"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.
Opinion | Asylum seekers are not ‘gaming the system’
August 20, 2023 at 5:16 p.m. ET
To say that people seeking asylum in the United States are “gaming the system,” as Fareed Zakaria did in his Aug. 14 op-ed, “Immigration can be fixed. Why aren’t we fixing it?,” not only was dehumanizing but also dismissed the very real and traumatic conditions that force people and their families to make the heartbreaking choice to leave their homes and embark on a journey in search of protection and safety.
Calling on people to claim asylum in their home countries revealed a fundamental misunderstanding of the asylum ban and asylum itself. Access to asylum in the United States remains critical because many of the countries that individuals are fleeing from and through cannot or will not protect them from violence.
The U.S. government’s asylum ban is exacerbating dangerous circumstances for all asylum seekers. Women, girls and other survivors of gender-based violence seeking asylum are being denied refuge and forced to remain in conditions along our border that increase their susceptibility to the same kinds of violence and threats to their lives that forced them to flee in the first place.
Asylum is a legal and human right for all people, born of our own recognition that every human being has the right to seek a life of safety and dignity. This has nothing to do with partisan politics. The United States has an obligation to uphold its own laws and live up to its promise as a welcoming nation.
Casey Carter Swegman, Falls Church
The writer is director of public policy at the Tahirih Justice Center.
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The legal right to seek asylum in the U.S. or at our border is clear! Getting the USG to respect it and the media to accurately report on abusive, illegal attempts to limit it, not so much! Thanks, Casey, for speaking truth and “taking it to” purveyors of White Nationalist myths like Zakaria!
Rather than urging fixing the legal asylum system to work in a fair, generous, timely, and humane manner — something that should be well within the Government’s capabilities and clearly in the national interest — folks like Zakaria, who should know better, have taken to victim shaming and blaming. The current law gives the Government plenty of tools to deal with frivolous claims to asylum.
That our Government lacks the will and expertise to implement and staff the current system in a manner that would fairly and reasonably “separate the wheat from the chaff” is NOT the fault of those seeking asylum and their dedicated, hard-working, long-suffering advocates. Indeed, asylum and human rights advocates appear to be the only folks interested in insuring Constitutional due process and upholding the rule of law!
I don’t dispute that our immigration system needs a legislative overhaul. But, that must NOT come at the expense of asylum seekers, refugees, and others who need and are deserving of our protection!
AG Merrick Garland thinks it’s fine to play “roulette” with human lives in his arbitrary, capricious, and dysfunctional EOIR. Those trying to help his victims obtain justice disagree! Is this REALLY the way things ran when Garland was on the D.C. Circuit? If not, why is it “good enough for Immigration Court?” IMAGE: tvtropesJennifer Scarborough, Esquire Law Firm of Jennifer Scarborough PLLC Harlingen, TX PHOTO: FirmHamed Aleaziz Staff Writer LA Times
Hamed Aleaziz & Tracy Wilkinson report for the LA Times:
WASHINGTON — Numerous Russians attempting to escape conscription onto the Ukrainian battlefield have made perilous journeys to the United States, trusting in the Biden administration’s declaration that the U.S. would “welcome” those fleeing the war and their forced participation in it.
Instead of winning asylum, however, some of these men have been detained and, in at least one case, deported back to Russia, where they could be thrown into the fight against U.S.-armed Ukraine — into “the meat grinder,” as the U.S. secretary of State recently put it.
The U.S. has deported nearly 190 Russians since the beginning of October 2022, almost three times as many as were removed during the entire prior year.
Some Russian conscripts have refused to board deportation flights, forcing U.S. immigration officers to return them to immigration detention and legal limbo.
Three Russians the U.S. detained and sought to deport told The Times that certain abuse awaited them at home, where draft dodgers are subject to imprisonment or swift dispatch to front lines. The three Russians said they felt bewildered — betrayed, even — bythe U.S. asylum system. The Times is withholding their identities because they fear retribution if they are returned to Russia.
“Death awaits me there if I go back,” said one Russian man in his 20s. He said he was slated to be deported but fainted when immigration officials loaded him onto the plane, which forced them to return him to detention.
Although Ukrainian President Volodymyr Zelensky urged Russians who opposed the war to stay at home and fight to topple Russian President Vladimir Putin, the Biden administration has explicitly encouraged Russians who do not want to fight in Ukraine to seek asylum in the United States.
“There are people out there in Russia who do not want to fight Putin’s war or die for it,” White House Press Secretary Karine Jean-Pierre said in September. “We believe that, regardless of nationality, they may apply for asylum in the United States and have their claim adjudicated on a case-by-case basis.
“We welcome any folks who are seeking asylum, and they should do that,” she said.
But Russians who have taken the U.S. up on that offer have quickly discovered that seeking asylum is not the same as winning it. The U.S. government’s willingness to help people who flee Russia — even if doing so undermines Russia’s war effort — is limited.
In some cases, the government has argued that being called up to serve in the Russian military is not alone sufficient grounds for asylum. Jennifer Scarborough, the lawyer for the three Russians The Times interviewed, has countered that they qualify for asylum because they did not want to be involved with the war for political reasons and would face unreasonable repercussions for refusing to serve.
“They could be deported back to a regime that is committing gross human rights violations,” she said. “I don’t understand how we are denying Russians at all.”
The number of Russians crossing the southern U.S. border surged in November and December, shortly after Putin, facing massive casualties among his troops, ordered up a fresh army mobilization and drafted up to 300,000 reservists.
Russians crossed the southern border more than 5,000 times in November and nearly 8,000 times in December, a major increase from earlier months.
