"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.
Biden taking this stance on criminal justice issues comes after the administration recently announced a series of restrictions on asylum seeking so stringent that some former Biden staffers are likening them to Donald Trump’s policies.
I think these decisions are largely about electoral politics. A big part of Biden’s 2024 strategy is to win Michigan, Pennsylvania and Wisconsin again. These states are disproportionately White and have a lot of swing voters who are moderate or conservative on issues such as immigration.
“Electoral politics trump values when it comes to access to asylum,” a Biden administration official recently told the Los Angeles Times.
But I am still not convinced these moves are good politics. Republicans are going to cast Democrats as too lenient on crime and immigration no matter what. I am skeptical these Republican attacks would be significantly more effective because Biden let the D.C. criminal code revisions go into effect or was more lenient to asylum seekers. It’s not as if he has delivered a major speech calling for open borders or defunding the police.
At the same time, voters know the Democratic Party is the one that is more supportive of immigration and making the criminal justice system less punitive. So I am also skeptical that Biden moving to the right on these issues in early 2023 in fairly subtle ways is going to help that much.
And while the electoral effects are fairly unclear, the policy ones are very obvious. Biden is embracing immigration limitations that a future President Trump or DeSantis would build on. The next Republican president will try to silence critics by noting that a Democratic president did similar things.
There will be some people who truly deserve asylum who won’t get it because of Biden’s new policies. It is hard to imagine a Republican president respecting D.C. home rule if a Democratic one won’t. It is extremely disappointing that a heavily White coalition (congressional Republicans, swing-district Democrats and Biden) is reversing the decisions of the government of heavily Black D.C.
Biden appears to be emulating his Democratic predecessors. It’s hard to definitively prove when a politician does something for electoral reasons. But the list of actions taken by Bill Clinton and Barack Obama as candidates and presidents that likely were done in part to appeal to White swing voters is long and troubling: Clinton’s criticism of the rapper Sister Souljah, in part to distance himself from Jesse Jackson, the leading civil rights activist of that time; his decision to leave the campaign trail to preside over an execution in his role as Arkansas governor; his enactment as president of anti-crime and anti-welfare provisions that embraced anti-Black stereotypes of that era; Obama, as a senator from Illinois, criticizing the Rev. Jeremiah Wright, who conducted Obama’s wedding; and Obama often ducking addressing racial issues, particularly in his first term.
I assume Clinton and Obama would argue that their actions were better than letting a Republican be elected. And that they sincerely believed in most or all of them. Biden might argue that his moves to the right will literally save democracy, because the Republican Party of today is so radical.
But if you have to override the elected local representatives of a place (D.C.) that has no representation in Congress to woo swing voters in Wisconsin, you are trying to preserve something less than an ideal democracy.
There must be ways for Biden to appeal to White swing voters that don’t involve backtracking from core principles such as asylum rights, D.C. home rule and a fair criminal justice system. His reelection is a big thing. It’s not the only thing.
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Very “spot on” analysis by Perry of why once in office, Dems often betray supporters and abandon values — without getting much in return, but also without consequences for their repeated treachery,
So, according to Biden and the toady Dems (“DINOs?”) who surround him, “access to asylum” — which happens to be a legal right guaranteed by law— is just another “strategic option” — totally expendable, like the many grass roots progressive Dems who support it and helped elect Biden/Harris in 2020.
The progressive social justice movement thus finds itself at a perilous crossroads. It has grown and amassed a remarkable wealth of talent, energy, and a commitment to taking a diverse America into a better democratic future. It also represents values and practical solutions that should appeal to the majority of Americans.
Yet, it finds itself without a political home and lacking meaningful political influence. Thanks to Biden, progressives find themselves spending far too much of their time and energy re-fighting fundamental battles that they won years ago, undone by Trump, and now adopted and “normalized” by Biden.
And despite many impressive successes in defending democratic principles in increasingly conservative courts, progressives lack the political power and strategy to “out-punch” the radical neo-fascist right. The latter group consistently “punches above its weight” politically.
Biden’s “vision” of America’s future looks depressingly familiar and unoriginal. Why are progressive Dems putting up with this? Public Realm
Can “Kids in Cages” — perhaps displayed outside next year’s Democratic Convention to show that this Administration is “tough as nails” when it comes to beating up on the most vulnerable and ignoring laws they are too incompetent and cowardly to implement — be far behind?
I’ve said this before: Until progressives can band together and develop a political strategy (perhaps not unlike the “Freedom Caucus” in the GOP) for making spineless Dems like Biden and Harris pay a political price for abandoning values and disrespecting grass roots supporters, they will continue to be abused, humiliated, and treated as expendable by a Dem Party that time and time again has demonstrated an inability and unwillingness to govern according to principles and fundamental values. Why keep voting, funding, and supporting folks who don’t represent your values any more than the GOP does?
That’s a serious question that progressives need to answer. It’s particularly pertinent for younger progressives whom Dems see as the “future of the party,” while taking your support for granted and without committing to represent or stand up for your deeply held values. Sounds like a bad deal to me!
Dems, as a whole, suffer from a chronic inability to distinguish their friends from their enemies. Progressives, particularly the “younger generation,” would do well to learn the difference and act accordingly!
Immigration Court can be a daunting experience even for veteran litigators. For folks like this, alone with no representation, it’s “mission impossible.” Yet Biden A.G. Merrick Garland has done little to fix the systemic “user unfriendliness” and sometimes outright hostility to pro se litigants in his totally dysfunctional “courts in name only!” (“CINOs”). PHOTO: Victoria Pickering, Creative Commons License
Clearly, gimmicks rolled out by Garland and the Biden Administration, including stunts like “dedicated dockets,” “expedited dockets,” “Aimless Docket Reshuffling,” detention courts in the middle of nowhere, unregulated bond procedures, lousy precedents, wasteful litigation against practitioners, proposed regulations irrationally “presuming” denial of asylum, abuse of Title 42, assigning asylum seeker resettlement to GOP nativists like DeSantis and Abbott, and refusal to bring in qualified experts with Immigration Court experience to fix this disasterous system have made the already horrible plight of the unrepresented worse! See, e.g.,https://trac.syr.edu/immigration/reports/674/.
With respect to DHS detainees awaiting hearing, a few are subject to so-called “mandatory detention without independent review” as a result of statutes. Others are imprisoned because ICE claims that they are so-called “arriving aliens” (a designation that even some IJs struggle with, but that has huge consequences for a respondent), “likely to abscond,” or ”security risks!”
But, a significant “unstated purpose” of immigration detention, often in substandard conditions, is to coerce detainees into giving up legal rights or waiving appeals and to punish those who stubbornly insist on asserting their rights.
When the almost inevitable “final order of removal” comes, officials in Administrations of both parties believe, without much empirical evidence, that detainees will serve as “bad will ambassadors,” carrying back woeful tales of wonton cruelty and suffering that will “deter” others from darkening the doors of “the world’s most generous nation.”
In spite of this overall “institutionalized hostility,” there is a small, brave cadre of “due process/fundamental fairness heroes” known as the Office of Legal Access Programs, or “OLAP” at EOIR!Forced into “the darkest corners of the EOIR Tower dungeon” during the reign of terror of “Gonzo Apocalypto” Sessions and “Billy the Bigot” Barr, they have finally been released into daylight.
The Dungeon Former A.G. Jeff “Gonzo Apocalypto” Sessions had a special place in the EOIR Falls Church Tower for those trying to assist pro se litigants in Immigration Court. Public Realm
But, make no mistake about it — these courageous folks at OLAP aren’t helping to “drive the train” at EOIR under Biden and Garland, as they certainly should be! No, as was the case before Trump, they are racing down the station platform to catch the train as it departs without them.
How do I know? It’s actually pretty obvious. If Garland & the Administration were actually serious about promoting representation, they would:
Require a positive report from the OLAP before opening any new Immigration Court;
Subject all existing detained “courts” (that aren’t really “courts” at all, within the common understanding of the term) to an OLAP analysis, involving input from the pro bono bar, and close any location where pro bono counsel can’t be made reasonably available to all detainees who want it;
Make part of the IJ hiring process input from the OLAP and the public into the demonstrated commitment of each “finalist” for an Immigration Judge position to working to maximize representation; and
Work with outside programs like Professor Michelle Pistone’s innovative “VIISTA Villanova Program” for training accredited representatives to “streamline and expedite” the Recognition & Accreditation process housed within OLAP.
To my knowledge, none of these obvious “first steps” to address the representation crisis at EOIR have been instituted. Tells us about all we need to know about the real importance of the OLAP in Garland’s galaxy.
Recently, I had the pleasure of meeting with Alicia de La O, her attorneys, and interns at the ABA who are helping the OLAP “staff” the “pro se hotlines” for detainees in immigration proceedings. Of course, they can’t provide “legal advice,” although they can direct pro se litigants to available “self help” materials prepared by OLAP and reliable pro bono NGOs. But, as I pointed out, just being available to speak with isolated detainees, listen sympathetically, and direct them to available resources is a “big deal” from both a human and a practical perspective.
