 10 great opportunities to “get on the inside” and start fixing justice in America and the critical “retail level.”
Seven open IJ positions:
Working for the U.S. Department of Justice allows you to make a difference every day through public service. As an immigration judge you provide due process while deciding cases that have immediate impact. Next week, EOIR will announce the opportunity to apply for immigration judge positions. EOIR will post the vacancy announcement to USAJobs and announce it via the IJ Jobs listserv. The announcement will offer opportunities for immigration courts in the following locations:
Adelanto, CA
Concord, CA
Imperial, CA
San Francisco, CA
LaSalle, LA
Boston (Lowell), MA
El Paso, TX
If you would like to learn more about qualifications and the process for becoming an immigration judge, please visit our informational page.
Here are three Assistant Chief Judge (“ACIJ”) positions:
It is REALLY important that great attorneys of all genders and ethnic groups apply for these important positions. EOIR has NEVER been representative of either the communities it serves or the talent and diversity of the private immigration/human rights bar. The “bureaucratic excuse” has been that the “pool” of USG applicants, particularly those from DHS and prosecutorial backgrounds, is always far “superior.”
I call BS! But, the only way to “prove it wrong” is if “the best and brightest” from the private sectors apply en masse.
EOIR will NOT improve voluntarily. Over the past two disgraceful years, Garland has proved that “beyond a reasonable doubt.” So, get on the inside and start changing this system to promote impeccable scholarship, due process, fundamental fairness, and best practices from the inside and from “the bottom up!”
Because, waiting for Merrick Garland and his “clueless” crew @ DOJ and EOIR to get the job done for equal justice and racial justice in America will be like “Waiting for Godot.” And, we all know how that turns out.
Along the 2,000-mile (3,219km) boundary between the US and Mexico, the 2022 fiscal year proved the deadliest on record for people trying to make unauthorized crossings of this heavily patrolled international line.
In Eagle Pass’s regional enforcement sector alone, border patrol agents discovered more than 200 dead migrants between October 2021 and the end of July, compared to an already heartbreaking 34 bodies during the entire 2020 fiscal year.
Ahead of this week’s crucial midterm elections, Republicans have manipulated these harrowing statistics as yet another opportunity to make much ado about what various rightwing players call Joe Biden’s “open border policies”, accusing his administration of incompetence that is causing “body bags [to] keep piling up”.
It’s close to sealed by a hostile combination of pandemic-era public health measures cynically retooled as federal immigration control and mass policing by state troops who arrest, jail and criminalize migrants.
Cruelly, these hardline deterrence mechanisms advanced by both Democrats and Republicans have probably only made the US’s south-west border bloodier.
Deterrence as a strategy has informed some of the US’s most controversial immigration policies, from separating families, to detaining children, to stranding asylum seekers in dangerous Mexican border towns.
But desperate people still find ways to make it on to US soil: last fiscal year, Customs and Border Protection documented nearly 2.38m enforcement encounters at the southern border, a record high causing headaches for Biden as conservatives accuse the president of being “lax” on border crime.
The truth is more complex, and not at all lax. More than a million of last fiscal year’s border enforcement encounters were processed under Title 42, now invoked as a federal immigration enforcement tool but originally disguised as a public health measure amid the Covid-19 pandemic.
The policy allowed the Trump and now the Biden administrations to expel huge numbers of people from the US without even letting them ask for asylum, seemingly in violation of domestic and international law.
Far from ending unauthorized migration, the invocation of Title 42 has in fact dramatically inflated the number of encounters at the US-Mexico border, as people who are expelled feel compelled to cross again – and again, and again. Sometimes, relentless migrants have been so determined to complete their journeys that they have risked life and limb dozens of times, fueling a political and humanitarian disaster.
And both parties continue to police people seeking security and opportunity over violence, persecution and poverty as if they’re national security threats.
In the shadow of it all, the corpses amass.
Back in Eagle Pass, locals like Rosalinda Medrano who have lived for decades along a porous border understand that migrants have and will always come or, increasingly, die trying.
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“Even though there’s one fence, and another fence, and so many troopers, and the national guard, and you name it – Border Patrol, here and there and everywhere – it’s not gonna stop these families,” she said, adding simply: “They want a better life.”
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Read the complete article at the link, in which Alexandra points to the numerous achievable solutions that both parties eschew — for political reasons — some cynical, dishonest, and racist (GOP) — others cowardly (Dems). None of what Alexandra reports will come as news to faithful readers of Courtside, or, indeed, to anyone who has taken the time to actually study and reflect on America’s decades of expensive, inhumane, “deterrence policies.”
Fact is, existing law, if correctly applied and administered, offers some obvious ways to start solving the problem:
Robust realistic “overseas” refugee programs in the Western Hemisphere — 150,000 would be a modest start — rather than the piddling, restricted numbers now slowly doled out by the Biden Administration.
Reopen legal ports of entry to legal asylum seekers, as required by law, to incentivize and reward them for not seeking to cross between ports of entry.
Staff the Asylum Office and the Immigration Courts with real experts in asylum law (there are plenty of well-qualified lawyers now in the private sector) who are committed to due process and can rapidly recognize and grant the many meritorious cases. Then, individuals are admitted in legal status, on their way to green cards, rather than aimlessly wandering the US with government-issued packets of misinformation (or no information at all) waiting for hearings that will come either too soon or too late, but never in a reasonable manner and often with incorrect preordained results designed to abuse the legal system as an “enforcement deterrent.” (NOTE: To act as an incentive/reward for appearing at ports of entry, the asylum system must be credible, transparent, and timely — something that no Administration has achieved to date, but which is possible with more vision, leadership, and better personnel making decisions.)