More than 8 million Ukrainians have fled their homeland since Putin launched his invasion of the former Soviet Republic on Feb. 24, 2022. Their escapes have involved trains and commercial flights and massive assistance, and they have largely been welcomed in other countries.
By contrast, many of those fleeing Russia for the U.S. have used the same difficult and at times treacherous route that disfavored refugees from all over the world use. A flight from Dubai or Istanbul gets them to South America, where they continue on flights, buses and by foot northward, sometimes trekking through jungle, to reach Mexico and the U.S. border.
One man who spoke to The Times was picked up by immigration agents in December near Tecate. The man made the weeks-long journey to the U.S. with his younger brother.
The man fled Russia when his call-up notice arrived.
“Even in childhood, I understood that, for me, America was a symbol of freedom,” he said in a telephone interview from a detention center in Pennsylvania. “And yes, there was a dream to move here one day. Because during your entire life in Russia, it is difficult; you’re discriminated against at every turn.”
“I went through war,” the man said. “I know what this entails. I saw the war. And now they are trying to force me to bring this to Ukraine.”
. . . .
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Read the complete report at the link.
Jenn Scarborough asks the right question. In a functioning protection system, one would expect most cases like this to be granted in short order. However, the BIA generally has restrictive precedents on draft evaders and deserters stemming largely from a desire to deny protection to applicants fleeing civil wars in Central America decades ago. See, e.g., Matter of A-G-, 19 I & N Dec. 502 (BIA 1987).
As “Courtsiders” know, the endemic problem is lack of expert, progressive, dynamic, courageous intellectual leadership in a system now solely controlled and operated by a Dem Administration that often acts more like an “old school GOP” one on immigration and human rights! Administration of both parties live in perpetual fear that making good on promises of fair treatment and legal protection would actually motivate refugees to seek it!
That’s a particular problem at EOIR which should be the legal intellectual leader here! We need practical, scholarly, generous, common sense precedents focusing on what should be easily grantable protection claims!
Instead, we have a leaderless, bureaucratic, non-expert mess, still retaining too many elements of the anti-immigrant, anti-asylum, any reason to deny, go along to get along, court as a “deterrent” system constructed and promoted by the Trump Administration. That has continued to churn out both egregious inconsistencies and backlog-building inefficiencies in critical “life or death” cases!
When I first came across Cochrane International, the company that built the floating barrier deployed in Eagle Pass, Texas, I watched a demonstration the company gave with detached bemusement. I was at a gun range just outside San Antonio. It was 2017, three months after Donald Trump had been sworn in and the last day of that year’s Border Security Expo, the annual gathering of Department of Homeland Security’s top brass and hundreds of companies from the border industry. Among industry insiders, the optimism was high. With Trump’s wall rhetoric at a fever pitch, the money was in the bank.
All around me, all morning, Border Patrol agents were blasting away body-shaped cutouts in a gun competition. My ears were ringing, thanks in part to the concussion grenade I had launched—under the direction of an agent, but with great ineptitude—into an empty field as part of another hands-on demonstration. The first two days of the expo had been in the much-posher San Antonio convention center, where companies displayed their sophisticated camera systems, biometrics, and drones in a large exhibition hall. But here on the gun range we seemed to be on its raw edge.
So when a red truck with a camo-painted trailer showed up and announced its demonstration, it wasn’t too much of a surprise. The blasting bullets still echoed all around as if they would never cease. Two men jumped out of the truck wearing red shirts and khaki pants. They frantically ran around the camo trailer, like mice scurrying around a piece of cheese trying to figure out the proper angle of attack. Then the demo began. One of the men got back in the truck, and as it lurched forward, coiling razor wire began to spill out of its rear end as if it were having a bowel movement. As the truck moved forward, more and more of Cochrane’s Rapid Deployment Barrier spilled out until it extended the length of a football field or more. It was like a microwavable insta-wall, fast-food border enforcement.
Little did I know that six years later, this same company, Cochrane, would give us the floating barrier, with its wrecking ball–sized buoys connected side by side with circular saws. The floating barrier, as the Texas Standard put it, is the “centerpiece of Operation Lone Star,” Texas governor Greg Abbott’s $4.5 billion border enforcement plan. For this barrier, which has now been linked to the deaths of at least two people, the Texas Department of Public Safety awarded Cochrane an $850,000 contract.
. . . . .
When I first saw Cochrane back in 2017 among the ear-ringing gunfire on the last day of the Border Security Expo, I had a feeling I might see them again. No matter how ludicrous the rapid barrier deployment camo truck seemed to me then, there was, indeed, plenty of money to be made.
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Money and profit over humanity, common sense, and the rule of law. Read the full article at the link.
Inside the Gulag The legacy of Biden, Harris, Mayorkas, Garland, Monaco, Gupta, Clarke, Prelogar and others will be truly ugly for the abuses in the “New American Gulag” that Mayorkas continues to operate while DOJ aids cover up and inexcusably defends grotesque human rights abuses! What happened to the concept of integrity and ethics at DOJ?
In Michigan, a man in the custody of Immigration and Customs Enforcement (ICE) was sent into a jail’s general population unit with an open wound from surgery, no bandages and no follow-up medical appointment scheduled, even though he still had surgical drains in place.
A federal inspector found: “The detainee never received even the most basic care for his wound.”
In Georgia, a nurse ignored an ICE detainee who urgently asked for an inhaler to treat his asthma. Even though he was never examined by the medical staff, the nurse put a note in the medical record that “he was seen in sick call.”
“The documentation by the nurse bordered on falsification and the failure to see a patient urgently requesting medical attention regarding treatment with an inhaler was negligent.”
