🏴‍☠️BIA CONTINUES TO SPEW FORTH ERRORS IN LIFE OR DEATH ☠️ ASYLUM CASES, SAYS 4TH CIR. — “Three-In-One” — Improperly Disregarding Corroborating Evidence; Incorrect Legal Standard On Past Persecution; Wrong Nexus Finding! — Arita-Deras v. Wilkinson

Four Horsemen — BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons

Kangaroos — “Oh Boy! Three material mistakes in one asylum case! Do you think our superiors in the enforcement bureaucracy will give us extra credit on our ‘move ‘em out without due process quotas?’ Being a Deportation Judge sure is fun!”
https://www.flickr.com/photos/rasputin243/
Creative Commons License

https://www.ca4.uscourts.gov/opinions/191978.P.pdf

Arita-Deras v. Wilkinson, 4th Cir., 03-05-21, Published

PANEL: GREGORY, Chief Judge, and AGEE and KEENAN, Circuit Judges

OPINION BY: Judge Barbara Milano Keenan

KEY QUOTE:

Maria Del Refugio Arita-Deras, a native and citizen of Honduras, petitions for review of a final order of removal entered by the Board of Immigration Appeals (the Board).1 The Board affirmed an immigration judge’s (IJ) conclusion that Arita-Deras was not eligible for asylum, withholding of removal, or protection under the Convention Against Torture (CAT). The Board: (1) agreed with the IJ that Arita-Deras failed to support her claims with sufficient corroborating evidence; (2) found that Arita-Deras failed to prove that she suffered from past persecution because she had not been harmed physically; and (3) concluded that Arita-Deras failed to establish a nexus between the alleged persecution and a protected ground.

Upon our review, we conclude that the Board improperly discounted Arita-Deras’ corroborating evidence, applied an incorrect legal standard for determining past persecution, and erred in its nexus determination. Accordingly, we grant Arita-Deras’ petition and remand her case to the Board for further proceedings.

***************************

After eight years of bouncing around the system at various levels THIS “Not Quite Good Enough For Government Work” error-fest is what we get from EOIR! As I keep saying, no wonder they are running a 1.3 million case backlog, clogging the Circuit Courts with incredibly shoddy work, and in many cases sending vulnerable refugees back to death or torture under incorrect fact findings and blatantly wrong legal interpretations!

Again, nothing profound about this claim; just basic legal and analytical errors that often flow from the “think of any reason to deny” culture. EOIR just keeps repeating the same basic mistakes again and again even after being “outed” by the Circuits!

This case illustrates why the unrealistically high asylum denial numbers generated by the biased EOIR system and parroted by DHS should never be trusted. This respondent, appearing initially without a lawyer, was actually coerced by an Immigration Judge into accepting a “final order” of removal with a totally incorrect, inane, mis-statement of the law. “Haste makes waste,” shoddy, corner cutting procedures, judges deficient in asylum legal knowledge, and a stunning lack of commitment to due process and fundamental fairness are a burden to our justice system in addition to being a threat to the lives of individual asylum seekers.

Only when she got a lawyer prior to removal was this respondent able to get her case reopened for a full asylum hearing. Even then, the IJ and the BIA both totally screwed up the analysis and entered incorrect orders. Only because this respondent was fortunate enough to be assisted by one of the premier pro bono groups in America, the CAIR Coalition, was she able to get some semblance of justice on appeal to the Circuit Court!

I’m very proud to say that a member of the “CAIR Team,” Adina Appelbaum, program Director, Immigration Impact Lab, is my former Georgetown ILP student, former Arlington Intern, and a “charter member” of the NDPA! If my memory serves me correctly, she is also a star alum of the CALS Asylum Clinic @ Georgetown Law. No wonder Adina made the Forbes “30 Under 30” list of young Americans leaders! She and others like her in the NDPA are ready to go in and start cleaning up and improving EOIR right now! Judge Garland take note!

Despite CAIR’s outstanding efforts, Ms. Arita-Deras still is nowhere near getting the relief to which she should be entitled under a proper application of the law by expert judges committed to due process. Instead, after eight years, she plunges back into EOIR’s 1.3 million case “never never land” where she might once again end up with Immigration Judges at both the trial and appellate level who are not qualified to be hearing asylum cases because they don’t know the law and they are “programmed to deny” to meet their “deportation quotas” in support of ICE Enforcement.

Focus on it folks! This is America; yet individuals on trial for their lives face a prosecutor and a “judge” who are on the same side! And, they are often forced to do it without a lawyer and without even understanding the complex proceedings going on around them! How is this justice? It isn’t! So why is it allowed to continue?

Also, let’s not forget that under the recently departed regime, EOIR falsely claimed that having an attorney didn’t make a difference in success rates for respondents. That’s poppycock! Actually, as the Vera Institute recently documented the success rate for represented respondents is an astounding 10X that of unrepresented individuals. In any functional system, that differential would be more than sufficient to establish a “prima facie” denial of due process any time an asylum seeker (particularly one in detention) is forced to proceed without representation.

🇺🇸⚖️🗽🧑🏽‍⚖️VERA INSTITUTE RECOMMENDS FEDERAL DEFENDER PROGRAM FOR IMMIGRANTS — Widespread Public Support For Representation In Immigration Court!

Yet, this miscarriage of justice occurs every day in Immigration Courts throughout America! Worse yet, EOIR and DHS have purposely “rigged” the system in various ways to impede and discourage effective representation.

To date, while flagging EOIR for numerous life-threatening errors, the Article IIIs have failed to come to grips with the obvious: The current EOIR system provides neither due process nor fundamental fairness to the individuals coming before these “courts” (that aren’t “courts” at all)!

Acting AG Wilkinson has piled up an impressive string of legal defeats in immigration matters in just a short time on the job. It’s going to be up to Judge Garland to finally make it right. It’s urgent for both our nation and the individuals whose rights are being stomped upon by a broken system on a daily basis!

🇺🇸⚖️🗽Due Process Forever! Failed Courts Never!

PWS

03–05-21

REGIME’S SCOFFLAW 12TH HOUR ATTACK ON ASYLUM ENJOINED — AGAIN!

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/transit-ban-final-rule-enjoined

Claudia Cubas, CAIR Litigation Director, reports on LexisNexis Immigration Community:

Transit Ban Final Rule Enjoined

East Bay Sanctuary Covenant v. Barr

Claudia R. Cubas, Litigation Director at CAIR writes: “Judge Tigar at the Northern District California Court issued a Preliminary Injunction in the East Bay II case enjoining the final transit ban rule nationwide from being applied to asylum cases at both the immigration court and by USCIS. This Final rule was issued on Dec. 17, 2020, and took effect on Jan 19, 2021. While the interim rule had previously been vacated in the case CAIR Coalition v. Trump, 471 F.Supp.3d 25 (D.D.C. 2020), and ruled unlawful in the East Bay Sanctuary Covenant v. Barr, 964 F.3d 832 (9th Cir. 2020) case, the government issued the final version of the rule last minute in December. The ACLU and other organizations in the East Bay case, amended their original challenge and requested a new PI to enjoin this final version of the rule. Thanks to the ACLU, and other orgs in the East Bay case!”

