"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.
U.S. Supreme Court justices on Monday appeared reluctant to let people who have been allowed to stay in the United States on humanitarian grounds apply to become permanent residents if they entered the country illegally.
The justices heard arguments in an appeal by a married couple from El Salvador who were granted so-called Temporary Protected Status of a lower court ruling that barred their applications for permanent residency, also known as a green card, because of their unlawful entry.
The case could affect thousands of immigrants, many of whom have lived in the United States for years. President Joe Biden’s administration opposes the immigrants in the case. The dispute puts Biden, who has sought to reverse many of his Republican predecessor Donald Trump’s hardline immigration policies, at odds with immigration advocacy groups and some of his fellow Democrats. read more
A federal law called the Immigration and Nationality Act generally requires that people seeking to become permanent residents have been “inspected and admitted” into the United States. At issue in the case is whether a grant of Temporary Protected Status, which gives the recipient “lawful status,” satisfies those requirements.
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Liberal Justice Sonia Sotomayor told Justice Department lawyer Michael Huston, “If you’re asking us to find the better reading of the statute, we should go by its terms: Those people have been admitted.”
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Read the full article at the link.
Garland helps Biden deliver “tough noogies, go pound sand, your lives don’t matter” message to immigrants like Jose and Sonia and their supporters who might have had the illusion that better times were on the horizon with Biden’s election! Progressives find that when push comes to shove, Biden & Garland can be just as cruel, dumb, and counterproductive as Trump & Miller!
Any hope that advocates might have had of help, sympathy, or understanding for their green-card-qualified clients with decades of residence and citizen family members goes down the tubes early in Dem Administration. Biden-Harris humane rhetoric and promises prove just another illusion for progressives in Administration’s first High Court test!
But for Justice Sotomayor, the thinness of the Justices’ understanding of both immigration law and the human issues involved was alarming, yet basically predictable. What do a bunch of highly privileged, above the fray, judges who have never personally dealt with the stupidity, arbitrariness, and trauma of our immigration system, and never represented clients in Immigration Court, care about shutting hard working American residents, people of color, like Jose and Sonia, out of our system and disenfranchising them for no particular reason. The worst, most racially discriminatory “interpretations” are “available” to those judges, so why not use them? For them, it’s a wooden academic exercise played out with human lives that don’t matter because they are “the other.” Except for Sotomayor, going for the best, most practical, humane interpretation evidently never crossed the minds of these Justices.
As Justice Sotomayor correctly said: “If you’re asking us to find the better reading of the statute, we should go by its terms: Those people have been admitted.”
It’s not rocket science. Just common sense, humanity, and a clear understanding of the effect of legal interpretations on human lives. At the Supreme Court level, most decisions represent a “choice” rather than a “mandate.” That’s where having Justices who neither care to understand nor have to live with the consequences of their decisions really hurts people of color, immigrants, asylum seekers, and others not in the “power structure!” Better judges for a better America!
Meanwhile, advocates and progressives should never underestimate the ability of Dem Administrations to screw up immigration policy.
With thousands of well-qualified experts from the NDPA out there, is THIS really the best way for the Biden Administration to recruit immigration/human rights advisers and Immigration Judges? It might, however, reach a more diverse audience than gobbledygook laden, short turnaround, “posts” on “ USA Jobs” that have created today’s non-diverse, regressive, non-expert Immigration Judiciary and the bloated, incompetent bureaucracy in Falls Church! PHOTO: Thomas Hawk Creative Commons Amateur Night
It’s difficult to believe that the president and his top officials did not realize their immigration policies, refugee admissions among them, would galvanize Republican opportunism and demagoguery. Perhaps they failed to anticipate the scale of unaccompanied Central American minors and families who would cross the border seeking asylum this spring. Maybe they are worried that GOP attacks, conflating that wave of asylum-seekers with refugees, would further imperil the Democratic congressional majorities in next year’s midterm elections, despite Mr. Biden’s own healthy standing in the polls.
. . . .
The president would do well to re-read his own campaign’s clear-eyed pronouncements on the subject. They correctly slammed Mr. Trump for decimating America’s decades-long leadership on refugees, whose admissions to this country were slashed by more than 75 percent in four years, to fewer than 12,000 in fiscal 2020. “We cannot mobilize other countries to meet their humanitarian obligations if we are not ourselves upholding our cherished democratic values and firmly rejecting Trump’s nativist rhetoric and actions,” said the Biden campaign statement on refugees.
While the administration bumbles its way toward a policy, real lives are at stake. Some 33,000 refugees in Africa, the Mideast and elsewhere, all of them having passed rigorous screening by the Department of Homeland Security and other agencies over the course of months or years, are stuck in camps where they await flights to the United States. They see this country as a beacon, just as Mr. Biden insisted it is.
It’s difficult to believe that the president and his top officials did not realize their immigration policies, refugee admissions among them, would galvanize Republican opportunism and demagoguery. Perhaps they failed to anticipate the scale of unaccompanied Central American minors and families who would cross the border seeking asylum this spring. Maybe they are worried that GOP attacks, conflating that wave of asylum-seekers with refugees, would further imperil the Democratic congressional majorities in next year’s midterm elections, despite Mr. Biden’s own healthy standing in the polls.
In any event, the president’s retreat on refugees is a danger sign. It looks like weakness; it smacks of spinelessness. Time will tell whether it is a short-term tactical maneuver or a more basic lack of resolve in the face of political headwinds. Here’s hoping it is the former.
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Read the complete editorial at the link.
Perhaps, Biden’s West Wing immigration advisers need a different “vision” of U.S. refugee policy. Perhaps, it’s time to end “Amateur Night at the Bijou” and bring in some human rights pros with the knowledge and guts to implement humane, effective, robust, legal refugee and asylum policies that serve humanity and advance our true national interests! PHOTO: independent.co.uk
Read the full op-ed, which actually recycles much that you’ve already heard on Courtside, at the link.
It “might be difficult to believe,” but you need look no further than the continuing worsening mess in Garland’s dysfunctional Immigration Courts, the failure to implement the rule of law at the border, the inability to get a robust refugee program up and running near the Northern Triangle, and the glaring lack of immigration/human rights expertise in the West Wing to see how unprepared “Team Biden” was to deal with inevitable, totally predictable, issues on which progressive Dem experts had been raising the alarm since before the election.
Incredibly, with hundreds, perhaps thousands, of progressive immigration/human rights/due process experts out here in the Dem camp, Biden has managed to surround himself with the wrong folks — those who can’t get the job done and prove it every day!
“Courage of their convictions” — that’s the problem here: Either his advisors don’t believe in the immigration, human rights, and justice agendas that Biden and Harris ran upon or they don’t have the guts to carry them out! Either way it’s a problem.
This is the same old, same old arrogant, uninformed “it’s only immigration not something important” attitude that has turned strength into weakness for Dems over the past decades! As Stephen Miller could testify, having the brainpower, expertise, courage, advocacy skills, energy, and persistence of the immigration/human rights community lined up in opposition isn’t conducive to implementing your agenda, whatever it might be.
Also, a pile of dead bodies beyond the border and continuing “Dred Scottification” of the other in dysfunctional, disgraceful “captive courts” might squeak by in the “present tense,” but will be an unflattering historical legacy that in the long run will outweigh all the achievements.
Turning supporters into critics, abandoning your values and promises, ginning up court suits opposing your out of control, due process destroying “courts,” and scofflaw asylum policies — some of them right out of the Stephen’s Miller playbook — seems like a bad way to proceed for any politician, let alone ones as experienced and skilled as Joe Biden & Kamala Harris.
Recognizing when the “honeymoon is over” and you need folks on your team who can actually turn campaign promises into real-world action is critical.
So far, the “Amateur Night @ the Bijou” approach to immigration, human rights, due process, and racial justice, predictably, isn’t getting the job done. The Biden Team needs to either turn to the experts, or face the real prospect of four years of continuing failure — along with the dead bodies, ruined human lives, and sense of continuing betrayal by gutless politicos that go with it.
Due Process Forever! Not “rocket science,” 🚀 but “mission impossible” without bringing in the pros!
Five months after the election and five weeks after his swearing-in as AG, Judge Garland’s EOIR is worse than ever! And, he has nobody at the DOJ or in Falls Church with the expertise and progressive outlook to fix the mess! If you don’t want to deal with this for the next four years, then it’s time to demand courageous, positive, progressive, due-process, human rights, racial justice oriented change! We voted to end the “clown show,” but it’s still operating as if the election never took place! PHOTO: Thomas Hawk Creative Commons
Fed up with “Garland’s Clown Show🤡” @ Justice?
Tell your legislators that you want Article I NOW — with a “short grandfather” and merit-based re-competition of all judicial jobs!
Stop the threat to America’s future emanating from our dysfunctional, biased, anti-immigrant, anti-asylum, anti-due-process, misogynistic Immigration “Courts” still operating under Judge Garland, as designed and staffed by Stephen Miller, Jeff “Gonzo Apocalypto” Sessions, and “Billy the Bigot” Barr to degrade humanity and mock the Constitution!
Courageous, deserving, vulnerable folks like “Ms A-B-“ are still unnecessarily suffering injustice from Garland’s broken system! In fact, because Garland won’t stand up for the legal and due process rights of asylum seekers at our borders, if Ms. A-B- arrived today she would be back in El Salvador tomorrow facing torture, rape, and death after receiving no process whatsoever, let alone due process! NONE! No legal process from a Government supposedly committed to humanity and the rule of law!
Is this what President Biden meant when he pledged to undo the cruelty, racism, and scofflaw abuse of refugees and asylum seekers meted out by Trump, Miller, Wolf, Barr, and Cooch Cooch? If not, why are lives still being lost and futures ruined by this totally outrageous and completely unwarranted behavior? It’s a TODAY issue, not a problem to be shoved over until tomorrow!
Thankfully, he’s gone, but he left plenty of his friends @ EOIR. Judge Garland might be enjoying his “Continuing Clown Show.” But, the human beings whose rights and humanity are degraded daily and their long-suffering lawyers, not so much! (Officially titled “Ass Clown”) Artist: Scott Scheidly Orlando, FL Reproduced by permission
WASHINGTON — An immigration judge in the San Francisco court abruptly quit his post this week, issuing a scathing letter upon his retirement expressing frustration with the entire court system and its U.S. Justice Department management.
The letter does not acknowledge that Judge Nicholas Ford himself was also the subject of criticism from local attorneys representing immigrants, many of whom banded together to file a formal complaint against him alleging hostile and biased treatment of their clients with the Justice Department last year.
In his departure letter addressed to “wonderful” colleagues in the San Francisco immigration court, a copy of which was obtained by The Chronicle, Ford said he had “profound” frustration with Justice Department court managers. Ford said his supervisors were “a fearful community whose primary interest has never been the growth of those they oversee but rather their own continued employment.”
Ford, a former criminal court judge in Cook County, Ill., said he wanted to issue a “warning” to other immigration judges.
“I am an older judge and it is hard to understand how any court system can function like this,” Ford wrote. “These managers I have spoken of from the director to those in management below her will not support you. As we used to say in Chicago ‘they will throw you under the bus in a minute.’ Stay on your toes and view skeptically anything they tell you.”
Ford did not immediately respond to a voice mail seeking comment.
Ford was named to the immigration court bench in 2019 by then-Attorney General William Barr, after a controversial tenure in Chicago during which he was criticized for jailing a pregnant woman without bail for a nonviolent crime and had a high number of rulings overturned by appellate courts, according to a justice watchdog group.
In San Francisco’s immigration court, the criticism from private attorneys continued. In a complaint filed by more than a dozen law firms and legal organizations that represent immigrants, including the local chapter of the National Lawyers Guild, attorneys said Ford regularly acted in an “aggressive, unprofessional and demeaning” manner toward immigrants and displayed shocking in-court behavior.
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Tal Kopan Washington Reporter, SF Chronicle
Read the rest of Tal’s article at the link.
The problems are well-documented;
The need for reform is immediate;
The solutions are obvious;
The expert progressive talent to shake up this system and get it back on track to due process and fundamental fairness is readily available!
So, what’s missing: Progressive leadership, recognition, engagement, and action from Judge Garland!
The Biden Administration continues at their peril to demean, dismiss, and disrespect progressive immigration experts, their supporters, and the human lives at stake! It’s incredibly stupid! But, sadly, not unprecedented in Dem Administrations. That explains a lot about how we got to the current unacceptable situation.
Outside the West Wing, the legal community is aghast at Judge Garland’s failure to address the ongoing, deadly, debilitating, mess @ EOIR! And, although reform is achievable, it’s “mission impossible” with the folks currently on Garland’s staff and @ EOIR HQ.
Oh, and did I mention that Garland’s EOIR is sitting on a largely self-created 1.3 million (known) case backlog? Even if no new cases were put in the system, they wouldn’t get done with the existing cases by the end of Joe Biden’s first term in 2025! And, that’s without counting the cases that inevitably are completely “off docket” — lost in EOIR’s sea of technical and management incompetence.
Still, no sense of urgency and recognition whatsoever from Judge G! Why “study and muse” about what dozens, perhaps hundreds, of experts have already told you how to fix — some many times over?
Judge, those of us who who have been dealing with this disgraceful, dysfunctional system for years know what the problems are and how to fix them. What we need from you is intelligent, decisive, progressive, due-process-focused action, not more “dithering and studying!” You can’t and won’t get the job done with the current staff at DOJ and the clowns at Falls Church!