And in Pennsylvania, a group of correctional officers strapped a mentally ill male ICE detainee into a restraint chair and gave the lone female officer a pair of scissors to cut off his clothes for a strip search.
“There is no justifiable correctional reason that required the detainee who had a mental health condition to have his clothes cut off by a female officer while he was compliant in a restraint chair. This is a barbaric practice and clearly violates … basic principles of humanity.”
. . . .
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Many thanks to my friend Debi Sanders for sending this my way with her succinct, “says it all,” two-word comment! Read and listen to the full report at the link.
Debi Sanders ESQ “Warrior Queen” of the NDPA PHOTO: law.uva.edu
Yet one more example of the failed Attorney Generalship of Merrick Garland!Where is the integrity, decency, and adherence to the rule of law that we were promised from a former Federal Judge and Supreme Court nominee?
Sure, the inhumanity flourished under the Trump regime! But, the last election was about a change and improvement, particularly in immigration. Garland’s performance on immigration, human rights, and racial justice should be a totally unacceptable to Dems!
BIA Asylum Panel In Action. It’s hard to ignore the BIA’s violent, deadly, abuse of asylum seekers, particularly those of color. But, somehow, Merrick Garland, Lisa Monaco, Vanita Gupta, Kristen Clarke, and other DOJ officials manage to look the other way, as do Congressional Dems! Too busy fecklessly complaining about Justice Clarence Thomas to look at their own house? Albrecht Dürer, Public domain, via Wikimedia Commons
The panel granted a petition for review of the Board of Immigration Appeals’ denial of Francisco Reyes-Corado’s motion to reopen removal proceedings based on changed circumstances, and remanded.
The Board denied reopening based, in part, on Reyes- Corado’s failure to include a new application for relief, as required by 8 C.F.R. § 1003.2(c)(1). The government acknowledged that under Aliyev v. Barr, 971 F.3d 1085 (9th Cir. 2020), the Board erred to the extent it relied on Reyes- Corado’s failure to submit a new asylum application for relief. Here, however, unlike in Aliyev, Reyes-Corado did not include his original asylum application with his motion to reopen. Consistent with the plain text of § 1003.2(c)(1) and various persuasive authorities, the panel held that a motion to reopen that adds new circumstances to a previously considered application need not be accompanied by an application for relief.
The Board also denied reopening after concluding that Reyes-Corado did not establish materially changed country conditions to warrant an exception to the time limitation on his motion to reopen. Reyes-Corado initially sought asylum relief based on threats he received from his uncle’s family members to discourage him from avenging his father’s murder by his uncle’s family. The Board previously concluded that personal retribution, rather than a protected
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
REYES-CORADO V. GARLAND 3
ground, was the central motivation for the threats of harm. In his motion to reopen, Reyes-Corado presented evidence of persistent and intensifying threats.
As an initial matter, the panel explained that the changed circumstances Reyes-Corado presented were entirely outside of his control, and thus were properly understood as changed country conditions, not changed personal circumstances. The panel also held that these changed circumstances were material to Reyes-Corado’s claims for relief because they rebutted the agency’s previous determination that Reyes-Corado had failed to establish the requisite nexus between the harm he feared and his membership in a familial particular social group. The panel explained that the Board’s previous nexus rationale was undermined by the fact that the threats, harassment, and violence persisted despite the lack of any retribution by Reyes-Corado’s family against his uncle’s family for at least fourteen years after Reyes-Corado’s father’s murder, and where multiple additional family members were targeted, including elderly and young family members who would be unlikely to carry out any retribution. Thus, the panel held that the Board abused its discretion in concluding that Reyes-Corado’s evidence was not qualitatively different than the evidence at his original hearing.
The panel also declined to uphold the Board’s determination that Reyes-Corado failed to establish prima facie eligibility for relief because Reyes-Corado’s new evidence likely undermined the Board’s prior nexus finding, and the Board applied the improperly high “one central reason” nexus standard to Reyes-Corado’s withholding of removal claim, rather than the less demanding “a reason” standard.
4 REYES-CORADO V. GARLAND
The panel remanded for the Board to reconsider whether Reyes-Corado established prima facie eligibility for relief and to otherwise reevaluate the motion to reopen in light of the principles set forth in the opinion.
COUNSEL
David A. Schlesinger
(argued), Kai Medeiros, and Paulina
Reyes, Jacobs & Schlesinger LLP, San Diego, California, for Petitioner.
Enitan O. Otunla (argued), Trial Attorney; Bernard A. Joseph, Senior Litigation Counsel; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice; Washington, D.C.; for Respondent.
OPINION
KOH, Circuit Judge:
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Congrats to David A. Schlesinger & colleagues!
I’ve often discussed EOIR’s all-too-frequent use of bogus nexus determinations – basically turning normal legal rules on causation on their head – to deny protection to bona fide refugees, particularly those from Latin America and Haiti.
There is a growing body of evidence that EOIR is systematically unfair to Central American asylum applicants. But, Garland, his lieutenants, and Congressional Dems have basically looked the other way as this stunning, widespread denial of due process and equal protection under our Constitution continues to unfold in plain view on their watch! Why? Where’s the dynamic, values-based, expert, ethical leadership we should expect from a Dem Administration?
This particular example of substandard “judging” literally reeks of pre-judgement and “endemic any reason to denialism!”
Dems wring their collective hands about Justice Clarence Thomas, who is essentially unaccountable and untouchable! But, they have done little or nothing to address serious competence, bias, and ethical issues festering in a major “life or death” Federal Court System they totally control!