Work with, bolster, support, and learn from the many NGOs in the U.S. to insure that asylum seekers are informed of their obligations, represented on their applications, and resettled, mostly away from the borders to areas that need them, in an orderly fashion.
“Even though there’s one fence, and another fence, and so many troopers, and the national guard, and you name it – Border Patrol, here and there and everywhere – it’s not gonna stop these families,” she said, adding simply: “They want a better life.”
We can, and must, do better than “more body bags” as a matter of national policy! Migrants aren’t going to stop coming. That, we can’t change in the long run — no matter how many lies, myths, and distortions nativists throw out there, and no matter how fast spineless Dem politicos run from or attempt to hide the truth. But, we can deal with reality in a more humane, practical, realistic manner that will serve our nation’s, and humanity’s, interests into the future.
GRAND RAPIDS, MI — Hillary Scholten will become the first Democrat to represent Grand Rapids in Congress since 1977 after defeating Trump-backed Republican John Gibbs in a race that’s drawn national attention.
Scholten, an immigration attorney from Grand Rapids who worked in the U.S. Department of Justice during the Obama administration, defeated Gibbs 53% to 44%, according to unofficial results from the Associated Press.
The AP called the race for Scholten just before 2 a.m. Wednesday morning, with 63% of votes counted.
Scholten campaigned as a common-sense, problem-solving candidate who supports abortion rights, lowering the cost of health care and prescription drugs, and protecting Social Security and Medicare. Scholten cast Gibbs as an extreme candidate focused overturning the 2020 election results and “doing Donald Trump’s bidding on West Michigan.”
Scholten could not immediately be reached for comment early on Wednesday, Nov. 9. Her campaign spokesperson, Larkin Parker, said Scholten would be live-streaming a speech this morning.
Gibbs took to Twitter after AP called the race, saying “we believe this call is premature.”
“There are plenty more votes outstanding and we expect the vote count to go well into Wednesday,” said Gibbs, who grew up in Lansing and served in the U.S. Department of Housing and Urban Development during Trump’s presidency.
The last time a Democrat was elected to represent Grand Rapids in Congress was 1974. Attorney Richard Vander Veen was elected that year, in what was then the 5th Congressional District. He replaced U.S. Rep. Gerald Ford, who resigned from the seat to become vice president during Richard Nixon’s second term.
. . . .
After the polls closed Tuesday, Scholten spoke to supporters at Paddock Place, a restaurant and event venue in Grand Rapids. She described her campaign as a unifying effort to draw in voters from both sides of the political spectrum, as opposed to the “divisiveness” of her opponent’s campaign.
“This campaign has, and continues to build, something new here in West Michigan,” Scholten said. “A new political home for people on the right, the left, the center, who are tired of politics as usual, who are ready to cast aside the old frame of division, ‘us versus them,’ and join hands together for a better, brighter West Michigan for all of us.”
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Hillary has always been a widely respected “bridge builder.” She’s intellectually powerful, value-driven, dynamic, “tough as nails,” yet always kind and compassionate!
To my knowledge, she’s the first NDPA stalwart and first BIA employee to be elected to Congress. I hope she inspires others who share her values to enter the political arena and help those of us who believe in rational, practical, people and values-centered government and equal justice for all to save America from extremist ideologues!
🇺🇸 Congrats again and Due Process Forever! Practical, human values, and the courage to stand-up for them against lies and tyranny CAN win elections!
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
Forbes: Evidently, USCBP is eliminating the passport entry stamp to streamline the entry process. So now, foreign nationals will only have access to the Form I-94 website as proof of their lawful immigration status.
CBS: The department confirmed the review when asked to respond to accounts from migrants who told “60 Minutes” that U.S. Customs and Border Protection (CBP) officials along the U.S.-Mexico border kept their documents, despite agency policy instructing agents to return migrants’ personal property unless they are fraudulent.
NIJC: More than 130 immigration, criminal justice, and civil rights organizations released a letter today urging the Biden administration to include immigrants in the pardon process.
Law360: More than 100 immigrant rights organizations are urging the Biden administration to fully reinstate visitation at immigration detention facilities, saying in a Thursday letter that visitation is crucial for detainees’ mental health and monitoring human rights violations.
SA Current: The ACLU is condemning the actions of U.S. Customs and Border Protection agents allegedly caught on video firing pepper balls at a group of Venezuelan migrants protesting along the banks of the Rio Grande River near El Paso.
Law360: The Second Circuit on Wednesday declined to review a decision denying an asylum application from a Honduran man and his son who claim they will be killed by gang members if they return home, finding the Board of Immigration Appeals properly reviewed the immigration judge’s decision.
Law360: The Second Circuit on Tuesday backed the U.S. Board of Immigration Appeal’s decision to apply a persecution motive standard used in asylum requests to an Ecuadorian’s withholding of removal request, saying it was reasonable for the agency to do so.
Law360: The Third Circuit on Tuesday knocked down a Guatemalan man’s asylum bid after concluding he failed to back up his fears of violence in the Central American nation based on gang recruitment efforts and his rejection of gangs due to his evangelical Christian faith.
