"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.
“Petitioner Rodolfo Josue Tinoco Acevedo appeals an order of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for cancellation of removal. Because the BIA failed to address whether Tinoco Acevedo’s case should be remanded to a new immigration judge (“IJ”) under Matter of Y-S-L-C-, 26 I. & N. Dec. 688 (BIA 2015), we grant Tinoco Acevedo’s petition for review, vacate the order of removal, and remand to the BIA for further proceedings consistent with this opinion. … Rather than opine as to the exact grounds on which the BIA decided that the applicant was entitled to a new hearing before a new IJ in Matter of Y-S-L-C-, we remand for the BIA to interpret its precedent and address Tinoco Acevedo’s argument in the first instance. … we grant Tinoco Acevedo’s petition for review, vacate the order of removal, and remand for the BIA to consider whether Tinoco Acevedo is entitled to a new hearing before a different IJ because the initial IJ’s conduct—both during and following the hearing—failed to satisfy the high standard expected of IJs under Matter of Y-S-L-C-. PETITION FOR REVIEW GRANTED; VACATED AND REMANDED.” [Note: The IJ was Roxanne C. Hladylowycz.]
[Hats off once again to IRAC superlitigator Ben Winograd!]
Yet another example of the BIA not being familiar with and applying their own precedents where they could be favorable to the respondent. Any old boilerplate BS will do as long is the result is “dismiss and remove.”
It’s one thing for the BIA to articulate “high standards” for IJ conduct in Matter of Y-S-L-C-. It’s quite another to consistently enforce them where the lives of migrants are at stake!
It was a particularly bad idea for the BIA to spring this haphazard “good enough for government work” approach when Ben Winograd is appellate counsel. Winograd knows the BIA and 4th Circuit precedents better than most BIA judges. And, unlike the latter, he’s willing to stand up for immigrants’ legal rights!
It would be better for Garland and American justice — not to mention those seeking justice in Immigration Court, too often in vain — if brilliant, due-process-oriented “practical scholars” like Ben Winograd replaced the “holdover BIA judges” who aren’t up to the job of “guaranteeing fairness and due process for all.” Remarkably, there was a time in the past when that long disregarded judicial essential was the “vision” of EOIR.
Ironically, the Article III Judges of this 4th Circuit panel (Chief Judge Gregory, Circuit Judges Motz and Wynn) understand the critical requirements for EOIR judging better than AG Garland! That’s a problem (although, concededly, outside the “World of EOIR” Garland has had his best week as AG)!
This opinion was written by Chief Judge Roger Gregory. He continues to be a leader among Article III Judges who take due process and immigrants’ rights seriously! He’s also someone who “gets” the clear connection between immigrant justice (or, in too many cases lack thereof) and racial justice.
With the Chief Immigration Judge position now vacant, Judge Garland has a golden opportunity to appoint a “Judge Gregory clone” to that critical position. See, e.g., https://immigrationcourtside.com/wp-admin/post.php?post=30193&action=edit. That would also be a wise course for Garland to take to replace the current glaringly inadequate leadership at his failing BIA! How about Chief Appellate Immigration Judge/Chairman Ben Winograd?
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
EOIR Schedule: EOIR immigration judges are scheduled for a mandatory training session on Aug. 22, 2022, from 1pm to 5pm EST. The Chicago Immigration Court will re-set all non-detained cases scheduled for that afternoon; detained cases will go forward. It is unclear at this time if/how this affects other courts.
Roll Call: Senate Democrats stuck together and mostly voted against amendments to their tax, climate and health care package, while using a procedural maneuver to allow their vulnerable incumbents to vote for some that could score political points without actually making any changes to the bill [including on immigration].
The Atlantic: Over the past year and a half, [the Atlantic] has conducted more than 150 interviews and reviewed thousands of pages of internal government documents, some of which were turned over only after a multiyear lawsuit… The policy’s worst outcomes were all anticipated, and repeated internal and external warnings were ignored.