Heck, they just mindlessly “pissed off” every “stakeholder” in the country with yet another inane, “top-down,” “your views don’t count,” unworkable, detached from reality, “policy memo” and a series of disastrous (that’s one of the more “printable” adjectives I heard) “Town Halls!” What other “court system” in America spends time and resources on nonsense like this? The clowns might be Sessions-Barr-Miller holdovers. But, they are performing in YOUR NAME, Your Honor. And, let me give you a clue: It’s not going over well with the audience!
Judges Dana Marks, Amiena Khan, Noel Brennan, Janette Allen, Dorothy Harbeck, Mimi Tsankov, Samuel Cole, and other progressive jurists like them, with courage and executive ability, are ready to take over the Falls Church Tower, on an immediate temporary basis, start fixing the problems, and restoring due process, fundamental fairness, sound leadership, and best practices at our now-dysfunctional U.S. Immigration Courts. The NAIJ are the only folks at EOIR conducting competent professional training emphasizing due process and best practices. They are actually solving problems, but EOIR HQ is creating new ones!
The forces of due process and competence @ EOIR are just waiting for the call from Judge Garland. Will it come before it’s too late for him and for America?
“Through teamwork and innovation, become the world’s best tribunals guaranteeing fairness and due process for all.” Not, “rocket science,” 🚀 by a long shot. So, why does it continue to elude Judge Garland?
The panel held that substantial evidence did not support the immigration judge’s determination that Alvarado- Herrera failed to establish a reasonable fear of torture with the consent or acquiescence of a public official, given Alvarado-Herrera’s specific assertions of police complicity in the 18th Street gang’s violent acts. Noting that the asylum officer refused to credit Alvarado-Herrera’s assertions, which were based in part on media reports and common knowledge among Hondurans that it is well known that the police work for the gangs, that the police are allied with the 18th Street gang in particular, and that the police not only allow gang members to harm others but also provide information to gang members to help them find and kill people, the panel wrote that it was unclear what additional evidence the asylum officer expected Alvarado-Herrera to produce at that stage of the proceedings. The panel observed that non-citizens in reinstatement proceedings who express a fear of returning to their home country typically appear for a reasonable fear interview within a short time of their
ALVARADO-HERRERA V. GARLAND 5
apprehension by immigration authorities, and that many, like Alvarado-Herrera, are being held in detention facilities and do not have legal representation. The panel wrote that, as a result, they cannot realistically be expected to produce for the asylum officer’s review the kind of detailed country conditions evidence that would be introduced during a merits hearing before an immigration judge. The panel wrote that such a demand would be inconsistent with the purpose of a reasonable fear interview, which is simply to screen out frivolous claims for relief in as expeditious a manner as possible, and if a non-citizen provides an otherwise credible account concerning his fear of torture, his own statements can supply adequate support for claims about country conditions, at least for purposes of satisfying the ten percent threshold necessary to pass a reasonable fear screening interview. The panel remanded with instructions for the agency to provide Alvarado-Herrera a hearing before an immigration judge only as to the merits of his claim for protection under CAT.
2) 10th Cir. Says IJ Muffed Analysis Of Mexican CAT Claim!
“Maria Torres de Lopez, a native and citizen of Mexico, appeals the denial of her application for deferral of removal under the United Nations Convention Against Torture (CAT). Exercising jurisdiction under 8 U.S.C. § 1252(a), we grant the petition for review and remand for further proceedings. … [W]e are compelled to conclude it is more likely than not that El Tigre [of the Sinaloa Cartel] would be aware if Torres de Lopez is removed to Mexico, and that El Tigre and his direct associates would have both sufficient motivation and ability to locate Torres de Lopez anywhere in Mexico. But the evidence does not compel the conclusion that the Juárez or Sinaloa cartels have a sufficient institutional motivation to locate Torres de Lopez anywhere in Mexico. And the questions that remain are ones the IJ did not reach—if El Tigre or his direct associates found Torres de Lopez in Mexico, would they inflict any harm on her, would that harm be severe enough to constitute torture for CAT purposes, and would Mexican public officials instigate, consent to, or acquiesce in such harm? We may not answer those questions in the first instance and remand them to the IJ for initial consideration. … All this brings us to the fourth and fifth steps in the IJ’s framework—if El Tigre or his direct associates find Torres de Lopez, will they harm her and, if so, will the harm amount to torture? … [W]e must remand to the agency to conduct the inquiry into the fourth and fifth steps in the first instance. … We grant the petition for review and remand to the agency for further proceedings consistent with our decision.”
[Hats off to Stephen W. Spurgin!]
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Sadly, “reasonable adjudicator” wouldn’t encompass many of those currently serving in Garland’s holdover corps of Immigration Judges and his “Millerized & Trumpitized”BIA. In particular, the horrible job done by, and the bias against due process for those seeking CAT protection shown by, Attorneys General and the BIA over the past three Administrations is absolutely disgraceful.
Yet, it continues, unabated, today under Judge Garland! It’s basically “Jim Crow Justice” dressed up in a Sunday suit. One could almost imagine a picture of Chief Justice Roger Taney hanging in the BIA’s conference room.
Roger Taney PHOTO: Matthew Brady Public Realm Discredited CJ remains a hero to many Miller/Hamilton/Sessions holdovers at Garland’s DOJ because of his aggressive “Dred Scottification” of the other! One of Stephen Miller’s soul mates, this dude’s life was defined by his unyielding belief that all men aren’t created equal and that only powerful White Guys have a right to life, liberty, and the pursuit of happiness! And, that women don’t even exist before the law!
The obvious lack of competence in a “judiciary” regularly attempting to send individuals back to possible torture in violation of due process and the statute should prompt decisive corrective action from those in charge of this dysfunctional system. But, to date, it hasn’t!
Instead, what have Biden, Garland, & Mayorkas done? Continued the illegal practice of returning asylum seekers and others to possible death or torture without any process at all. Then, they have the gall to send their “flackies” out to claim that the “victims” are the “problem” for exercising their legal rights to seek protection, at a time that apparently is “politically inconvenient” for the Biden politicos to offer a system that provides that legally-required protection.
Looks pretty “Stephen Millerish” to me, not to mention “Catch 22!” How dare you cross our border seeking due process and turn yourself in to the Border Patrol when can go to a legal port of entry, present yourself, and be immediately sent back to death with no process at all! Don’t you understand how American “justice” works? Go back to your own countries from where you were forced to flee where, if you live long enough, you can’t apply under our non-existent overseas refugee system. Is that perfectly clear?
The Presidential election was over on Saturday, Nov. 7, 2020! Biden and Harris campaigned on a platform of immigration and human rights reforms that included ending the many illegal, inhumane, and counterproductive policies of Trump/Miller, restoring the rule of law, and re-establishing honesty and human dignity in immigration, asylum, and refugee processing.
Yet, in the 10 weeks between the conclusion of the election and the inauguration, “Team Biden” and those who were under serious consideration for leadership positions in the thoroughly broken and dysfunctional immigration bureaucracy came up with no viable plans to “hit the ground running” with the necessary dramatic, yet achievable, changes. That’s something that I submit hundreds of “practical experts” — all of them in the Democratic camp — could have achieved had they been tapped.
It certainly was no mystery that the border and the mess at DHS, EOIR, OIL, and the SG’s Office would have to be addressed immediately — “day one or day two stuff!” Nor, would it take any deep thinking to recognize that immigration would be the overarching issue connecting social justice, racial justice, economic recovery, court reform, foreign affairs, the environment, and public health.
Nor would it have taken much awareness to recognize that the GOP, who didn’t even bother advancing a platform or constructive ideas during the campaign, would make and “rev up” appeals to hate, fear, racism, White Nationalism, myths, fabrications, distortions, and outright lies about “security threats” (actually threats to “white culture and power”) posed by desperate individuals, many of color, merely seeking legal refuge and fair consideration under our legal system. So, getting the legal asylum and refugee systems functioning again should have been a top priority — simultaneous with COVID relief!
Additionally, there were dozens of smart journalists out there who were “on top” of the Miller/Trump White Nationalist nonsense, and had figured out how to cut through the BS and obfuscation to explain what the law and common sense requires, in understandable terms. Thus, the Biden team even had a “golden opportunity” to put together a group of “immigration/human rights/rule of law flackies” who could both educate insiders and in public run circles around the likes of Fox News, right wing radio, and magamoron White Nationalist nativists like Cruz, Cotton, Hawley, and McCarthy. All it would have taken is competence and courage — two qualities often in short supply in Dem Administrations when immigration, human rights, and due process are at stake.
Yet, nearly three months into the Administration, and a full five months after the election was decided, the Administration’s approach to this key issue can best, and most charitably, be described as “Amateur Night at the Bijou.”
During five months since the election, the Biden Administration has quickly moved to set up a chain of nationwide “recruiting centers” for the their Immigration Courts, immigration bureaucracy, refugee administration, human rights PR groups, and liaison with Hill Dems. Results have been astounding! PHOTO: Thomas Hawk Creative Commons
Most seriously, the Immigration Court and the rule of law remain in shambles — with Judge Garland failing to take the necessary elementary steps to reverse the Trump/Miller DOJ’s misogynist, racially driven assault on the rule of law for asylum seekers of color. This sends an ugly shockwave of failure throughout the Biden-Harris agenda and continues to de-stabilize an already shaky American justice system.
It also “pisses off” the Administration’s would-be friends and supporters while energizing its most vociferous enemies! Additionally, it demoralizes and disrespects those remaining at EOIR, many who have struggled though the last four years trying to hold some portions of the fort while waiting for salvation, potential allies — already on the in side — who will be necessary for the “reclamation project.”
Some have even taken the desperate step of anonymously reaching out to Courtside for help in raising consciousness about the astounding level of injustice, incompetence, and anti-immigration culture that Judge Garland is countenancing at EOIR. They just can’t wrap their heads around it!
As they have pointed out, Sessions, who once (in the distant past, before overt racism came part of the GOP platform) was deemed unfit by his own party for a Federal Judgeship because of his racist record, and his hench-people “hit the ground running” with their White Nationalist misogynistic agenda at EOIR. This was an agenda basically drafted by nativist groups. They moved rapidly and with purpose to remove, force out, disempower, isolate, and/or marginalize anyone at EOIR thought to harbor the heretical belief that asylum seekers, migrants, women of color, and their lawyers were humans or possessed any rights whatsoever. They obliterated any “best practices” — they few things that actually were working at EOIR. They also filled every vacant position with nativist toadies and hacks, packed the Immigration Courts and BIA with more “judges,” even as they were more than doubling the already huge backlog with their “Aimless Docket Reshuffling” and endless due-process- killing, yet fundamentally ineffective, enforcement nobly gimmicks.
Sessions even proudly announced his war on refugee women of color and their lawyers at am “EOIR training session” for “his judges,” drawing stunned silence from many, but also cheers from some “magamoron judges” in the audience. Somehow, over the years, indolent Article III Judges overlooked the obvious lack of ethics in Sessions’s performance as well as the crystal clear lack of Matthews v. Eldridgefundamental due process in a farcical “court” system. A “court parody” where the racist head prosecutor, who also asserted himself as the de facto head of DHS enforcement, urged “his judges” on to inflict ever more rapid and unlawful acts of desecration, dehumanization, and capricious treatment upon those they were supposed to be judging fairly and humanely.
Some of the “survivors” within EOIR expected Judge Garland, once a highly respected Court of Appeals Judge, former Supreme Court nominee, veteran of the DOJ in better times, and relatively recent descendent of immigrants, to put a quick end to the unconstitutional nonsense at EOIR, cast out the “Miller/Hamilton perps,” their many EOIR toadies, and the “go along to get alongs” who had created this disgraceful and dysfunctional mess at what was once supposed to be a “bastion of due process.” They expected Garland to bring in a team of respected “immigration/human rights/due process pros” and to elevate those in the system who had stood tall against the abuses of due process and humanity over the past four years.
Alas, those survivors quickly discovered that Garland is largely oblivious to the ongoing clown show at EOIR, the continuing human carnage it causes on a daily basis, the squandered potential to boost due process and racial justice in America, and the rapid erosion of his support and his image among those who courageously and often successfully fought the “Miller neo-Nazi plan” to dismantle the American justice system.
Vainly, they wait for Garland’s recognition of the heroic role of the National Association of Immigration Judges (“NAIJ”) in maintaining some vestiges of justice and professional training at EOIR and, most important, in publicly exposing, including to Congress, the ongoing fraud, waste and abuse of public trust carried out by the Trump/Miller kakistocracy at EOIR. They are distraught by Garland’s inexplicable failure to condemn “Billy the Bigot’s” totally outrageous actions in frivolously moving to “decertify” the NAIJ as punishment for their exposing his many illegal activities and abuses of honest government at EOIR.
They are absolutely incredulous that a “100 page study,” conducted by those having no real expertise in the Immigraton Court, would be viewed as a substitute for the immediate removal and replacement of dysfunctional personnel and a strong public commentment to root out injustice, racism, and misogyny, reject and repudiate bogus precedents, institute aggressive due process reforms, and promote true quasi-judicial independence at EOIR.
They are particularly puzzled by Garland’s permitting the conducting of idiotic clown shows — misnamed “Town Halls” — throughout the country further insulting and inflaming the long-suffering stakeholders and advertising EOIR’s continuing failure to run like a court and respect the input, expertise, and legitimate needs of those same “stakeholders.” They are baffled when there are so many great “due process role models” out there who could and should be sending the exact opposite message — that “the clown show is over” and the pros are now in charge of restoring justice and sanity @ EOIR!
They can’t fathom how anyone, let alone a former Article III Judge, could believe that judicial dockets across America can be micromanaged by non-judicial bureaucrats in Falls Church and DC who have never successfully managed a docket in their lives, know little about the harsh realities of today’s dysfunctional Immigration “Courts,” and who operate in blissful studied ignorance of the many localized factors that go into successful docket management at all other functioning court systems in America.