Law360: The Eighth Circuit has upheld a Board of Immigration Appeals ruling that denied a family asylum based on alleged gang threats for lack of evidence that the government of El Salvador could not or would not protect them.
Law360: A Mexican citizen who said police and criminal gangs would torture him for being bisexual and suffering from mental illness if he is deported a third time
Law360: The Ninth Circuit on Thursday backed an order requiring U.S. Citizenship and Immigration Services to adjudicate Special Immigrant Juvenile petitions within 180 days, rejecting the government’s argument that a lower court relied on “stale evidence” and disregarded hardship considerations.
Law360: Republican state attorneys general accused the Biden administration of violating an injunction requiring it to repel migrants from the border under pandemic-era restrictions, saying a sharp drop in Haitian expulsions indicated the administration was selectively lifting the so-called Title 42 border block.
AILA: On 10/31/22, DHS began limited implementation of the DACA final rule. USCIS will continue to accept and process applications for deferred action, work authorization, and advance parole for current DACA recipients. Due to litigation, USCIS will accept but cannot process initial DACA requests.
AILA: EOIR 30-day notice and request for comments on proposed revisions to Form EOIR-42A and Form EOIR-42B. Comments are due 12/5/22. (87 FR 66326, 11/3/22)
AILA: EOIR 30-day notice-and-comment period for proposed revisions to Form EOIR-31A, which allows an organization to seek accreditation or renewal of accreditation of a non-attorney representative to appear before EOIR and/or DHS. Comments are due by 12/5/22.
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Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
Supposedly, the main political issues right now are the economy and inflation. But, the economy and inflation are largely determined by the Fed, markets, global conditions, weather, and a certain amount of pure luck — all things beyond the direct control of the political branches of the USG.
As mentioned by Chuck Todd on last Sunday’s NBC “Meet the Press,” many experts say that the most effective tool that the Administration and Congress have to improve the economy without triggering a recession is to increase legal immigration — sooner rather than later. But, neither party is interested. The GOP sees an anti-immigrant stance as a key to political success. And, the Dems are “actively disinterested” in the issue. So, the opportunity passes.
But, the reality is that, in the long run, no amount of shipping containers, walls, prisons, family separations, deportations, exclusions to death or despair, hate rhetoric, or restrictive legal roadblocks will halt the future flow of human migration, and not incidentally, the internal relocation in America as certain areas become “unlivable.”
According to a government report published in today’s Washington Post:
The U.S. can expect more forced migration and displacement
Already, the authors of Monday’s report said, major storms such as Hurricane Maria, as well as extended droughts that strained lives and livelihoods, have led people to leave their homes in search of more-stable places.
In the hotter world that lies ahead, they write, additional climate impacts — along with other factors such as the housing market, job trends and pandemics — are expected to increasingly influence migration patterns.
“More severe wildfires in California, sea level rise in Florida, and more frequent flooding in Texas are expected to displace millions of people, while climate-driven economic changes abroad continue to increase the rate of emigration to the United States,” the report finds.
Such shifts are inherently complicated and fraught.
Several Indigenous tribes in coastal regions, facing fast-rising seas, have already sought government help to relocate, but have struggled to do so without significant hurdles.
“Forced migrations and displacements disrupt social networks, decrease housing security, and exacerbate grief, anxiety and mental health outcomes,” the authors write.
Neither political party appears serious about addressing these migration realities — already underway. The ideas that we can wall ourselves off, invest in “sending countries,” detain, and deport our way out of migration are not “solutions.”
Failure to act boldly and expansively on legal immigration will create a huge class of exploitable, disenfranchised, extralegal residents and plenty of work for border agents, internal police, righty judges, and jailers. It will also be a huge boon to smugglers and cartels who basically will “own” the American migration franchise. But, in the long run, building a large “underground humanity” won’t be enough to offset the “downside” of lacking a robust, realistic, orderly, legal immigration process.
Eventually, those nation-states that figure out how to harness, welcome, and distribute the power of human migration will rule the future. Right now, America’s leaders, of both parties, seem wedded to a “sure to fail” approach of either opposing or ignoring the realities and unlimited potential of human migration. Too bad — for all of us!
It wasn’t “Camelot,” as you can clearly see from this picture taken on the day of my retirement, June 30, 2016. No “Arthurs, Guineveres, or Lancelots” in this shot! But, the Arlington Immigration Court did its best to bring a modicum of due process, fundamental fairness, justice, and respect to those passing before it. Not perfect, by any means. But I was glad to be there and be “part of the team” for 13 years!
⚖️🪦 “REQUIEM FOR A HEAVYWEIGHT” — Farewell To The Arlington Immigration Court
By Paul Wickham Schmidt
Courtside Exclusive
Nov. 7, 2022
It was my “professional home” for the final 13 years of my career, until I retired in 2016. The Arlington Immigration Court was “born in controversy” decades ago when the Immigration Courts abandoned the sole outpost in the District Colombia and moved across the Potomac River to Northern Virginia. For many years thereafter, its internal acronym remained “WAS,” and mail and record files intended for the Seattle Immigration Court in the “State of Washington” periodically were misrouted to WAS, and vice versa.
Over the years, it grew from a single Immigration Judge — the legendary trail-blazer Judge Joan Churchill — to a judicial cast in the double digits. It outgrew always-inadequate space several times, reaching “the final resting place” on Bell Street in National Landing (née “Crystal City”) in 2012. It was combined and uncombined with the nearby “Headquarters Immigration Court.” At various times, Arlington Judges had regular jurisdiction over such far-flung locations as Cleveland, Cincinnati, Buffalo, Puerto Rico, and the USVI!