NPR: On Monday, New York Mayor Eric Adams announced a round of emergency contracts with local agencies and organizations to allow the city to respond to an increasing number of asylum-seekers entering the city’s homeless shelter system. See also Pentagon denies DC request for National Guard migrant help.
Block Club: Cook County Commissioner Alma Anaya and several immigrant rights organizations held a public hearing last week in which the county’s Legislation and Intergovernmental Relations Committee heard testimony from experts about how U.S. Immigration and Customs Enforcement uses data from companies like LexisNexis.
Border Chron: Facial recognition has become the primary biometric technology for CBP. Everyone who enters the country has their picture taken, though supposedly people can opt out (that often isn’t obvious, thanks to a lack of signage; I cross the border constantly and have never seen anything about opting out). The surveillance technology has also been deployed at 32 airports for people exiting the country. CBP partners with airports and airlines to add another layer to this private-public nexus.
AP: Lara Logan, a former Fox Nation host, recently claimed that U.S. Border Patrol agents are distributing Social Security numbers to immigrants at the border. A video of her comments has circulated widely across social media platforms… No such thing is happening, Rhonda Lawson, a spokesperson for the U.S. Customs and Border Protection, told the AP in an email.
NYCaribNews: Between September 2017 – when Moreno was suspended from the bar – and late September 2018, Moreno took on new clients, practiced law, and gave legal advice to scores of undocumented immigrants. In some instances, even predating his suspension, Moreno defrauded clients by falsely claiming that undocumented immigrants who have resided in the United States for over a decade could secure legal status, a fraud known as the “10-Year Green Card Scam.”
Law360: The U.S. Department of Homeland Security’s internal watchdog reported worker shortages at the military sites that provided a temporary refuge to Afghan evacuees, saying the understaffing left officials concerned they couldn’t properly meet Afghan nationals’ needs.
AP: The two-word docket entry read “judgment issued” to record that justices voted 5-4 in a ruling issued June 30 that the administration could scrap the “Remain in Mexico” policy, overruling a lower court that forced the policy to be reinstated in December.
BIA: A respondent who has made a timely objection to a noncompliant notice to appear is not generally required to show he or she was prejudiced by missing time or place information. An Immigration Judge may allow the Department Homeland Security to remedy a noncompliant notice to appear without ordering the termination of removal proceedings [Note: Except in CA7, pursuant to Arreola-Ochoa].
Law360: A Swedish plastic surgeon who served prison time for a $3 million tax evasion scheme should not be allowed back into the U.S., the Third Circuit ruled Thursday.
Law360: The Fourth Circuit gave a Salvadoran woman and her son a second chance at their asylum application, holding that an immigration judge didn’t give enough weight to her claim of death threats on the basis of religion.
Law360: The Ninth Circuit rejected a Mexico native’s bid to reopen his removal proceedings on grounds that his 1997 conviction was modified, saying none of the circumstances allowing the challenge of a removal applied to him.
Law360: The Ninth Circuit ruled that federal funds for criminal justice programs can’t be withheld from states and counties that don’t enforce immigration laws, upholding lower court decisions that found the denial an overreach of the U.S. Department of Justice’s authority.
Law360: The Eleventh Circuit affirmed Tuesday a deportation order against a Chilean green card holder who pled guilty to violating a Florida law criminalizing child neglect, while acknowledging that the trial court’s record of the conviction was “hopelessly opaque” and included the state judge specifying the criminal offense was for “whatever.”
LexisNexis: Drawing all inferences and viewing all evidence in the light most favorable to the government, the Court finds that plaintiffs have met their burden of showing that there is no genuine dispute as to any material fact, and that the waiver implementation guidance was arbitrary and capricious in violation of the APA.
Law360: A New York federal judge refused to modify an order resuming acceptance of new Deferred Action for Childhood Arrivals applications, saying clarification sought following a Texas judge’s barring new approvals was actually a request for additional relief.