Clarence Thomas Hikes Price of Supreme Court Decisions to Keep Pace with Inflation
By Andy Borowitz @ The New YorkerThomas
Andy Borowitz Political Satirist The New Yorker
WASHINGTON (The Borowitz Report)—Citing “unfortunate economic realities,” Clarence Thomas is hiking the price of Supreme Court decisions to keep up with inflation.
The jurist disclosed his new rate card in a mass e-mail sent to more than a hundred super-donors.
“I have tried to keep my prices reasonable, but, as inflation proves more stubborn than predicted, I have no choice but to adjust my rates accordingly,” he wrote.
“Sadly, the days of shredding civil rights in exchange for ten private-jet flights are over,” he added.
It remains to be seen whether the billionaires who received Thomas’s e-mail will tolerate his steeper prices or whether they will explore a budget option such as Neil Gorsuch.
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Predictably, no public hearings were held on the Justice’s sudden rate hike, which blindsided many right wing billionaires with business before the Court! “We believed in good faith that Clarence & Ginni were bought and paid for at least until the end of the upcoming term,” complained one super donor. “I mean, if the guy demands any more private flights to fancy vacation retreats, we’ll probably have to consider buying him his own private jetliner. Perhaps, he should spend at least a little more time in his chambers in D.C. spouting originalism and obstructing justice! After all, that’s what we’re paying him for!”😨**
Unhappily, in the days of GOP mega-corruption, satire has become almost a lost art.
🇺🇸 Due Process Forever!
PWS
08-11-23
** The above paragraph is fictionalized. Any resemblance to any real person, persons, organizations, and/or situations is purely coincidental and entirely unintended.
U.S. asylum laws were designed to protect people fleeing harm. They were enacted in the decades following the Holocaust to ensure that the United States never again turned away people fleeing persecution. But now, many blame these laws for the chaos and inhumanity at the nation’s southern border.
The biggest blow to America’s commitment to asylum came during the pandemic, when former President Donald Trump invoked Title 42, an emergency measure that allowed border agents to turn away asylum seekers, under the justification of preventing the spread of the virus.
When Title 42 restrictions were lifted in May, President Biden enacted a carrot-and-stick approach aimed at deterring new asylum seekers from traveling by foot to the border. These new measures included a set of legal pathways, including a parole program that allows people from select countries, including Cuba and Haiti, to legally enter the country for at least two years, provided they have a financial sponsor in the United States. Doing so has discouraged would-be migrants from taking a dangerous trek with a smuggler, often through multiple continents.
This approach would have been a great step forward if it wasn’t paired with a counter measure that prohibits some asylum-seekers at the border from applying for protection in the United States. The vast majority of migrants must secure an appointment at an official port of entry, which are difficult to obtain, or else they will be subject to expedited removal if they cannot prove that they sought legal protection in another country along the way.
. . . .
If proponents of a secure border are serious about lowering border crossing numbers and decreasing unauthorized migration, they should support Mr. Biden’s attempts to create new legal pathways. Instead, a coalition of Republican attorneys general is challenging the president’s parole program. In Congress, Senate Republicans are trying to eliminate the same parole authority that allowed Afghans to temporarily resettle in the United States. There have been no challenges to the use of the parole authority to bring Ukrainians to the United States.
These actions reveal that our current fight over the border is not about the number of people trying to come here — it is about which should be allowed to come. American voters may not have strong opinions about the future of the asylum system or the legal pathways being created, but voters of both parties dislike the chaos and human suffering that have subsumed this issue for the past 10 years. Over a million American citizens have signed up to sponsor migrants from Cuba, Haiti, Venezuela and Nicaragua.
At a moment of record global displacement, we can’t keep waiting for Congress to modernize our immigration laws. Safe legal pathways are good for the people who use our immigration system. Mr. Biden has taken some critical steps to give migrants better options, but with no hope of congressional action in the near future, more is needed.
Andrea R. Flores is the vice president for immigration policy and campaigns at FWD.us.
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Read the complete op-ed at the link.
Much of what Andrea says echoes what I have said over and over on Courtside and has been repeatedly recommended by experts, who are then largely ignored by the Biden Administration.
As I have argued before, the “low hanging fruit” here would be EOIR reform: A new BIA of “practical scholars;” better IJs with proven asylum and human rights experience; ending “Aimless Docket Reshuffling On Steroids” (which drives many poor policy and legal decisions); and getting some dynamic, fearless, expert leadership on human rights and immigration at the DOJ — which is either the driver or the facilitator of many of the problems at the border, depending on how you look at it.
We can also see how Garland’s lackluster performance on immigration affects other areas of justice such as civil rights, women’s rights, and LGBTQ rights, to name a few of the most obvious ones. Nobody at today’s DOJ appears to possess the “big picture” knowledge and experience to “connect the dots” on these critical issues.
Commentary: During turbulent times, Maine invests in its people
During the latest legislative session, much was done to ensure that prosperity is within reach of all Maine citizens and residents.
BY LUISA S. DEPREZ AND LISA MILLER SPECIAL TO THE PRESS HERALD
The times in which we live are, and have been, difficult. Turbulence confronts us at every corner, upon every turn. Around us things are constantly changing – economically, politically, medically, socially. There is too often too little upon which to rely to attain and maintain a degree of certainty in one’s life.
As we emerge from the COVID pandemic, we find its effects lingering in large workforce and societal shifts: lost jobs, lost day care, essential care workers leaving the workforce, older workers retiring early or moving into part-time work to stay afloat, small businesses closing, women leaving jobs to care for young, sick and elderly family members, people moving to and from communities, and rents and housing prices skyrocketing. These effects persist; regaining some degree of stability will take time.