Alicia de la O Senior Attorney/Chief Counsel, ABA Commission on Immigration PHOTO: Linkedin
Remarkably, the amazingly talented, informed, and energetic undergraduate internsworking with the ABA had a far better understanding of the corrosive effect on democracy and America’s future of the mocking of due process, fundamental fairness, racial justice, and human dignity in Immigration Courts than inept and often clueless Biden Administration so-called “immigration policy officials” have acknowledged with their words and deeds. Indeed, one of the undergraduate interns had already completed the VIISTA program. He therefore probably knows more about the Immigration Courts at the “retail level” than some of the clowns Garland has running EOIR!
The energy and commitment of these interns to take on existential challenges that our “leaders” from both parties have shunned, gave me some hope for America’s future. That is, if democracy can survive the overt attacks from the right and its tepid defense by Democrats, by no means an assured outcome.
This opportunity to meet with those working on the front lines of helping the most isolated, vulnerable, and intentionally neglected among us got me thinking about what I might say to a pro se litigant stuck in the “EOIR purgatory,” based on my experience. I note, with some pride, that during my time on the trial bench, almost every pro se individual who wanted to appeal one of my orders was able to file timely with the BIA based on the detailed instructions I gave them at the end of the hearing.
So, as promised, here’s “my list!”
PRO SE CHECKLIST
Judge (Ret.) Paul Wickham Schmidt
March 1, 2023
1) Be careful in filing out the I-589. Everything in the application, including mistakes, omissions, and failure to answer questions can be used AGAINST you at the hearing. Filing a fraudulent application can have severe consequences beyond denial of your case.
2) Do NOT assume that significant omissions or errors in the I-589 can be corrected or explained at the hearing without adverse consequences.
3) If you use a translator, ask that the application be read back to you in FULL for accuracy, before signing. Generally, there is no such thing as an “insignificant error” on an asylum application. All inaccuracies can and will be considered by the IJ in determining whether you are telling the truth.
4) Obtain any relevant documentation supporting the claim and attach to the application. All documents in a foreign language MUST be translated into English. A certificate of accuracy from the translator must also accompany the document. DO NOT expect the court interpreter to translate your documents during the hearing.
5) Understand NEXUS to a “protected ground;” merely claiming or even proving that you will suffer harm upon return is NOT sufficient to win your case; many pro se cases fail on this basis.
6) Any pro se case claiming a “Particular Social Group” will need help in formulating it. Do NOT expect the IJ or ACC to assist in defining a qualifying PSG.
7) Keep a copy of the application and all evidence submitted.
8) Sign your application.
9) Make sure that the original signed copy goes to the Immigration Court and a copy to the ACC.
10) Keep documents submitted by ICE or the Immigration Court.
11) Do NOT rely on your translator, friends, relatives, or “jailhouse lawyers” for advice on filling in the application. NEVER embellish or add incorrect information to your I-589 just because someone else tells you to or says it’s “the only way to win your case.”
12) DO NOT let friends, detention officers, the IJ or anyone else (other than a qualified lawyer working for you) talk you out of pursuing a claim if everything in it is true. You must “tune out chatter” that everybody loses these cases, and therefore you are wasting your time.
13) Do NOT tell the IJ and/or ACC that everything in your application is true and correct if it is not true!
14) If you discover errors in your application before the hearing, ask the IJ at the beginning of the hearing for an opportunity to correct them. Do NOT wait to see if the ACC brings them up.
15) If you will be testifying through an interpreter, ask the IJ for a brief chance to converse with the interpreter before the hearing to make sure you understand each other. If there is any problem, tell the IJ BEFORE the hearing begins.
16) The Immigration Court hearing is a formal, adversary hearing, NOT an “informal interview” like the Asylum Office.
17) Be courteous and polite to the Immigration Judge, the ICE Assistant Chief Counsel, and the interpreter at all times, BUT BE AWARE:
1) The IJ and the ACC are NOT your friends;
2) They do NOT represent your interests;
3) The ACC’s basic job is to urge the IJ to deny your application and enter an order of removal;
4) The IJ is NOT an independent judge. He or she works for the Attorney General a political enforcement official. Some IJs function with a reasonable degree of independence. But, others see themselves largely as assisting the ACC in in denying applications and rapidly turning out removal orders.
5) The interpreter works for the court, NOT you.
18) YOU will be the only person in the courtroom representing your interests.
19) Don’t answer a question that you don’t understand. Ask the IJ to have it repeated. If it is a complicated question, ask the IJ if it can be broken down into distinct parts.
20) If you really don’t know the answer to a question, don’t “guess!” “I don’t know, your honor” is an acceptable answer, if true.
21) If the ACC introduces evidence at the hearing — say a copy of the Asylum Officer’s notes — ask the IJ for a full translation through the interpreter before answering questions.
22) If documents you submitted support your claim, direct the IJs attention to those documents.
23) When it is time for the IJ to deliver an oral decision, make sure that you are allowed to listen through the interpreter.
24) Bring a pencil or pen and a pad of paper to the hearing. Try to take notes on the decision as it is dictated by the IJ.
25) If the decision goes against you, tell the IJ that you want to reserve an appeal and request copies of the appeal forms. You can always withdraw the appeal later, but once an appeal is waived it is difficult, often impossible, to restore it.
26) If the IJ rules in your favor, and the ACC reserves appeal, understand that the order in your favor will have no effect until the appeal is withdrawn or ruled upon by the BIA. For detained individuals, that probably means remaining in detention while the appeal is resolved, which might take months.
27) If you appeal, fill out the forms completely according to instructions and file with the BIA as soon as possible, the same or next day if you can. That is when your memory will be best, and it maximizes the chance of the BIA receiving your appeal on time. Do NOT wait until the last minute to file an appeal.
28) Be SPECIFIC and INCLUSIVE in stating why you think the IJ was wrong. Attach a separate sheet if necessary. Just saying “The Judge got it wrong” or “I disagree with the decision” won’t be enough and might result in the BIA rejecting your appeal without further review.
29) Remember to file the separate fee waiver request form with the Notice of Appeal.
30) Assume that all filing deadlines will be strictly applied and that pro se applicants will NOT be given any breaks or special treatment, despite mailing difficulties and other problems.
31) DON’T count on timely mail delivery. The Notice of Appeal, brief, or any other document is not “filed” with the BIA until they actually receive it. Merely placing it in the mail before the due date will NOT be considered a timely filing if the document arrives late. Mail early!
32) If you are not in detention, use a courier service to deliver filings to the BIA so you have solid evidence of timely filing.
33) If you check the box on the appeal form saying you will file a brief or additional statement, you MUST do so, even if short. Failing to file a brief or written statement after checking that box can be a ground for the BIA to summary dismiss your appeal without considering the merits.
34) Info about the BIA Pro Bono Project.
NOTICE: The ideas above are solely mine. They are not legal advice, and have not been endorsed or approved by any organization or any other person, living or dead, born or unborn.
With perhaps the largest “talent pool” ever available to a Dem President, guess I’m not the only one to wonder about the source of some of the “talent” the Biden Administration relies upon, particularly in the “make or break” areas of immigration, human rights, due process, and racial justice! PHOTO: Thomas Hawk Creative Commons Amateur Night
Multiple House Democrats have expressed anger and frustration over President Biden’s decision to sign a resolution ending a Washington, D.C., crime bill, after they were led to believe he would veto the resolution and protect the bill.
According to The Hill, some of these Democratic Party lawmakers are so outraged over Biden’s decision that they’ve resorted to blasting the White House in expletive-laden epithets. One told the outlet that this is “F—ING AMATEUR HOUR.”
The same lawmaker claimed that the White House “f—ed this up royally.” Others said Biden’s decision was “disappointing.”
. . . .
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You can read the full report at the link.
Those of us trying to get the Biden Administration to live up to its promises, follow basic asylum law, respect due process for asylum seekers and other immigrants, end the scofflaw rejection of legal asylum seekers at the border, and reform the most important Federal Court system totally under the Administration’s control — the dysfunctional “Trump weaponized” U.S. Immigration Courts — feel your pain and frustration!🤯
“Good enough for government work” might be the mantra for Garland’s EOIR — but, it doesn’t ‘cut it’ with Article III Courts, even the conservative, non-immigrant-friendly 5th Circuit!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
Dan Kowalski reports for LexisNexis Immigration Community:
“Francis Zamaro-Silverio petitions for review of the denial by the Board of Immigration Appeals (“BIA”) of cancellation of removal and voluntary departure. The BIA held that Zamaro-Silverio had been convicted of a crime involving moral turpitude (“CIMT”) and thus found her ineligible for those forms of discretionary relief. Because the BIA did not perform the proper analysis, we grant review, vacate, and remand for determination of whether Zamaro-Silverio’s conviction was for a CIMT. … The BIA found that Garcia-Maldonado controlled the outcome for Zamaro-Silverio. But in the wake of Mathis, that analysis is incorrect. The proper focus is now on the minimum conduct prohibited by the statute, not on Zamaro-Silverio’s particular actions. The minimum conduct that can trigger liability under ZamaroSilverio’s statute of conviction is the failure to remain at the scene of the accident and provide one’s name and other information. See Tex. Transp. Code § 550.021(a)(4). Thus, Zamaro-Silverio’s deportability hinges on whether failure to share information is a CIMT. Villegas-Sarabia, 874 F.3d at 877. Garcia-Maldonado does not reach this question, and, similarly, the BIA did not answer it. Given that “our ordinary rule is to remand to ‘giv[e] the BIA the opportunity to address the matter in the first instance in light of its own expertise,’” we go no further. Negusie, 555 U.S. at 517 (quoting Orlando Ventura, 537 U.S. at 17) (alteration in original). Therefore, the petition for review is GRANTED. We VACATE and REMAND to the BIA with instruction to determine whether the failure to share information under § 550.021(a)(4) is a CIMT.”