And, although it might be below Judge Garland’s “radar screen,” human lives are actually being destroyed and human suffering multiplied while he and his “spear carriers” diddle over how to fix EOIR! To quote some of the Hill Dems yesterday, “This is stupid!”
(Duh, who outside the Biden camp would have failed to predict that yesterday’s idiotic “two-step” on the refugee cap would go over worse than a lead balloon? The Biden immigration “advisors” might think that refugee lives don’t matter, but many Dems living in the real world and on the Hill don’t see it that way!)
Garland has also failed to place competent judicial leadership in charge of EOIR and the BIA and to make it clear that institutional disdain for due process, best practices, and human dignity will no longer be the ”order of the day” in America’s largest, and perhaps most important, Federal Court System. A rather atrocious start for an Administration struggling to put the Trump-Miller scofflaw White Nationalist agenda behind them!
Just how does one “pull that off” with a bunch of Miller cronies, and Sessions/Barr nativist judges (many incompetent to fairly apply and interpret basic asylum, immigration, and due process laws) still dominating the scene in America’s most dysfunctional and dehumanizing “judiciary.” While Judge Garland might have forgotten this during his “above the fray” tenure in the “judicial ivory tower,” leadership, priorities, and symbolism are really important in government! Right now, they are all headed 100 mph in the wrong direction at the DOJ — for no obvious reason!
Garland, supposedly the “people’s” chief lawyer, has also failed to push Mayorkas and the White House for a restoration of the legal asylum system at the border! In 100 days, Mayorkas and Garland could have supplemented the Asylum Officer corps with retirees and private sector refugee/asylum experts and gotten them down to the border to do honest, efficient credible fear screening. Obviously, reopening timely legal screening at legal ports of entry would reduce the incentives for crossing the border elsewhere.
They also could have energized human rights and pro bono NGOs to represent those “screened in.” Garland could have gotten both sitting and retired Immigration Judges with strong records of granting asylum (check TRAC, it’s all set out in plain view) working on these cases, while clearing the dockets of hundreds of thousands of backlogged cases going nowhere in any event. See Greg Chen & Professor Peter Moskowitz.
Garland could have appointed competent Appellate (or even “Appellatte”) Immigration Judges at the BIA (acting, if necessary until final selections can be made) to issue positive precedents on asylum, CAT, withholding, cancellation of removal, adjustment of status, administrative closure, and docket management to stop the endless nonsense and idiotic, justice-killing, enforcement gimmicks and “Aimless Docket Reshuffling” imposed by the Trump/Miller crowd of malicious incompetents.
Secretary Mayorkas and Secretary Becerra could have invoked and energized the now largely dormant refugee resettlement apparatus in the private/NGO sectors to temporarily resettle arriving children and families in a humane, orderly and efficient manner.
Yesterday’s stunning“unforced error” on refugee processing is just the latest example that Biden’s advisors don’t “get” immigration and need to be replaced with experts; experts who understand the fundamentals, believe in the generous, humane, restore the rule of law platform he and Harris ran on, and can explain it in clear, compelling terms. The “right folks” are “out there” — that’s the problem, “out there” instead of inside solving problems and moving the train in the right direction.
It’s not rocket science:
Immigration is good. 98% of Americans are immigrants or descended from immigrants. That immigration has produced some scoundrels, insurrectionists, liars, and ingrates like the Trumps, Cruzes, Cottons, McCarthys, Taylor-Greenes, Millers, Kobachs, etc., of our world doesn’t change that overall equation;
Refugees and asylees (refugees granted status at our border or in the US when our legal system is functioning — it isn’t now) are essential components of legal immigration;
We need and must have significantly more legal immigration, particularly if we want to maintain a robust economy and a dynamic, innovative society, in light of population losses from the pandemic and low birth rates;
Applying the Refugee Act of 1980 in a fair, generous, humane manner that furthers due process of law isn’t “an option” for debate or a matter for more “studies” — there are more than enough of the latter our there anyway. The problem is that the folks who did them and can solve the problems remain on the outside rather than running EOIR! It’s a legal and moral imperative! Garland’s function isn’t coming up with more failed, illegal gimmicks to avoid granting asylum or aid misguided law enforcement, make a few cosmetic changes to appease advocates, or engage in more boneheaded “revolution by evolution” (see Obama Administration) approaches at EOIR! It’s getting our legal asylum system functioning again at EOIR and also at USCIS in a robust, competent manner with real, independent, expert judges and professional judicial administrations who can do the job;
That also means publicly and virtuously standing up for the legal and Constitutional rights of the most vulnerable among us — per MLK Jr. — and having the guts and presence to “take it to” magamorons like Miller, Cruz, Cotton, McCarthy, and other GOP White Nationalist hate mongers who are destroying our nation and poisoning the well of our democracy with their xenophobic myths and “solutions” that actally are “crimes against humanity!” When in power, those folks had no problem publicly advancing and even touting their racist lies and ethnic slurs, as they continue to do! Why is Garland “swallowing the whistle” on rooting out and condemning institutionalized racism, misogyny, dehumanization of the other, incompetence, and scofflaw behavior @ EOIR?
Obviously, those advisors who told Biden to release the “Miller-level” refugee cap yesterday believed in neither the Biden election platform nor the positives of robust legal immigration. They also lacked the knowledge and self-confidence to “sell” an honest, realistic, humane human rights and immigration agenda that is the key to our national future. They also were woefully ignorant about and totally “misplayed” the strong political and public support for refugees and the critical role that immigration and human rights advocates play within the Democratic Party.
Currently, the inability of the Biden Administration to bring competence, positivity, the rule of law, and creative thinking to their immigration/human rights program is weighing down and “sucking much of their air” from the many things they are getting right.
It’s past time to end “Amateur Night at the Bijou” and bring in the pros. Before it’s too late!
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever! Judge Garland, End the Disgraceful EOIR Clown Show, Now🤡🦹🏿♂️🏴☠️!
6) No, they can’t. Casey would be right home with the gang at EOIR HQ and also @ “Main ‘Justice.’”
If you got 100%, congratulations, you have won the “Amateur Night at the Bijou” competition. Although that makes you over-qualified to become an “Appellatte Immigration Judge” you will receive a free Starbucks coupon redeemable for a latte of your choice, to be issued only tomorrow!
David Dixon / Humanity Adrift on the Sea of Life by John Cassidy / CC BY-SA 2.0 Creative Commons License
Heard on the street:
I just sat through an EOIR stakeholder meeting where the ACIJ (who had no immigration experience when he was hired), talked about how terrible the job is. Made it clear he had no power to make any change and just had to listen to HQ. He is resigning after one year. Then he tried to convince AILA members to apply for the open positions.
********
I support the idea of the private bar applying for these positions. One of the BS reasons that EOIR execs historically give for their one-sided hiring practices is that “nobody good ever applies from the private sector.” That’s always been a total crock! But, one way of crashing this intentionally “closed system” is by overwhelming it with applications from the “best and the brightest” from the NDPA. Sometimes, positive change comes from inside and below, particularly when “leadership” is dysfunctional.
“Bore from within,” as Dan Kowalski says! In a system as thoroughly rotten as this one,“boring” could be an effective means of forcing long-overdue change, even sanity, into a system that is an ongoing national disgrace and a blight on our nation’s humanity! (Other than that, I’m a big fan!)
WASHINGTON – Jose Sanchez and Sonia Gonzalez have lived in the United States legally for two decades under a program that lets immigrants from nations enduring natural disasters and armed conflict temporarily avoid returning to their native countries.
But when the New Jersey couple applied for green cards – which would let them remain permanently – they were denied because they initially entered the country illegally.
The Salvadorans sued in 2015 and the Supreme Court will hear their appeal Monday in a case that has drawn little attention in Washington even as it has raised significant questions about the Biden administration’s approach to immigration – not to mention the status of hundreds of thousands of immigrants living in a state of limbo.
. . . .
“Look, this is a no brainer,” said Paul Wickham Schmidt, a Georgetown University law professor and former immigration judge. “Why waste time on it? The administration has indicated they’d like to regularize many [TPS beneficiaries] and…instead they’re defending a gimmick cooked up by Stephen Miller,” Trump’s onetime policy adviser.
. . . .
“Integrate them into our society rather than leaving them in permanent limbo – in theory, that’s what the Biden administration says it wants to do,” said Schmidt, the former immigration judge. “Only here’s their first chance to make it happen and they don’t connect the dots.”
****************
Read John’s complete article at the above link.
Yeah, I know this brain-dead position originated in the Obama Administration. I’d never accuse the Obama Administration of overall having a wise, informed, or consistent approach to immigration. But, the “precedents” at issue here were issued under Trump. SeeMatter of H-G-G-, 27 I. & N. Dec. 617 (AAO 2019); Matter of Padilla Rodriguez, 28 I. & N. Dec. 164 (BIA 2020).
Any time you see folks like Ira Mehlman @ FAIR or Christopher Hajec @ Immigration Reform Law Institute endorsing a position you can bet that there is a link to the cruel, White Nationalist policies of Stephen Miller and his cronies in the Trump Administration. If you had any doubt that the position being taken by the Garland DOJ was stupid policy, Mehlman’s and Hajec’s endorsements, and the organizations they represent, should resolve them.
Ignoring your potential friends and supporters; embracing the “racist right.” Interesting way to get started on what was promised to be a “smarter, kinder, more humane” approach to immigration policy. Can anyone really tell me what Judge Garland is doing over @ DOJ? The once highly regarded jurist who testified before Congress and was only a Mitch McConnell away from a seat on the Supremes seems to have all but disappeared into a bureaucratic fog of incompetence, bad lawyering, and missed opportunities @ the DOJ!
Look, after four years of senselessly, wastefully, and disgracefully trying to dump on long-time, contributing members of our society in TPS, like Jose & Sonia, the Trump Administration (thankfully for America) never removed any of them. The idea that the Biden Administration will do so is absurd.
So these folks are here for the duration. With Congress in deadlock, the most practical, legal, readily available way of getting tens of thousands of hard-working residents like Jose and Sonia fully integrated into our society and on their way to citizenship is simply by following the clear statutory language as other Circuit Courts have done. These are individuals who actually have met all the criteria of our legal immigration system! Most now have families with U.S. citizens. Why on earth would we want to keep those we should welcome in limbo? It’s cruel, counterproductive, and stupid!
For a much more scholarly and nuanced approach to DOJ’s wrong-headed handling of this case, check out this article in Just Security by my friend, renowned immigration expert, former senior executive in the Clinton and Obama Administrations (we actually met while working on the Refugee Act of 1980 in the Carter Administration — back when we were young), emeritus Professor David A. Martin:
I also note with pleasure that counsel of record for Jose and Sonia is Jamie W. Aparisi, who appeared before many times at the Arlington Immigration Court.
All this being said, the Supremes still mightpreserve this couple’s future and save the Garland DOJ from themselves. In past cases, faced with clear statutory language, the Supremes have required the Government to do something radically sensible:follow the law!See, e.g., Pereira v. Sessions, 138 S.Ct. 2105 (2018) (notice to appear).
So, who knows? Justice (not to be confused with the Department of “Justice”) as well as common sense and human decency could again prevail!
TIJUANA—In the weeks after Joe Biden’s inauguration, migrants across the city of Tijuana began to leave the various shelters and apartments where they’d been living in favor of an open-air encampment just north of the city’s center. It’s not a cheerful place; people have little to eat and there’s no running water. But it has a crucial location: It’s right next to the El Chaparral Port of Entry, the nearest legal crossing into the United States. Anticipating that the doors to the U.S. might soon open, they set up at the very foot of the country’s entrance.
In February, Rosemeri, an asylum seeker from El Salvador, says she pitched a tarp next to just two others. By early March, it had grown into a shantytown of more than 1,000 people, and today as many as 2,000 migrants — most of them families with children — brave the elements each day and night. Together, the makeshift community decided on a name for the tent city: La Esperanza, The Hope.
Rosemeri, like most people in the camp, is not a new arrival to Tijuana. She left her home in El Salvador in 2019, fleeing threats against her life from the gang that controls her neighborhood. Her plan was to request asylum in the U.S. But by the time she arrived at the southern border last April, a month into the Covid pandemic, it had been closed indefinitely to asylum seekers by a Trump administration public health order. Since then, she and tens of thousands of others have had no choice but to wait in northern Mexico, shuffling from shelter to shelter for months, hoping for a change in policy.
“We are Salvadorans, Hondurans, Haitians, Cubans, Mexicans, Nicaraguans,” she told me of the residents of La Esperanza. “We are here, all of us, waiting.”
The early months of Biden’s administration have been shadowed by a major increase in immigration, with border agents encountering more than 100,000 people attempting to cross unauthorized in February and more than 170,000 in March, a 15-year high. Critics on the right blame the president’s welcoming rhetoric, saying that after Donald Trump’s hard-line tack toward the border, it’s no wonder migrants are rushing in under supposedly softer leadership. But migrants themselves have a very different view: The issue isn’t Biden extending a hand; it’s that he hasn’t figured out what he wants to do — and has kept the legal pathway closed in the meantime.
Despite promising a new approach, Biden has left the effective asylum ban in place, with few exceptions. Realizing they have no prospect for legal entry into the U.S. anytime soon, many migrants like the ones here, stuck in Tijuana without a safe home to return to, are making the painful decision to try to cross the border outside the proper channels.
“We want to do this the right way,” insists Rosemeri.