To be sure, Arlington had its share of tragedies, scandals, screw-ups, and nonsense. When located in the misnamed “penthouse” — a/k/a the top floor of the Ballston Metro Center — there were NO PUBLIC RESTROOMS — undoubtedly a violation of various Federal and local rules and an act of gross inhumanity to mankind by the chronically inept “powers that be” at EOIR “Headquarters” in Falls Church. Obviously, there were also no “10-minute recesses,” as attorneys and clients — old, young, handicapped, mobile or immobile, fit or unfit— were required to take the elevator to the lobby and fan out to various coffee shops and restaurants in the neighborhood to seek “relief from injustice and inconsideration.”
But, I like to think that the cause of justice was sometimes served at Starbucks, in the corridors, the elevator lobby, or on the surrounding streets during these interludes. On some happy occasions, counsel returned from these “extended recesses”with joint solutions to the case that might not previously have occurred to them, or to me.
On several occasions, the Arlington Fire Marshals closed us down for overcrowding! Toward the end of of our tenancy at Ballston, I inherited the sole “courtroom with a window.” I sometimes quipped that by craning my neck, I could see all the phases of my EOIR career from there: my past (the notorious “EOIR Tower in Falls Church”); my present (the humanity before me in my courtroom); and my future (“The Jefferson” Retirement Home across the square).
But, Arlington also was a place of general and genuine camaraderie: Where judges, Government attorneys, private attorneys, interpreters, and staff worked together as a team to bring practical, efficient, justice to those individuals appearing before the court and the many beyond that whose lives and fates were tied up in theirs. Indeed, of the various places I worked and visited in EOIR, it most reflected the values that have always been important to me: Fairness, scholarship, timeliness, respect, and teamwork.
Those “Thursday Judicial Lunches” and the famous or infamous “Seersucker Thursdays” helped model the spirit of teamwork and camaraderie. Indeed, my judicial career ended on June 30, 2016 — not incidentally, my final “Seersucker Thursday.” (I did, however, “carry on the tradition when teaching at Georgetown Law each June thereafter — until COVID and the “Zoom-era” struck!)
It was also a “showcase court” — or as close an approximation of one as EOIR had at the time. Because of the location in the DMV area, a steady stream of politicos, senior managers, journalists, Congressional Committee staff, professors, DOJ attorneys, USCIS adjudicators, statisticians, demographers, and the like passed through Arlington’s cramped confines and sat on some of the world’s most uncomfortable pews (some interns actually brought “stadium cushions”) to observe the “real life drama” of Immigration Court.
Also, as then Chief Judge Michael Creppy accurately told me at the time of my 2003 reassignment, Arlington was a “teaching court.” Generations of outstanding student attorneys from local law school clinics, “Big Law” associates, and newly-minted immigration practitioners “learned the ropes” in our cramped and chronically over-or under-heated courtrooms. (Immigration Judges were deemed “not qualified” to adjust courtroom thermostats. We had to call on the Court Administrator or the Security Guard to exercise that higher-level responsibility. I actually used to get “joint oral motions” from counsel to raise my courtroom temperature when we were in Ballston!)
And, Arlington Judges were known for their willingness toengage in “educational dialogue” with the parties and observers at the conclusion of the case. Of course, the “merits” of cases were “off limits.” But, it was a terrific opportunity to share information about procedures, practices, and to convey “judicial expectations” to those eager to learn more. Memorably, Judge Wayne Iskra’s totally accurate and painfully obvious remark that “the system is broken” seemed to go above and beyond what our “handlers” in Falls Church deemed appropriate!
Notably, a large number of “Arlington alums” are now themselves in key positions, as judges, government officials, NGO leaders, law firm founders and partners, academics, scholarly commentators, or media figures. Arlington interns and judicial law clerks have also gone on to distinguish themselves. For better or worse, hopefully the former, Arlington had “influence” that went beyond its “utilitarian wannabe to shabby” physical confines.
It was also a place of hope. That might have been why for years we had a negligible “no show” rate for individual hearings. For a number of years, from 2010 to the “advent of Trump,’” it was among the “league leaders” in asylum grants and favorable outcomes for individuals. This was in an age where the overall system and many of the attitudes of DOJ politicos who had authority over the Immigration Courts were relatively unsympathetic to asylum seekers, particularly those arriving at our southern land border or by boat!
A “colorful cast of characters” passed through the Arlington bench. Some were “up and comers” — on their way to “fame and fortune” in the EOIR hierarchy or beyond.
Others of us were exiles or refugees from “The Tower” or Senior Executive positions elsewhere at so-called “Main Justice” or “other government agencies.” At various points during my 13-year tenure, the following were “in residence” at Arlington: former Acting Commissioner of the “Legacy INS;” former INS General Counsel; former BIA Chair; former BIA Members and “Temporary BIA Members;” former Acting INS General Counsel; former INS Deputy General Counsel; Former Principal Deputy Director, International Section of the DOJ; former Principal Deputy Chief Immigration Judge, two-time former Chief Trial Judge of the U.S. Army; former Acting Chief Immigration Judges; former Acting EOIR Director; former Assistant Chief Immigration Judges; former “Brooks Bros Rioter;” former Partner at Jones Day; former Managing Partner of the DC Office of Fragomen; past President of the National Association of Immigration Judges; founder and first President of the BIA Employees Union; former Chief Counsel to the Senate Subcommittee on Criminal Justice; (briefly) former EOIR General Counsel and Deputy General; former Associate Counsel at the White House Domestic Policy Council; former Assistant to the Deputy Attorney General; Adjunct Professor and former Adjunct Professors at Georgetown Law, George Mason Law, and UVA Law.That’s just what I can remember; I’m sure I’ve overlooked some.A few “legitimate celebs” passed through our doors, including Angela Jolie who was a witness in one case!