The Fifth Circuit precedent that the BIA failed to apply here, Villegas-Sarabia v. Sessions, 874 F.3d 871, 877 (5th Cir. 2017), was issued in 2017, before this respondent was even convicted. Yet, the BIA erroneously applied the pre-2017 version of Circuit law to deny her application. How is this competent adjudication from what is supposed to be a “specialized court” of expert adjudicators?
Remarkably, the BIA was even given a chance to correct its obvious error through a motion to reconsider filed while this petition for review was pending with the Circuit. Astoundingly, the BIA denied the motion to reconsider and “stuck with” a decision that violated Circuit precedent. What a way to (not) “run the railroad.”🚂
The Fifth Circuit panel in this case, Judge Jerry E. Smith (Reagan) (opinion), Judge Edith Brown Clement (Bush II), and Judge Cory T. Wilson (Trump) are all GOP appointees, among the most conservative Federal Judges in America — right out of “The Federalist Society Hall of Fame!”
Even the most far-right GOP Federal Judges have a “bottom line” that the BIA can’t manage to remain above.
Somewhat ironically, Dem Attorney General Merrick Garland, once nominated for the Supremes by President Barack Obama, appears to have no such bottom line for the BIA’s sloppy, unprofessional “any reason to say no and deny” judging! Unfortunately, it’s symptomatic for a Dem Administration that just doesn’t care very much when it comes to due process, fundamental fairness, and justice for migrants! Garland’s tolerance for bad judging is also clogging the Circuit Courts with unnecessary litigation generated by the BIA’s substandard performance!
Although he famously has reassigned most of the “high profile” work of the DOJ to various “Special Counsel,” curiously, Dem AG Merrick Garland, a former Article III Judge, doesn’t seem to have the time or the skills to fix the festering due process, bias, quality control, and professionalism problems in “his” wholly-owned “court” system — EOIR! So, the systemic injustice and chaos continue, unabated! PHOTO: Wikipedia Commons
When Judge Jerry E. Smith and his colleagues have the integrity to stand up for the legal rights of a respondent, even one who has committed a crime, but a Democratic AG doesn’t have the courage to bring fair and professional judging and quality control to EOIR (after two years on the job), progressives and advocates ought to be asking what the heck they voted for in 2020? I doubt that it was this awful, entirely preventable, mess!
Asylum seekers must wait for appointments in U.S. for everyone, or leave some behind.
By Andrea Castillo
WASHINGTON — Inside a tent near the Rio Grande in Matamoros, Mexico, Jeyson woke up before 3 a.m. every day for a month to fill out applications to request asylum for his family of four through a U.S. government mobile app.
The 25-year-old from Venezuela eventually secured appointments for himself and his wife, but the slots filled up so quickly that he couldn’t get two more for their children. They weren’t worried, though — they had heard about families in similar situations being waved through by border officials.
Instead, he said, a U.S. Customs and Border Protection agent told them recently that because each member of the family did not have an appointment, “you two can enter, but not your children.” Jeyson asked The Times to withhold his last name out of fear for his family’s safety.
Now, many families like Jeyson’s have found themselves confronted with a seemingly impossible decision: Wait indefinitely for enough appointments for the whole family, or split up. It is unclear how many migrants have been put in this position.
. . . .
“We already risked it all,” he said. “What can we do? We are hopeful that we can get three appointments. Three, in the end, is less than four.”
Advocates said some parents have decided to leave their children with extended family or friends in order to keep their appointments.
Jeyson said a couple from his encampment did just that, leaving their five children at the border bridge and entering the U.S. after managing to get only two appointments.
Children who are unaccompanied by a parent are exempt from Title 42. Those in the care of adults who are not their legal guardians — even if they are extended family — are separated until a guardian can be properly vetted. Jeyson said he watched as the children walked up to a border agent and were taken into custody.
Felicia Rangel-Samponaro, director of the Sidewalk School, a nonprofit that offers education, medical care and other assistance to migrants in Mexican border towns, has organized sessions with parents at various shelters and encampments in Matamoros and Reynosa to explain what will happen if they send their child across the border unaccompanied.
“We don’t want them to think you cross and then your child crosses and will come back to you a day later,” she said. “We were surrounded by parents who were showing us, one after the other, [who] have an appointment but their child does not.”
Rangel-Samponaro recommended to parents that they cancel their appointments and restart their search. But some parents told her they would separate from their kids anyway.
“Family separation has never stopped,” she said, referencing the Trump administration’s “zero tolerance” border policy that led to thousands of migrant children being taken from their parents. “The only difference here is that CBP One is now doing it instead of the other ways it’s been done since 2018.”
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Read Andrea’s complete article at the link.
Let’s start with one undisputed fact: The number of appointments available on CBP One is pathetically, ridiculously inadequate for the KNOWN number of potential applicants waiting in Mexico! Why would this be after the Administration has had over two years to work on this perhaps challenging, yet very solvable problem?
Unnecessary delay is just another form of “bureaucratic deterrence through incompetence” used by the Trump Administration and, inexcusably, continued under Biden.
Just how bonkers is this DHS-created problem? Dependents are included on a primary asylum seeker’s application. Consequently, in most cases one application covers the entire family.
And, dependents don’t have to “prove” independent eligibility for asylum. Therefore, anything beyond biographical information and perhaps proof of relationship is unnecessary.
There is absolutely no reason for requiring a separate “appointment” for each family member. The current system is “pure harassment and deterrence through bureaucratic incompetence.”
In Immigration Court, a family of five required only ONE asylum hearing slot — NOT FIVE!
Most legal asylum seekers at the border want to “do things the right way” — present themselves to DHS and submit an application. It’s neither profound nor “illegal.”
The BEST way of getting applicants to use the ports of entry is to work with experts and NGOs to establish a user-friendly, generous, timely system that prioritizes the many strong claims and grants them promptly at the Asylum Office rather than feeding them into a backlogged and dysfunctional EOIR.
In other words, if you BUILD a fair, credible, user-friendly legal application system at legal ports of entry, applicants will USE it. That the Trump White Nationalists destroyed our legal, statutory refugee and asylum systems was well-known at the time. Indeed, Biden and Harris campaigned on a pledge fix the system and restore legal asylum!
Instead, the Administration failed to utilize the skills and experience of experts to have a planned fix ready on “day one.” Since then, over more than two years, they have inexplicably ignored expert advice, wasted time, squandered resources, and bobbled through a bewilderingseries of mindless “Stephen Miller Lite deterrence gimmicks,” including “dedicated dockets,” prioritizing the wrong cases, “Aimless Docket Reshuffling” on steroids, a“Miller Lite holdover” BIA known for hostility to asylum seekers, ignoring the need for pro bono representation, failing to train and deploy enough Asylum Officers to the border, and not working with advocates, NGOs, and asylum seekers to prescreen cases, start granting asylum and moving qualified refugees (and their families) through the system and into durable legal status prior to the lifting of Title 42.
The CBP One screwup is just the latest in a string of “unforced errors” by the Biden Administration that abuse asylum seekers without any systemic benefits to anyone — “random acts of cruelty and stupidity!” This app was obviously designed by non-users for use by USG “gatekeepers” without any idea of what its like to be an asylum seeker stuck in Mexico.
Indeed, it appears that the app’s developers have little idea of how the legal asylum system works. Talk about “amateur night at the Bijou!”
Perhaps, the Biden Administration should have used a different method for selecting the so-called “developers” of their failed “CBP One App!” PHOTO: Thomas Hawk Creative Commons Amateur Night
“Family separation” has never stopped; now it has been“automated” — by a Dem Administration that has abandoned humanity and betrayed its campaign promises! Inexcusable!
Heidi Altman Director of Policy National Immigrant Justice Center PHOTO: fcnl.orgRev. Craig Mousin Ombudsperson Refugee and Forced Migration Studies, Grace School of Applied Diplomacy DePaul University PHOTO: DePaul Website
FEBRUARY 23, 2023 CRAIG B. MOUSIN SEASON 1 EPISODE 34
Lawful Assembly Podcast
Episode 34: Support Humanitarian Asylum Welcome
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LAWFUL ASSEMBLY PODCAST
Episode 34: Support Humanitarian Asylum Welcome
FEB 23, 2023 SEASON 1 EPISODE 34
Craig B. Mousin
In this interview, Rev. Craig B. Mousin, an Adjunct Faculty member of DePaul University’s College of Law, Refugee and Forced Migration Studies Program, and the Grace School of Applied Diplomacy interviews Heidi Altman, the Policy Director of the National Immigrant Justice Center (www.immigrantjustice.org). Ms. Altman discusses a proposed rule that will effectively preclude most asylum-seekers from safely and effectively applying for asylum in the United States. She advocates for humanitarian asylum welcome. She previously served as the legal director for the Capital Area Immigrants’ Rights Coalition and was a Teaching Fellow in the immigration clinic at Georgetown University Law School.