****************

Thanks, Claudia!

Yet another Trump regime lawless and contemptuous action to destroy our asylum system and interfere with the transition of power to the Biden Administration “outed.”

🇺🇸⚖️🗽Due Process Forever!

PWS

02-16-21

CGRS @ Hastings 🇺🇸⚖️🗽ISSUES STATEMENT ON SUIT TO HALT DYING REGIME’S 👎🏻 “KILL ALL ASYLUM SEEKERS” ⚰️ FINAL REGS — As “Age Of Infamy” 🤮 Draws To Disgusting Close, Questions Remain As To Reversal Of Illegal/Immoral Policies, Accountability For Crimes Against Humanity 🏴‍☠️ By Grauleiter Miller ☠️ & Accomplices!

Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law

Blaine Bookey
Legal Director
Center for Gender & Refugee Studies @ Hastings Law
Photo: CGRS website

https://cgrs.uchastings.edu/news/groups-challenge-trump-administration-rule-gutting-asylum

Groups Challenge Trump Administration Rule Gutting Asylum

Thursday, December 24, 2020

Four immigrant rights organizations – Pangea Legal Services, Dolores Street Community Services, Inc., Catholic Legal Immigration Network, Inc. (CLINIC), and Capital Area Immigrants’ Rights Coalition – have requested a temporary restraining order in a lawsuit challenging a sweeping new rule that will eviscerate access to protection for people seeking refuge in the United States. Set to take effect on January 11, 2021, the rule completely transforms the asylum process, severely limiting the availability of asylum and related protections to individuals fleeing persecution or torture. The plaintiff organizations are represented by the Center for Gender & Refugee Studies, the Harvard Immigration and Refugee Clinical Program, and the law firm of Sidley Austin LLP.

“Published in the waning hours of the Trump administration, this rule marks its most far-reaching attempt to end asylum yet, and a death knell to our country’s longstanding commitment to offer safe haven for the persecuted,” said Jamie Crook, Director of Litigation at the Center for Gender & Refugee Studies. “The rule violates our laws, flouts our treaty obligations, and upends decades of legal precedent. If the mammoth rule is permitted to take effect, it will result in people being deported to face persecution, torture, and even death in their home countries.”

The rule deprives asylum seekers of any semblance of due process, imposing many barriers to relief before they even have the opportunity to present their case in immigration court. Among its numerous harmful provisions, the rule allows judges to deny an asylum application without holding a hearing. The rule also establishes 12 new “discretionary” factors that will bar many asylum seekers from life-saving protection. These include a de facto bar to asylum for applicants who pass through another country en route to the United States, effectively codifying and expanding the Trump administration’s third country transit bar, which the courts have already struck down as unlawful.

For those who are able to get their case before a judge, the new rule radically redefines who qualifies as a “refugee,” distorting the law so thoroughly that adjudicators can deny relief to virtually all applicants. The rule explicitly excludes from protection survivors of gender-based violence, children and families targeted by gangs, and people fleeing other abhorrent abuses. It also redefines “persecution” in such a way that judges will be directed to deny asylum even to individuals who have been detained and threatened with death due to their beliefs.

“Despite its enormous scope, the administration rushed this rule through the regulatory process without regard for its life-or-death implications for asylum seekers,” said Sabrineh Ardalan, Director of the Harvard Immigration and Refugee Clinical Program. “The administration chose to brush aside nearly 90,000 public comments raising serious concerns with the proposed rule.”

The plaintiffs in this lawsuit are nonprofit organizations that provide immigration legal services and have previously come together to stop other Trump administration attempts to erect unlawful barriers to asylum. They contend that the new rule will make it far more difficult to assist asylum-seeking clients and cause serious harm to the immigrant communities they serve.

The plaintiffs have asked the U.S. District Court for the Northern District of California to issue a permanent nationwide injunction to prevent the rule from taking effect, arguing that the rule violates the Immigration and Nationality Act, the Administrative Procedures Act, the Due Process Clause of the U.S. Constitution, and the United States’ duty under international law not to return people to persecution or torture. On Wednesday the plaintiffs requested a temporary restraining order to immediately halt implementation of the rule while the court considers the case.

The plaintiffs also argue that the rule is procedurally invalid, as it was co-issued by Acting Department of Homeland Security Secretary Chad Wolf, whom multiple courts have declared was unlawfully appointed to his position and lacks the authority to promulgate such a rule.

*****************

Speeding up executions, killing and torturing the most vulnerable humans, denying COVID relief to desperate Americans, issuing corrupt pardons to murderers, fraudsters, cronies, and dishonest politicos, plotting treason against the USG — that’s how the regime and its sycophants have spent their waning days.

Despite the obvious desire to move on and avoid dealing with the crimes and overt corruption of the defeated regime, it will be difficult for the Biden-Harris Administration to avoid questions of accountability for the worst President, worst regime, and worst major party in U.S. history. Honestly coming to grips with the past is often a prerequisite for a better future.

⚖️🗽🇺🇸Due Process Forever!

PWS

12-27-20

🛡⚔️ROUND TABLE AMICUS BRIEF CITED, QUOTED IN RECENT COURTHOUSE NEWS ARTICLE ABOUT 4TH CIRCUIT ORAL ARGUMENT ON PROCEDURAL PROTECTIONS FOR UNREPRESENTED ASYLUM APPLICANTS!

https://www.courthousenews.com/panel-grapples-with-role-of-judges-in-pro-se-asylum-cases/?amp=1

Brad Kutner reports for Courthouse News:

. . . .

Manning argues immigration judges must ask questions to develop the record for pro se applicants like Arevalo-Quintero about their PSG affiliations. She isn’t alone in her push for a different standard for pro se immigrants applying for asylum.

In an amicus brief, a group of retired immigration judges and former members of the Board of Immigration Appeals point to a Fifth Circuit opinion that says immigration judges have a duty to “seek clarification” and “ensure that the [PSG] being analyzed is included in his or her decision.”

Immigration judges “must remain neutral, but that does not mean that they are passive bystanders during immigration court hearings,” the brief states. “The regulations require IJs, for example, to explain the factual allegations and charges in ‘non-technical’ language.”

. . . .

*******************

Read Brad’s full article at the link.

Many thanks to my “eagle eyed” friend Deb Sanders for sending this my way.

The Round Table 🛡⚔️ continues to play a positive role. Compare that with the unfailingly negative role of the current “EOIR Clown Show.”🤡🤮

In what hopefully will be a much better world after January 20, 2021, the Round Table could work with a “new EOIR,” led and staffed by real judges from the NDPA, on the practical legal and administrative reforms necessary for EOIR to become a “model court,” using teamwork and best practices to guarantee fairness and due process for all. That’s actually what the “EOIR vision” was prior to the advent of the Bush II Administration in 2001.