To be sure, those of us “on the way down the government food chain” or those voluntarily fleeing it far outnumbered those slated to move “up the ladder.” Of course, Arlington wasn’t above criticism. Too old, too White, too male, too many “bureaucratic retreads” to accurately reflect the diverse nature of both the “customers” and the legal community in the DMV area. I won’t deny that there was some validity to those observations.
But, we “were what we were” — the choices that led to our composition at any one time were “above our pay grade.” Heck, I didn’t even apply for the job!
I think all of us did our best to compensate for or “work around” our undoubted “blind spots.” Whether we were successful is for others to decide. As a group, regardless of gender, we all consciously tried to avoid the “grumpy old men” appellation attached to some Immigration Courts of that era.
On October 14, 2022, the Arlington Immigration Court passed into history. Its judges, staff, cases, and the lives they affect scattered, in a tidal wave of “Aimless Docket Reshuffling,”among the newly-established Sterling and Annandale Immigration Courts and the Falls Church and Richmond “Immigration Adjudication Centers.”The latter are apparently part of the current “vision “ of “migrating” EOIR back to its “INS roots” of yore by “emulating” the impersonality of USCIS “Service Centers” — while reportedly providing a level of “customer service” significantly below that which would make USCIS blush!
So, it’s a final farewell to Arlington. But, I will always remain grateful for the time I spent there, for the colleagues I worked with, for those who came before me and helped enlighten me in court, and for those whose lives and futures were entrusted to my care.
Hon.Romano L. Mazoli (1932-2022) U.S Congressman (D-KY; 1971-95) PHOTO: therecord.com
I personally knew Congressman Mazzoli (D-KY), and worked with him and his staff on the Immigration Reform & Control Act of 1986 (“IRCA”), as I did with Senator Alan Simpson (R-WY) and his staff on the Senate side. At that time I was the Deputy General Counsel and later Acting General Counsel of the “Legacy INS.”
Shortly before I left INS for private practice, in 1987, Congressman Mazzoli invited me to his hometown of Louisville to speak on immigration reform. I was presented with a ceramic “Big Balloon,” representing the City of Louisville, to memorialize that occasion.
We kept up for a time after I went into private practice. He was friendly with Harris Miller who worked with me at Fragomen during my stint as DC Managing Partner. Harris, who recently, sadly, died at 71, had worked for Ron and the Democrats on the House Judiciary staff. I remember Harris, his wife Deborah, Ron, his wife Helen, my wife Cathy, and me having dinner at the Occidental Restaurant in DC shortly after he left Congress and just before I left Fragomen to become the BIA Chair in 1995. Ron supported my application.
At that time, Ron was putting together plans to teach at his alma mater U. of Louisville Law. I believe Harris and I might have offered him some “syllabus pointers,” although, in actuality, he hardly needed any help from us given his decades of experience in Congress.
Eventually, we lost touch. But I still have fond memories of Ron, Harris, and a time when the immigration debate, although always spirited and contentious, was more civilized and empirically based.
Here’s a lengthy obit on Ron from The NY Times, forwarded by my friend Nolan Rappaport.
Ron was a gentleman and a dedicated public servant who did everything he could to make the system work for the common good — part of the “lost art of governing effectively.” A life well lived. Rest In Peace, Ron.
Org. Sign-On Letter to the Admin re: Haitians in Guantánamo Bay or third country agreements
Hi everyone –
This morning, Haitian Bridge Alliance (HBA) along with 288 immigration, civil rights, human rights, and faith-based organizations, sent a letter to President Biden urging him to protect Haitian asylum seekers. In the letter, organizations urged the administration to not send Haitians seeking safety back to Haiti, third countries, or detain them in Guantánamo Bay.
Pretty much says it all! A Dem Administration abandons the values of racial justice and immigrant justice for some “strategy” that sure escapes me.
It’s not like continuing to “beat up” on Haitians and other migrants of color and threatening to inflict even more extreme violations of legal andhuman rights than the Trump Administration has garnered ANY support or acceptance from the far right. They continue to characterize all Administration policies as “open borders,” although nothing could be further from the truth.
Additionally, failure to reinstitute and improve the rule of law at the border for legal asylum seekers has failed to create an orderly process for screening asylum seekers at ports of entry or for refugee status outside the U.S. and timely and generously processing valid claims for protection. The result has been a loss of an important group oflegal immigrants who could have helped reduce inflation and improved the economic outlook. At the same time, shifting asylum screening away from legal ports of entry has overburdened the Border Patrol by forcing everyone seeking protection to cross the border between ports of entry.
As a related point, I defy anyone to explain on what basis some asylum seekers apprehended at the border are allowed to enter and pursue claims and others similarly situated are orbited back into danger with no process whatsoever. It’s certainly NOT the result of the prompt screening by USCIS Asylum Officers that Congress mandated, but the Trump and Biden Administrations have ignored — to everyone’s detriment.