The problem for people like her is that there is currently no “right way.” The Biden administration says this is all a work in progress. “We’re in the middle of a global pandemic, and it’s going to take time to rebuild robust asylum processing infrastructure at our borders,” an administration spokesperson told me in an interview last month. The White House did not respond to specific questions for this story.
Republicans in Washington have been saying Biden is too lenient, but people on the ground in Mexico suggest the root of the recent rise in unauthorized border crossings is actually the president’s prolonged maintenance of the most restrictive of his predecessor’s policies: the near-complete cutting off of asylum, a form of legal immigration.
. . . .
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Read Jack’s much longer full article at the link. It’s one of the few accurate, insightful pieces of reporting I’ve seen on the “overhyped yet generally mis-understood” human catastrophe at continuing to unfold at our southern border.
The problem starts, but by no means ends, with Judge Garland’s mind-boggling failure to grasp and take steps to end the deadly clown show @ EOIR! You can’t re-establish the rule of law and enforce the Constitution with inept holdover bureaucrats and unqualified Trump-Miller appellate judges in charge of the critical “retail level” of the American justice system!
Get some real, expert judges, competent judicial administrators, and fearless legal leadership, dedicated to human rights, fundamental fairness, and due process for all, into key positions @ EOIR before this system gets any further out of control, creates additional disorder throughout our legal system, and destroys more human lives!
The folks who can start fixing this are out there. Some of them (sitting Immigration Judges like Judge Dana Leigh Marks, Judge Amiena Khan, Judge Noel Brennan, Judge, Janette Allen, Judge Dorothy Harbeck, Judge Mimi Tsankov, and others) are even on the payroll outside the DC area. Many others in the private sector should already have been vetted and on the job solving problems, at least on a temporary basis!
(Let’s start, but not end, “Project Restore Due Process & Asylum Integrity,” with, say, Dean Kevin Johnson, Associate Dean Jaya Ramji-Nogales, Professor Karen Musalo, Michelle Mendez, Professor Ingrid Eagly, Marielena Hincappie, Lauren Wyatt, Professor Phil Schrag, Professor Andy Schoenholtz, Heidi Altman, Professor Debbie Anker, Judge (Ret.) Ilyce Shugall, Judge (Ret.) Rebecca Jamil, Professor Michele Pistone, Claudia Valenzuela, Claudia Cubas, Professor Jill Family, Professor Raquel Aldana, Professor Mary Holper, Liz Gibson, Greg Chen, Professor Peter Moskowitz, Laura Lynch, Dree Collopy, Professor David Baluarte, Professor Maureen Sweeney, Professor Lenni Benson, Eleanor Acer, Adina Appelbaum, Professor Elora Mukherjee, Professor Erin Barbato, Aaron Reichlin-Melnick, Jason “The Asylumist” Dzubow, Professor Alberto Benitez, Professor Paulina Vera, Professor Cori Alonso Yoder, Professor Kari Hong, Professor Denise Gilman, Tess Hellgren, Simon Sandoval-Moshenberg, Professor Laurie Ball Cooper, Associate Dean Jayesh Rashod, Ben Winograd, Associate Dean David Baluarte, and work from there! All of them are head, shoulders, knees, and toes above the current EOIR senior management and Appellate Judges on the BIA.)
Recently, I made these points in speaking to a group of retired lawyers who had no prior background in immigration law. At the end, one of them said: “The fix you described doesn’t sound that difficult. Why hasn’t it happened?” BINGO!
It’s not rocket science! But apparently “above the pay grade” for “Team Biden!”That’s a shame for American justice, any international leadership capability we might still have on this issue, and, most of all, for the vulnerable human beings that Biden, Mayorkas, and Garland have left “twisting in the wind.”
The Biden/Garland Image of Legal Asylum Seekers & Their Supporters” “Twisted by the Wind” By Ron Strathdee
I can assure the Biden folks that continuing the Trump/Miller policies and leaving their “plants and toadies” in place won’t win a single GOP vote — on anything! Truth, facts, the law, and human decency play no role in today’s GOP. You could shoot everyone dead at the border (as opposed to sending them back to Mexico and the Northern Triangle to die) and magamorons like Cruz, Hawley, and Cotton will still claim that you have an “open borders policy.”
However, your lack of positive action on asylum and refugee issues will continue to anger and betray your own supporters and mobilize them to oppose your “tone-deaf” and ineffectual policies, in court, in the media, and in politics. Doesn’t sound like a smart move to me!
Here’s the real irony. Liberal House Dems have invested in a DOA legislative effort (already “shot down” by Speaker Pelosi) to expand the Supremes. Meanwhile, over at the DOJ,Judge Garland is squandering his chance to completely rebuild and refocus the nearly 600 strong (now totally dysfunctional) Immigration Judiciary into something really special (in a good, rather than an evil, way).
That happens to be the most powerful and readily achievable way of creating a progressive, due process oriented, intellectually dominant, expert “model judiciary” that will remake the “retail level” of American justice, save human lives, advance correct practical, sensible applications of the law and the Constitution that will actually save lives, teach “best practices,” promote racial justice, and change the face of American justice for the better.
Better judges for a better America! It starts with the foundational “retail level” of our justice system — the Immigration Courts. Unlike packing the Supremes, it’s realistically achievable with courageous focused leadership (not the current failed group and indifferent leadership from Judge Garland.)
“Personnel is policy” — big time! Too bad for all of us that Judge Garland doesn’t seem to “get it.”
In that, his “grasp of the obvious” seems to be several levels below that of Trump, Miller, the Federalist Society, the Heritage Foundation, and Mitch McConnell. Think what you might, that gang has run circles around Dem politicos for years. Jeff “Gonzo Apocalypto” Sessions and Billy Barr “got” the importance of expanding the BIA and the Immigration Judiciary and “packing” them with many unqualified anti-asylum restrictionists who would do their bidding in undermining and destroying American justice and “Dred Scottifying” the “other,” particularly those of color, with a solid dose of mind-numbing misogyny thrown in.
To date, (with a few exceptions, like removing former Director James McHenry) Garland has failed to remove or transfer these unqualified jurists (and incompetent administrators) and start bringing in better ones, even though he has the available tools to have commenced by now. Indeed, several Miller cronies are still wandering around the Falls Church Tower in key positions, while other members of the Trump Administration’s “Asylum Denial Club” continue to crank out nativist injustice at the BIA. A number are notorious for their overtly hostile attitudes toward female asylum seekers of color and their attorneys. Yet, asylum seekers and their lawyers continue to suffer unjust and unprofessional treatment at EOIR while their abusers continue unabated in Garland’s name!
Aggressively “removing the deadwood” also sends strong messages throughout the system that the “dehumanize, deny, and deport culture” ingrained and actively encouraged at EOIR over the past four year is over!
Meanwhile, over at the broken SG’s Office, Garland is getting ready to defend one of the stupidest, most legally inane, and insanely counterproductive from a policy standpoint positions in recent memory (and that’s saying something given the performance of the Trump SG) in Sanchez v. Mayorkas . The Garland DOJ is actually committing “unforced error” by defending a clearly wrong interpretation of the TPS statute that will unnecessarily screw long-time law-abiding TPS holders, many of them spouses of U.S. citizens, who could otherwise qualify for legal immigration under current law. Shafting the VERY INDIVIDUALS the Biden Administration pledged to help and keeping them in “eternal legal limbo” while unnecessarily outraging their lawyers and potential allies. What sense does that make? If “Team Garland” can’t recognize and pick the “low hanging fruit” in the battle to restore legality and sanity to our immigration system, it’s going to be a long four years.
Professor David Martin, one of the top minds in American law, in any field, and a “vet” of past Dem Administrations, laid out the possible solutions in a crystal clear manner in Just Security. But, apparently when you’re caught up in running “Amateur Night at the Bijou” you can’t be bothered to listen to the experts who have “been there before” and learned from their experiences!
Judge Garland is recruiting folks for his SG’s Office who will continue to make the same wrong-headed arguments on immigration cases that the past two Administrations did. No Immigration or human rights expertise necessary. Check your common sense and humanity at the door. PHOTO: Thomas Hawk Creative Commons
This could be our “last clear chance” to save American democracy! Right now, it’s going to waste! That’s something that should outrage and motivate all of us who believe that “due process for all persons” means exactly what it says!
Asked repeatedly (by me and others) what accounts for Biden’s delay, White House officials have struggled to answer. Sometimes they try to blame Trump, complaining that his administration left a system in “disrepair” that requires “rebuilding.” No doubt, Trump wrought a lot of damage upon the immigration system, and more resources would be necessary to reach the much higher refugee admissions that Biden claims he wants for the next fiscal year (125,000); currently, there aren’t enough people sufficiently far along in the refugee-screening pipeline to meet that goal.
But none of this explains why the few thousand already fully vetted and deemed “travel-ready” by the State Department as of early March have not been allowed in. The only thing preventing their entry is Biden — who refuses to do the right thing and sign a simple document.
The only explanation I can fathom for what’s going on is that the White House fears ordinary Americans will confuse the refugee resettlement system with the surge of migrants at the southern border. “Refugees” and “asylum seekers” might sound synonymous, but the groups are subject to different sets of laws, screening procedures and executive authorities. One key difference is that refugees apply from abroad and are screened for eligibility before they arrive; asylum seekers apply from within our borders or at a port of entry.
In other words, refugees are doing precisely what both Biden and Republicans urge those fleeing persecution and violence to do: staying abroad, and not crossing into the United States unlawfully; proving to U.S. and international officials that their lives are indeed in danger, and that they meet the legal requirements for resettlement; enduring extensive screening to prove they don’t threaten national security or public health; and then patiently waiting their turn for admission, a process that usually takes years.
And how is Biden rewarding them? The same way Trump did: by slamming the door.
*********************
Read Catherine’s complete article at the link.
[The Biden Administration] fears ordinary Americans will confuse the refugee resettlement system with the surge of migrants at the southern border.
Wow. In 50 years of “hanging around” the migration/human rights/political scene in D.C., I’ve heard plenty of insanely lame, cowardly excuses for not doing the right thing. But, this is “Top Five” material!
I have ideas on how to solve this problem, quickly:
Invest the “big bucks” to hire Catherine as the Biden Administration’s “Head Immigration Flackie.” She can explain the situation in terms that the American people will understand. That’s what Catherine does! Brings clarity, humanity, and common sense to complicated situations that flummox politicos and press offices.
Alternatively, get a “Loaner Law Student” from the Georgetown Law CALS Asylum Clinic. In two decades of working with CALS students in court, the classroom, and elsewhere, I’ve never run into one who doesn’t have a deeper understanding of, and better ability to explain, refugee and asylum policy than any of the “inept talking heads” the Biden Administration has thrown into the fray so far.
Georgetown Law
Another alternative: Hire Don Kerwin, currently the Executive Director of the Center for Migration Studies (“CMS”) to fix and explain the Administration’s (so far) mind-boggling failure to re-establish our refugee and asylum programs — actually both legal and moral obligations (although you wouldn’t know that by listening to the mindless negative natter from politicos of both parties). Don probably knows more than any living person about the amazing, quantifiable, benefits that refugees and asylees bring to our nation and is an expert at puncturing all of the White Nationalist myths and fear-mongering that have driven these essential programs into complete failure over the past few years.
Donald M. Kerwin Executive Director Center for Migration Studies
It’s also worthy of note that because of the Trump Administration’s “malicious incompetence” combined with the Biden Administration’s “willful incompetence,” against the background of an Attorney General unwilling to speak out and stand up for the legal rights of refugees, asylum seekers, and people of color in general, (just what is the purpose of an Attorney General who won’t stand up for the people — some of us thought, erroneously I guess, that we had voted that “model” out of office last November) we have no refugee program in Latin America and we have illegally closed ports of entry to legal asylum seekers.
So there is no regular system for asylum seekers to apply in an orderly fashion in accordance with our international, statutory, and Constitutional (not to mention moral) obligations. In violation of the mandatory provisions of Article 33 of the U.N. Convention, incorporated by the Refugee Act of 1980, every day we return legitimate refugees to danger, torture, or death without any inquiry at all. The “law violators” here aren’t the desperate folks vainly, yet gamely, trying to apply for asylum under our lawless system. It’s us!
Maybe, that’s why the Biden Administration doesn’t want anyone to understand what they really are doing and how wrong-headed it is!🤮👎🏴☠️
Judge Garland is looking for 100 new Immigration Judges to eliminate the 1.3 million backlog by the end of the century. No expertise necessary! PHOTO: Thomas Hawk Creative CommonsAline Barros Immigration Reporter VOA News PHOTO: Twitter
U.S. immigration courts, already swamped with a backlog of 1.3 million cases, are ill-prepared to handle a crush of new asylum claims filed by a rising number of people crossing the U.S.-Mexico border, especially children traveling alone, current and former immigration judges told VOA.
. . . .
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
“The backlog has grown,” said Jeffrey Chase, a former immigration judge and senior legal adviser at the Board of Immigration Appeals. He added there are two ways to handle the situation.
“The response to this usually is: Hire more judges. And I think the response should be: Let’s be smarter about who we put into court and how we prioritize the cases and how we handle the cases,” Chase told VOA.
. . . .
Hon. Dana Leigh Marks U.S. Immigration Judge San Francisco Immigration Court Past President, National Association of Immigration Judges
Dana Marks, a sitting immigration judge in San Francisco who spoke with VOA in her capacity as president of the National Association of Immigration Judges (NAIJ), said the increase in immigration court cases has been gradual and “that’s why I think it stayed under the radar.”
. . . .
U.S. immigration courts are not like the federal courts that most people are familiar with. For one thing, they are housed within the executive branch — specifically, the U.S. Justice Department’s Executive Office for Immigration Review (EOIR).