Law360: A California federal judge has affirmed a U.S. Citizenship and Immigration Services decision to deny a Russian national permanent resident status, ruling that by installing and maintaining a security camera system for a cannabis grower, the person had participated in the trafficking of a Schedule I drug.
Law360: A Pennsylvania judge ordered U.S. Citizenship and Immigration Services to reconsider a man’s petition for his Turkish wife’s green card, saying the agency’s unreasonable delay in denying the petition unfairly hampered the couple’s ability to address the agency’s concerns.
Law360: A California federal judge ordered the Biden administration to revisit the tens of thousands of visa applications that were denied under Trump-era travel restrictions, finding that targeted foreigners were still bruised from the travel ban, long after its revocation.
USCIS: Certain EADs with a validity period of less than 2 years are now being automatically extended to align with the parole period shown on the beneficiary’s Form I-94, Arrival/Departure Record.
AILA: USCIS issued policy guidance in the USCIS Policy Manual to address the eligibility of military service members with uncharacterized military discharges for purposes for naturalization under section 328 or section 329 of the INA. Comments are due by 9/2/22.
EOIR: [EOIR] announced the appointment of 19 immigration judges to courts in California, Florida, Georgia, Illinois, Maryland, New Jersey, Tennessee, Texas, and Virginia.
EOIR: The Executive Office for Immigration Review (EOIR) today announced it has recently been notified of phone calls that spoof the Arlington Immigration Court as part of a misinformation campaign. The callers will often “spoof,” or fake, the immigration court’s main line, 703-305-1300, so the calls appear to be coming from EOIR on the recipient’s caller ID.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
Interestingly, none of the “perps” of child abuse by the Trump Administration has been held accountable. By contrast, many of their victims have suffered irreparable harm.
Trump officials provided “explicitly false formation” to intentionally mislead the public about the abusive, racist intent behind their program of intentional misconduct. So, why isn’t this a problem?
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
USCIS: This extends certain COVID-19-related flexibilities through Oct. 23, 2022, to assist applicants, petitioners, and requestors. The reproduced signature flexibility announced in March, 2020, will become permanent policy on July 25, 2022. But DHS To End COVID-19 Temporary Policy for Expired List B Identity Documents.
TRAC: One out of every six new cases DHS initiates in Immigration Court are now being dismissed because CBP officials are not filing the actual “Notice to Appear” (NTA) with the Court. The latest case-by-case Court records obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University through a series of Freedom of Information (FOIA) requests show a dramatic increase in these cases.
Buzzfeed: The US reached a settlement Thursday that establishes fingerprinting deadlines for parents and sponsors trying to get unaccompanied immigrant children out of government custody. Under the settlement, which expires in two years, the government has seven days to schedule fingerprinting appointments and 10 days to finish processing them.
CNN: The Biden administration is developing a new identification card for migrants to serve as a one-stop shop to access immigration files and, eventually, be accepted by the Transportation Security Administration for travel, according to two Homeland Security officials.
CBS: Officials in Arizona, Missouri, Texas and other GOP-controlled states have convinced federal judges, all but one of whom was appointed by former President Donald Trump, to block or set aside seven major immigration policies enacted or supported by Mr. Biden over the past year.
AP: Over the next 30 years, 143 million people are likely to be uprooted by rising seas, drought, searing temperatures and other climate catastrophes, according to the U.N.’s Intergovernmental Panel on Climate Change report published this year.
Reuters: Washington Mayor Muriel Bowser has requested the deployment of military troops to assist with migrants arriving on buses sent by the Texas and Arizona state governments, according to letters sent by her office to U.S. military and White House officials. See also Migrants Being Sent to NYC From Texas — to the Wrong Places, With No Help, Sources Say.
Documented: Advocates estimate that ICE moved dozens of individuals at the Orange County Jail in New York on Monday, and sent them to detention centers in Mississippi and elsewhere in New York, without prior notification to families or attorneys about the transfers.