This resulting “disorder at the border” has NOT attracted independent voters to the Administration’s immigration stance.
At the same time it has driven an unwise and entirely unnecessary wedge between the Administration and 1) Democrats who want “order at the border” and a reduction in extralegal entries; 2) Democrats who believe in strictly honoring our legal, Constitutional, treaty, and human rights obligations to asylum seekers regardless of race; and 3) Democrats who believe that both 1) and 2) are achievable!
I have no idea what the Biden Administration’s “vision” of border law and policy is. But, I can tell you for sure that it’s NOT working and that more, harsher, racially discriminatory enforcement without reinstating our refugee and asylum systems and reforming the totally dysfunctional Immigration Courts is NOT the answer!
Every year at the end of October, legal service providers come together to celebrate Pro Bono Week. It is a dedicated opportunity to acknowledge the amazing work that our volunteers do—work that is the foundation of the American Immigration Council’s Immigration Justice Campaign. In an immigration system that is set up to make it almost impossible for certain groups of people to win, pro bono volunteers are one of the bastions helping overwhelmed legal service providers hold the line for due process and justice.
From the solo practitioner doing pro bono work to learn a new skill, to the corporate law firm partner who has incorporated pro bono as part of their practice for two decades, our volunteers run the gamut. Everyone makes a difference—from the law students interpreting between classes and homework to the community members who volunteer simply because they care. Every single volunteer is integral to the Justice Campaign’s work—and we thank them for their time and dedication.
Since its creation in 2017, the Justice Campaign and our volunteers have walked alongside hundreds of immigrants in their fight for justice and due process in the United States.
This year alone, over 200 Justice Campaign volunteers have:
Worked on 221 cases for detained individuals in 14 detention centers across the country.
Worked on 335 cases for non-detained individuals across 32 states of residence.
Served clients from 30 countries of origin who speak 19 different languages.
And with these volunteers’ help:
71% of clients have won their immigration case.
85% of clients asking for release from detention have won that release from an immigration judge.
Nationally, only 40% of people win their immigration cases, and only 32% win their release from an immigration judge. Those numbers are even lower for people without an attorney. Detained immigrants without an attorney only have about an 11% chance of winning release.
This small example of Justice Campaign clients and volunteers shows the immediate impact that pro bono work has on clients’ lives. Without the dedication of our pro bono volunteers, many of these individuals would have had to move forward alone. Statistically speaking, that means most probably would have lost.
The past several years have been difficult for most of the world in so many ways. And yet, pro bono volunteers continue showing up every day, allowing the Justice Campaign to continue serving clients, help people get out of detention, fight their cases—and for many, win. To the hundreds of volunteers who have worked with the Justice Campaign, this year and every year, thank you. We could not do this work without you.
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This reality bears little resemblance to the myths and false narratives about the impact of representation put out by nativists and parroted by EOIR during the Trump years. Nor does it match the gimmicks and poor planning of the Biden Administration, which continues to operate on the false assumption that the vast majority of asylum cases in Immigration Court will be denials.
While this sample is probably too small to be statistically valid, it certainly supports the view that the current mess at EOIR unjustly leaves behind many asylum seekers and other individuals entitled to relief just because they are unrepresented or poorly represented. It also make them much more likely to remain in detention, costly for both them and the Government.
It would make sense for EOIR and the Biden Administration to work cooperatively with the pro bono and low bono bar to prioritize and increase representation and to then prioritize represented cases that are most likely to result in grants of relief. Those cases are likely to proceed faster (without any due-process-denying “gimmicks”), less likely to be appealed, and would seldom reach the Courts of Appeals. An overall efficient way to use resources.
Additionally, EOIR should be working more closely with VIISTA Villanova and others who have developed “scalable” programs for training accredited representatives to increase quality representation in Immigration Court.
Instead, with yet another round of mindless “Aimless Docket Reshuffling” on steroids, EOIR has instigated an unnecessary and counterproductive “pitched battle” with advocates across America. Go figure!
Tuesday, Wisconsin has the chance to reelect a truly kind and decent man who is also a really effective governor, Tony Evers. This week his Republican opponent announced: “Republicans will never lose another election after I’m elected governor.” His people tried to backtrack afterwards and say he will do such a good job everyone will always forever after vote for Republicans all the time. That wasn’t what he was saying. He is a 2020 election denier who plans to abolish Wisconsin’s bipartisan election commission and replace it with one he hand picks. He sold his soul to Donald Trump for his endorsement. He is in Trump’s debt.
After Citizens United unleashed unlimited corporate political spending, Wisconsin became the Republican party’s test grounds for how to turn unlimited money into election wins. What blindsided so many nationally in 2016 with Donald Trump’s election has been ongoing here since 2010. I know some of you want to believe there are some sort of safeguards protecting our democracy or possibly some sort of protective netting preventing Republicans from sinking beyond a certain point. I can tell you there is not.
Wisconsin wasn’t chosen randomly to be the testing ground of unlimited spending. It was our long history of humanity, support for schools, fairness for workers, and leadership on environmental protections that brought us into the Republican party’s focus. Much of what you like about Penzeys has its roots in Wisconsin’s tradition of caring for others. It is our caring that the Republicans seek to end.
Milwaukee’s Journal Sentinel has come around and done a very decent job covering just what a threat both our Republican governor and senator candidates are to the future of democracy. They don’t normally make endorsements, but they’ve realized this one is too important to sit out. Please read their well-reasoned endorsement of Tony Evers’s re-election for Governor and our Lt Governor Mandela Barnes for US Senator editorial here. (Just tap on the highlighted link). Evers and Barnes have earned Wisconsin’s support.