ACTION STEPS
1. Invite friends and family to learn how the proposed rule will undermine refugee protection and encourage them to respond to their elected representatives and the Biden administration urging withdrawal of the proposed rule.
2. The Sanctuary Working Group of the Chicago Religious Leadership Network currently serves and advocates alongside newly arrived asylum seekers in the Chicagoland area. There are many impactful ways you can help asylum seekers, from providing sponsorship and temporary housing to covering legal fees and advocating for policy change. Interested individuals, faith communities, or organizations may contact CRLN staff/consultant David Fraccaro at davidfraccaro99@gmail.com to talk about ways to partner together in supporting and protecting our newest neighbors.
Craig Mousin volunteers with the National Immigrant Justice Center. We welcome your inquiries or suggestions for future podcasts. If you would like to ask more questions about our podcasts or comment, email us at: mission.depaul@gmail.com
Thanks, Craig and Heidi for a very interesting and informative session!
T. Swift. Loss of chance to attend her latest concert due to Ticketmaster SNAFU caused immediate bipartisan Congressional outrage and hearings! Loss of chance to plead for life because of DHS CBP One App SNAFU, not so much! Dehumanization of our fellow humans degrades our society. LOS ANGELES – Swift at 2019 iHeartRadio Music Awards on March 14, 2019 in Los Angeles, California. (Photo by Glenn Francis/Pacific Pro Digital Photography) Creative Commons License.
Here are “my takeaways:”
Asylum seekers have a legal right, established by the Refugee Act of 1980 and international conventions, to seek asylum at our border or in the U.S., regardless of status and/or nationality;
The Trump and Biden Administrations have abrogated this right without legislation;
The Trump Administration’s anti-asylum actions and intentional dehumanization of asylum seekers was rooted in White Nationalist nativism;
Despite recognition during the 2020 campaign of the invidious motivation for Trump’s anti-asylum policies, the Biden Administration has retained, or even enhanced, the dehumanization and denial of rights to asylum seekers at the border;
Over the past two Administrations, acceptance of the basic rights and obligations of the U.S. toward asylum seekers, incorporated in the Refugee Act of 1980, has been eliminated or reduced to a superficial “shell” (“asylum in name only,” as some advocates have termed Biden’s latest proposed anti-asylum border policies);
By abandoning the framework set forth in the Refugee Act of 1980, the Trump and Biden Administrations have re-injected the ad hoc approach,disorder, nationality bias, and ideological preferences at the border that the Refugee Act of 1980 was specifically enacted to eliminate;
There is much under-appreciated support for welcoming, fairly treating, and helping refugees and asylum seekers among Americans in communities throughout our nation;
NGOs and experts have dozens of great ideas for restoring and improving the legal right to seek asylum in fair, humane, non-discriminatory ways which they have shared or are happy to share with the Biden Administration;
The Biden Administration to date has shown little if any interest in adopting and implementing better humanitarian solutions for asylum seekers at the border;
Both parties lack leaders with the integrity and courage to stand up for the legal and human rights of asylum seekers;
We must continue to discuss ways to break the cycle of dehumanization, cruelty, and scofflaw treatment of asylum seekers and replace it with enhanced humanitarian procedures and a welcoming culture, in accordance with the Refugee Act of 1980, the U.N. Convention and Protocol, and the very best traditions of our nation of immigrants.
“DOJ/EOIR litigation team arriving at U.S. Courthouse.” PHOTO CREDIT: Ellin Beltz, 07-04-16, Creative Commons License, https://creativecommons.org/licenses/by-sa/4.0/. Creator not responsible for above caption.“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Round Table “Fighting Knightess” and NJ Bar honoree Hon. Sue Roy reports from the Garden State:
Hi Everyone and Happy Friday!
Regarding the lawsuit AILA-NJ v. EOIR—WE WON!!! We received an oral ruling from Judge Vazquez today—EOIR lost; it violated the terms of our stipulated agreement by failing to grant (or even rule on) Webex motions. We are preparing another proposed order to submit to the Judge early next week. He stated that if EOIR fails to comply moving forward, he will hold them in contempt.
Sue
PS Please feel free to share, publicize, etc.
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Hon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration Judges
Those seeking more information on this case should contact Judge Roy directly.
The caption “AILA-NJ v. EOIR”basically “says it all” about what it’s like to try to practice before Merrick Garland’s (and Biden’s) dystopian Immigration Courts these days. Such unnecessary trauma; such a waste of resources; such an abuse of public trust! All from a Dem Administration that back in 2020 ran on a platform of returning competency, professionalism, and public service to Government! Most infuriating and disappointing!🤬
Heard on “E-Street:”
“EOIR’s handling of this and the DOJ position are honestly ridiculous!”
“To quote Judy Collins & Stephen Sondheim:
‘Send in the clowns Don’t bother, they’re here.’”
“Great work Sue! But, the problem really is treating a court system like an administrative agency instead of a court system. Problem is baked into the institution.”
“Amazing! Great work, and thanks on behalf of all who will benefit from this.”
“And, maybe it will help with the Article 1 Court position.”
“Great work!”
“Thanks for outing Garland and his scofflaw EOIR again. Seems Garland should be held in contempt if EOIR ignores court order again.”
“All parties acknowledge the case will be moot when the pandemic declaration ends–which Biden said earlier this week will be sometime in May.”
“Thanks to our attorneys, to DHS attorneys, especially Ginnine Fried, and to everyone here who helped!”
“If there’s one thing that can bring ICE and the private/pro bono bar together, it’s EOIR’s incompetence and intransigence. My understanding is that their OWN WITNESS tanked EOIR’s case! Is ANYBODY “supervising” EOIR litigation at DOJ these days?”
“What if EOIR provided public service and acted rationally without Federal Court orders? Isn’t that something that Dems on the Hill should be ‘all over Garland’ to fix? Now!”
🇺🇸 Thanks to Sue and all involved, and Due Process Forever!
Julia Toepfer National Immigrant Justice Center (“NIJC”)
Humane border policies are possible. Here are five solutions.
The United States continues to struggle to create and implement humane border policies that respect domestic and international law and the dignity of people seeking protection. NIJC’s policy experts convened with other experts to suggest five solutions for a humane border policy. Read more about the solutions and see our graphics series.
AUTHOR NIJC Policy Team
The U.S. government and governments around the world are grappling with an increase in the number of people forcibly displaced from their homes by political and social oppression. Despite campaign commitments to restore humanity to immigration policy, the Biden administration has largely continued Trump-era policies at the U.S.-Mexico border. These policies blatantly undermine domestic and international asylum law; result in countless deaths; and create rather than mitigate chaos as people blocked from protection have little choice but to resort to multiple and more dangerous border crossing attempts.
What should the Biden administration be doing to address the humanitarian need at the border? There are other ways to address the situation at the border, leading with empathy and courage in compliance with the Refugee Act of 1980.
The administration can and should: 1) develop and support robust communication and planning between federal, state and local governments, and civil society, so that those arriving migrants in need of additional support can be matched with a destination with capacity to provide services; 2) fully fund and support civil society, including social and legal service providers; 3) create non-custodial, humanitarian reception centers at the border, instead of jailing migrants and asylum seekers; and 4) overhaul the federal immigration budget by moving funds away from detention and enforcement and toward asylum processing and humanitarian needs.
While taking these steps the administration must 5) abide by its obligation to ensure asylum access to those arriving at the United States’ borders and ports. The Refugee Convention, which Congress incorporated into U.S. law, was borne out of the horrors of World War II and the Nazi Genocide. It reminds us of a history we must not repeat, when the United States was among those countries that turned European Jewish refugees away, back to their deaths. Policies developed during the Trump administration, including the Title 42 mass expulsions policy and asylum bans that deny protection on the basis of a person’s manner of entry, stand in blatant violation of this obligation.
Processing large – even unprecedented – numbers of asylum seekers is possible. In the aftermath of the Russian invasion of Ukraine, there was an outpouring of support and political will to welcome Ukrainians forced to flee. In only a five-month period following the invasion, the United States processed and received more than 100,000 Ukrainians. The Department of Homeland Security (DHS) has tremendous authority and resources at its fingertips; with political will and a reprioritization of funding, the United States absolutely has the means to become a leader in the response to the global refugee crisis and to provide dignity and respect to those arriving at the border in search of safe haven.
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Get more details at the above link.
This is exactly the kind of practical, progressive thinking and planning that the Biden Administration should have been ready to “run with” upon taking office. They also needed a different leadership team with the skills, expertise, and guts to put policies like this in place and stick with them.
Instead they have been cowed by nativists and wobbly Dem “faux centerists” into an ill-defined and ineptly led program of “Miller Lite” deterrence lamely leavened with arbitrary stabs at amelioration untethered to a statutory framework! They also needed a much better legal team led by skilled, dedicated litigators with proven ability to defend humanitarian legal policies against predictable scurrilous, but determined, well-financed litigation by White Nationalist advocates designed to block progress and insure that equal justice for all would remain a slogan rather than a reality!
The Biden administration fell into the trap of letting its opponents define the terms of the debate. . . . .
Arranging care for asylum seekers would have been necessary even with a better metric. However, managing the humanitarian flow would have been easier if the Biden administration had allowed those seeking asylum to apply in an orderly, timed fashion at a lawful port of entry.. . . .
. . . .