That noble vision could still become a reality, but only if the Biden-Harris Administration evicts the “EOIR Clown Show” 🤡and replaces it with competent experts from the NDPA committed to due process for all. ⚖️🧑🏽‍⚖️🇺🇸🗽

Due Process Forever!

PWS

12-11-20

LINKEDIN SAVES LIVES: NDPA Superstar Michelle Mendez Of CLINIC With Some Good News On How Litigation Success Has Saved Lives In The Face Of Regime’s Scurrilous White Nationalist Attack On Asylum Laws! — These Are The True Brilliant Minds & Courageous Heroes Of Our Legal System, Carrying On RBG’s Legacy Of Fighting Tirelessly For Equal Justice!

Aimee Mayer Salins
Staff Attorney
Defending Vulnerable Populations
CLINIC
Source: Linkedin

*******************

Sorry for the small print. But, well worth the read.

Compare the courage and fidelity to due process, fundamental fairness, equal justice for all, and defense of human dignity demonstrated by brilliant lawyers like Michelle Mendez, Aimee Mayer Salins (former BIA JLC), and the terrific CAIR litigators with the warped right wing, anti-constitutional, anti-humanity jurisprudence of Trump’s Supreme Court choice, Judge Amy Coney Barrett:

Faced with two plausible readings of a law, fact, or precedent, Barrett always seems to choose the harsher, stingier interpretation. Can job applicants sue employers whose policies have a disproportionately deleterious impact on older people? Barrett said no. Should courts halt the deportation of an immigrant who faced torture at home? Barrett said no. Should they protect refugees denied asylum on the basis of xenophobic prejudice? Barrett said no. Should they shield prisoners from unjustified violence by correctional officers? Barrett said no. Should minors be allowed to terminate a pregnancy without telling their parents if a judge has found that they’re mature enough to make the decision? Barrett said no. Should women be permitted to obtain an abortion upon discovering a severe fetal abnormality? Barrett said no.

There is no question that, if confirmed, Barrett would cast the fifth vote to either hollow out Roe v. Wade or overturn it altogether. Similarly, there is no doubt that Barrett would dramatically expand the Second Amendment, invalidating gun control measures around the country. It’s quite possible, perhaps even likely, that within a year of her confirmation, Americans will be forbidden from terminating a pregnancy in 21 states—but permitted to purchase assault weapons and carry firearms in public in every state.

https://immigrationcourtside.com/2020/09/21/insult-to-injury🤮☠%EF%B8%8F👎🏻-trump-to-tap-unqualified-cruel-righty-zealot-to-replace-rbg-one-leading-candidate-the-anti-rbg/

In other words, guns yes; human rights and human dignity, no! Some lawyers spend their lives saving lives and advancing humanity; others spend them pursuing and spreading anti-humanitarian, right wing dogmas. Why are commitments to cruelty, inhumanity, and a fundamentally unjust society things to “tout” in a judicial candidate? You need to look inside the deep perversity of the GOP minority who control our nation and are running it into the ground to get the answer.

There are thousands of progressive lawyers, many of them women and minorities, committed to standing up for equal justice for all who are better qualified than Judge Barrett. There is something wrong with a system that elevates the wrong people to the judiciary and other high offices.

It’s time to establish meritocracy and save our democracy. Vote to throw the GOP out of office and end the selection of far-right judges whose reactionary views and lack of empathy for the most vulnerable in society are far outside both the reality of our diverse nation and our future as a vibrant, progressive democracy that will promote equal justice and human rights at home and abroad!

Keep the future Judge Barretts where they belong — on the sidelines and in the margins of our legal system, while those with a better view of the Constitution, the rule of law, and human progress take their rightful places in positions of power and progressive influence in all there branches of our Government.

Judge Barrett parrots great admiration for RBG while aiming to trash her legacy of fairness and equality with a far-right, exclusive, intolerant agenda. In the future, we need Federal Judges who will constantly confront Judge Barrett, her soon-to-be-fellow GOP Supremes, and other righty judges bent on taking us back to the darkest corners of our past. Make them face the truly courageous and enlightened legacy of RBG and others like her. Force the “Barretts of the world” to reckon with their own smugly disingenuous jurisprudence and their lack of commmitment to humanity and true equality before the law for all persons in the U.S.! Constantly confront complicit courts for change!

Better judges for a better, fairer America!

This Fall, vote like your life and the future of humanity depend on it! Because they do!

PWS

09-27-20

🏴‍☠️☠️👎TRUMP SCOFFLAWS THWARTED AGAIN ON ANTI-ASYLUM AGENDA — Has The Kakistocracy Even Read The APA? — Trump’s Judicial Appointee Basically Incredulous That Trump’s Ethics-Free DOJ Would Assert “25 Words In A WashPost Article” As Legal Basis To Repeal 40 Years of Asylum Law Without Proper Notice & Deliberation

https://www.law.com/nationallawjournal/2020/07/01/failure-is-striking-trump-tapped-judge-throws-out-administrations-asylum-restriction/?kw=%27Failure%20Is%20Striking%27:%20Trump-Tapped%20Judge%20Throws%20Out%20Administration%27s%20Asylum%20Restriction&utm_source=email&utm_medium=enl&utm_campaign=newsroomupdate&utm_content=20200701&utm_term=nlj

‘Failure Is Striking’: Trump-Tapped Judge Throws Out Administration’s Asylum Restriction

U.S. District Judge Timothy Kelly panned DOJ attorneys for leaning heavily on a single newspaper article in arguing the asylum restriction was exempt from rulemaking procedures.

By Jacqueline Thomsen July 01, 2020 at 08:37 AM

A federal judge in Washington, D.C., late Tuesday vacated a Trump administration rule that blocked migrants from petitioning for asylum in the U.S. if they were not first denied the protections by other countries they traveled through on their way to the southern border.

U.S. District Judge Timothy Kelly, appointed to the bench by President Donald Trump, issued the ruling nearly a year after he first rejected a temporary restraining order against the restriction. A similar challenge has played out in federal court in California, where the U.S. Court of Appeals for the Ninth Circuit has upheld a preliminary injunction against the rule. The U.S. Supreme Court had previously said the administration can enforce the measure while that court fight played out.

In Tuesday’s ruling, Kelly found Trump officials violated the Administrative Procedure Act by not following the law’s “notice-and-comment” requirement before enacting the rule. He did not address other legal claims made against the policy.

Kelly rejected arguments from Trump Justice Department attorneys that officials could skip the notice-and-comment period for this rule through the APA’s “good cause” exception. Government lawyers said making the rule available for comment before it was implemented could cause a surge of asylum seekers at the border, but Kelly said there was “not sufficient evidence” to meet the exception.

Kelly slammed DOJ attorneys for leaning heavily on an October 2018 Washington Post article in making that argument, finding that the single newspaper article did not provide evidence for their record and there was little other evidence to support their claims.