ABOUT THE AUTHORS
Luisa S. Deprez is professor emerita of sociology and the Edmund S. Muskie School of Public Service at the University of Southern Maine. Lisa Miller is a former legislator who served on the Health and Human Services and Appropriations and Financial Affairs committees. They are members of the Maine chapter of the national Scholars Strategy Network, which brings together scholars across the country to address public challenges and their policy implications.
Yet we now see a glimmer of hope, a light at the end of the tunnel. Definite improvements in the overall economy are emerging: unemployment rates are at a historic low, housing starts are increasing, the manufacturing sector has seen an increase in orders for the past few months, consumer confidence has risen dramatically, and inflationary pressures are subsiding.
Maine’s policymakers are now tasked with ensuring that Mainers share in that rebound – that families and communities can build new pathways to prosperity and well-being. Enhancing and promoting prosperity must be the primary concern of policymakers and elected officials.
Classic views of “prosperity” usually refer to economic success and building wealth. But broader definitions of prosperity include becoming or remaining strong and healthy and flourishing. In other words, thriving. Yes, individual initiative and responsibility is critical to building prosperity, but the assurance to do so is rarely achievable in the absence of government support. Nor is success sustained without such support.
Policymakers and state officials know this well, as seen in recent bills and initiatives that emerged from this past legislative session:
• Workers can take paid family leave to combat illness or care for a loved one.
• New child tax credits provide additional support to low-income families.
• Older Mainers will receive financial support for medical costs and property tax bills.
• Child care gets a boost through improved wages and broader subsidies.
• More affordable-housing initiatives were funded.
• A new business incentive program was created.
• A workforce training tax credit will help employers grow the skill level of Maine workers.
• Additional support for emergency food and shelter was funded.
These achievements should be celebrated as they will certainly contribute greatly to the rebound necessary for individuals, communities, and the state to regain some of the losses.
But there was much left undone to build prosperity for everyone. The Wabanaki nations are still denied rights and protections; immigrants continue to be denied access to MaineCare; health care costs are even more burdensome for an increasing number of Mainers; pay disparities by gender and race remain; agricultural workers continue to be exempt from basic labor laws; workers with low salaries remain ineligible for overtime, and corporate loopholes and tax-avoidance prevail, leaving communities to carry the load for citizen and community investments.
During this legislative session, many organizations and individuals lobbied tirelessly to ensure that prosperity is within reach of all Maine citizens and residents. Both Gov. Janet Mills and the Legislature responded with investment of tax dollars to help everyday people stay in their jobs or seek new ones, become healthier, and be more productive.
Political and moral philosopher J.S. Mill would argue that “societies tend to flourish when individuals have a wide scope for directing the course of their own lives.” Many of the bills passed by the Maine Legislature do just that. But more needs to come. We are not done.
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Governance for the common good is what it’s supposed to be all about!
Michelle N. Mendez, ESQ Director of Legal Resources and Training National Immigration Project, National Lawyers Guild PHOTO: NIPNLG
Michelle N. Mendez of NIP/NLG reports:
Today, National Immigration Project alongside our partners at CAIR Coalition and the ACLU of Virginia sued Immigration & Customs Enforcement for refusing to release people detained in Virginia who already won their immigration cases. Read the press release below.
So, how is this type of legal and human abuse acceptable from a Dem Administration that promised good government and to do better than the Trumpsters?
Just to be clear, the chances of a third country volunteering to take a non-national granted CAT relief are very slim. I don’t remember it happening on any case on my docket during my time on the bench in Arlington. Also, were that to happen, the DHS would be obligated to give the respondent an opportunity to seek CAT to that third country, likely a lengthy process.
So, detention in this circumstance doesn’t make sense from a practical, legal, or fiscal standpoint!
“A federal judge has determined the government was unjustified in its fight to keep a woman locked up in an Aurora immigrant detention center while her deportation case proceeded. U.S. District Court Judge Charlotte N. Sweeney ordered the federal government last September to hold a hearing to determine whether Brenda Viruel Arias should be released from custody. Sweeney found the circumstances of Viruel Arias’ 14-month confinement required a bond hearing to avoid infringing on her constitutional right to due process. Shortly afterward, an immigration judge permitted Viruel Arias’ release after the government failed to prove she should remain behind bars. Viruel Arias’ lawyers then requested $22,601 in attorney fees from the government. Under federal law, victorious parties in civil cases against the government may receive attorney fees if, among other things, the government’s position was not “substantially justified.” On July 12, Sweeny agreed the government was not substantially justified in resisting a release hearing for Viruel Arias. In recent years, she observed, federal judges in Colorado have been sympathetic to non-citizens’ claims of unconstitutional confinement where the detention has exceeded one year. The government, as a party those cases, was aware of the judiciary’s attitude toward prolonged detention. “(T)hey do not justify why they did not follow a clear legal trend,” Sweeney wrote.”
Here’s my favorite quote from Judge Sweeney’s decision: “At bottom, Respondents were not substantially justified in their pre-litigation and litigation practices because they disregarded a clear legal trend in the District and their own agency policies in the underlying action.”
Similar to the Trump Administration, the Biden Administration is wasting taxpayer money on cruel, unnecessary, expensive, illegal detention, and then squandering even more money on the arguably frivolous, and clearly mindless, defense thereof! Somebody should be asking Garland why?
GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Professor Paulina Vera
Professor Alberto Benítez reports:
This past Wednesday, August 2, Immigration Judge (IJ) Dinesh Verma of the Hyattsville Immigration Court granted asylum to Immigration Clinic clients R-R- and her 17-year-old son, D-R-. R-R- and D-R- have been Clinic clients since 2019 and their asylum applications were filed that year with the assistance of the Clinic. Their merits hearing was originally scheduled for 2020, but was postponed until this past Wednesday due to the pandemic. They were represented at their hearing by Immigration Clinic summer intern Brennan Eppinger, a rising 2L.