Reuters: An estimated 6 million Venezuelans have fled economic collapse and insecurity in their home country in recent years, according to United Nations figures. Many have settled in other South American countries but some have traveled north.
BIA: The respondent’s conviction for unlawfully selling or otherwise disposing of a firearm or ammunition in violation of 18 U.S.C. § 922(d) (2018) does not render him removable as charged under section 237(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(C) (2018), because § 922(d) is categorically overbroad and indivisible relative to the definition of a firearms offense.
Law360: The Second Circuit ordered the Board of Immigration Appeals to revisit an indigenous Guatemalan mother and son’s bids for asylum and deportation relief, saying the agency failed to provide a sufficient premise for affirming an immigration judge’s denial of relief.
LexisNexis: An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of votes of the non-recused active judges in favor of en banc consideration.
Law360: Not knowing the law isn’t enough to excuse a Guatemalan union worker from missing the deadline to apply for asylum by three years, the Ninth Circuit said when it refused to overturn an immigration panel’s decision that the man’s circumstances weren’t “extraordinary.”
Law360: A panel of Ninth Circuit judges granted a petition to review an order rejecting a Mexican woman’s asylum bid Wednesday, saying in an unpublished opinion that the agency was wrong to determine that inconsistencies or omissions in her testimony undercut her credibility as a witness.
Law360: The D.C. Circuit has rejected requests from Afghan and Iraqi translators to alter a lower court’s order that granted the federal government an indefinite deadline extension to draft a plan for faster green card processing, ruling that reversing the order wasn’t necessary.
AILA: Advance Copy: DHS notice extending the designation of Syria for TPS for 18 months, from 10/1/22 through 3/31/24, and redesignating Syria for TPS for 18 months, effective 10/1/22 through 3/31/24. The notice will be published in the Federal Register on 8/1/22.
AILA: USCIS is experiencing delays in issuing receipts for Form I-589. For purposes of the asylum one-year filing deadline, affirmative asylum interview scheduling priorities, and EAD eligibility, the filing date will still be the date USCIS received the I-589 and not the date it was processed.
USCIS: USCIS is currently experiencing delays in issuing receipts for Form I-589, Application for Asylum and for Withholding of Removal. Due to these delays, you may not receive a receipt notice in a timely manner after you properly file your Form I-589.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
The foregoing sources also clearly illustrate that, with or without past persecution, such indigenous women would have a “reasonable fear” of persecution on account of their status under the generous standards for asylum adjudication articulated by the Supremes more than three decades ago in Cardoza-Fonseca and, shortly thereafter, reaffirmed and supposedly implementedby the BIA in Matter of Mogharrabi (a fear can be “objectively reasonable” even if persecution is significant unlikely to occur). Problem is: Both of these binding precedents favoring many, many more asylum grants are widely ignored by policy makers, USCIS, EOIR, and some Article III Courts — with no meaningful consequences!
Additionally, the respondents appear to have had grantable “racial persecution” claims based on indigenous ethnicity. The son, in addition to being a “derivative” on his mother’s application, also had an apparently grantable case based on disability.
In a functioning system, this case would have been quickly granted, the respondents would be integrating into and contributing to our nation with green cards, and they would be well on their way to U.S. citizenship. Indeed, there would be instructive BIA precedents that would prevent DHS from re-litigating what are essentially frivolous oppositions!
But, instead, after more than five years and proceedings at three levels of our justice system, the case remains unresolved. Because of egregious, unforced EOIR errors it is still “bouncing around” the 1.8+ millionEOIR backlog, following this remand from the Second Circuit.
Exceptionally poor BIA legal performance, enabling and supporting a debilitating “anti-immigrant/anti-asylum/racially derogatory culture of denial” at EOIR, has led to far, far too many improper asylum denials at the Immigration Judge level and to a dysfunctional system that just keeps on building backlog and producing grotesquely inconsistent, “Refugee Roulette” results! Go to TRAC Immigration and check out the shocking number of sitting IJs with absurd 90% or more “asylum denial rates.”