“Even assuming that the rule was likely to have had a similar effect as the regulatory change described in the article, the article contains no evidence that that change caused a surge of asylum seekers at the border—let alone one on a scale and at a speed that would have jeopardized their lives or otherwise have defeated the purpose of the rule if notice-and-comment rulemaking had proceeded,” Kelly wrote. “In fact, the article lacks any data suggesting that the number of asylum seekers increased at all during this time—only that more asylum seekers brought children with them.”

The judge similarly rejected government charts showing data on border enforcement and encounters for not directly supporting DOJ’s claims.

“At bottom, as plaintiffs point out, defendants—‘despite studying migration patterns closely’—have ‘failed to document any immediate surge that has ever occurred during a temporary pause in an announced policy.’ That failure is striking,” Kelly wrote.

. . . .

*********************

Those with NLJ access (or who haven’t exhausted their three free articles for the month) can read the rest of Jacqueline’s article at the link. The link to the full decision in CAIR Coalition v Trump is in the excerpt. I’ll have to admit that as an admirer of CAIR’s unrelenting efforts to protect our Constitution and our legal system from Trump’s racist-inspired lawlessness, the caption of this case is particularly fitting and satisfying.

Bravo for U.S. District Judge Timothy Kelly for taking his job as an independent decision-maker and his oath to uphold the Constitution and the laws of the U.S. seriously!

This decision also casts doubt on the judicial integrity of those Supreme Court Justices who ignored the law to “greenlight” this same invalid regulation in the Barr v. East Bay Sanctuary. So far, the lower Federal Courts that have taken time to examine and reflect on the law have found Trump’s action’s unlawful. Makes one wonder why the Supremes’ majority was so overanxious to “get on with the killing” of refugees when the individual interests are life or death while the government interests are fabricated or highly exaggerated, factually inaccurate, pretexts.

When policy is made by Stephen Miller’s racist talking points rather than expert input and honest deliberation involving the common good, bad things are going to happen to those we are supposed to protect, not reject for fabricated reasons.

Still, Trump shouldn’t worry too much. He can still take his bad faith case to the D.C. Circuit where Judge Naomi “Show Me Where to Sign on My Master’s Bottom Line” Rao awaits. And, then there’s the J.R. Five who have shown the willingness and ability to accept almost any kind of unethical BS laid out by outgoing Trump SG Noel Francicso to “stick it to” vulnerable asylum seekers.

How will “The Five” function come October Term without Francisco to relay Trump’s wishes and to feed them thin cover stories that most lawyers would recognize as phony as a three-dollar bill?

Due Process Forever!

PWS

07-01-20

HON. JEFFREY S. CHASE: Some Uplifting News For Mothers’ Day Involving the Generosity Of The NDPA, Many From The “Arlington Brigade!”😎👍

Eileen Blessinger, Esquire
Blessinger Legal PLLC
Falls Church, VA

https://www.jeffreyschase.com/blog/2020/5/8/small-acts-of-thanks-2

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

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Small Acts of ThanksI would like to share a nice story (for once). It illustrates how a postscript can sometimes prove far more meaningful than the main story.

A friend and colleague in the DC area, Eileen Blessinger of Blessinger Legal, planned a series of training lectures via Zoom during the pandemic. When I initially agreed to present one of the sessions on asylum law, I was told it would be for an audience of eighteen people.

Somehow, the number of attendees increased significantly. Because meetings of more than 100 people require an upgrade on Zoom, Eileen asked participants for a small donation. I believe the training went well, and that seemed to be the end of the story.

Later that night, Eileen informed me that because the number of attendees was well over 100, there was a surplus of donations beyond what was needed to cover the Zoom upgrade. After a brief exchange, we agreed that the surplus should go to pandemic first responders.

Realizing the virtue of what was initially an unintended consequence, the next speaker, Louisiana-based attorney Glenda Regnart, also agreed to open her session to a wider audience, who were invited to make a small donation to treat first responders. Subsequent speakers Kelly White, Himedes Chicas, Anam Rahman, Julie Soininen, Danielle Beach-Oswald, Heain Lee, and Jennifer Jaimes agreed to follow suit. Over $1300 was raised.

Eileen took over from there, inviting suggestions for recipients from her staff. So far, she has provided meals to nurses at Mass General Hospital in Boston; to employees at supermarkets in Louisiana and Virginia, and to preparers of meals for those in need in Alexandria, VA. Plans are also in the works to provide a meal for DC-area sanitation workers.

Those of us able to quarantine comfortably and work from home owe an unimaginable debt to those putting themselves at risk to keep our cities and towns running, keeping us all fed and safe. And as most of us read of infection and death rates as impersonal statistics, the nurses and other medical workers who are battling the disease on the frontlines on a daily basis, putting their own health at risk in the process, are far beyond our ability to properly thank.

It was a donation to another group that touched me in an unexpected way because of its connection to an earlier unspeakable tragedy. Eileen forwarded me the accompanying photo of FDNY firefighters enjoying the meal provided for them from the training surplus. Looking at the photo, I was suddenly transported back to the fall of 2001. My wife and I, who both worked in lower Manhattan, were physically very close to events on 9/11. What we saw still triggers traumatic memories. Among the horrible and tragic statistics is the heartbreaking fact that 343 firefighters died that day. More than 200 more have died as the result of illnesses they subsequently contracted in the rescue effort.

I walked past the firehouse on Duane Street every day on my way to and from work when I was an immigration judge. I remember the feeling of grief when passing by in the months following 9/11, and of stopping there one day in October to make a donation, and of words completely failing me as I tried to express my sadness and gratitude.

In the present pandemic, 15 firefighters in the unit pictured here (Engine 286/Ladder 135) had contracted COVID-19 as of last week. As early as April 7, 500 of New York’s Bravest had contracted coronavirus. Many more continue to be exposed as first responders to emergency calls from those stricken with the disease. And the firefighter who took the photo, Jerry Ross, was also a 9/11 responder.

So once again, we are reminded of the great debt we owe to so many. Thanks again to Eileen and all of the other speakers, and of course to all who contributed. Hopefully, these small acts of thanks will bring a little joy to these most essential and selfless heroes.

*************************

Go to Jeffrey’s blog at the above link for the accompanying photo of Engine 286/Ladder 135 enjoying their meal!

Thanks Jeffrey & Eileen!

So proud that in addition to Eileen, of course, so many of the wonderful pro bono attorneys highlighted in this article were “regulars” before us during my time at the Arlington Immigration Court: Kelly White, Anam Rahman, Julie Soininen, Danielle Beach-Oswald, and Jennifer Jaimes. Also, Jennifer is a former Legal Intern at the Arlington Immigration Court who was part of our daily “run the stairs challenge” (at the former Ballston location) with then Court Administrator Judges Bryant and Snow, and me. Ah, those were the days!