And maybe the root of this Tuesday’s election is to be the wake-up call America needs to save our democracy, but here in Wisconsin 2024 could be too late. Unless you’ve been here these last twelve years, you can’t imagine the depths of corruption that are now accepted as commonplace in our state’s Republican party. I won’t bog this down with the numbers, but Wisconsin is so very corruptly gerrymandered. It is amazing that this year there is still hope, but that hope hangs by a thread.
Please, if you know someone in Wisconsin forward to them this email or at least the link to the Milwaukee Journal Sentinel endorsements. Better yet, give them a call. We are nice people to talk to. Republicans have to cheat here because the majority of us are good and decent people, but after a dozen years of this, some of those good and decent people are exhausted. This cycle’s relentless Republican ads of nonstop lies, anger, and racism have been brutal.
Please do all you can to lift the spirits of anyone you know who lives here in Wisconsin. Against all odds this one’s coming down to the wire. Victory, and with it the survival of democracy, here is still very much within our reach. Your encouragement can make all the difference. Wisconsin isn’t Las Vegas. Nothing stays here. What happens in Wisconsin first happens to all of America next. Please don’t sit on the sidelines while Republicans end our democracy. Please help.
We found that JMD’s and EOIR’s contracting files did not demonstrate that the acquisition planning team applied well-established techniques to facilitate monitoring and overseeing the contractors’ performance in compliance with the Federal Acquisition Regulation (FAR), DOJ and EOIR policies, or the award terms and conditions.
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In simple terms, with well over a million lives at stake and with tens of millions of dollars of taxpayer money on the line, EOIR screwed up! Royally!👑 This report focuses on the period 2017-22, that included the Trump Administration. During that time, the Trump-Era “EOIR Clown Show” 🤡 was busy on such frivolous things as:
Developing a list of lies, distortions, and misrepresentations about asylum seekers and their attorneys and putting it out as a bogus (now eradicated without a trace) “fact sheet;”
Implementing since-abandoned “production quotas” and wasting money on so-called “IJ Dashboards” to micromanage production;
Creating an “Office of Policy” in an agency where such “policy” is largely the responsibility of what is supposed to be a body of independent quasi-judicial adjudicators, the BIA, and which office largely duplicated functions that were being satisfactorily performed by the EOIR Office of General Counsel;
Mismanaging the COVID response in the Immigration Courts;
Building record backlogs.
While Garland did eventually push out the Director, Deputy Director, and Chief Immigration Judge, the later position remains vacant and there is no hard evidence that the replacements for Director and Deputy Director are any more qualified than their inept predecessors to lead “America’s worst courts” back to some level of competence and functionality.
And, as has become the “norm” under Garland, there is no firm indication of any accountability or meaningful institutional improvements to insure due process and appropriate expenditure of public funds.
And, it’s not like things were better before 2017. As the report noted, between 2001 and 2016, EOIR “blew through” $80 million on its so-called “eWorld Adjudication System (eWorld),” without producing a functional product that could be used nationwide! Hence the need to throw even more money at the problem from 2017-22!
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
CONTENTS (jump to section)
NEWS
LITIGATION & AGENCY UPDATES
RESOURCES
EVENTS
PRACTICAL UPDATES
New I-765 and I-589 are mandatory starting next week: Starting Nov. 7, 2022, USCIS will only accept the 07/26/22 editions.
NBC: The Biden administration is weighing options to respond to what could soon be a mass exodus of migrants from Haiti, including temporarily holding migrants in a third country or expanding capacity at an existing facility at the U.S. prison at Guantánamo Bay, Cuba, according to two U.S. officials and an internal planning document reviewed by NBC News.
CBS: The figure, which far exceeded the previous record of 546 migrant deaths recorded by Border Patrol in fiscal year 2021, is likely an undercount due to data collection limits, migration policy analysts said.
LA Times: After analyzing the records of nearly 17,000 calls between 2016 and 2021 from its national immigrant detention hotline, Freedom for Immigrants released a report Wednesday that it and other advocacy groups say indicates a pattern of racism and abuse toward Black migrants.
ACLU: After 16 months of negotiations, settlement talks between the Biden administration and plaintiffs in Ramos v. Mayorkas officially collapsed yesterday afternoon, leaving more than 260,000 people at risk of deportation. Beneficiaries of Temporary Protected Status (TPS) and their US citizen children first brought the lawsuit in 2018 after Trump revoked protections for individuals from El Salvador, Haiti, Nicaragua, Sudan, and later for Nepal and Honduras.
NPR: After months of public feedback, the federal agency has shortened and simplified its disability waiver, which is used to exempt immigrants with physical, mental or learning disabilities from the English and civics test requirements.
Intercept: On Monday, Gov. Doug Ducey began dropping the first of thousands of shipping containers along a 10-mile stretch of national forest in open defiance of federal authorities. In the days since, the Republican governor has transformed a remote section of rugged desert into what looks like a junkyard.
CBS: Seventy-three percent of surveyed voters in Arizona, Georgia, Nevada, Pennsylvania and Wisconsin said they backed giving immigrants living in the U.S. without legal permission an opportunity to “earn” lawful status and ultimately citizenship if they meet certain requirements, including passing background checks.