R-R- and D-R- fled Honduras after R-R- stood up to a gang member who was trying to recruit her son, D-R-, to transport drugs. D-R- was 11 years old at the time. The gang member later broke into their home, put a gun to R-R- ‘s head, asked R-R- if she had ever played Russian roulette, and the quote in the subject line is what happened next. R-R- and D-R- sought safety in the United States shortly after.
Please join me and Professor Vera in congratulating Navil Infante, Alex North, Rachel Kidd and Jasmine Elsmasry, who all worked on the case. IJ Verma is a GW Law alum and was a student in my Immigration Law I class in 1997. Brennan noted this fact on the record but the IJ (who did remember me) and the ICE trial attorney waived any conflict issue.
Interestingly, I used the “Russian Roulette analogy” yesterday in referring to AG Merrick Garland’s dismissive attitude toward the outrageous inconsistencies and abuses in his EOIR asylum adjudications.
This is a wonderful, inspiring result, produced by great student lawyering, a thoughtful IJ, and an ICE ACC with a sense of justice and practicality. It should be the rule, not the exception, in EOIR asylum adjudication! But, sadly, it isn’t!
Has Alfred E. Neumann been “reborn” as Judge Merrick Garland? “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?” PHOTO: Wikipedia Commons
I virtually guarantee that if this case had been adjudicated at the border, in detention, and/or on one of Garland’s “expedited/dedicated” dockets, the result would have been unfavorable. And, depending on the circumstances, it’s not even clear that an applicant with this type of very grantable claim would have access to the asylum adjudication system under Biden’s “enjoined but stayed transit rules!” See, e.g.,https://twitter.com/Haleaziz (A “temporary win” for the Biden Administration, engineered by two 9th Cir. Dem judicial appointees, is a big loss for humanity and the rule of law, defended only by dissenting Trump appointee, Judge VanDyke, a result that should leave advocates scratching their heads about their place in today’s mushy Dem Party.)
Cases like this illustrate how the EOIR system could be run in a fair, efficient, professional, and properly humane manner! But, they don’t answer the question of why isn’t set up to run that way in every case under Garland!
Also, and quite perversely, the failure of the Biden system to produce fair and equitable results at the border puts a premium on individuals who can avoid border processing and get to the interior (the exact opposite of the result Biden claims to be trying to achieve)!
This is a totally screwed up system being “administered” by a Dem Administration that sorely lacks both courage and a clear vision of how to insure that asylum seekers and other immigrants, particularly those of color, receive due process and justice in America!
A HUGE congratulations to RMIAN and Laura Lunn on today’s 10th Circuit win in Arostegui-Maldonado v. Garland. I was lucky enough to be in the court at oral argument to watch Laura expertly navigate tough questions from a difficult panel and today the published decision came out holding (1) that the PFR filed within 30 days of the BIA order affirming the IJ denial of relief in withholding-only proceedings is timely filed and (2) that the IJ and BIA “defied logic and law” in misapplying the under-color-of-law element of the CAT claim, requiring remand.
Incredible work to Laura and all others involved!
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Folks, the IJ’s “reasoning to denial” in this case was beyond totally absurd! It’s an example of the type of judicial misconduct and incompetence that still flourishes in parts of Garland’s “any reason to deny” dysfunctional EOIR!
AG Merrick Garland thinks it’s fine to play “roulette” with human lives in his arbitrary, capricious, and dysfunctional EOIR. Those trying to help his victims obtain justice disagree! Is this REALLY the way things ran when Garland was on the D.C. Circuit? If not, why is it “good enough for Immigration Court?” IMAGE: tvtropes
After more than two years of the Biden Administration under Garland, we still have not seen the type of systemic, merit-based “house cleaning” of biased and incompetent judges and the replacement of deadwood (and worse) at the totally unjust and dysfunctional EOIR that could and should have been a “day one priority” for Garland’s DOJ.
There is simply no excuse for this type of disingenuous, life-threatening performance by both EOIR and OIL under Garland’s deficient leadership! There are literally thousands of qualified experts out here who could have done a better job than the IJ and the BIA in this case!
It’s Garland’s job to get better judges on the EOIR bench — judges who will be fair, impartial, due-process focused, and experts in all facets of immigration and human rights laws! His failure to do his job is undermining our justice system and endangering human lives! How is this “OK?”
In the “real world,” folks who “can’t do their jobs” find themselves “out of a job!” Why is Garland’s DOJ an “exception,” with lives and the future of American justice on the line? Isn’t it past time to “just say no” to continuing to treat the ongoing national disgrace at EOIR as “just an afterthought” in the elitist, disconnected world of Garland’s DOJ, where the human lives being destroyed by DOJ’s failures are treated as “somebody else’s problem?”
Former AG Jeff Sessions openly despised immigrants and their attorneys and encouraged “his judges” at EOIR to help out their “partners at DHS Enforcement.” That attitude lives on even under AG Merrick Garland! This caricature of Jeff Sessions was adapted from a Creative Commons licensed photo from Gage Skidmore’s Flickr’s photostream. DonkeyHotey Creative Commons Attribution-Share Alike 2.0
AMICUS INVITATION (NOTICE TO APPEAR) DUE August 31, 2023
AUGUST 1, 2023
The Board of Immigration Appeals welcomes interested members of the public to file amicus curiae briefs discussing the below issue(s):
ISSUE(S) PRESENTED:
Pursuant to Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022):
1. Should an Immigration Judge allow DHS to remedy a non-compliant Notice to Appear?
2. To remedy a non-compliant Notice to Appear, is either (1) issuing an I-261, or (2) amending the Notice to Appear, permitted by the regulations, and would either comport with the single document requirement emphasized by the United States Supreme Court in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021)? If not, how can a non-compliant Notice to Appear be remedied?