Jennifer Jaimes, Esquire — Jennifer Jaimes Esquire
Jaimes Legal, LLC
Baltimore, MD

Happy Mothers’ Day and Due Process Forever!😎👍🥇

PWS

05-10-20

THEIR LIVES & RIGHTS DON’T MATTER: US District Judge Timothy Kelly OK’s Trump’s Plan To Shaft Asylum Seekers Pending Further Litigation!

https://www.npr.org/2019/07/24/744860482/trump-administrations-new-asylum-rule-clears-first-legal-hurdle

Vanessa Romo reports for NPR News:

Updated at 12:40 p.m. ET

A federal judge on Wednesday let stand a new Trump administration rule requiring most asylum-seekers to ask for protection in another country before reaching the U.S.-Mexico border.

“It’s in the greater public interest to allow the administration to carry out its immigration policy,” U.S. District Judge Timothy J. Kelly of Washington, D.C., said from the bench.

Immigrant Advocates Plan To Challenge New Trump Administration Asylum Rule July 15, 2019

Two immigrant rights groups — the Capital Area Immigrants’ Rights Coalition and RAICES, or Refugee and Immigrant Center for Education and Legal Services — had sued to try to block the new rule, arguing it would strip asylum eligibility from migrants fleeing dangerous situations.

But Kelly ruled that the administration’s interest outweighs the damages that might be experienced by the organizations helping migrants. And he expressed “strong doubts” that plaintiffs can show the government overstepped its authority by issuing the rule.

“I’m not saying it would cause no irreparable harm” to migrants seeking asylum in the U.S., Kelly, who was appointed by Trump, said before the ruling. But, he stated the immigrant rights organizations had failed to show how many clients they would be unable to reach as a result of the new rule, how many people would be turned away and how many migrants would ultimately qualify for asylum. He added that both CAIR Coalition and RAICES had failed to demonstrate that the new rule would “greatly increase” the amount of time it takes to prepare for migrants’ imminent danger interviews.

NATIONAL

Federal Court Blocks Trump Administration’s Asylum Ban

“We are disappointed in the court’s decision today, but we will continue to fight to ensure that this harmful rule does not unjustly impact children and adults who apply for asylum as well as immigration legal service providers’ ability to help asylum seekers,” Claudia Cubas, CAIR Coalition’s litigation director, said in a statement.

“This new rule is contrary to our laws and we will continue to challenge this attempt to remove asylum [eligibility] from those who are fleeing violence and persecution around the world,” Cubas added.

Another federal court in California is hearing a separate challenge to the new rule. Judge Jon Tigar of San Francisco will hold a hearing in that case Wednesday.

NATIONAL

Federal Court Blocks Trump Administration’s Asylum Ban

In November, Tigar issued a nationwide restraining order against a Trump administration policy seeking to limit asylum eligibility to only those who cross at legal points of entry.

The Trump administration has been taking steps to slow the flow of migrants, mostly from Central America, across the southern border.

On Monday, the administration announced another rule change to expand the number of undocumented immigrants who can be put into fast-track deportation proceedings. Immigrant advocates also plan to challenge that policy in court.

***********************************

Obviously, Judge Kelly neither understands what is at risk for asylum seekers nor appreciates the difficulty in representing asylum seekers under constant attack by the Trump Administration.

While Trump has had his problems in Federal Court, ultimately he counts on the complicity of Federal Judges like Judge Kelly in his scheme to destroy the asylum system and endanger the lives of asylum seekers.

PWS

07-24-19

GREAT NEWS FOR DUE PROCESS! — With A Boost From Roundtable Of Former Immigration Judges Member Judge John Gossart, CASA, & CAIR Coalition, Fairfax Co. Virginia Enacts Universal Representation!

Judge (Ret.) John F. Gossart, Jr.

Claudia Cubas, Litigation Director, CAIR Coalition

FOR IMMEDIATE RELEASE: Friday, May 10, 2019
FOR MORE INFORMATION, CONTACT:
Diana Castaneda, dcastaneda@wearecasa.org, 240-515-5561
Fairfax County Now First Virginia Jurisdiction to Fund Legal Representation
for Immigrants in Need
Fairfax, VA – CASA and CAIR Coalition are pleased to announce that the Fairfax County Board of
Supervisors voted to fund a $200k “Universal Representation” pilot program, which will provide legal
representation to immigrants living in Fairfax County who are facing deportation proceedings and in need
of counsel—including DACA recipients and TPS holders.
“With the passage of Universal Representation, CASA and our community are proud that Fairfax County
has taken a step forward in terms of equity by ensuring that immigrants are treated with dignity by
providing legal representation. We will continue advancing immigrant rights as one community,” said
Luis Aguilar CASA Virginia Director.
“As our communities continue to weather the capricious changes in immigration law and the threat of deportation hangs over so many of our neighbors, Fairfax County has taken a simple yet effective stance: provide Fairfax families with counsel when detained and facing deportation,” said Kelly White CAIR Program Director – Detained Adult Program.
The decision of Fairfax County is invaluable for the more than 175 Fairfax families facing immigration proceedings each year.
immigrant and mixed-status families from the threat of deportation. ###

Universal Representation protects due process by allowing immigrants to access their rights under U.S.
law.
“My husband and I work full-time to be able to give our family a place to live. We have two children
with DACA. If one of us is detained by ICE I know for sure we won’t have the resources to afford a
lawyer. This program will allow us to have legal representation,” said Carmen Rios Fairfax Co. Resident.
CASA especially appreciates and recognizes Supervisors Jeff McKay and John Foust’s exceptional
leadership in helping to protect immigrant and mixed-status families.

With almost 100,000 members across the states of Maryland, Virginia, and South Central Pennsylvania, CASA is the largest member-based Latino and immigrant organization in the mid-Atlantic region. CASA organizes with and litigates on behalf of low-wage immigrants. Visit us at www.wearecasa.org and follow us on Twitter at @CASAforall

*********************************

Never has representation been more critical. With EOIR joining the Trump Administration’s all out assault on migrants and Due Process, no individual should face these biased and politicized “courts” without legal representation committed to fight for justice to the “real” courts and to expose and document the parody of justice in today’s Immigration “Courts” under the unethical political leadership of EOIR.

Many thanks to Roundtable Member Judge John Gossart for passing this along.

Join the New Due Process Army. Fight the EOIR travesty!

PWS

05-12-19

THE GIBSON REPORT – 01-14-19 – Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Project

THE GIBSON REPORT – 01-14-19 – Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Project

TOP UPDATES

New York City mayor vows health care for all — including undocumented immigrants

WaPo: New York City Mayor Bill de Blasio (D) on Tuesday issued a bold guarantee of affordable health care for every resident, thrusting the nation’s largest city to the forefront of debates over universal health coverage and immigrant rights. The promise is aimed at 600,000 New Yorkers who lack insurance because they can’t afford it, believe they don’t need it, or can’t get it because they are in the country illegally.

‘Never been more depressed’: Trump kills Graham effort to end shutdown

Politico: President Donald Trump has rejected a plan proposed by a bloc of Senate Republicans who had hoped to break an impasse over the government shutdown, leaving Congress and the White House with little obvious way out of the extended battle over Trump’s border wall.