Members of Congress and others who oppose the Biden administration’s parole program raised no objections to the Trump administration dismantling the U.S. refugee program. They also have not advocated for any other legal way for people escaping oppressive governments to enter America. Without paths to enter lawfully, it is inevitable that more people will cross into the U.S. illegally.
. . . .
Critics of the increase in CBP encounters argue, without much evidence, that individuals would not come to America if U.S. immigration policy were harsher—in other words, if Biden were more like Trump.
Despite what his supporters assert, Trump’s policies did not reduce illegal immigration or discourage people from applying for asylum. Pending asylum cases rose by nearly 300 percent between FY 2016 and FY 2020 (from 163,451 to 614,751), according to Syracuse University’s Transactional Records Access Clearinghouse. Apprehensions at the southwest border (a proxy for illegal entry) rose more than 100 percent between FY 2016 and FY 2019 (from 408,870 to 851,508). Apprehensions fell for several months at the start of the COVID-19 pandemic, but by August and September 2020, apprehensions returned to the approximate level of illegal entry for the same months in FY 2019.
Providing individuals with legal ways to work or seek protection in America is the only viable way to reduce illegal immigration. Treating people humanely is not a sign of weakness. Allowing for orderly entry is a smart policy consistent with America’s best tradition as a nation of immigrants and refugees.
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I highly recommend reading Stuart’s complete article at the link. Members of the so-called “mainstream media,” whose stories often do not accurately reflect the legal right to apply for asylum at the border, which has been shamefully ignored and/or abridged by both Trump and Biden, would also do well to read Stuart’s accurate description of our needlessly screwed up administration of refugee and asylum laws. Most media articles also fail to accurately distinguish between those (often vainly) seeking just to exercise their legal right to apply for asylum at the border and other individuals who might irregularly cross the border.
The real, oft-ignored, problem here is that the Trump Administration dismantled the legal refugee programs established by the Refugee Act of 1980. Then, they unlawfully “repealed” asylum law at the border. Worse yet, Congress and bad GOP appointed Federal Judges let them get away with this outrageously illegal and highly counterproductive conduct (at least to date).
By the time the Biden Administration took office, the real “solvable” part of the problem at the Southern Border was well defined by experts: The US Government’s intentional violation of laws protecting refugees and legal asylum seekers and guaranteeing the latter fair and timely assessment and adjudication of their claims.
The Biden Administration could and should have “hit the ground running” with an aggressive program (and defense thereof) of restoration of the rule of law for refugees, who could and should have been processed in larger numbers outside the U.S. in Latin America and the Caribbean, combined with a restoration of the rule of law for asylum seekers at the, border, led by a reformed EOIR and USCIS Asylum Office, both staffed with true asylum experts!
Instead, the Biden Administration, after an “initial burst” of promising yet highly ineffective rhetoric (see, e.g., “reforms” of gender-based asylum), gave immigration, human rights, and the interconnected problem of racial justice, low priority. Instead of seeking and employing dynamic, progressive, problem-solving leaders, with new and creative ideas, they relied largely on “bureaucratic retreads” who showed little interest in or affinity for taking the bold, often courageous, actions necessary to address the festering humanitarian crisis at the border!
Too many of these individuals seemed to accept the false GOP nativist proposition that elimination or unduly restrictive applications of asylum law were the best way to “deter” unlawful entries, and that we didn’t want to “encourage” refugees from Latin America or the Caribbean by recognizing the legitimacy of their claims and/or running robust, realistically large “overseas” refugee programs for them.
Moving refugees and asylum seekers into an orderly, functioning, legal process at or away from the border would also allow CBP to focus resources on individuals who are not seeking legal refugee in the U.S. Because of the inaccurate and misleading statistics used to “count” border activity, as accurately described by Stuart in his full article, we actually have little idea how large a “cohort” of individual border arrivals legal asylum seekers represent.
“Mixing apples and oranges” certainly plays directly into the hands of GOP restrictionist/nativists who love to lump them all together under the dehumanizing and intentionally demeaning “false rubric” of “illegals.”There is nothing “illegal” about appearing at the U.S. border and asking for refuge under our domestic laws and international conventions to which we are party!
What is “illegal” is our Government suspending legal processing for asylum, and also, even for those chosen under largely arbitrary criteria for processing, delivering a badly flawed biased process that is neither fair nor timely. Also, mixing those merely seeking a chance to state their legal case for asylum with those seeking entry for other purposes certainly “dilutes” the enforcement resources and effectiveness of CBP in preventing “real” unlawful entries.
Instead, the Biden Administration settled into an inept “Miller Lite” posture of utilizing modified and supposedly “humanized” versions of Trump’s illegal policies. As pointed out by Stuart, the Biden Administration also failed miserably to anticipate and establish a Federally-led and funded program for humane resettlement of asylum seekers.
This played right into the hands of White Nationalist GOP pols like Abbott, DeSantis, Ducey, Paxton, Cruz, Cassidy, Vance, Biggs, McCarthy, Jordan, et.al. At the same time, in one of the dumbest moves in recent political history, they left Democratic leaders in locations victimized by the GOP “bussing stunts” in the lurch and without support, thereby driving an entirely unnecessary “wedge” and “stress point” into the “Democratic coalition.”
There might be no “easy and perfect” solution for managing refugee situations. Refugees and other types of “forced migrants’ have been with us since the beginning of human history. They will continue to exist long after the current crop of nativist politicos and “deterrence-only-focused” bureaucrats are gone.
Yet, with all this historical knowledge, the so-called “Western Democracies” failed miserably in protecting refugees from Hitler’s planned genocide in the years leading up to and including WWII. The 1951 UN Convention and later Protocol were supposedly “never again” responses to that deadly failure.
Yet, today, politicians and leaders who should know better seem determined to ignore the lessons of history and recreate the moral and humanitarian failures of the past. One can only hope that the NDPA and the “new generations” can get by the failures of today and treat refugees fairly, humanely, and in recognition of the substantial benefits that most bring to those nations fortunate enough to be “receiving” countries. The future of our world may depend on it!
Johnathan Chair Political Columnist NY Magazine PHOTO: Facebook
Johnathan Chait @ The Intelligencer:
There is an enduring pattern in American conservatism in which the right first develops a paranoid interpretation of the liberal Establishment, and then reverse engineers its own version of the monster it has imagined. Conservatives convinced themselves that the mainstream media and universities were mere propaganda organs, then created institutions like the Heritage Foundation and Fox News, warped reflections of their own overheated critique. The January 6 insurrection was, of course, in the mind of its participants, a “response” to the imagined vote-fraud conspiracy and its antifa/BLM shock troops.
John Durham’s investigation is a classic episode in this tradition. The American right first convinced itself that Robert Mueller and the deep state, using the cover of dispassionate professionalism, had launched a partisan witch hunt to smear Donald Trump. In response, it created a right-wing mirror image, as fervently partisan and unhinged as they believed their enemies to be.
The New York Times has a deeply reported narrative showing how Durham’s counter-investigation of the Russia probe, cooked up by William Barr at Donald Trump’s urging, was just as abusive, partisan, and unhinged as Trump’s defenders made Mueller out to be.
The purpose of special counsel is to wall off a politically sensitive investigation from the attorney general. But Durham, reports the Times, was working closely with Barr behind closed doors all along. The two Republicans dined and drank together, and came to share Barr’s Fox News–brained beliefs that Trump had been the victim of a conspiracy.
Rather than preventing Barr from meddling in a politicized investigation, this arrangement inverted that purpose and laundered Barr’s involvement through Durham’s putative independence. “At some point, some particularly ill-informed critic of the administration may try to paint Durham as a right-wing hack or Republican loyalist,” wrote National Review’s Jim Geraghty in a fawning profile, singling out the NAACP’s Sherrilyn Ifill for having the temerity to suggest Durham might have been compromised by serving Trump’s ends.
Durham and Barr kept failing to prove the deep-state conspiracy they imagined, but continued to press forward anyway. At one point they seized upon hacked Russian memos that intelligence analysts deemed obviously fake, instead treating them as a valuable intelligence trove, and tried to prove it out, even harassing one of the targets to obtain his emails (which contained nothing incriminating). It weirdly reflected the Trumpist accusation that Robert Mueller had been tricked into pursuing Russian disinformation.
As Durham kept failing to find support for the conspiracy he was pursuing, and which Barr kept floating in public, his deputies chafed at his obsession. Eventually, one of them resigned in protest when he brought charges against Michael Sussmann, a target of the right. As his former lieutenants expected, Durham’s case was defeated in court.
. . . .
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Read the complete article at the link.
Immigration advocates didn’t need a NY Timesinvestigation to tell you that Barr was corrupt! Biased anti-immigrant, anti-asylum “AG precedents;” BIA “Appellate Judges” appointed for their unusually high asylum denial rates and known hostility to migrants and their attorneys; Immigration Judges appointed without expertise in immigration and human rights, overwhelmingly from the ranks of prosecutors; busting the IJ union (“NAIJ”) for speaking out against DOJ’s politicized mismanagement; issuing an EOIR “Fact Sheet” full of lies, misrepresentations, and myths; appointing politicized managers at EOIR without judicial or due process qualifications; taking ethically questionable litigating positions in Federal Court; the list of Barr’s abuses of authority on immigration and human rights goes on and on!