It also fuels the continuing GOP nativist blather that denies the truth about what is happening at our Southern Border. We are wrongfully denying legal protection and status to many, many qualified refugees — often without any process at all (let alone due process) and with a deeply flawed, biased, and fatally defective process for those who are able to “get into the system.” (Itself, an arbitrary and capricious decision made by lower level enforcement agents rather than experts in asylum adjudication).
The “unpublished” nature of this particular Second Circuit decision might lead one to conclude that the Article IIIs have lost interest in solving the problem, preferring to sweep it under the carpet as this pathetic attempt at a “below the radar screen” unpublished remand does. But, such timid “head in the sand” actions will not restore fairness and order to a system that now conspicuously lacks both! This dangerous, defective, unfair, and unprofessional abuse of our justice system needs to be “publicly called out!”
“The agency failed to evaluate any of the country conditions evidence relevant to Oliva-Oliva’s CAT claim.” So how is this acceptable professional performance by the BIA? And why is it being “swept under the carpet” by the Second Circuit rather than “trumpeted” as part of a demand that Garland fix his dysfunctional due-process-denying system, NOW?
Contrary to all the fictional “open borders nonsense” being pushed by the nativist right, the key to restoring order at the borders is generous, timely, efficient, professional granting of refuge to those who qualify, either by the Asylum Office or the Refugee Program. This, in turn, absolutely requires supervision, guidance, and review where necessary by an “different” EOIR functioning as a true “expert tribunal.”
That would finally tell us who belongs in the legal protection system and who doesn’t while screening and providing accurate profiles of both groups. The latter essential data is totally lacking under the absurdist, racially motivated, “rejection not protection” program of Trump, much of which has been retained by Biden or forced upon him by unqualified righty Federal Judges. But, we’ll never get there without meaningful, progressive, due-process focused EOIR reform!
There will be no justice at the Southern Border or in America as a whole without radical, long overdue, due process reforms at EOIR!
Last week, Mayor Bowser made a request for National Guard troops to be deployed to DC to help with the thousands of migrants arriving on charter buses from Texas and Arizona.
CAIR Coalition condemns this militarized response and calls for our government leaders to support and listen to the local groups that have consistently done the work on the ground to support the immigrant community in DC. There are other alternatives like providing additional funding to community groups to help with temporary lodging and other basic needs.
*********************
Bowser’s semi-nonsensical “emergency request” seems to be nothing more than a “cheap publicity stunt” at the expense of vulnerable asylum applicants and those in the community who are assisting them! And, it worked! She got lots of “play” in the news media.
But, just how would the National Guard actually assist in this largely “manufactured” and unnecessary humanitarian “crisis?”
Will they be transporting migrants from DC to their final destinations? Helping them find lawyers? Explaining their reporting obligations to DHS and EOIR? Finding them shelter in the area? Providing meals and caring for children?
Gimmie a break! Misusing the National Guard like this would also make them less available for real crises where they could help — like the flooding disaster in Kentucky!
What’s needed, as pointed out by CAIR, is sensible supplemental funding for community organizations and others who have been helping migrants resettle and process their cases. Also, shame on the Biden Administration for not getting “ahead of the curve” to provide Federal Government support to counter this entirely predictable and wholly avoidable publicity stunt created by Texas’s White Nationalist, scofflaw Governor Greg Abbott and mindlessly advanced by Mayor Browser’s misguided request!
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
USCIS: Starting Sept. 21, 2022, we will only accept the 07/15/22 edition. Until then, you can also use the 03/29/21 and 03/10/21 editions. You can find the edition date at the bottom of the page on the form and instructions.
Reuters: The justices on a 5-4 vote denied the Biden administration’s request to block a federal judge’s ruling that had prevented immigration officials from carrying out the enforcement guidelines while litigation over the legality of the policy continues. But the court said in a brief order that it would fast-track the Biden administration appeal and hear oral arguments in December.