Head Of Controversial Tent City Says The Trump Administration Pressured Him To Detain More Young Migrants

VICE: Kevin Dinnin, the CEO of the contractor that ran the controversial tent city for migrant children in Tornillo, Texas, says the facility is closing down because he refused the government’s request to detain more youths there. See also Trump administration removes all migrant teens from giant Tornillo tent camp

A Waiting Game For Immigrants And Border Agents On 2 Sides Of The Border Wall

NPR: Their numbers have dropped dramatically from around 6,000 to fewer than 2,000 today. They’re staying in makeshift shelters throughout the city, waiting week after week to hear their own number called out in an announcement that is made every morning in a small park near the U.S. port of entry. See also Migrants’ Despair Is Growing at U.S. Border. So Are Smugglers’ Profits.

The Judicial Black Sites the Government Created to Speed Up Deportations

AIC: In certain areas there is simply no way of knowing how many detained individuals—including children—have been deported without the opportunity to obtain counsel, and without appropriate safeguards preventing their removal to imminent harm.

As Government Pulls Back, Charities Step In to Help Released Migrants

NYT: But as the number of migrant families in recent months has overwhelmed the government’s detention facilities, the Trump administration has drastically reduced its efforts to ensure the migrants’ safety after they are released. People working along the border say an ever larger number of families are being released with nowhere to stay, no money, no food and no means of getting to friends and relatives who may be hundreds or thousands of miles away.

Trump floats path to citizenship for specialized visa holders

Politico: President Donald Trump seemingly teased plans for broader immigration reform on Friday, tweeting that he is open to a new path to citizenship for holders of a visa for high-skilled workers known as H-1B.

LITIGATION/CASELAW/RULES/MEMOS

Matter of A-B- Guidance from Grace v. Whitaker

The instructions which the Court ordered USCIS and EOIR to provide asylum officers and immigration judges conducting credible fear interviews and reviews of negative credible fear findings.

FOIA Lawsuit Seeks Names of CBP Officers Who Allegedly Abused Children

AIC: Disturbing information has been revealed about extensive allegations of sexual, physical, and verbal abuse of children in CBP custody. Now, the ACLU wants the names of officials alleged to have abused migrant children.

Federal Judge Argues That Illegal Reentry Prosecutions Not a Good Use of Judicial Resources

ImmProf: A federal judge has spoken out against a sharp increase in Northern Virginia in the prosecution of illegal immigrants for reentering the country after deportation.

A trial on whether Trump has the right to end TPS for Haiti ends. Now comes the wait

Miami Herald: A federal trial in New York challenging the Trump administration’s decision to end Temporary Protected Status, or TPS, for thousands of Haitians, concluded Thursday with internal government emails showing that the administration was so determined to end the program that it ignored its own government’s research flagging health and safety concerns.

CA1 Upholds IJ/BIA Denial of Asylum Due to Lack of Nexus to a Protected Ground

The court found petitioner secretly informed Ecuadorian police about gangs suffered persecution, but failed to prove he was targeted due to political opinion or particular social group since there was no evidence that his attackers knew he was an informant. (Mendez v. Whitaker, 12/11/18) AILA Doc. No. 19010870

CA1 Upholds BIA Reversal of IJ Grant of CAT Deferral to Domestic Violence Victim

The court denied petition for review and held the BIA correctly found the petitioner was unable to prove that the Dominican government acquiesced in her domestic abuse; thus, failed to meet the CAT definition of “torture” mandated for deferral of removal. (Ruiz-Guerrero v. Whitaker, 12/12/18) AILA Doc. No. 19010872

CA2 Vacates Unlawful Reentry Sentence Imposed on Noncitizen Based on Incorrect “Drug Trafficking Offense” Finding, and Remands for Resentencing

Using the categorical approach, the court held AZ’s drug law was overbroad; thus, district court erred in finding defendant’s prior conviction a “drug trafficking offense” that subjected him to 2016 Guidelines’ higher sentencing than that of 2014 Guidelines. (U.S. v. Guerrero, 12/10/18) AILA Doc. No. 19010831

CA2 Remands to BIA to Apply Correct Standard of Review on Good Faith Marriage Question

The court found BIA erred in applying clear error, instead of de novo, standard of review to IJ’s good faith marriage waiver denial; it also held petitioner abandoned abuse of discretion claim on MTR denial because he failed to adequately argue it in brief. (Alom v. Whitaker, 12/17/18) AILA Doc. No. 19010876

CA3 Holds PA Child Endangerment Statute Does Not Categorically Match INA §237(a)(2)(E)(i) Definition of Child Abuse

The court found BIA erred in finding 18 Pa. Cons. Stat. §4303(a)(1) is a categorical match for removability; rather, it does not have the requisite risk requirement to match INA’s “likelihood of harm” standard; remanded to consider alternative removal ground. (Liao v. Att’y Gen., 12/10/18) AILA Doc. No. 19010832

CA6 Finds Conviction for Rape by Digital Penetration Under Ohio Rape Statute Does Not Match Federal Definition

The court held BIA erred in conflating “rape” and “sexual abuse” definitions to conclude that generic rape crime included digital penetration; under Ohio law, digital penetration is not rape for purposes of aggravated felony-based removal. (Keeley v. Whitaker, 12/17/18) AILA Doc. No. 19010834

CA8 Denies Petition for Review, Finding No Due Process Violations by IJ

The court found although IJ stopped petitioner’s attorney from listing potential PSGs (potential denial of right to counsel), there was no prejudice because IJ considered three PSGs; and IJ was not biased by asking about her failure to report crimes to police. (Molina v. Whitaker, 12/12/18) AILA Doc. No. 19010833

CA11 Dismisses in Part Under §242, Upholds BIA’s Controlled Substance and Agg Fel Determinations That Were Not Appealed but Adjudicated Nonetheless

The court confirmed lack of jurisdiction to review BIA determination of removability ground; it also upheld not only BIA’s affirmance of IJ’s CIMT finding that was on appeal, but additional BIA controlled substance and agg fel findings not appealed by DHS. (Bula Lopez v. Att’y Gen., 11/21/18) AILA Doc. No. 19010873

CA11 Upholds BIA’s §237(a)(2)(B)(i) Removability Determination for Possession of Cocaine Based on Florida Drug Possession Statute’s Divisibility

The court denied petition for review, finding that based on state law precedent and jury instructions, the identity of a controlled substance is an element of Fla. Stat. §893.13(6)(a) and that BIA correctly found possession of cocaine a removable offense. (Guillen v. Att’y Gen., 12/13/18) AILA Doc. No. 19010874

CBP Releases Data on Increase in Medical Emergencies on the Southern Border

CBP released data regarding medical care referrals being made for arriving migrants by CBP to medical providers along the southwest border. On average, Border Patrol referred approximately 50 cases a day to medical providers. December 26, 2018, Border Patrol referred 82 cases to a medical provider. AILA Doc. No. 19010802

USCIS Notice that Lapse in Federal Funding Does Not Impact Most USCIS Operations

ICYMI: USCIS announced that a lapse in annual appropriated funding does not affect USCIS’s fee-funded activities. USCIS offices will remain open, and all individuals should attend interviews and appointments as scheduled. USCIS will continue to accept petitions and applications, except as noted. AILA Doc. No. 18122408

Practice Alert: What Happens If the Government Shuts Down?