AG Merrick Garland has made a few ameliorative changes. Some of the worst precedents have been overruled; some unqualified political senior executives been removed or reassigned; over time, judicial selection has been shifted to a more balanced, merit-based system that has resulted in the appointment as Immigration Judges of some widely-recognized experts, with experience representing individuals, and a demonstrated commitment to due process for all; “numerical quotas” for IJs have been eliminated. (Curiously, however, Garland “honored” 17 “transition” Barr judicial selections made under badly flawed selection criteria!)
Yet, overall, EOIR remains largely the disaster zone that Barr left behind. Trump-era anti-asylum Appellate Judges continue to dominate the BIA; many Trump-era IJs still misapply basic immigration legal standards and operate “asylum free zones;” management is weak; training is inadequate; dockets are out of control; respondents and their attorneys are treated unprofessionally; quality control is largely nonexistent; wildly inconsistent “refugee roulette” asylum adjudication remains; an enforcement-skewed culture of “any reason to deny and deport” continues to infect EOIR at all levels; “numbers” are emphasized over quality and fairness; and the DOJ’s OIL often defends indefensible EOIR decisions in Federal Court on the apparent rationale that “it’s only migrants’ lives at stake, so who cares!”
Unhappily, the Biden Administration has barely “scratched the surface” of the badly needed and long overdue common sense reforms needed at EOIR and the DOJ to put the Sessions/Barr abuses behind us and move forward! Barr was a bad AG; but, his ghost continues to haunt the DOJ and those seeking equal justice for all!
BIA Asylum Panel cutting down the backlog by trampling asylum seekers and their legal rights! Guatemalans are a favorite target for Garland’s “Band of Bullies” at EOIR. Albrecht Dürer, Public domain, via Wikimedia Commons
Dan Kowalski reports for LexisNexis Immigration Community:
CA3 on Guatemala, Law, Facts and Standard of Review: Saban-Cach v. Atty. Gen.
Saban-Cach v. Atty. Gen.
“Based on past experiences, if returned to Guatemala, Selvin Heraldo Saban-Cach fears being persecuted by a local gang because of his identity as an indigenous person. Accordingly, he seeks withholding of removal under the Immigration and Nationality Act and protection from removal under the Convention Against Torture. The Immigration Judge denied his applications and ordered his removal, and the Board of Immigration Appeals affirmed. This petition for review followed. For the reasons that follow, we will grant the petition, vacate the BIA’s decision, and remand for further proceedings consistent with this opinion. … Although the BIA need not write an overly detailed explanation of its review of an IJ’s decision, it must provide an adequate explanation of its ruling and afford us an opportunity to review it. Here, the BIA did neither. At times, the IJ’s decision completely conflicts with the record. Yet, for reasons that are not at all apparent, the BIA affirmed the IJ’s decision in its entirety. … The BIA must review the first, factual question for clear error and the second, legal question de novo. In affirming the IJ’s decision of the second question regarding acquiescence, the BIA concluded that it found “no clear error in the [IJ]’s predictive fact-finding.” Accordingly, in addition to not bifurcating the Myrie step-two inquiry, the BIA also erred by applying this heightened standard of review to a legal question. Because of these errors, “we have little insight into the basis for [the BIA’s] determination that the IJ’s opinion ‘clearly reflects that [s]he used the proper “willful blindness” standard in relation to the issue of acquiescence.’” Accordingly, on remand the BIA needs to reassess each question.”
[Hats way off to Stephanie Norton, CSJ Practitioner-in-Residence, Detained Immigrant Project Education, Seton Hall!]
Stephanie Norton CSJ Practitioner-in-Residence, Detained Immigrant Project Education, Seton Hall Law PHOTO: Seton Hall Law website
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Congratulations to NDPA star Stephanie Norton! This is yet another example of the great talent “out here” who could replace mal-functioning EOIR judges. Human lives are at stake, this system is dysfunctional, crying out for bold reforms! Wonder how the Dems will try to “spin” their miserable performance at EOIR in 2024?
The IJ’s and BIA’s findings of “no past persecution” in this case rise to the level of absurd! Here’s what happened:
The BIA recognized that gang members had attacked Saban-Cach on multiple occasions and that the worst attack left him unconscious after he was stabbed with a broken glass bottle. However, the BIA agreed with the IJ that, in the aggregate, this abuse did not rise to the level of persecution. The BIA explained that, “because most of the incidents did not involve physical injuries, and because the worst attack did not require him to seek professional medical care for his physical injuries, the applicant did not establish harm rising to the level of past persecution.”
Come on man! No competent, fair minded judge would reach such a totally ridiculous conclusion based on such shallow, specious, and basically “made up reasoning!” Not incidentally, it also directly conflicted with Circuit precedent as well as with the realities of life in Guatemala!
The BIA also ran roughshod over its OWN binding precedent, Matter of O-Z- & I-Z-, 23 I&N Dec. 22 (BIA 1998) (cumulative harm is persecution), which should have made a finding of past persecution a “no brainer” for a panel of competent asylum adjudicators! The sloppy, biased, “any reason to deny” culture at EOIR is a major cause of their out of control backlog. Efforts to deny easily grantable cases, and failure to direct wayward asylum-denying IJs to get it right in the first place, is a drag on our entire justice system — all the way up to the Courts of Appeals!
That’s because EOIR’s “any reason to deny” approach to asylum encourages, and often rewards, frivolous litigating positions by ICE, discourages stipulations and settlements in cases that should easily be granted, and results in OIL taking ethically and legally flawed positions in the Courts of Appeals. For example, in this case the 3rd Circuit characterized parts of OIL’s position as “disingenuous,” “puzzling and disappointing,” and pointedly stated that “[r]egrettably, the government’s response brief doubles down on this inaccuracy.”
So, these are the legal quality and ethical standards set at DOJ by AG Merrick Garland, a former Circuit Judge himself who certainly should be expected to “know better.” Apparently, in his view, due process, fundamental fairness, impartial adjudication, adherence to the law, judicial and legal ethics don’t apply when it’s “only migrants” whose lives are at stake! While this is a common approach from White Nationalist GOP politicos, don’t we deserve better from a Dem Administration that claims to care about racial justice, but whose actions with respect to migrants say otherwise?
The court also blasted EOIR for “ethnocentric” judging and failure to fairly evaluate cases.
We have previously cautioned IJs and the BIA against ethnocentric evaluations of petitioners’ resources. Petitioners primarily come from countries in the poorest and most dangerous regions of the world. Any presumption that they enjoy the same kinds of resources as their adjudicators is shortsighted and unfair. Unless the record supports it, IJs and the BIA should not assume that their own views of appropriate medical care and its ready accessibility make up a universal reality.
Petitioners for relief under the asylum system must be afforded the just hearing that due process and basic fairness demands. The immigration system can only provide a fair and neutral determination of the claims of people from different cultural and economic circumstances if adjudicators diligently avoid unrealistic assumptions about petitioners’ circumstances.
Any competent asylum practitioner would understand what the court is getting at. But, EOIR IJs at both the trial and appellate level make these basic mistakes time after time.
The 3rd Circuit and other courts might claim to find the BIA’s “entire” affirmance of a decision often in “complete conflict” with the record to be inexplicable. But, WE know that it’s because the “deportation assembly line” works on the “principle” of “any reason to deny” and “keep cranking out those final orders of removal.” To Hell with justice, quality, fairness, and the human lives involved!
This disasterous, backlogged, “star chamber system” is neither appropriately staffed nor competently operated to afford individuals “the just hearing that due process and basic fairness demands.” How is this due process and fundamental fairness required by our Constitution?
“Justice” Star Chamber Style. — AG Merrick Garland appears to be blissfully unconcerned about the methods applied by too many of his EOIR “judges,” and his DOJ attorneys who “run interference” for them, to achieve “removal for any reason, at any cost!”
Until a court has the guts to “pull the plug” on EOIR’s ongoing, deadly clown show 🤡, declare it unconstitutional, and require at least minimal due process reforms, these outrages will continue! “Puzzling” about recurring miscarriages of justice at EOIR, as the 3rd Circuit did here, is one thing; acting decisively to enforce the Constitution by stopping the abuse, once and for all, is quite different. Requiring EOIR judges with demonstrated expertise in asylum law, willing to professionally review records, and decide cases of asylum seekers correctly, without “ethnocentrism” or bias, would be a logical starting point! It should be a “no brainer!”
“When you walk into your EOIR ‘courtroom’ and this guy takes the bench, you’re probably in for a BAD day! Isn’t it time to finally END the ‘Clown Show’ in our dystopian Immigration ‘Courts?'” PHOTO: Clown Civertan.jpg, Creative Commons License
On Jan. 5, the Biden administration announced that it planned to issue a regulation “to provide that individuals who circumvent available, established pathways to lawful migration, and also fail to seek protection in a country through which they traveled on their way to the United States, will be subject to a rebuttable presumption of asylum ineligibility in the United States.”
These two reasons to bar people from seeking asylum — for transiting through other countries and for crossing the U.S. border without authorization — have different rationales and historical origins. But both have been marshaled against Central Americans since the late 1980s — severely undermining access to asylum. Doing so endangers people’s lives and breaks U.S. and international law. History reveals the purpose and perils of such bars.