AP: The National Association of Immigration Judges on Thursday asked the federal government to restore its union recognition after the Trump administration stripped its official status and the system’s chief judge resigned after two years on the job.
Guardian: In the last month alone, FFI has received more than 2,100 complaints nationwide. The most common abuse-related ones are anti-Black discriminatory actions, ranging from forced strip-searches and unprovoked pepper-spraying to prolonged solitary confinement and critical medical treatment negligence.
Politico: The data, harvested from apps on hundreds of millions of phones, allowed the Department of Homeland Security to obtain data on e points across North America, the documents show. Those data points may reference only a small portion of the information that CBP has obtained.
NYT: While migrants have long faced kidnappings and extortion in Mexican border cities, such incidents have been on the rise on the U.S. side, according to federal authorities. More than 5,046 people were arrested and charged with human smuggling last year, up from 2,762 in 2014.
VOA: Five years later, court documents show, more than 5,000 children were separated from their parents at the U.S.-Mexico border under a practice known as the zero tolerance policy for unauthorized border crossers. However, it was also used on migrants who presented themselves legally at ports of entry. Parents of 180 children have not yet been found by advocates working with families.
NPR: Former President Donald Trump’s administration spent years trying to add a census citizenship question as part of a secret strategy for altering the population numbers used to divide up seats in Congress and the Electoral College, internal documents released Wednesday by the House Oversight and Reform Committee confirm.
Law360: The U.S. Supreme Court on Thursday refused to reinstate President Joe Biden’s attempt to narrow immigration arrests and deportations to national security threats and other “priority” targets while his administration fights a court order that vacated the policy.
Law360: The Fifth Circuit has revived asylum claims from a woman who said she suffered a brutal home invasion by Angolan police over her political activities, rebuking an immigration judge for deeming her untruthful despite “largely consistent” testimony.
LexisNexis: Perez-Vasquez is correct that the BIA erred by failing to address key evidence…His case is REMANDED to the BIA for the limited purpose of considering—in light of the totality of the circumstances of his individual case—whether exceptional circumstances prevented his appearance at his removal hearing.
Law360: The Ninth Circuit ordered the Board of Immigration Appeals to reconsider a Guatemalan citizen’s bid for removal relief, saying that past torture, though relevant, was not required in determining whether he’d likely face future torture in Guatemala.
Law360: Immigration judges and the Board of Immigration don’t have the authority to reopen reinstated orders deporting immigrants and corresponding proceedings after a deported individual has reentered the country, even if those orders result in a “gross miscarriage of justice,” the Ninth Circuit held Monday.
Law360: A divided Ninth Circuit panel on Monday affirmed a district court’s order refusing to dismiss an indictment against a Mexican national charged with illegal reentry, finding that his drunk-driving and shoplifting convictions make it tough to show that he would have plausibly been granted voluntary departure relief.
Law360: An immigrant who crossed the U.S.-Mexico border in 2003 cannot challenge removal proceedings launched when he didn’t appear for a hearing, despite a defect in the notice he received, because a subsequent notice had complete information, the Eleventh Circuit has ruled in a split with the Ninth Circuit.
Law360: A divided D.C. Circuit panel on Friday ruled agencies cannot simply withdraw a new rule, even if it has not yet been published in the Federal Register, once that rule has been subject to public inspection.
Law360: Immigrants detained at the Baker County Detention Center in northern Florida filed a federal civil rights complaint Thursday asking for the immediate closure of the facility because of inhumane treatment and abuse.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
USCIS: Starting Sept. 21, 2022, we will only accept the 07/15/22 edition. Until then, you can also use the 03/29/21 and 03/10/21 editions. You can find the edition date at the bottom of the page on the form and instructions.
Reuters: The justices on a 5-4 vote denied the Biden administration’s request to block a federal judge’s ruling that had prevented immigration officials from carrying out the enforcement guidelines while litigation over the legality of the policy continues. But the court said in a brief order that it would fast-track the Biden administration appeal and hear oral arguments in December.