Drawing on information from government announcement and past government shutdowns, AILA provides an overview as to how this shutdown may impact immigration-related agencies. We will update this practice alert as new information becomes available. AILA Doc. No. 17042640

Full Transcripts: Trump’s Speech on Immigration and the Democratic Response and The Democratic Response

NYT: President Trump delivered an address to the nation on Tuesday night from the Oval Office to make a broad-based public push for border wall funding. After his speech, Speaker Nancy Pelosi of California and Senator Chuck Schumer of New York, the Democratic leaders, delivered a response from Capitol Hill.

NEWARK ASYLUM OFFICE AFFIRMATIVE ASYLUM PUBLIC SCHEDULING UPDATE – January 2019 –

The Asylum Division gives priority to the most recently filed affirmative asylum applications when scheduling asylum interviews. Generally cases are scheduled three to four weeks in advance utilizing the following priorities:

First priority: Applications rescheduled at the applicant’s request or the needs of USCIS.

Second priority: Applications that have been pending 21 days or less.

Third priority: Applications pending over 21 days, starting with newer filings and working towards older filings.

** This month, in addition to first and second priority cases, we are interviewing applicants who filed on or around October 2018.

RESOURCES

USCIS Launches New Online Fee Calculator

Archive of Immigration Visual Aids

Practice Advisory – Counseling Clients On Public Charge And Public Benefits (attached)

Practice Alert: Accessing Older Versions of the FAM Through Internet Archive Websites

Ethical Questions in Representing Clients with Administratively Closed Removal Cases

AILA Sample Complaint for Declaratory Judgement and to Compel Agency Action on Unlawfully Delayed Application for Naturalization

Bite-Sized Ethics: Advising Clients on DACA Given its Uncertain Future

Featured Issue: Conditions in CBP Custody

Featured Issue: Presidential Proclamation Limiting Asylum Seekers

Featured Issue: Denaturalization Efforts by USCIS

CBP Releases Officer’s Reference Tool Documents

American University Offers Spanish for Lawyers Course

Lawyer Well-Being: Understanding the Insidious Nature of Stress and How to Address It

Workers with Temporary Protected Status in Key Industries and States

EVENTS

1/15/19The June 2018 RFE and NOID Guidance: How to Avoid Case Denials in 2019

1/17/19ICE in our Courts: Practical Strategies for Protecting Clients’ Rights and the Rule of Law

1/25/19Deported to Death: How Drug Violence is Reshaping Migration in Mexico

2/5/19Developments in Waivers: The I-601A, Removal Proceedings, and Beyond

2/7/19 Basic Immigration Law 2019: Business, Family, Naturalization and Related Areas

2/8/19 Asylum, Special Immigrant Juvenile Status, Crime Victim, and Other Immigration Relief 2019

3/8/19 Asylum & Immigration Conference with the Federal Bar Association at NY Law School

3/12/19 AILA Spring Federal Court Litigation Conference

ImmProf

Sunday, January 13, 2019

Trump Defends Border Security Position, Government Shutdown

The Intercept: “The Border Patrol Has Been a Cult of Brutality Since 1924”

Saturday, January 12, 2019

The Daily Show Trolls Trump With His Own 2004 Speech

I Am Feeling This Guy

Anti-Immigration Member of Congress Called to Task on Comments about White Nationalism, White Supremacy, Western Civilization

Friday, January 11, 2019

Archive of Immigration Visual Aids

Tent City Contractor Pressured by Trump Administration to Detain More Immigrant Youth

Immigration Article of the Day: Free Trade, Immigrant Workers, and Employment Discrimination by Angela D. Morrison

Trump Continues Stumping for Border Wall, Visits Border Town and Holds Immigration Roundtable

From the Bookshelves: ace, Nation, and Refuge: The Rhetoric of Race in Asian American Citizenship Cases by Doug Coulson

Immigration Professor Does Good: When things go wrong, immigrants serving in the military look to Margaret Stock

Thursday, January 10, 2019

Your Needed Thursday Humor Break

Jason Cade, from the Collateral Consequences Research Center: Pardons for Immigrants

Column: “I’m an Immigration Attorney in Trump’s America and the Stress Took Over My Life”

Immigration Article of the Day: Ninth Circuit Extends Bivens Remedy to Mexican Citizen Killed in Mexico by Cross-Border Agent Standing in America by the Harvard Law Review

Federal Judge Argues That Illegal Reentry Prosecutions Not a Good Use of Judicial Resources

Human Rights Watch Lawsuit Over Immigration FOIA Request

Symposium: Immigration in the Trump Era, Southwestern Law School

Wednesday, January 9, 2019

Immigration Article of the Day: Detainers, Discretion, and State Law’s Historical Constraints by Kate Evans

Growing Up a Refugee: Mohammad is a 15 year-old Rohingya refugee. He is stateless.

Making Sense of Immigration Law – An ILRC Course

The Conversation: Is there a crisis at the US-Mexico border? 6 essential reads

President Trump Again Calls for Billions for a Wall and for Congress to Address the “Border Crisis”

Tuesday, January 8, 2019

Daedalus Online Issue on Access to Justice

Guest Post: Celebrating Michael Olivas’s Retirement

Emerging Immigration Scholars Conference – June 7-8 @ BYU

Call for Presentation Proposals – Institute of Law Teaching & Learning

Washington Post Podcast: To build border wall, Trump considers national emergency powers; Trump to Talk on Border “Crisis” Tonight

Immigration Article of the Day: Refugees Welcome? by Leti Volpp

Monday, January 7, 2019

From the Bookshelves: Undocumented Politics Place, Gender, and the Pathways of Mexican Migrants by Abigail Leslie Andrews

Vermont Library Straddles US-Canadian Border; Enables Iranian Families Separated by Travel Ban to Briefly Reunite

The “Border Patrol” Operates Everywhere!

American Constitution Society Writing Competition

AALS Immigration Section Panel Recap: Immigration Law Values

More AALS: Immigration Law Values Program, Michael Olivas Honored

Immigration Article of the Day: Doing Better for Child Migrants by Susan Frelich Appleton

AILA NEWS UPDATE

http://www.aila.org/advo-media/news/clips

**************************************

Thanks Elizabeth. I was just “touting” Elizabeth and Adina Appelbaum of CAIR to some folks at Georgetown Law as examples of some of my many star “Refugee Law and Policy” students who have gone on to superstar careers in advancing social justice (an important focus at Georgetown Law). There are, of course, many others. And, the neat thing is that many of them have kept in contact. Indeed, right now our “Gang of 32” retired Immigration Judges is working with Adina and others on an amicus brief project that she brought to our attention.