In addition, immigration cases play out differently than regular court cases where litigants often feel pressure to avoid trial.
“One of the problems with the immigration system, as it currently is — we don’t have plea agreements or stipulations that handle a lot of these cases like you do in a criminal court setting where the parties meet and come up with a mutual compromise and a settlement,” Marks explained. “So every case goes to trial.”
A recent TRAC report concluded that even if the administration of President Joe Biden halted immigration enforcement entirely, “it would still take more than Biden’s entire first term in office — assuming pre-pandemic case completion rates — for the cases now in the active backlog to be completed.”
. . . .
“Our organization has long advocated that the immigration court system be taken out of the Department of Justice, and restructured, like the Article 1 [federal] tax courts,” Marks said.
Aaron Hall, an immigration lawyer in Denver, Colorado, said the immigration court system is currently subject to the whims of whichever party controls the executive branch. But he added that making the courts independent is not enough.
“We still have 1.3 million people in the system,” he said. “There’s no way to both respect due process and push all these cases through in any kind of timely manner. The resolution needs to be immigration reform.
“Having an independent immigration court system is better than having [the courts] in the Department of Justice, but what really needs to change is our [immigration] law,” Hall added.
While the Biden White House has criticized Trump’s handling of immigration cases, the new administration has yet to announce concrete measures to reform the immigration court system or take a position on calls to make it independent from the Justice Department.
***********************
Read the complete article at the link.
Those of us who have served in the Immigration Courts are used to a struggling system unnecessarily in crisis because of a combination of inept bureaucratic management (duh, you can’t treat a court system like an agency, particularly one somewhat resembling the “Legacy INS”) and counterproductive, often ignorant, sometimes malicious, political interference from “Downtown.”
But, the prospect for improvements are bleak, with nobody currently at the “Main DOJ” or at “EOIR Headquarters” who is qualified to lead the way toward rebuilding EOIR so that “teamwork, innovation, and best practices would create a functioning court system that would guarantee fairness and due process for all.” Doesn’t sound like “rocket science” to me.
Let’s be clear about one thing.Not every asylum case needs to go to “full hearing” in a properly staffed Immigration Court system with expert judges trained in asylum law, positive precedents setting forth generous reasonable criteria for granting asylum, and a qualified BIA willing to hold accountable those unqualified Immigration Judges who have established and maintained illegal and disgraceful “Asylum Free Zones” in Immigration Courts throughout America!
Almost 100% of the “asylum precedents” issued by the AG and BIA in the last four years, and the vast bulk of those issued after 2001, tell Immigration Judges how to, and encourage them to, deny asylum, often based on specious reasoning or in conflict with earlier, more generous court and administrative precedents, not to mention the letter and spirit of the U.N. Convention and sometimes the language of the statute and the regulations.
And, due process for asylum seekers and other migrants is mocked in Immigration Court on a daily basis, even as their courageous, often pro bono counsel, are systemically abused! Is this what Judge Garland REALLY stands for? If not, why is he letting it happen?
With competent counsel representing asylum seekers and documenting their cases, and thoughtful well-trained ICE Assistant Chief Counsel with senses of justice, many positive asylum cases can be well-documented, “pre-tried” by the parties, completed, and granted in Immigration Court in a one-hour time slot or less. Indeed, before Sessions and Barr intentionally, senselessly, and maliciously destroyed what was left of justice for asylum seekers in Immigration Court, so called “A-R-C-G- domestic violence cases,” Kasinga FGM cases, family-based asylum cases, Ethiopian and Eritrean political persecution cases, evangelical Christian cases, and LGBTQ+ cases were all staples of my “short docket” — usually conducted every other Friday, at the Arlington Immigration Court. In those days, the parties worked together to get clear grants of relief that were “buried in the backlog” advanced for short hearings, with my active encouragement.
Another largely unexplored alternative is to give Immigration Judges authority to return certainly prima facile grantable asylum cases to a revived and functioning Asylum Office for completion. There are lots of ways that a different group of qualified, well-trained, practical Immigration Judges, and a BIA with Appellate Judges drawn from the ranks of “practical scholars” who are experts in asylum and due process working with (not “under”) professional judicial administrators, could get this system functioning and force those judges who are members of the “Asylum Denial Society” to shape up or ship out. That would keep Immigration Courts from building future unmanageable backlogs by focusing docket time on those cases with real issues needing full hearings. And, nobody’s due process rights would be trampled in the process by mindless “haste makes waste deny everything” enforcement gimmicks such as those the Trump regime constantly tried to impose.
Real court systems are about justice, not “deterrence” or “sending messages,” or even “carrying out Administration policies,” although there shouldn’t be much of a conflict with the latter if the Biden Administration actually lived up to its promises to asylum seekers and other migrants (something it hasn’t shown any inclination to honor, to date). The Immigration Courts, much like Article III Courts, need better judges, not necessarily more of them! Unlike the Article IIIs, which are a long term project, Judge Garland could engineer a solution for the Immigration Courts that would show drastic improvements before the end of this year and get better every year thereafter!
But, with the current gang at DOJ and Falls Church, (remarkably still riddled with Trump holdover bureaucrats and anti-asylum “appellate judges” churning out negative precedents) it’s “mission impossible.” Not a professional judicial administrator or qualified appellate judge among them!
There are folks who could institute the bold, yet obvious, steps necessary to clean up the backlog in relatively short order without stomping on individual rights; come up with merit-based judicial hiring criteria; issue precedents that would advance, not retard, due process for asylum seekers; institutionalize best (rather than worst) practices; “kick tail” until some working basic modern technology (like e-filing) is in place; learn from the private bar’s in-court experiences; put some professional judicial training in place; and return docket control and administration to local courts, where even a minimally competent judicial administrator (in other words, NOT an agency bureaucrat or DOJ politico) would know it belongs.
Now is the time to toss the deadwood and get this system back on track — before the next wave of asylum cases hit the mind-boggling dysfunction in today’s Immigration Courts. How does anyone think that throwing 100 additional Immigration Judges into this disaster zone (the Administration’s budget proposal) will solve the systemic mess and the institutionalized failure to provide anything resembling justice?
Unfortunately, the folks who could do the job are either sitting judges in the Immigration Courts or in the private/NGO sector. And, despite warnings and pleas from those of us who actually understand the system, what’s wrong with it, and how it might be fixed, Judge Garland appears uninterested in engaging in the dialogue or making the obvious personnel moves necessary to build a functioning, due-process-oriented, expert court system. So right now, the chances of avoiding further disaster look pretty grim.
Wonder what the Judge’s“emergency plans” are for when the tsunami finally hits 10th & PA, NW, in D.C.? Like most past AGs not named Jeff “Gonzo Apocalypto” Sessions, Garland might trivialize the importance of immigration and EOIR in his own mind. Maybe that’s because so few immigration cases came before the D.C. Circuit, and the ones that did involved regulations, statutes, and policy issues, usually not “individual removal cases” where human lives were at stake in an immediate context.
Perhaps it’s because EOIR is “across the river” in Falls Church, out of sight, out of mind. Maybe it’s because the unending damage that a dysfunctional and unfair EOIR inflicts on men, women, children, and their lawyers, happens across the U.S., out the Judge’s presence or consciousness. Occasionally, the Post and other national media pick it up. But the human trauma, cruelty, unfairness, and real life stories of EOIR’s disreputable conduct go largely untold and unnoticed. Even the victims and their loved ones are often too deep in the throes of these officially-sanctioned and unnecessarily-harsh injustices to worry about complaining or seeking redress.
I can, however, predict to Judge Garland that if he continues on his current tone-deaf, inept course, both his tenure as Attorney General and his legacy will forever be identified with lousy, inhumane, dysfunctional immigration policies and his inexcusable failure to fix EOIR, or even make a good faith attempt at it!
Another EOIR “Town Hall” In The Offing? PHOTO: Thomas Hawk Creative Commons
Alas, the crack “I-Team” from “Courtside on Your Side” was unable to attend. But a long time EOIR veteran provided this helpful analysis:
[A]fter the debacle EOIR called a Town Hall yesterday I am very afraid for EOIR’s future.
Now, as some readers might remember, I previously had set perilously low expectations for this latest escapade in “Mindless Micromanagement From On High.”
But, my sources inform me that EOIR substantially underperformed even those rock bottom levels!
So much for the idea that a “real judge” might be able to bring “real justice” to the Halls of Injustice! Hope springs eternal, ever to be ruthlessly dashed by the tone-deaf politicos @ DOJ and the incompetent bureaucrats @ Falls Church!
Here’s a “Pop Quiz.”
How many senior executives and BIA Appellate Judges have ever represented an asylum seeker in Immigration Court?
How many senior executives at EOIR have set foot in an Immigration Courtroom in the past year?
How many DOJ politicos and EOIR senior managers have ever conducted a full Master Calendar hearing?
Can you name a U.S. Court System that has successfully eliminated a 1.3 million case backlog through “Aimless Docket Reshuffling” conducted by non-judicial officials far removed from the trial courts?
David Wetmore, the current Chair & Chief Appellate Judge of the BIA, owes allegiance to which of the following:
a) Stephen Miller
b) Donald Trump
c) Joe Biden
d) Merrick B. Garland
e) Beelzebub
BONUS QUESTION:
6) From the late Casey Stengel: Can’t anyone here play this game?
“Casey Stengel might understand Judge Garland’s game plan. The rest of us not so much.” PHOTO: Rudi Reit Creative Commons
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19 & Closures
Note: Policies are rapidly changing, so please verify information with the government and colleagues.
EOIR Status Overview & EOIR Court Status Map/List: Unless previously specified on the court status list, hearings in non-detained cases at courts are postponed through, and including, May 14, 2021. (It is unclear when the next announcement will be. EOIR announced 5/14 on 3/29, 4/16 on Fri. 3/5, 3/19 on Wed. 2/10, 2/19 on Mon. 1/25, 2/5 on Mon. 1/11, and 1/22 on Mon. 12/28.) There is no announced date for reopening NYC non-detained at this time.
NPR: The plan the Biden administration is considering to speed up the process would take some asylum cases from the southern border out of the hands of the overloaded immigration courts under the Department of Justice. Instead, it would handle them under the purview of the Department of Homeland Security, where asylum officers already process tens of thousands of cases a year, two people familiar with the discussions who were not authorized to speak about administration plans told NPR exclusively.
WaPo: A new poll by The Associated Press-NORC Center for Public Affairs Research also shows that solving the problem of young people at the border is among Americans’ highest immigration priorities: 59% say providing safe treatment of unaccompanied children when they are apprehended should be a high priority, and 65% say the same about reuniting families separated at the border.
Intercept: LexisNexis signed a $16.8 million contract to sell information to U.S. Immigration and Customs Enforcement, according to documents shared with The Intercept. The deal is already drawing fire from critics and comes less than two years after the company downplayed its ties to ICE, claiming it was “not working with them to build data infrastructure to assist their efforts.”
Vox: President Joe Biden is reportedly not seeking to renew the ban, which expired Wednesday after Trump extended it in December, citing concerns that foreign workers could threaten employment opportunities for Americans who were laid off as a result of the Covid-19 pandemic.
BuzzFeed: United States Citizenship and Immigration Services officials are planning to remove references to immigrants as “aliens” in the agency’s policy manual more than a year after the term was inserted into the guidance during the Trump administration, according to government documents obtained by BuzzFeed News.
DocumentedNY: A measure currently planned for New York’s next budget would provide more than $2 billion in cash assistance for New Yorkers who have been ineligible for federal relief payments during the pandemic, including many farm workers, service employees, street vendors, and undocumented laborers who often earn cash wages in the informal economy. But state lawmakers and workers rights advocates say Governor Andrew Cuomo is pushing for a two-tiered system of access to the Excluded Worker Fund that would distribute benefits based on burdensome proof-of-employment requirements.
EOIR issued a policy memo (PM 21-18) implementing a revised case flow processing model for certain non-detained cases with representation in immigration courts. EOIR concurrently cancelled PM 21-05. The memo is effective April 2, 2021. AILA Doc. No. 21040237. See also EOIR Cancels Policy Memo 21-05 on Enhanced Case Flow Processing.
Following Matter of Lopez-Meza, the BIA ruled that the offense of aggravated unlicensed operation of a motor vehicle in the first degree in violation of §511(3)(a)(i) of the New York Vehicle and Traffic Law is categorically a CIMT. Matter of Vucetic, 28 I&N Dec. 276 (BIA 2021) AILA Doc. No. 21033133
BIA ruled that the “offense clause” of the federal conspiracy statute, 18 USC §371, is divisible and the underlying substantive crime – selling counterfeit currency in violation of 18 USC §473 in this instance – is an element of the offense. Matter of Al Sabsabi, 28 I&N Dec. 269 (BIA 2021) AILA Doc. No. 21032934
The court held that the BIA did not abuse its discretion in concluding that the petitioner had failed to rebut the presumption of delivery of the briefing schedule, transcript, and IJ’s written decision, finding that his counsel’s declarations were insufficient. (Njilefac v. Garland, 3/24/21) AILA Doc. No. 21033036
The court held that substantial evidence supported the BIA’s determination that the petitioner—a 22-year-old Christian woman who claimed she had been targeted by gangs in El Salvador—could relocate to another part of El Salvador if forced to return. (Guatemala-Pineda v. Garland, 3/26/21) AILA Doc. No. 21033038
The court held that the BIA and IJ erred in misunderstanding the petitioner’s proposed social group comprised of “El Salvadoran men with intellectual disabilities who exhibit erratic behavior” for purposes of asylum and withholding relief. (Acevedo Granados v. Garland, 3/24/21) AILA Doc. No. 21033039
Law360: New Jersey judges may not order a pre-trial detention for unauthorized immigrants who are charged with crimes in order to prevent federal authorities from deporting them, according to a ruling from the state’s highest court.