AP: The National Association of Immigration Judges on Thursday asked the federal government to restore its union recognition after the Trump administration stripped its official status and the system’s chief judge resigned after two years on the job.
Guardian: In the last month alone, FFI has received more than 2,100 complaints nationwide. The most common abuse-related ones are anti-Black discriminatory actions, ranging from forced strip-searches and unprovoked pepper-spraying to prolonged solitary confinement and critical medical treatment negligence.
Politico: The data, harvested from apps on hundreds of millions of phones, allowed the Department of Homeland Security to obtain data on more than 336,000 location data points across North America, the documents show. Those data points may reference only a small portion of the information that CBP has obtained.
NYT: While migrants have long faced kidnappings and extortion in Mexican border cities, such incidents have been on the rise on the U.S. side, according to federal authorities. More than 5,046 people were arrested and charged with human smuggling last year, up from 2,762 in 2014.
VOA: Five years later, court documents show, more than 5,000 children were separated from their parents at the U.S.-Mexico border under a practice known as the zero tolerance policy for unauthorized border crossers. However, it was also used on migrants who presented themselves legally at ports of entry. Parents of 180 children have not yet been found by advocates working with families.
NPR: Former President Donald Trump’s administration spent years trying to add a census citizenship question as part of a secret strategy for altering the population numbers used to divide up seats in Congress and the Electoral College, internal documents released Wednesday by the House Oversight and Reform Committee confirm.
Law360: The U.S. Supreme Court on Thursday refused to reinstate President Joe Biden’s attempt to narrow immigration arrests and deportations to national security threats and other “priority” targets while his administration fights a court order that vacated the policy.
Law360: The Fifth Circuit has revived asylum claims from a woman who said she suffered a brutal home invasion by Angolan police over her political activities, rebuking an immigration judge for deeming her untruthful despite “largely consistent” testimony.
LexisNexis: Perez-Vasquez is correct that the BIA erred by failing to address key evidence…His case is REMANDED to the BIA for the limited purpose of considering—in light of the totality of the circumstances of his individual case—whether exceptional circumstances prevented his appearance at his removal hearing.
Law360: The Ninth Circuit ordered the Board of Immigration Appeals to reconsider a Guatemalan citizen’s bid for removal relief, saying that past torture, though relevant, was not required in determining whether he’d likely face future torture in Guatemala.
Law360: Immigration judges and the Board of Immigration don’t have the authority to reopen reinstated orders deporting immigrants and corresponding proceedings after a deported individual has reentered the country, even if those orders result in a “gross miscarriage of justice,” the Ninth Circuit held Monday.
Law360: A divided Ninth Circuit panel on Monday affirmed a district court’s order refusing to dismiss an indictment against a Mexican national charged with illegal reentry, finding that his drunk-driving and shoplifting convictions make it tough to show that he would have plausibly been granted voluntary departure relief.
Law360: An immigrant who crossed the U.S.-Mexico border in 2003 cannot challenge removal proceedings launched when he didn’t appear for a hearing, despite a defect in the notice he received, because a subsequent notice had complete information, the Eleventh Circuit has ruled in a split with the Ninth Circuit.
Law360: A divided D.C. Circuit panel on Friday ruled agencies cannot simply withdraw a new rule, even if it has not yet been published in the Federal Register, once that rule has been subject to public inspection.
Law360: Immigrants detained at the Baker County Detention Center in northern Florida filed a federal civil rights complaint Thursday asking for the immediate closure of the facility because of inhumane treatment and abuse.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
Failed “deterrence” gimmicks and righty Federal Judges who enable them by not standing up against anti-immigrant racism thinly disguised as security or health measures are a bad combination.