PWS

01-16-19

HERE’S MY TESTIMONY BEFORE THE MONTGOMERY COUNTY (MD) COUNCIL ON A SPECIAL APPROPRIATION FOR REPRESENTING COUNTY RESIDENTS IN U.S. IMMIGRATION COURT!

Testimony for Montgomery County Council Hearing

May 1, 2018

Special Appropriation

Judge Paul W. Schmidt

Good evening, Council President, Vice Council President, Council Members,

For 21 years, I served as an Appellate Judge on the Board of Immigration Appeals, and a U.S. Immigration Judge at the Arlington Immigration Court. I was the Chair of the Appeals Board for six years. Though I am since retired, I follow with great interest and concern the immigration court’s troubling trajectory.

There is a real crisis in the immigration system today: the attack on Due Process in our U.S. Immigration Courts. This crisis has been many administrations in the making. However, the current administration has done more damage to Due Process more quickly than any prior administration. Its most recent insistence on quotas for immigration judges, the attempted dissolution of the Legal Orientation Program, combined with increased immigration enforcement, and inhumane detention policies, has eradicated any semblance of Due Process.

I applaud the Council for recognizing the need to ensure Due Process for its immigrant residents facing removal by funding deportation defense. I further urge you to make that deportation defense universalby providing legal representation to all Montgomery County residents facing removal regardless of any previous interactions with the criminal justice system.

All immigrants facing removal are entitled to Due Process. No person should be denied access to justice. The only way to ensure that an immigrant has Due Process in the current immigration system is by providing competent legal representation. Without an attorney, there is simply no other way an immigrant can navigate the extremely complex legal immigration system.

When an immigrant appears without an attorney, the Immigration Judge must rely on the attorney for the government; the person who is fighting to remove the immigrant from this country, to present the immigrant’s case. Despite a judge’s best efforts, it is simply not possible to ensure that the immigrant has had all of the relevant facts about his or her case presented and that all legal defenses to removal have been explored, explained, and understood. While some judges might like to believe that they are capable of ensuring that those appearing before them without counsel have the same chance of relief as those appearing with counsel, I know from my experience that this is simply not possible. I also know that my courtroom ran more efficiently when all parties were represented; frivolous arguments decreased, continuances decreased, and the number of appeals decreased as well. Simply put, a good judge knows that having competent counsel representing both parties yields a more efficient and just outcome.

Allow me to assure this council that, though representation by an attorney dramatically enhances any immigrant’s chance of success in immigration court, it by no means guarantees success. The immigration laws are sometimes rigid, by design. Relief is only available in those cases where the law explicitly permits it.

Moreover, serious criminal convictions often will exclude, by operation of law, even the most sympathetic petitioner from relief. In some instances, the presence of the conviction precludes relief altogether, in other cases, the judge must balance the equities, and for immigrants who have committed serious crimes, the equities usually weigh in favor of removal.

However, I maintain that all immigrants should have access to counsel, regardless of their history with the criminal justice system, because the only way an immigration judge can make a just, informed decision is if the immigrant facing removal has Due Process. And Due Process, particularly now, can only be guaranteed through the competent representation of an attorney.

I urge this council to leave to the immigration judges, a body expert in the immigration law, the task of determining what consequences a criminal conviction should have upon an immigrant’s ability to remain in the United States. Do not deny Due Process to any member of your community. Do not deny access to justice to immigrants facing removal, simply because of their criminal history. In doing so, you put the deserving and the underserving in the same category and risk denying relief to vulnerable, deserving members of your community.

The erstwhile vision of the Immigration Court, the vision which I helped develop in the late 1990s was for the court to “be the world’s best administrative tribunal[s] guaranteeing fairness and due process for all.” Instead, the Department of Justice’s ever-changing priorities and morbid fascination with increased detention as a means of deterrence have turned the Immigration Court system into a tool of enforcement.

I urge this council to vote in favor of the special appropriation and thank you for the opportunity to testify today.

*******************************

My friend and pro bono superstar Claudia Cubas, Litigation Director of the Capital Area Immigrants Rights (“CAIR”) Coalition was the “lead witness” favoring the proposal. It was “democracy in action” as folks with strong views both ways on the issue appeared to express their views to their elected representatives. As it should be!

PWS

05-02-18

U.S. IMMIGRATION JUDGE RODGER P. HARRIS REPORTEDLY STANDS TALL FOR DUE PROCESS AS NEW COURT SUIT ALLEGES THAT HIS COLLEAGUES ON THE IMMIGRATION BENCH IN CHARLOTTE, N.C. ARE SCOFFLAWS WHO FAIL TO HOLD LEGALLY REQUIRED BOND HEARINGS!

https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/archive/2018/01/18/lawsuit-challenges-immigration-judges-who-refuse-to-hold-bond-hearings-palacios-v-sessions.aspx?Redirected=true

From LexisNexis Immigration Community online:

“Lawsuit Challenges Immigration Judges Who Refuse to Hold Bond Hearings: Palacios v. Sessions

AIC, Jan. 17, 2018 –

“The government cannot lock people up without giving them access to prompt bond hearings and an opportunity to show that they should be released for the months or years that it takes to adjudicate their removal cases. This lawsuit challenges the actions of immigration judges in Charlotte, North Carolina who have done just that: refused to conduct bond hearings for people who properly file bond motions with the Charlotte Immigration Court. The case was filed as a class action in the U.S. District Court for the Western District of North Carolina by the American Immigration Council, the CAIR Coalition, and Cauley Forsythe Law Group.”

Complaint

Brief in Support of Motion for Class Certification”

****************************************

Go on over to LexisNexis Immigration Community at the link for the complete story.

Check out paragraph 6 of the Complaint which contrasts the conduct of Judge Harris, who holds bond hearing in accordance with the law and established procedures, and the alleged conduct of his judicial colleagues in Charlotte.

Not surprising to me! Judge Harris was my colleague for years at the U.S. Immigration Court in Arlington Virginia where he had a reputation for scrupulously following the law and providing full due process to all who came before him. Just like a U.S. Immigration Judge is supposed to do.

On the other hand, prior to Judge Harris’s arrival, the Charlotte Immigration Court had a reputation among the private bar, commentators, and the press as a place where due process was often given short shrift, particularly in asylum cases.

Of course, these are merely allegations at this time. We’ll see what happens as the case progresses in Federal District Court.

While Sessions, McHenry, and the “Falls Church Crew” are screwing around with imaginary “goals and timetables’ — untethered to reality in a system with a 660,000 backlog and no real plan for resolving it — these are the real due process problems that are festering in the U.S. Immigration Courts and denying individuals their legal right to due process on a regular basis. Where’s the concern from “on high” with a court system that’s failing in its mission to provide due process to individuals under our Constitution? Obviously, the problem starts with a “Scofflaw Attorney General” who cares more about expediting removals and a White Nationalist immigration enforcement agenda than he does about the Constitution, Due Process, and the integrity of the U.S. Immigration Court system.

We need an independent Article I U.S. Immigration Court now!

PWS

01-18-18

🇺🇸⚖️🗽Due Process Forever! Failed Courts Never!

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