A California federal court sanctioned the U.S. Department of Homeland Security and the U.S. Customs and Border Protection, adopting a magistrate judge’s report calling out “negligent destruction” of evidence amid litigation that asylum-seekers were turned away at the Southern border.
USCIS confirmed that it will no longer reject Form I-589, Form I-612, or Form I-918 if an applicant leaves a blank space. USCIS stated that it has reverted to the form rejection criteria it applied before October 2019 regarding blank responses for all forms. AILA Doc. No. 21040135
DOS updates its announcement and FAQs on the phased resumption of visa services following the expiration of Presidential Proclamation 10052, which suspended the entry of certain nonimmigrant visa applicants into the United States. AILA Doc. No. 20071435
ICE announced that it has extended the flexibilities in rules related to Form I-9 compliance during the COVID-19 pandemic until May 31, 2021. The extension includes guidance for employees hired on or after April 1, 2021, and work exclusively in a remote setting due to COVID-19-related precautions. AILA Doc. No. 20032033
Better late than never! Liz & I were pretty busy this week!
OK, so here’s why Liz and I are “a team” for the NDPA!
Liz went first on our HNBA Panel on Wednesday night! She described the problems in Immigration Court as being “kinda too dry and highly technical for most people to get excited about.”
There it was, nice and soft, lingering just above the net, inviting my “monster spike!” 🏐 I let loose with my most colorful, down-to-earth, “tell it like it is in plain language” — no section numbers — broadside about the due process crisis in our “Clown Courts”🤡 and how it not only brings down our entire justice system, but also poses a real, existential threat to America’s Hispanic communities that they can only ignore at their peril! Death on your doorstep! ☠️⚰️ That shouldn’t be too dry or technical for the masses to understand!
Having an unqualified, highly-non diverse, restrictionist tilting, out of control judiciary “Dred Scottfying” 🤮 individuals of color, particularly Hispanic women and children, on a daily basis and getting away with it is no laughing matter!
Also, as I stated, if talented Hispanic lawyers want to stop being beaten up in Immigration Court and to finally gain “entree” into a now highly non-diverse, uneducated, often clueless Article III Judiciary that frequently diminishes their professional achievements while dehumanizing and abusing their clients, then “Houston, we’ve got a problem!”
Judge Merrick Garland, who controls all U.S. Immigration Court appointments, appears determined to follow in the footsteps of his Dem predecessors by:
failing to meaningfully reform the existing dysfunctional, non-diverse, non-expert Immigration Judiciary (nearly 600 stong, making it the largest “entry level opportunity” in “Federal Judging”) by getting rid of the “deadwood” and re-competing these “life or death” jobs with merit-based selection criteria that honor immigration and human rights expertise, require demonstrated commitment to due process above all else, recognize the crucial experience gained by representing humans in Immigration Court, and have a selection process involving acknowledged private sector immigration experts (not just Government bureaucrats, many of whom have neither represented an individual in Immigration Court nor heard an asylum case in a judicial capacity);
failing to actively, aggressively, and nationally publicize, hype, and recruit for these judicial jobs in under-represented communities of minority lawyers (basically, systematically excluded from the Immigration Judiciary in the past) using available minority legal “role models” to drum up interest and “sell” the jobs to those who haven’t applied in the past (perhaps because of EOIR’s recent reputation for hostility toward individuals of color and disdain for human rights and due process, as well as their reputation for sloppy judicial work product) — to state the obvious, simply posting bureaucratic descriptions on “USA Jobs” is a joke — designed to repeat the “insiders only” non-diverse, non-expert composition of the current Immigration Courts; and
intentionally ignoring (it ain’t rocket science) the incredible potential of an independent, diverse, highly qualified, “model” Immigration Judiciary as a transition to a long overdue Article I Immigration Court and a “stepping stone” for a more diverse, progressive, immigration-human rights-due process oriented (as actually applied in communities of color throughout America) Article III Judiciary, which is also reeling right now, largely as a result of its lack of diversity, skewed legal knowledge, and lack of sensitivity and commitment to equal justice for all in America.
Folks, Judge Garland and his team at DOJ have made it clear by their lack of constructive actions, ongoing failure to denounce and take action against the inferior work product coming out of the Immigration Courts (that actually puts the lives of minority individuals in jeopardy), unwillingness to meaningfully engage with the immigration and human rights community, and ridiculous failure to enlist experts from the NDPA on their “A-Team” to clean-up the unmitigated disaster at EOIR: This is not going to happen without a fight! A “knock-down, drag ‘em out fight!”
Immigration and human rights advocates are dealing with the daily bias, lousy judging, inane precedents, and health-threating conditions in the muck-hole known as “Immigration Court!” Meanwhile, buddies of neo-Nazi restrictionists Stephen MIller and Gene Hamilton are still drawing fat paychecks in senior positions at EOIR where they can continue to tramp on the legal rights of you and your clients and to further screw up the already totally dysfunctional Immigration Courts. Studies, bogus “Town Meetings,” focus groups, and a few cosmetic bureaucratic changes that don’t scratch the surface aren’t going to hack it! Never have, never will! Even I know that!
If that doesn’t make sense to you, then it’s time to take aggressive concerted action to stop Judge Garland from continuing to run American justice into the ground — over your bodies and your clients’ legal and human rights!
“Eyore In Distress” “If this isn’t YOUR vision of immigrants’ rights and equal justice in America, then YOU need to let Judge Garland know! Demand better! Demand due process! Demand expertise! Demand respect for human dignity! Demand an end to the DOJ’s decades-long mismanagement of, and improper interference with, the fair functioning of our Immigration Courts! Demand courts that “guarantee fairness and due process for all,” the original EOIR vision! Set poor Eyore free!”
🇺🇸⚖️🗽Due Process Forever! Put an end to deadly ☠️ “Clown Courts!”🤡 Demand “Equal Justice for All!” It’s a right, not an option!
Is this Judge Merrick Garland’s Vision Of Justice For Refugee Women @ EOIR? If not, what’s he doing about it? Amazing StoriesArtist Unknown, Public domain, via Wikimedia CommonsJamie Gorelick American Lawyer & Public Servant PHOTO: Creative CommonsLayli Miller-Muro Founder & Executive Director, Tahirih Justice Center PHOTO: Creative Commons
Jamie Gorelick is a partner at Wilmer Hale. Layli Miller-Muro is founder and CEO of the Tahirih Justice Center, a nonprofit that serves immigrant survivors of gender-based violence. Both were involved in Fauziya Kassindja’s asylum case in 1996: Gorelick was deputy attorney general during the Clinton administration and Miller-Muro was Kassindja’s student legal counsel, representing her in immigration court and at the Board of Immigration Appeals.
With the issue of migration in the news again, a glaring omission in U.S. asylum law should get more attention: The statute does not name gender as a possible ground for protection.
To be granted asylum in the United States, an applicant must be facing persecution by their government or someone that government cannot or will not control. The applicant must show that the persecution is on account of race, religion, nationality, political opinion or membership in “a particular social group.” Persecution on account of gender is not included.
This makes sense when considering that the global treaty that obliges state parties to protect refugees was adopted 70 years ago, in 1951, when the legal rights of women were barely recognized. The treaty — called the Refugee Convention — says that countries have an obligation to protect those who have no choice but to flee or risk death in the face of injustice.
It is unsurprising that the needs of women facing persecution were not considered in 1951. It is also not surprising — though it is disappointing — that Congress wrote this outdated framework into the Refugee Act of 1980.
In the mid-1990s, some light was shined on this problem. Fauziya Kassindja, a 17-year-old from Togo, sought protection both from forced polygamous marriage to a much older man and from female genital mutilation. She was granted asylum after proving that she was a member of a “particular social group” — and thus covered by the Refugee Act. We were both involved in this case, which helped to crack open the door for women to argue that gender-based asylum claims should be granted under the “particular social group” category in the statute.
But progress for women has been slow and painful under a statute that does not explicitly recognize gender-based persecution. It took 14 years for the United States to grant asylum to a Guatemalan woman, Rodi Alvarado, who endured unspeakable brutalization by her husband, a former soldier. Regulations proffered by then-Attorney General Janet Reno in 2000 to protect women under the social-group category were never finalized, leaving women in the lurch. So much variance exists in the likelihood of success from court to court that filing a claim can feel like playing Russian roulette.
. . . .
This situation has been made much worse in recent years. Under Attorney General Jeff Sessions, decades of progress were nearly wiped out by the stroke of a pen. Because the highest immigration court is part of the Justice Department, he was able to single-handedly reverse key legal precedents favorable to women’s claims and issue guidance to judges limiting gender-based asylum. As a result of these changes, the safety of many immigrant women hangs by a thread. The Refugee Act urgently needs to be changed to clearly protect women who would otherwise meet the stringent requirements for asylum.
. . . .
***************************
Read the full op-ed at the link.
The Rest of the Story
I wrote the decision granting asylum in Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996). Jamie Gorelick was the Deputy Attorney General during part of my tenure (1995-2001) as Chair of the BIA. Layli Miller-Muro worked for me as a BIA Attorney-Advisor for a time.
Following Kasinga, some of my colleagues and I put our careers on the line to vindicate the statutory, constitutional, and human rights of refugee women who suffered egregious persecution in the form of domestic violence. One of those cases was Rodi Alvarado (a/k/a “Ms. R-A-“), where we dissented from our majority colleagues’ misguided denial of protection to her following grotesque, clearly gender-based persecution. Matter of R-A-, 22 I&N Dec. 906, 928 (BIA 1999) (Guendelsberger,Board Member, dissenting with Schmidt, Chair, Villageliu, Rosenberg, and Moscato, Board Members). Alvarado had properly been granted asylum by an Immigration Judge, building on Kasinga, before being unjustly stripped of protection by the majority of our colleagues.
The incorrect decision in R-A- was vacated by Attorney General Reno. Finally, after a 14-year struggle, Ms. Alvarado was granted asylum in an unpublished, unappealed decision based largely on the rationale of the dissenters. In the meantime, the “gang of four” dissenters (minus Moscato) had been exiled from the BIA by Attorney General John Ashcroft, assisted by his sidekick, Kris Kobach (the infamous “Ashcroft Purge” @ the BIA).
In 2014, in Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), the BIA finally recognized domestic violence based on gender as a form of persecution. They did so without acknowledging the pioneering work of the R-A- dissenters 15 years earlier. By this time, domestic violence as a basis for asylum had become so well established that it wasn’t even contested by the DHS (although, curiously, the case was remanded by the BIA for additional findings on issues that were beyond reasonable dispute)!
In the meantime, at the Arlington Immigration Court, my colleagues and I had consistently granted domestic violence asylum cases based on a DHS policy position known as the “Martin Memo,” after former INS General Counsel and later DHS Deputy General Counsel Professor David Martin (who, incidentally, argued the Kasinga case before the BIA in 1996 — famous gender-based asylum expert Professor Karen Musalo argued for Kasinga). Most of those grants were unappealed by DHS. Indeed, many were so compelling and well documented that DHS joined Respondents’ counsel in moving for asylum grants following brief testimony. These cases actually became staples on my “short docket,” promoting efficiency, fairness, and becoming one of the few “working parts” of the Immigration Courts.
Tahirih Justice Center, founded by, Layli Miller-Muro, was counsel in some of these cases and served as an essential resource and inspiration for attorneys preparing domestic violence cases. It also functioned as a training center for some of the “new all-stars” of the New Due Process Army. For a time, the progress in recognizing, documenting, and vindicating the rights and humanity of female asylum seekers, at least in the Arlington Immigration Court, was one of the few shining examples of the courts, DHS, and the private/NGO bar working cooperatively to improve the quality and efficiency of justice in Immigration Court. It should have been a model for all other courts!
Sadly, in 2018, Attorney General Jeff “Gonzo Apocalypto” Sessions, unilaterally intervened and undid two decades of progress for women refugees of color with his grossly incorrect and disingenuous decision in Matter of A-B-, 27 I&N Dec. 316 (BIA 2018), overruling Matter of A-R-C-G- on completely specious grounds while intentionally misconstruing the facts of record. Significantly, Sessions’s intervention was over the objection of DHS, which had expressed continuing agreement with the A-R-C-G- framework for deciding domestic violence cases.
“Hanging by a thread,” as stated by the op-ed, unfortunately vastly understates the war on the legal rights and humanity of asylum-seeking women, particularly targeting women at color, being carried out at EOIR today. This effort is led by a BIA that has long since lost its way, basically “weaponizing” the legal distortions and vicious, openly misogynist dicta set forth by Sessions in Matter of A-B- to dehumanize, degrade, and deport vulnerable refugee women.
In numerous cases, the BIA actually intervenes at ICE’s request to reverse proper grants by courageous and scholarly Immigration Judges below. It’s all about churning out final orders of removal as a deterrent –a vile, disgusting, perverted “philosophy” advanced by Sessions, Barr, and Whitaker, and not yet effectively rejected by Judge Garland.
Judge Merrick B. Garland Official White House Photo Public Realm
Judge Garland is in the job because he is not only an experienced DOJ senior executive, but a long-serving Federal Judge who was admired for his sense of justice. It shouldn’t take an army of “spear-carriers” and subordinates for a true leader of Judge Garland’s experience to seize control of the situation and start getting the “ship of justice” sailing in the right direction. Judge Garland’s political and bureaucratic travails are of no moment to, and pale in comparison with, the additional, unconscionable abuse and “Dred Scottification” being heaped on refugee women and their courageous representatives by his dysfunctional and unconstitutional “star chamber courts.”