Request to Appear as Amicus Curiae: Members of the public who wish to appear as amicus curiae before the Board must submit a written request labeled “REQUEST TO APPEAR AS AMICUS CURIAE” pursuant to Chapter 2.10, Appendix A (Directory), and Appendix E (Cover Pages) of the Board of Immigration Appeals Practice Manual. The Request to Appear as Amicus Curiae must explicitly identify that it is responding to Amicus Invitation No. 23-01-08. The decision to accept or deny a Request to Appear as Amicus Curiae is within the sole discretion of the Board. Please see Chapter 2.10 of the Board of Immigration Appeals Practice Manual.
Filing a Brief: Please file your amicus brief in conjunction with your Request to Appear as Amicus Curiae pursuant to Chapter 2.10 of the Board of Immigration Appeals Practice Manual. The brief accompanying the Request to Appear as Amicus Curiae must explicitly identify that it is responding to Amicus Invitation No. 23-01-08. An amicus curiae brief is helpful to the Board if it presents relevant legal arguments that the parties have not already addressed. However, an amicus brief must be limited to a legal discussion of the issue(s) presented. The decision to accept or deny an amicus brief is within the sole discretion of the Board. The Board will not consider an amicus brief that exceeds the scope of the amicus invitation.
Request for Case Information: Additional information about the case, including the parties’ contact information, may be available. Please contact the Clerk’s Office at the below address for this information prior to filing your Request to Appear as Amicus Curiae and amicus brief.
Page Limit: The Board asks that amicus curiae briefs be limited to 25 double-spaced pages.
Deadline: Please file a Request to Appear as Amicus Curiae and amicus brief with the Clerk’s Office at the address below by August 31, 2023. Your request must be received at the Clerk’s Office within the prescribed time limit. Motions to extend the time for filing a Request to Appear as Amicus Curiae and amicus brief may not be entertained. It is not sufficient simply to mail the documents on time. We strongly urge the use of an overnight courier service to ensure the timely filing of your brief.
Service: Please mail three copies of your Request to Appear as Amicus Curiae and amicus brief to the Clerk’s Office at the address below. If the Clerk’s Office accepts your brief, it will then serve a copy on the parties and provide parties time to respond.
Joint Requests: The filing of parallel and identical or similarly worded briefs from multiple amici is disfavored. Rather, collaborating amici should submit a joint Request to Appear as Amicus Curiae and amicus brief. See generally Chapter 2.10 (Amicus Curiae) and Chapter 4.6(i) (Amicus Curiae Briefs) of the Board of Immigration Appeals Practice Manual.
Notice: A Request to Appear as Amicus Curiae may only be filed by an attorney, accredited representative, or an organization represented by an attorney registered to practice before the Board pursuant to 8 C.F.R. § 1292.1(d). A Request to Appear as Amicus Curiae filed by a person specified under 8 U.S.C. § 1367(a)(1) will not be considered.
Attribution: Where more than three attorneys or representatives sign an amicus brief or filing, the Board will name only the first three individuals in the published case. If you wish a different set of three names or have a preference on the order of the three names, please specify the three names in your Request to Appear as Amicus Curiae and amicus brief.
Clerk’s Office Contact and Filing Address:
To send by courier or overnight delivery service, or to deliver in person:
Amicus Clerk
Board of Immigration Appeals Clerk’s Office
5107 Leesburg Pike, Suite 2000 Falls Church, VA 22041
Business hours: Monday through Friday, 8:00 a.m. to 4:30 p.m.
Fee: A fee is not required for the filing of a Request to Appear as Amicus Curiae and amicus brief.
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Seems like the obvious “remedy” would be to require that DHS issue a new compliant NTA!
Respondents don’t get to “remedy” all mistakes, even inadvertent ones! Why should the USG be allowed to weasel its way out of a situation they intentionally created in a misguided effort (aided and abetted by EOIR “management”) to cut corners and generate statistics to please their political masters?
Ever since the “Ashcroft purge,” the BIA has functioned less and less as an independent quasi adjudicative body and more and more as an apologist for, enabler, or justifier of each Administration’s immigration enforcement agenda! In other words, the BIA’s role has become largely to slap a “quasi-judicial veneer” on DHS enforcement policies and priorities so that OIL can argue Chevron deference or even “Brand X” in the Article IIIs!
Of course, using EOIR as a “deterrent” and “enforcer” over the past two decades has been a spectacular failure! It has led to “Aimless Docket Reshuffling on Steroids,” absurdly insurmountable backlogs, and frequent rebukes from the Article IIIs.
Indeed, having helped create and magnify exponentially the mess at EOIR, many of the Trump and Biden Administration’s “gimmicks” appear aimed at avoiding or sidestepping the EOIR process altogether.
It’s the height of disingenuousness! At the urging of the White House, DOJ and DHS “break” the fair hearing system at EOIR. They then use their own misconduct and mismanagement as an excuse to deny asylum seekers and others access to the fair and impartial adjudication system to which they are legally entitled!
And, while the Article IIIs, even the Supremes, have “called out” EOIR on frequent, particularized errors, they have been happy to sweep the obvious “big problem” under the rug in a monumental exercise of “judicial task avoidance!”