No such bars stopped earlier waves of refugees seeking protection in the United States, especially those coming from Europe. When people who fled the Bolshevik Revolution applied to be considered “bona fide refugees” under a 1934 U.S. law, it did not matter that they had spent several years during the previous decade in Germany, France, China, Argentina, Cuba, Mexico or Canada and then crossed a land border without getting inspected by a U.S. official — as many did — beginning in the mid-1920s. They told immigration officials that conditions in those countries made it hard for them to live and it would be years before they could qualify for an immigration visa to the United States. So, they made their way to the United States on their own — and their mode of entry, and even their use of fraudulent travel documents, did not preclude them from adjusting to permanent status.
. . . .
The Biden administration insists its regulation will be different because it has opened up new legal pathways from transit countries and it will give asylum seekers a chance to prove why they didn’t use one of the legal pathways available to them. But migrants from Guatemala and Honduras lack parole programs that are newly available only to Venezuelans, Nicaraguans, Cubans and Haitians who have passports and sponsors in the United States. Further, parole, discretionary temporary permission to enter and stay in the United States with no path to citizenship, is a far cry from permanent refugee status. Fifteen thousand refugee resettlement slots this year are for all of the Caribbean and Latin America, where over 7 million Venezuelans are displaced. It is hard not to see this rule as an effort to limit access to asylum in the United States specifically for people from northern Central America and to treat today’s forcibly displaced people from the Americas unlike people seeking refuge from elsewhere in the past.
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Read Yael’s complete article at the link.
Many of us had believed that the Biden Administration would get beyond the biases, manipulations of law, and implicit or explicit racism of the past to achieve the orderly, legal, timely admission of refugees, including those from Latin America, from abroad and at the border. Unfortunately and outrageously, they haven’t even tried!
Instead, they have turned human rights and border policies into an unholy, largely incomprehensible and arbitrary, mishmash of many of the worst, most ineffective, and invidiously biased policies of the past.
All of these particularities matter, because once all available options have been exhausted, cases generally end up inside an immigration court before an immigration judge. The administrative snarls that predate a case before it arrives in immigration court are thus a result of policy from the top, for better or worse.
On paper, courts are supposed to be independent bodies. They are supposed to be immune from the political agendas of other government operatives or serve as independent mediators that can rectify previous errors.
But immigration courts are not. As a part of the Justice Department, at the end of the day, they work under the attorney general. While other courts function under a de jure practice of independence, immigration courts are held to the same standard despite not possessing the same protections that allow other judges to carry out their basic job functions. This creates an impossible work environment for immigration judges to fairly adjudicate every case with the attention it deserves. Instead, their measurements of success are based on accomplishing the president’s goals, which are translated into quotas for immigration courts. For example, Biden administration officials touted removing 1.3 million migrants last year.
As the Prospect has previously reported, immigration judges have long pointed out the tenuous environment they must work in.
But later this month, the Federal Labor Relations Authority (FLRA) will be hearing from the National Association of Immigration Judges (NAIJ) over whether or not their union will be reinstated. The FLRA will now have a majority of Biden appointees.
A dysfunctional immigration system can only start to work with independent courts. But that change can only happen through congressional action. In the meantime, a never-ending crisis at the border can be exploited by one party, as the other expands the needlessly punitive immigration practices of the previous administration.
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Many thanks to prodigious immigration commentator Nolan Rappaport for passing this along to me.
There is consensus among experts that an independent Article I Immigration Court is urgently needed and long overdue. There is also a consensus that the chance of achieving this critical legislative change with a GOP-controlled House is zero. At the same time, we must remember that Dems didn’t exactly give any priority to this essential and far-reaching reform when they had “unified control” over the political branches.
There is also consensus that in the absence of Article I there are things that Garland and the Biden Administration could and should have done administratively that would have drastically improved the due process, expertise, quality, efficiency, “customer service,” and professionalism of EOIR.
Gee whiz, a Harvard Law student figured it out! They haveconstructive suggestions for administrative reforms to change culture, improve training, place docket control in the hands of judges not politicos and bureaucrats, increase independence, improve quality, and insulate IJs from the political whims and enforcement agendas of each Administration. Seehttps://wp.me/p8eeJm-8hE?
But, a Harvard Law grad, long-time Federal Judge, and Supremes’ nominee, and his band of supposedly smart and high-powered political lieutenants couldn’t or wouldn’t get it done for a Dem Administration? Gimmie a break!
A Dem Administration that was supposed to get us beyond the cruelty, White Nationalism, xenophobia, and “malicious incompetence” of the Trump Administration falls flat on its face on a critical and achievable part of immigration reform and racial justice in America! Go figure!
Meanwhile, the cries of pain keep coming from those subjected to Garland’s dystopian “courts!”
Had an “interesting” IH today with this IJ. [IJ] denied my motion to continue the case by email the evening before the 8:30 am hearing, even though I had four IHs scheduled in the same time slot and had filed a motion to continue a month before the hearing. [IJ] refused to grant me a few minutes to speak with OPLA counsel before the hearing to narrow issues, saying that discussion should have already taken place. [IJ] spent an inordinate amount of time on housekeeping issues. [IJ] read a list of “rules.” [IJ] would insist that counsel stand when they spoke. [IJ] would routinely deny motions for webex hearings. [IJ] went through the biographical information excruciatingly slowly, including having the respondent spell the names of all the riders, provide their birth dates, etc.
It was a case where DHS had stipulated to 42b and the only issue would’ve been discretion but the IJ didn’t care. [IJ] told me to let everyone know that [IJ] reads each and every single document submitted in . . . court from back to front and . . . has a lot of questions . . . . [IJ] went on to conduct a full hearing, chastised DHS for stipulating, made a big deal of every little thing, asked irrelevant questions about medicaid forms that [client] may have filled for her children (not included as part of evidence), insinuated that she committed medicaid fraud, and made the ACC change position on each and every issue.
[The IJ] denied the asylum application of a young gay man from El Salvador. This is a first for me, in my 20+ years of asylum practice. We’ve never lost such a case that I can recall.
The facts are pretty typical – the kid lived a life of humiliation and abuse in El Salvador due to his sexual orientation; tried to commit suicide several times; and ultimately left the country when the Mara 18 tried to get him to deliver marijuana for them. Arguably, not a strong case for past persecution, but such cases typically prevail where a judge fairly evaluates a claim of well-founded fear of future persecution and considers the country condition reports and articles about the horrendous human rights abuses against the LGBT community in El Salvador. This didn’t fly with IJ. [IJ] simply said “there is no meaningful evidence in the record to demonstrate that the Respondent would experience harm amounting to persecution in El Salvador” and then went on to say that the client would likely experience more bullying and discrimination, but that doesn’t mean it would be persecution. [IJ] did not mention any country conditions report or article from the record to support his ruling.
[T]he DHS attorney called me directly after the hearing to empathize and tell me that it’s well-known even on their side that this judge is a piece of work and it’s always a good idea to take PD if offered.
[T]his judge is a menace. I don’t know what to do to protect my clients from [IJ] other than prepare strong BIA appeals.
This is the third email I have received to schedule MORE cases. No one will tell me what the goal is. I’ve put them on notice of the health issues this is/has been causing me.
Please tell the higher ups that this practice of overscheduling the private bar is taking a serious toll on practitioners’ health. Medical documentation is below and attached. I’m really not sure why the court has felt the need to overschedule practitioners to this level, but it is really taking a serious toll on everyone. Can someone please shed light on this urgent need to overwhelm the limited number of defense attorneys we have in the area?
Another outstanding Immigration Court practitioner told me that they had left courtroom practice and taken a “research and writing” position because the EOIR courtroom “experience” under Garland was so dehumanizing, demoralizing, stressful, and life consuming!
A different attorney called me with concerns that an IJ’s “over the top” abuse of pro bono counsel would discourage others from taking cases in Immigration Court.
IJ’s wasting time; discouraging negation and stipulation by parties; taking over hearings; abusing continuance discretion; failing to abide by Cardoza & Mogharrabi; showing bias; producing wildly inconsistent anti-immigrant results; showing thin knowledge of law; rudely treating counsel and clients; over-scheduling; abusing power; endangering the health of those appearing before them; driving practitioners to leave the EOIR courtrooms; discouraging pro bono!
Everything that is NOT what a fair, independent, court of law should be is present and allowed, perhaps even encouraged, in Garland’s broken EOIR! Why is this type of grotesque mismanagement, bad judging, unprofessional conduct, and disregard of fundamental due process “business as usual” under a Dem Administration?
This “star chamber” system needs new, expert, progressive, due-process-focused, free from political hackery and inane gimmicks, “kick-ass” management! Garland isn’t getting the job done!
These younger progressives are exactly the “core support” that Dems will need to win future elections! How does “dissing” them with inept leadership and ineffective nativist-derived immigration policies help the cause?
Honestly, what a mess! Garland’s dystopian EOIR is the Democratic Party’s shame!
Immigration law rocks with “Professor Stevie & His Ramblin’ Band of Experts!” Public Realm
Immigration Reform: Lessons Learned and a Path Forward
Congress has been unable to enact comprehensive immigration reform for over 30 years.
Employers face an unprecedented shortage of workers.
The Dreamers, long-contributing members of our society, face uncertainty due to litigation questioning the legality of the DACA program.
And border security concerns everyone.
Polls suggest Americans want immigration reform. But the conventional wisdom is that “comprehensive immigration reform” is impossible in a divided Congress.