Law360: A split Ninth Circuit declined to revive the asylum bid of a Salvadoran man ordered deported after traveling through Guatemala and Mexico before entering the U.S., saying its hands were tied when it came to reviewing expedited removal orders.
Law360: A split Ninth Circuit has ordered the U.S. Board of Immigration Appeals to reconsider a Guatemalan man’s deportation relief bid, saying the agency wrongly ruled out government acquiescence in the man’s account of being tortured by Guatemalan police officers.
Law360: The Tenth Circuit declined to review a former conditional green card holder’s challenge of a 1999 deportation order, saying his chances of tossing the decades-long order stopped at the immigration courts due to his unlawful reentries into the U.S.
Law360: U.S. Citizenship and Immigration Services approved a Mexican woman’s application for a T visa, designated for sex trafficking victims, after an Illinois federal judge faulted the agency’s earlier refusal to accept an immigration judge’s waiver of inadmissibility, the woman said.
Law360: A California federal judge tossed an equal protection claim brought by young immigrants who were abused or neglected by their parents, dismissing on Wednesday their argument that the government was unfairly treating them differently from trafficking victims in doling out work authorization.
Politico: The governor’s office did not immediately respond to a request for comment, but lawyers representing the Florida Center for Government Accountability said they anticipated there would be an appeal.
ICE: The organization was responsible for organizing well over 500 sham marriages in exchange for substantial amounts of money solely for the alien beneficiary to obtain immigration benefits.
Law360: Senate Democrats called on the Biden administration to broaden Haitian immigration protections to cover Haitians who have fled political and economic turmoil over the past year, saying Wednesday that conditions in Haiti have only worsened since the administration last offered relief
EOIR: The Executive Office for Immigration Review (EOIR) announced the appointment of 32 immigration judges to courts in California, Florida, Georgia, Illinois, Maryland, New York, Tennessee, Texas, and Virginia.
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Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
When all else fails, picking on vulnerable Black Haitian refugees is always a popular way to buff up your “restrictionist creds” for Administrations of both parties. But, the GOP already has the White Nationalist/nativist vote locked up. So, what the Biden folks hope to get by throwing Haitians “under the bus” and driving back and forth over their bodies is a mystery to me.
Hey, I’m only a retired Immigration Judge, not a political wonk. But, I can’t see what Biden and Harris stand to gain with their cruel, anti-Haitian policies.
Why not set up viable refugee programs in Haiti, as we did for Cubans, if we don’t want more refugees taking to the sea in leaky boats? Why not prioritize immigrant visa processing for qualified immigrants from Haiti, Cuba, Venezuela, the Northern Triangle, and other Western Hemisphere countries? Migration from these nations to the U.S. is a reality that benefits both the migrants and our nation. Why not use the tools at hand to channel legal immigration rather than flailing around with questionable built to fail “deterrents.”
“Can’t anyone here play this game?” The GOP lacks honesty and decency. The Dems lack vision and guts. The public is misinformed about the realities of immigration. Migrants and their supporters are caught in the crossfire of political failure! PHOTO: Rudi Reit Creative Commons
Lack of immigration reform hurts businesses and farmers, puts nation’s food supply at risk
Note the comments from immigration lawyer George Pappas in North Carolina.
The hostility is reflected in the immigration courts in Atlanta and in Charlotte, where the highest denial rates for asylum prevail,” he told USA TODAY. “They will not be talking about outsourcing workers or about education. The right wing base of the Republican party has used immigration as a political wedge issue to deflect attention and to deflect media, airwaves, and media space from real issues.
While undoubtedly the Immigration Courts in Atlanta and Charlotte do reflect the type of biased, anti-immigrant approach pushed by GOP politicos, today they are run by Dem AG Merrick Garland. He has failed to make needed reforms and changes at the top, starting with inept leadership from EOIR Headquarters and a precedent setting appellate board (BIA) that does not reflect the best-qualified expert judicial talent available who would implement due process, fundamental fairness, consistency, and best judicial practices nationwide.
Ironically, these values WERE once part of the “EOIR Vision,” abandoned and trashed by Administrations of both parties over the past two decades. For Dems who believe in the power of immigrants and immigrants’ tights, it’s now basically “Pogoland:” “We have met the enemy, and he is us.”
A number of the public comments in the articles also show gross misconceptions about the nature of migration, the goals of the GOP, the reasons why migrants can’t apply for asylum in a safe, orderly manner at ports of entry, the immense benefits to both the workforce and society brought by family-based immigrants and those seeking to enter as refugees and asylees, and the relationship between an improved economy and a sensible, robust, realistic approach to immigration (eschewed by the GOP; bobbled by the Dems).
Both parties have squandered opportunities to acknowledge truth, make the current system work better, and create order at the border. Neither has a serious plan for reform on its agenda.
Unlike the Trump “shut the border/build the wall” racist fiasco, Biden’s initial USCitizenship Act of 2021 had some good ideas. But, after quickly “throwing it out there,” apparently as a sop to those who helped elect them, the Administration shoved it in a drawer and forgot about it. Instead, they pursued a mishmash of “built to fail gimmicks,” bureaucratic bungling, broken courts, poor legal positions, lack of vision, inept PR, and weak leadership.
The failure of the world’s leading “nation of immigrants” to discard and disavow the racist nonsense on immigration and come together on realistic, forward looking, generous, welcoming immigration policies makes our nation look bad and robs us of opportunities to improve the economy and build for the future.