“Refugee women get ‘special treatment’ in accordance with the ‘traditional values’ applied to their cases in Judge Garland’s Immigration Courts!”
Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Please, Pick Up The Phone & Your Pen, Judge Garland!
Not rocket science, Judge Garland! All it takes is six calls and a signature to start ending misogyny at EOIR and achieving racial justice in the America.
First three calls: Call Judge Dana Marks (SF), Judge Noel Brennan (NYC), Judge Amiena Khan (Newark) and tell them that they are detailed to the positions of Acting EOIR Director, Acting BIA Chair, and Acting Chief Immigration Judge, respectively. (The first position is vacant and the other two positions are filled by Senior Executives subject to transfer at the AG’s discretion. The current Acting Director already has an SES position to which she could return, or she could be re-installed as the
EOIR General Counsel, a job for which she is well-qualified.)
Fourth call: Call the the head of of the Justice Management Division (JMD). Ask her/him to find suitable DOJ placements for the two current incumbents mentioned above and all current members of the BIA (all of whom are either SES or “Management Officials” subject to transfer at the AG’s discretion) in other DOJ positions at the same pay level where they can do no further damage to our justice system. Ask him/her to arrange for the temporary appointment of former DOJ employees Jamie Gorelick and Layli Miller-Muro as Acting Appellate Judges at the BIA.
Calls five and six: Call Jamie Gorelick and Layli Miller-Muro. Thank them, tell them you agree with their Post op-ed, and ask (or beg) them to come to DOJ on a temporary basis to help Judges Marks, Brennan, and Khan solve the current problems with asylum adjudications and take the necessary actions to get EOIR functioning as a legitimate, independent, due-process-oriented court system. In other words, turn their cogent op-ed into a “real life action plan” for restoring due process, humanity, and common sense to the Immigration Courts, with a focus on the now totally unprofessional, wrong-headed mis-adjudication of asylum cases.
Finally, sign this order:
All precedent decisions issued to EOIR by former Attorneys General Sessions and Barr, and former Acting Attorneys General Whitaker and Wilkinson, and all their pending actions certifying cases to themselves are hereby vacated. All cases shall be returned to the Board of Immigration Appeals (“BIA”) for reconsideration. In the reconsideration process, the BIA shall, among other things, honor the letter and spirit of these binding precedents:
INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)
Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987)
Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996)
In the reconsideration process the BIA shall also be guided by the principle of “through teamwork, innovation, and best practices, become the world’s best tribunals, guaranteeing fairness and due process for all.”
See, it’s not that complicated. By the end of this year, women will get the protection to which they legally are entitled from the Immigration Courts. We all will see dramatic changes that will lead the way toward “equal justice for all’” in America and become a blueprint for the Immigration Courts to fulfill the above-stated principle.
It would also be a far better legacy for Judge Garland to be viewed as the “father of the fair, independent, expert Immigration Courts,” than to be remembered as running the most dysfunctional, unfair, and misogynistic court system in America, his current path. And, as an extra added bonus, Judge Garland, you will have a great start on building a premier source of “battle tested,” due-process-oriented, progressive jurists for future Article III appointments!
It’s a “win-win-win” that you no longer can afford to ignore, Your Honor!
Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
“Every woman knows what I’m talking about. It’s the presumption that makes it hard, at times, for any woman in any field; that keeps women from speaking up and from being heard when they dare; that crushes young women into silence by indicating, the way harassment on the street does, that this is not their world. It trains us in self-doubt and self-limitation just as it exercises men’s unsupported overconfidence.”
Rebecca Solnit, Men Explain Things to Me
On April 5, the U.S. Court of Appeals for the Ninth Circuit issued a published decision in Rodriguez Tornes v. Garland. The opening sentences of the decision are heartbreaking:
Since the age of five, Petitioner has been told that men will beat her if she does not submit. Her mother demanded that she learn how to do housework, how to accept spousal abuse, and how “to obey everything that [her] husband would say.” She beat Petitioner with various objects almost daily, in part to prepare her for future beatings from her husband.
But along with the darkness there was also hope. The decision’s opening paragraph concludes: “Yet Petitioner came to believe that ‘there should be equality in opinions[] and in worth’ between men and women. She became a teacher.”
Remarkably, over all the years that followed, the Petitioner’s hope survived the most brutal attempts to crush her into silence and submission. As her mother had foreseen, she endured unspeakable and repeated forms of physical and psychological torture, including beatings and rape, at the hands of her husband. Yet she continued to express the belief in her rights as an equal, and was brutally punished each time she did so, in an attempt to destroy the part of her capable of forming such belief. Neither the police nor her own family offered her any possibility of protection.
When she finally succeeded in escaping to the U.S., her abuse continued, merely transferred to the hands of another domestic partner with whom she had three children in this country. In 2017, our government deported both her and her latest abuser. Facing the prospect of continued harm in her native Mexico, her still unbroken hope guided her to the U.S. once again, where she was placed into removal proceedings.
Her hope was briefly rewarded when an Immigration Judge granted the Petitioner asylum, ruling that her persecution was on account of her feminist political opinion. The Immigration Judge alternatively held that asylum was warranted on account of the Petitioner’s membership in the particular social group consisting of “Mexican females,” which formed at least one central reason for her persecution.
It isn’t clear why ICE appealed the IJ’s decision. On appeal, the BIA acknowledged the Petitioner’s honesty and the ongoing, systemic nightmare of violence she endured because of her gender and unbroken belief that she possessed rights. And yet the BIA chose to act like a rubber stamp for the administration it served, and found a way to reverse the IJ’s well-reasoned decision. According to a concurring opinion of the circuit court, the BIA managed this by suggesting that the Petitioner’s brutal suffering was motivated by her “personal relationship” with her abuser. According to the concurrence, the BIA supported this conclusion by relying on the decision of former Attorney General Jeff Sessions in Matter of A-B-.
Of course, asylum applications require an individualized analysis of the facts of the specific case under consideration. Matter of A-B- involved a different asylum seeker from a different country who experienced different facts than this petitioner. So in citing A-B- to reach a conclusion so at odds with the facts of this case, the BIA’s judges were signaling their choice of a specific policy objective over their duty to neutrally apply law to specific facts.
Among the facts the BIA chose to ignore was the opinion of an expert who drew “on more than three decades of research, writing, legal representation, and lawmaking” in support of her conclusion. The expert, Prof. Nancy Lemon of the Univ. of Cal. – Berkeley Law School, explained how all of the weapons at abusers’ disposal are “tied to social belief systems that ‘men are entitled to dominate and control women because the male sex is considered superior.’” Prof. Lemon went into great detail in explaining the political nature of the mistreatment. Of course, it mattered not to the Board.
In discussing this case, an esteemed colleague pointed to a decision that the same court issued more than three decades ago. In 1987, in an opinion authored by Judge John T. Noonan, Jr., a conservative Reagan appointee, the Ninth Circuit concluded that a Salvadoran woman subjected to repeated sexual abuse and other violence by a sergeant in the Salvadoran military had been persecuted on account of her political opinion where the abuser threatened to falsely label her a “subversive if she refused to submit to his abuse.”1 In the words of Judge Noonan, the fact that the persecutor gave the asylum seeker “the choice of being subjected to physical injury and rape or being killed as a subversive does not alter the significance of political opinion…” The decision reversed the conclusion of the BIA that “the evidence attests to mistreatment of an individual, not persecution,” precisely the same finding the Board used more than three decades later in denying Ms. Rodriguez Tornes of her grant of asylum.
In 1993, Justice Samuel Alito, then sitting at the Third Circuit, wrote that “we have little doubt that feminism qualifies as a political opinion within the meaning of the relevant statutes.”2 28 years later, the Ninth Circuit cited Justice Alito’s words in Rodriguez Tornes, adding that it had reached the same conclusion in its own unpublished 1996 decision.3 These were obviously not the decisions of liberal judges forwarding a political agenda. To the contrary, these judges were able to transcend political ideology by neutrally applying law to facts; this is what judges do. As a result, the law of asylum has progressed to increasingly provide asylum protection to victims of domestic abuse. Immigration Judges appointed by both Republican and Democratic administrations have followed suit, authoring well-reasoned decisions granting asylum in numerous cases of domestic abuse, including this one.
Yet over the same period of time, the BIA has stubbornly refused to budge from its 1980s position that domestic abuse is simply a personal matter not linked to a political opinion within society. In the words of Jeff Sessions in Matter of A-B-, the vile abuse was simply due to the abuser’s “preexisting personal relationship with the victim.”4
When a mother feels compelled to begin abusing her five year old daughter to prepare her to obey her husband one day, can the inevitable spousal abuse that follows really be dismissed as just a personal matter? And when the record contained Prof. Lemon’s evidence (because expert testimony is evidence) of “a correlation between patriarchal norms that support male dominance and violence against women by intimate partners,” what unsupported overconfidence did the BIA’s judges rely on in explaining that they know better?
The BIA decided this case during the Trump Administration. For those hoping that the change in administration will usher in a change in the Board’s view, it bears noting that neither the Clinton nor Obama administrations brought about a sea change in the Board’s approach to domestic violence claims. Under Clinton, the BIA issued Matter of R-A-,5 a precedent that essentially precluded the granting of asylum to domestic violence victims based on their membership in a particular social group. The decision was vacated by then-Attorney General Janet Reno, who promised more enlightened regulations on the issue that never arrived. Similar regulations were rumored to be in the works under Eric Holder, but again did not materialize. The BIA’s one grudging concession to the political climate of the Obama era, Matter of A-R-C-G-, was later vacated by Jeff Sessions. While the BIA discussed a second decision under Obama expanding on the narrow holding of A-R-C-G-, it too never came to be.
Based on that history, it seems safe to say that without drastic action by Attorney General Merrick Garland, the BIA will continue issuing the same denials for the same reasons as before. For every individual such as Ms. Rodriguez Tornes who is able to succeed on appeal, there are countless more who merely end up as stratistics, deported to face more of the horrendous abuse that drove them here in the first place. The Ninth Circuit recently had to correct the BIA’s determination that attempted gang rape did not constitute persecution,6 and last year, reversed the Board erroneous rejection of a domestic violence victim’s particular social group on the grounds that it contained a few too many words.7 The BIA continues to be composed of the exact same group of judges who issued each of those decisions.
It is the role of the BIA to reach fair decisions by applying the applicable law to the individual facts. Doing so in the domestic violence context would require the Board to finally recognize opposition to systemic male oppression as a political opinion warranting asylum. Instead, for decades the BIA has enforced the offensive, outdated message to women seeking protection from such abuse that “this is not their world.” The time has come to finally put an end to this sad substitute for true administrative appellate review.
Notes:
Lazo-Majano v. INS, 813 F.2d 1432 (9th Cir. 1987).
Fatin v. I.N.S., 12 F.3d 1233, 1242 (3rd Cir. 1993).
Moghaddam v. I.N.S., 95 F.3d 1158 (9th Cir. 1996) (unpublished).
Diaz-Reynoso v. Barr, 968 F.3d 1070 (9th Cir. 2020).
Copyright 2021, Jeffrey S. Chase. All rights reserved.
Republished by permission.
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Different style, but the same message as I delivered yesterday about the BIA’s institutionalized racist misogyny and the strange tolerance that Attorney General Merrick Garland has exhibited to date for this type of grotesque judicial misconduct.
And, this is on top of the astounding, largely self-inflicted 1.3 million case backlog and total dysfunction generated by the BIA’s failures combined with the “maliciously incompetent” effort by DOJ politicos and EOIR bureaucrats to disguise a “deportation railroad” as “administrative review!” Leaving aside all the legal travesties, the mal-administration and waste of public resources alone would be more than enough to require the immediate replacement of EOIR “upper (mis)management” and the entire BIA with qualified judicial professionals and professional judicial administrators.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Jeffrey and I are hardly the first to expose the charade of “appellate review” at the BIA. Two decades ago, following the “Ashcroft Purge,” administrative scholar and former GOP House Counsel Peter Levinson published his seminal work “The Facade of Quasi-Judicial Independence In Immigration Appellate Adjudications” documenting the mockery of due process and legitimate judicial practices being foisted off on the public by DOJ politicos.
In the two decades since, legislators, DOJ Officials, and Article III Judges have done their utmost to ignore and paper over the glaring constitutional and administrative disasters identified by Peter. Not surprisingly, during that time the BIA and the Immigration Courts have descended into a slimy mass of disastrous bias, injustice, and judicial and administrative incompetence unequaled in American Justice since the heyday of the First Era of Jim Crow.(We are now in the “New Era of Jim Crow.”)
Of course, we need an independent Article I Immigration Court as a matter of the highest national priority. But, it’s not on schedule to happen tomorrow, even though it should! In the interim, Judge Garland could fix lots of the festering problems in this system. I gotta wonder if and when he is going to wake up and pay attention to the “assembly line injustice” being cranked out by “his” Immigration Courts?
BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons“Nothing to see here, fellas, just the private dynamics of a personal relationship! Tough noogies, baby! You should have been born a man. It’s your own fault! Ha! Mercy and compassion? Those aren’t in any of our precedents, are they?” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons“Expert, what expert? We’re the experts! That is, in misogyny, abuse of asylum seekers of color, and specious legal reasoning. And, Garland is letting us get away with it! Whew, for a moment I thought he might have been a ‘real’ judge, but seems he’s just like us. Think I’ll jump for joy! Four more years of unbridled abuse of the most vulnerable and helpless, and I’ll be eligible to retire! Shooting down female asylum seekers for no good reason is like shooting fish in a barrel, just like Jeffy Gonzo and Billy the Bigot taught us! Wonder how many we can kill this year? Happy hunting! But, let’s stay out of the 9th Circuit. It’s dangerous territory. I hear the 5th Circuit loves misogynists and White Nationalists!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
PANEL: Susan P. Graber, M. Margaret McKeown, and Richard A. Paez, Circuit Judges.