This conference will explore targeted legislation and other policy changes that could be enacted in 2023, focusing on work visa changes to help alleviate our labor shortages, border security and asylum reforms, and a permanent path forward for Dreamers, farmworkers.
Sponsored by the Cornell Law School Immigration Law and Policy Research Program and cosponsored by the Cornell Migrations Initiative.
While we encourage in-person attendance, the conference will be webcast live from the National Press Club. Mark your calendars now for this important event!
Panelists from the following organizations:
American Action Forum, American Business Immigration Coalition, AmericanHort, Bipartisan Policy Center, Compete America, Cornell Law School, Migration Policy Institute, National Association of Evangelicals, National Immigration Forum, Niskanen Center, Service Employees International Union,
Texas Association of Business, TheDream.US, UnidosUS,
United Farm Workers of America, U.S. Chamber of Commerce
A special thanks to the Charles Koch Foundation for sponsoring this event.
This is a promising idea. Hope it works! I have to wonder, however, why a coordinated effort like this wasn’t implemented for asylum seekers arriving at the Southern Border?
You can register (free) for the Cornell Conference, where this and other timely topics will be discussed by the experts!
Eleanor Acer Senior Director for Refugee Protection, Human Rights First. She called Biden’s latest border farce “a humanitarian disgrace.” Other experts agree!
From Eleanor Acer @ Human Rights First:
The president described the new approach as one intended to expand opportunities for migrants. But immigration advocates denounced the changes, saying that they included vast new restrictions on the right to claim asylum for people who need to escape their countries.
Eleanor Acer, the director of the refugee protection program at Human Rights First, called the new policies “a humanitarian disgrace” and said the president should not be adding restrictions on people who seek refuge in the United States.
“The Biden administration should be taking steps to restore asylum law at ports of entry,” she said, “not doubling down on cruel and counterproductive policies from the Trump playbook.”
Biden Announces Major Crackdown on Illegal Border Crossings
nytimes.com • 2 min read
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From Amy Fischer @ Amnesty International USA:
“Amnesty International USA condemns the Biden Administration’s attack on the human right to seek asylum. Today, the Biden Administration fully reversed course on its stated commitment to human rights and racial justice by once again expanding the use of Title 42, announcing rulemaking on an asylum transit ban, expanding the use of expedited removal, and implementing a new system to require appointments through a mobile app for those desperately seeking safety. While we welcome the expanded humanitarian parole program to provide a pathway for Cubans, Haitians and Nicaraguans to apply for protection without having to make the dangerous journey to the border, that must not come at the expense of the human right to seek asylum. These new policies will undoubtedly have a disparate impact on Black, Brown, and Indigenous people seeking safety. In fact, Amnesty International previously found that the cruel treatment of Haitians under Title 42 subjected Haitian asylum seekers to arbitrary detention and discriminatory and humiliating ill-treatment that amounts to race-based torture. The United States has both a legal and moral obligation to uphold the right to seek asylum, and over the holidays, we once again saw communities mobilize to welcome asylum seekers with dignity. The Biden Administration must reverse course and stop these policies of exclusion, and instead uphold the right to seek asylum and invest in the communities that are stepping up to welcome.”
From Mary Miller Flowers @ Young Center for Immigrant Children’s Rights:
“President Biden’s announcement today is a far cry from the commitments he made on day one to fight for racial justice, immigrant rights, and family protection,” Mary Miller Flowers, the senior policy analyst at the Young Center for Immigrant Children’s Rights, said in a statement.
“The right to asylum should not hinge on your manner of flight from danger or your financial means,” Flowers continued. “Seeking safety is treated as a privilege for a select few, and the Biden Administration’s cherry-picking of who can and cannot access protection proves this.”
From Kate Jastrom @ Center for Gender & Refugee Studies @ Hastings Law:
“Today President Biden proudly touted his commitment to providing legal pathways for asylum seekers and improving conditions at the U.S.-Mexico border. These were empty words,” said Kate Jastram, CGRS Director of Policy & Advocacy. “By expanding its deadly Title 42 policy to Haitians, Cubans, and Nicaraguans, the Biden administration is going far beyond what any court has required it to do. This expansion will put vulnerable refugees in harm’s way and exacerbate violence and chaos in border communities.”
“People fleeing persecution have a legal right to seek asylum at our border under both U.S. and international law, no matter how they get here, no matter who they know, and no matter what documents they hold,” Jastram continued. “Many are forced to escape their homes under threat of death at a moment’s notice, with nothing more than the clothes on their backs. Their rights should never be supplanted by limited and discriminatory parole programs that offer relief only to a lucky few. We are also deeply disturbed that the administration has announced plans to revive and repackage the Trump-era asylum transit ban. President Biden cannot pledge to hold the ‘torch of liberty’ aloft, then turn around and embrace the most inhumane, anti-refugee policies of his predecessor.”
From Maria Daniella Prieshoff @ Tahirih Justice Center:
“This is truly a stain on the record of any administration seeking to uphold the U.S. asylum law and its responsibilities under international law. We must work together to ensure that for #JusticeForImmigrants is truly equal.”
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From Sen. Robert Menendez (D-N.J.):
Sen. Robert Menendez (D-N.J.), who along with Senate Majority Leader Charles E. Schumer (D-N.Y.) has pushed the Biden administration for months to end Title 42, criticized the administration’s plan, saying it goes too far in restricting migrants’ access to the border.
“The Biden Administration’s decision to expand Title 42, a disastrous and inhumane relic of the Trump Administration’s racist immigration agenda, is an affront to restoring rule of law at the border,” Menendez said in a statement. “Ultimately, this use of the parole authority is merely an attempt to replace our asylum laws, and thousands of asylum seekers waiting to present their cases will be hurt as a result.”
From Jonathan Blazer @ ACLU:
The American Civil Liberties Union, which has led the legal battle to stop the expulsions since the Trump administration, criticized Biden for continuing to rely on Title 42, saying expelling migrants will send them into dangerous border cities where some have been kidnapped or killed. “This knee-jerk expansion of Title 42 will put more lives in grave danger,” Jonathan Blazer, the ACLU’s director of border strategies, said in a statement.
From Margaret Cargioli @ Immigrant Defenders Law Center:
Margaret Cargioli, a lawyer with the Immigrant Defenders Law Center, said the program was effectively screening out migrants who lack U.S. connections or money to buy airplane tickets. She said Title 42 was “put in place by a racist and xenophobic administration” bent on stopping immigration, not protecting public health.
“It really does go against the nature of … ‘My life is in danger. I need to get out,’” she said at a Dec. 29 news conference. “And that is what the essence of an asylum seeker is.”
Alas, no surprise to “Courtside” readers! The question is what can and will human rights supporters, progressives, and racial justice advocates DO about the consistent betrayal of humanitarian values values and the rule of law by Dems; not to mention Dems trashing their own campaign promises!
Trump’s nativist racism and Biden’s incompetence have actually moved our nation’s approach to legal refugee and asylum status BACK more than four decades! In place of the international framework put in place by Congress in the Refugee Act of 1980, we now have a hodgepodge of arbitrary, ad hoc, actions by the Biden Administration, relying to an unacceptable (and prima facie illegal) extent on the use of “emergency parole” authority as a partial substitute for legal refugee and asylee admissions!
This favors some non-refugees with “sponsors” over those who meet the accepted international definition of “refugee.” It promotes Executive and political favoritism over the needs of legal refugees. It stands on its head the normal refugee definition requiring an individual to be OUTSIDE their country of nationality to apply.
Congress did give the President extraordinary authority to admit those who otherwise meet the “refugee” definition directly from their native countries in conflict. However, rather than using this legal authority, Biden has chosen to misuse parole to EVADE it.
Even for those Venezuelans, Nicaraguans, Haitians, and Cubans fortunate enough to be chosen for parole, the first three groups will be left in limbo with no clear way of obtaining permanent immigration status after the expiration of their two-year “parole.” This obviously converts them into “political footballs” — particularly if the GOP were to regain the Presidency in 2024!
Paroled Cubans, on the other hand, might qualify for green cards under the “Cuban Adjustment Act of 1966” after one year. This creates yet another arbitrary inconsistency among those similarly situated, based solely on nationality.
The Refugee Act of 1980 creates a screening and adjustment process for those admitted as refugees thereunder, similar to the Cuban Adjustment Act. It also creates a similar process for those refugees granted asylum at the border or in the interior.
But, Biden’s choice NOT to use the existing legal provisions established by the Refugee Act of 1980, recreates exactly the type of disorder, arbitrariness, and uncertainty that the Refugee Act of 1980 was intended to end! And, they did in fact more or less end for nearly four decades, prior to the Trump-initiated fiascos that began in 2017 and which Biden, despite pledges to the contrary, has lacked the competence, expertise, and will to end and restore the rule of law!
If properly staffed with human rights experts and dynamic, visionary “practical scholars” as leaders, our legal refugee and asylum systems could not only be restored, but could also be dramatically improved and made fairer! That’s basically what Biden promised during the 2020 campaign.
Outrageously, once in office those promises have been trashed and, predictably, chaos and incompetence reigns. That’s a deadly combination for asylum seekers patiently waiting for our nation to honor its laws and international obligations!
It shouldn’t be like “waiting for Godot!” But, it is!