That problem is that as currently operated, the EOIR system is a clear violation of the Constitutional principle that individuals facing removal, an often irreparable, even deadly, loss, are entitled to a reasonable decision from a fair and impartial decision-maker. See, e.g., Goldberg v. Kelly, 397 U.S. 254 (1970). While justice is served in some EOIR decisions, the systemic failures push in the exact opposite direction.
Without the necessary systemic safeguards in place, life and death decisions are largely an arbitrary and capricious “crap shoot” where wildly inconsistent results on the same or similar facts too often depend on the attitude of the judge, the whimsical decisions by “management” on whether to interfere in decision-making, and the location and circumstances of the hearing.
This is NOT the way to run a legitimate court system in compliance with due process and fundamental fairness!
For now, advocates should continue to vocalize their strong opposition to “how can we help our partners at DHS Enforcement” adjudication passing for justice at EOIR!
“Zhi Bo Chen petitions for review of an order of the Board of Immigration Appeals (BIA) affirming a decision of an Immigration Judge (IJ) that denied his applications for asylum, withholding of removal, and relief under the Convention Against Torture, and ordered him removed from the United States. The IJ’s decision was based, in part, on its finding that Chen was not credible. Because certain reasons for that credibility finding were erroneous, and because we cannot be confident that the IJ would have made the same determination absent those errors, Chen’s petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED to the BIA for further proceedings consistent with this opinion.”
Gary Yerman, Esquire Managing Partner The Yerman Group NY, NY
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My favorite quote from the Circuit’s decision by Judge Raymond J. Lohier (Obama appointee): “We conclude that the IJ misidentified part of Chen’s testimony as inconsistent, improperly relied on trivial inconsistencies, and misconstrued as an omission a part of Chen’s testimony that comported with his Form I-589 asylum statement.”
But, even with all these glaring defects, the IJ’s findings were affirmed by the BIA without much, if any, critical analysis. What does this say about EOIR under AG Garland?
Credibility should be “bread and butter” for EOIR Judges and particularly the BIA. But, when the “culture” is “any reason to deny,” bad things happen!
As my Round Table colleague Hon. “Sir Jeffery” Chase commented: “You have to wonder what percentage of all BIA decisions contain significant errors.”
I think that’s a particular concern in unrepresented cases, which are much less likely to reach the Circuits. Additionally, the unduly restrictive legal standard for judicial review means that marginal BIA adverse credibility findings will often get “rubber stamp” affirmances from the Circuits.
Essentially, EOIR often denies the respondent “the benefit of the doubt” in close credibility cases and then the Courts of Appeals give the BIA “the benefit of the doubt.” So, it ends up being a “double whammy” for the respondent!
That’s why it is critical to have individuals effectively represented at the trial level!At each level thereafter, the law skews heavily in favor of the Government!
That also supports the position that “dedicated dockets” and “expedited dockets” that discourage and impede (one could argue intentionally) effective representation and full presentation of all the evidence should be held to be prima facie denials of due process!
It’s also why I argue that it’s so important that exceptionally well qualified experts with experience representing asylum seekers be appointed to these hugely important (yet widely ignored and under-appreciated) EOIR judgeships! Better judges would make the entire EOIR system fairer and more efficient, without sacrificing due process!
That’s also why appellate victories like this by Attorney Gary Yerman are so impressive and telling about the continuing dysfunction at EOIR!
Additionally, given the “loading of the system” against the respondent on credibility, the BIA has to REALLY screw up to get reversed, as they did in this case! That, in turn, raises a fundamental unresolved issue: Why is a Dem Administration running a specialized court system that all too often lacks the expertise and judgement to get “bread and butter” issues like this correct in the first instance?
It’s obvious that a BIA that goofs up cases like this is NOT providing the type of clear, expert guidance to IJs necessary to achieve due process and fundamental fairness on a continuing systemic basis! That should be of huge concern to everyone who values justice in America!
GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Professor Paulina Vera — They have dedicated their professional careers to teaching skills and values that change lives and advance a vision of a better future America!
Professor Alberto Benítez reports to Courtside:
Victory is the only option!
A shout-out to our student-attorneys Julia Yang, Spoorthi Datla, Cornelia Waugh, and Kelly Zhang. Yesterday our client S-L, from China, Kelly, and Paulina Vera attended an interview at USCIS. The client is a survivor of domestic violence and we had filed several applications on her behalf, including one for naturalization. Today all the applications were granted. S-L’s oath ceremony will be scheduled.
Given the endemic delays at every level of the dysfunctional USG immigration bureaucracy, seeing a case through from the initial application to eventual naturalization is no mean feat!😎 THIS, NOT the total disgraceful BS emanating from Trump, DeSantis, Abbott, and the rest of the GOP xenophobes, is what the REAL “American Dream” is all about and what REALLY “Makes America Great” — NOT totally disingenuous slogans and “throwaway lines” from those afraid to embrace and celebrate the REAL America!🇺🇸
The future of American immigration advocacy looks promising, notwithstanding the incredibly dark visions being falsely promoted by GOP restrictionists and the disturbingly feeble response from the Biden Administration and Dems in Congress. The talent in the “New Generation” of the NDPA continues to grow thanks to the inspiration and tutelage of Professors Benitez and Vera and many others like them who have dedicated their lives to making things better for everyone!
As a result, there is a rapidly expanding talent gap between the NDPA and the sluggish, unresponsive, “go along to get along” USG immigration bureaucracy — right up to the White House where so-called “policy makers” fear standing up for the rule of law and American values! Getting the talent from the “outside” to the “inside” where they can solve problems and advance progressive, practical American values is the challenge that will determine the future of our democracy!