OPINION BY: Judge Graber
CONCURRING OPINION: Judge Paez
COUNSEL: Elaine J. Goldenberg (argued), Munger Tolles & Olson LLP, Washington, D.C.; Sara A. McDermott, Munger Tolles & Olson LLP, Los Angeles, California; Richard Caldarone, Julie Carpenter, and Rachel Sheridan, Tahirih Justice Center, Falls Church, Virginia; for Petitioner.
Timothy Bo Stanton (argued), Trial Attorney; Sabatino F. Leo, Senior Litigation Counsel; Office of Immigration
ROGRIGUEZ TORNES V. GARLAND 5
Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
Blaine Bookey, Karen Musalo, Neela Chakravartula, and Anne Peterson, Center for Gender & Refugee Studies, U.C. Hastings College of Law, San Francisco, California, for Amicus Curiae Center for Gender & Refugee Studies.
Betsey Boutelle, DLA Piper LLP (US), San Diego, California; Anthony Todaro, Jeffrey DeGroot, and Lianna Bash, DLA Piper LLP (US), Seattle, Washington; for Amicus Curiae National Immigrant Women’s Advocacy Project.
SUMMARY BY COURT STAFF:
Immigration
The panel granted Maria Rodriguez Tornes’s petition for review of the Board of Immigration Appeals’ decision reversing an immigration judge’s grant of asylum and withholding of removal, and remanded, holding that the evidence compelled the conclusion that Rodriguez established a nexus between her mistreatment in Mexico and her feminist political opinion.
The panel noted that under the Attorney General’s recent decision in Matter of A-B-, 28 I. & N. Dec. 199 (A.G. 2021) (“Matter of A-B- II”), in order to establish the requisite nexus for asylum relief, a protected ground (1) must be a but-for cause of the wrongdoer’s act; and (2) must play more than a minor role—in other words, it cannot be incidental or tangential to another reason for the act. The panel explained that this standard was substantively indistinguishable from this circuit’s precedent. The panel wrote that the fact that an unprotected ground, such as a personal dispute, also constitutes a central reason for persecution does not bar asylum. Rather, if a retributory motive exists alongside a protected motive, an applicant need show only that a protected ground is “one central reason” for his or her persecution.
Observing that this court has held repeatedly that political opinions encompass more than electoral politics or formal
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
ROGRIGUEZ TORNES V. GARLAND 3
political ideology or action, the panel wrote that it had little doubt that feminism qualifies as a political opinion within the meaning of the relevant statutes. The panel concluded that Rodriguez’s testimony concerning equality between the sexes, her work habits, and her insistence on autonomy compelled the conclusion that she has a feminist political opinion. The panel also held that the record compelled the conclusion that Rodriguez’s political opinion was at least one central reason for her past persecution. The panel explained that some of the worst acts of violence came immediately after Rodriguez asserted her rights as a woman, and that the fact that some incidents of abuse may also have reflected a dysfunctional relationship was beside the point, as Rodriguez did not need to show that her political opinion—rather than interpersonal dynamics—played the sole or predominant role in her abuse. By demonstrating that her political opinion was “one central reason” for her persecution, the panel concluded that Rodriguez likewise established that her political opinion was “a reason” for her persecution for purposes of withholding of removal.
Because in granting relief under the Convention Against Torture the agency necessarily determined that Rodriguez carried her burden to prove the other elements of her claims for asylum and withholding of removal, the panel concluded that Rodriguez’s petition presented a recognized exception to the ordinary remand rule under I.N.S. v. Ventura, 537 U.S. 12 (2002) (per curiam). The panel explained that because the agency concluded that Rodriguez met the higher burden of establishing that she is likely to be tortured, she necessarily met the lower burdens for asylum and withholding relief of establishing that she has a well-founded fear, or clear probability, of persecution. Similarly, because the Board determined that the Mexican government would acquiesce to
4 ROGRIGUEZ TORNES V. GARLAND
Rodriguez’s torture, the panel concluded that the Board had necessarily decided that the Mexican government would be unwilling or unable to protect Rodriguez from future persecution. The panel also concluded that because the Board determined that it would be unreasonable for Rodriguez to relocate within Mexico to avoid future torture, she likewise could not relocate to avoid future persecution.
The panel held that Rodriguez was thus eligible for asylum and entitled to withholding of removal, and it remanded for the Attorney General to exercise his discretion whether to grant Rodriguez asylum, and if asylum is not granted, to grant withholding of removal.
Concurring, Judge Paez wrote that in addition to ignoring evidence that Rodriguez was targeted on account of her feminist political opinion, the Board also ignored extensive record evidence from a leading authority on domestic violence that directly rejected the Board’s premise that domestic violence is presumed to be motivated by nothing more than the private dynamics of a “personal relationship.”
CONCURRING OPINION:
PAEZ, Circuit Judge, concurring:
I join Judge Graber’s fine opinion in full. I write separately on a point the court’s opinion does not address. In rejecting Ms. Rodriguez Tornes’s political opinion claim, the BIA suggests that the presence of a “personal relationship” motivation for intimate partner violence implies that there were no intersectional or additional bases for the violence Ms. Rodriguez Tornes experienced. The court’s opinion thoroughly documents the record evidence, which the BIA ignored, demonstrating how Ms. Rodriguez Tornes was targeted for violence by her domestic partners on account of her feminist political opinion. The BIA, however, also ignored extensive record evidence from expert witness Prof. Nancy Lemon, a leading authority on domestic violence, that directly rejects the BIA’s premise that domestic violence is presumed to be motivated by nothing more than the private dynamics of a “personal relationship.”
In contrast to the BIA’s “personal relationship” view of domestic violence,1 Prof. Lemon draws on more than three
1 The BIA cites Matter of A-B-, 27 I&N Dec. 316, 338–39 (A.G. 2018) as the basis for its assumption.
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decades of research, writing, legal representation, and lawmaking to explain that “the socially or culturally constructed and defined identities, roles and responsibilities that are assigned to women, as distinct from those assigned to men, are the root of domestic violence.” She analyzes data from the U.S. Department of Justice, Bureau of Justice Statistics and studies from leading medical and social science publications to highlight “compelling evidence that heterosexual domestic violence is, in significant part, motivated by bias against women and the belief that men are entitled to beat and control women.” Prof. Lemon summarizes cross-cultural studies within the United States and internationally that demonstrate “a correlation between patriarchal norms that support male dominance and violence against women by intimate partners.”
In her report, which the IJ referenced in her decision, Prof. Lemon provides a lengthy examination of social science research exploring how particular behaviors exhibited by male abusers—including emotional abuse, sexual abuse, marital rape, economic abuse, blaming, guilt and using children—are each tied to social belief systems that “men are entitled to dominate and control women because the male sex is considered superior” and operate to “exploit the traditional socially constructed roles, identities, duties and status of women in intimate relationships.” In describing the legal, social, cultural, and political structures that lay the foundations for intimate partner violence, Prof. Lemon explains that “domestic violence is not typically caused by behaviors unique to the victim or by inter-personal dynamics unique to the relationship between the abuser and the abused. . . . Rather, heterosexual male batterers have certain expectations of intimate relationships with regard to which partner will control the relationship and how control will be
ROGRIGUEZ TORNES V. GARLAND 23
exercised. These expectations are premised on a dogmatic adherence to male privilege and rigid, distinct, and unequal roles for women and men.”
The record evidence of Prof. Lemon’s rigorous expert analysis undermines the BIA’s unsubstantiated premise that, unless otherwise shown, domestic violence is a purely private matter. The BIA makes no mention of the record evidence of Prof. Lemon’s expert analysis, let alone the decades of publicly available social science research and public policy that all reject the BIA’s outdated view of domestic violence as a quirk within a “personal relationship.”2 Thus, the BIA’s assertion that domestic violence is presumptively a private matter is not supported by substantial evidence.
2 See e.g., Nina Rabin, At the Border Between Public and Private: U.S. Immigration Policy for Victims of Domestic Violence, 7 Law & Ethics Hum. Rts. 109, 111–12 (2013) (“Fifty years ago, domestic violence was widely understood to be a private matter, and the extent to which it was appropriate for the state to intervene was highly contested. Now, domestic violence shelters, state laws and policies specific to the prosecution of domestic violence crimes, and significant state and federal government support for efforts to eradicate domestic violence are all commonplace. Crucial to bringing about this shift in the state’s role vis-à- vis domestic violence victims has been the acknowledgment of the structural roots of domestic violence. When conceived of as a problem tied to gender subordination and pervasive inequality rather than interpersonal conflict, the violence at issue demands a state response.”); Violence Against Women: Victims of the System, 102d Cong., 63 (1991); Elizabeth M. Schneider, The Violence of Privacy, 23 Conn. L. Rev. 973 (1991); Reva B. Siegel, “The Rule of Love”: Wife Beating As Prerogative and Privacy, 105 Yale L.J. 2117 (1996); Leslye E. Orloff & Janice v. Kaguyutan, Offering A Helping Hand: Legal Protections for Battered Immigrant Women: A History of Legislative Responses, 10 Am. U. J. Gender Soc. Pol’y & L. 95 (2001); see generally Am. Br. of the National Immigrant Women’s Advocacy Project.
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Congrats to all counsel involved for the “good guys.”
Another completely disastrous performance by the BIA!
Bias, sloppiness, legal errors galore, misuse of the appeals process, dissing experts, ignoring evidence, lousy analysis, an ethically questionable remand attempt by OIL, almost every aspect of the unmitigated professional disaster at the BIA and the failed DOJ is on display in this truly terrible parody of justice. These fundamental defects are what has helped generate incredible backlogs that EOIR and DOJ are attempting to cover up and shift blame to the individuals they systematically malign.
This disgraceful muck heap 🤮 won’t be cleaned up by bogus “case processing requirements!” What this system needs is expertise, fairness, due process, quality control, common sense, and human decency — in huge doses! A complete professional makeover!
Among the many good things about the Circuit decision is that it basically limited the impact of the atrociously wrong Sessions “precedent” in Matter of A-B-, even while overlooking the obvious ethical errors in his maliciously biased dicta and the glaring overarching constitutional problem in his improper interference and participation in the quasi-judicial process. This should be Exhibit 1 in why this process needs to be removed from the DOJ, placed in an independent Article I Court, and a new, qualified Appellate Division with real judges — capable of fairly and efficiently adjudicating asylum cases — selected to replace the BIA.
One particularly cruel, senseless, and inane aspect of the BIA’s attempt to “snuff” the respondent’s asylum application: Because of the essentially uncontested CAT grant, she was going to be allowed to remain in the U.S. anyway! So, this was all about illegally depriving an abused refugee woman of color of her ability to get a green card, become eligible for citizenship, and obtain full legal and political rights in our society!
Compare the time and effort expended by the BIA in trying to deprive this woman of her human rights with the carelessness and sloppiness of their legal analysis. That’s what the racist-driven “any reason to deny” culture created by Sessions, Barr, and their toadies at EOIR does to our justice system!
Imagine how much different the “retail level” of American justice would look with real judges and professional administrators, committed to due process, fundamental fairness, and best practices, in charge! Amazingly, that’s what the “EOIR Vision” once was, before the forces of darkness, ignorance, and bias took over the system.
Think of how different the skewed asylum statistics would look if we honored, rather than mocked, our legal obligations to asylum seekers. Think of how many more individuals could fairly and efficiently be welcomed into our country at our borders and abroad in a well functioning system, staffed with professionals, that adhered to the rule of law. Think of how a better, more honest, and more professional Immigration Court could provide positive guidance on how to grant needed protection, rather than gushing forth an endless stream of bogus “how to deny” precedents based on racial and gender bias and specious reasoning.
Professor Nancy Lemon Hastings Law Photo: law.hastings.comProfessor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings LawBlaine Bookey Legal Director Center for Gender & Refugee Studies @ Hastings Law Photo: CGRS website
Obviously, experts like Professor Nancy Lemon, Professor Karen Musalo, and her colleague Blaine Bookey are the types of individuals who should be Appellate Judges at the BIA. The current BIA’s glaring lack of professional competence and its unconscionable abuse of vulnerable asylum seekers, particularly the institutional ignorance and shameless misogyny with which claims by women refugees are treated, has to be one of the darkest and most inexcusable chapters in modern American legal history!
Food for for thought:
How would an unrepresented individual, particularly one in detention or stuck on a street corner in Mexico, be able to prepare, document, and present a case like this to a biased court and then appeal successfully to the Circuit?
How is this system constitutional in any way, shape, or form?
How might the massive investment of resources, time, effort, and expertise in vindicating the legal and human rights of one individual in a broken system be redeployed to promote systemic fairness and efficiency in a court system that actually complied with constitutional due process?
And, we shouldn’t forget that the Biden Administration is still illegally killing off asylum seekers at the border with no due process at all! Cowardly inflicting human misery on the most vulnerable in violation of our Constitution, our laws, and our international obligations has become our “new national pastime!”
We might be averting our eyes from the slaughter now, but history will document and remember what the world’s richest nation did to our fellow humans seeking protection in their hour of direst need! No wonder we must dehumanize “the other” to go on with our daily lives. No wonder that racial and social justice remain elusive, unfulfilled concepts, throughout our society, in today’s “What’s in it for me” atmosphere promoted by many of our politicos!