CAUTION: You are about to enter AG Merrick Garland’s “Twilight Zone” — where “judges” operating in a parallel universe make surreal decisions without regard to facts, law, or common sense applicable in this world! The Twilight Zone Billy Mumy 1961.jpg :PHOTO: Public Realm
Another timely report from Dan Kowalski @ LexisNexis:
“Perez-Vasquez is correct that the BIA erred by failing to address key evidence. See Cabrera v. Sessions, 890 F.3d 153, 162 (5th Cir. 2018). Specifically, the BIA did not consider several factors he raised in his motion to reopen as to whether exceptional circumstances prevented his appearance at his removal hearing, including evidence of: (1) Perez’s multiple attempts to contact both the Portland and El Paso immigration courts; (2) the fact that he filed two change of address forms because the El Paso immigration court sent the notice of hearing to the wrong address after he filed his first one; (3) the fact that his hearing was set in El Paso—where his son was detained—as opposed to Portland despite informing officials that he was going to reside in Oregon; (4) his financial constraints in travelling to El Paso with three-days notice. See Matter of S-L-H- & L-B-L-, 28 I. & N. Dec. 318, 321 & n.4 (BIA 2021); see also Magdaleno de Morales v. INS, 116 F.3d 145, 148 (5th Cir. 1997) (considering whether alien attempted to contact the immigration court prior to hearing). Additionally, the BIA failed to address evidence of Perez’s regular check-ins with immigration officials and his diligence in filing a motion to reopen, which tend to show an incentive to appear. See Matter of S-L-H- & L-B-L-, 28 I. & N. Dec. at 321. … Perez-Vasquez’s petition for review is GRANTED in part, DISMISSED in part, and DENIED in part. His case is REMANDED to the BIA for the limited purpose of considering—in light of the totality of the circumstances of his individual case—whether exceptional circumstances prevented his appearance at his removal hearing.”
[Hats off to NIPNLG Director of Legal Resources and Training Michelle N. Méndez!]
Michelle N. Mendez, ESQ Director of Legal Resources and Training National Immigration Project, National Lawyers Guild PHOTO: NIPNLG
**********************
The facts of this case are somewhere out there in the “twilight zone.” Would any other tribunal in America waste two decisions denying an individual a fair hearing in this situation?
But, sadly, it’s what we have come to expect from a failing organization that is more interested in denying the right to be heard than in conducting hearings! Of course, EOIR is building record backlogs with “Aimless Docket Reshuffling,” lousy leadership, bad, often anti-immigrant, jurisprudence, and infinite tolerance for substandard performance within its ranks! Enough!
Congratulation Michelle, my friend, to you and your all-star team over at NIPNLG. Perhaps the worst mistake that Garland has made as AG was not immediately “cleaning house” at EOIR and appointing folks like Michelle and others from the NDPA to fix the system: At long last, bring practical scholarship, creative thinking, “experience in the trenches,” and an unswerving commitment to due process into a dysfunctional organization and “take names and kick tail” of those judges and others who are still “with” the mindless, immoral, counterproductive, and wrong-headed “any reason to deny/courts as a soft deterrent” approach of the former Administration.
The EOIR system needs real, dynamic intellectual leaders and widely-respected, innovative, courageous “practical scholars” like Michelle! A few such folks exist in today’s EOIR. But, they are essentially buried in the “forest of intellectual and moral deadwood” that Garland has not yet cleared out!
We are well into the Biden/Harris Administration; but, bad and poorly qualified judges and weak or inept administrators from the Trump and Obama Administrations (or even Bush II) are still wreaking havoc on American justice and threatening our democracy.
By contrast, if not invited to fix the broken EOIR system “from the inside” Michelle and the other members of the NDPA are going to force change from the outside! You can count on it! They will keep at it until this dysfunctional, unfair, and mal-administered system either reforms or collapses under the weight of its own incompetence, cruelty, inefficiency, and just plain stupidity!
Consistently getting these cases right (an MTR, for Pete’s sake) isn’t “rocket science.” A competent IJ would have taken about 5 minutes or less to mark this “granted” and change venue to Portland. A competent appellate tribunal would have reversed and rocketed it back to the IJ with instructions to “cut the BS.”
But, it continues to be elusive for Garland’s “gang that can’t shoot straight!” This system “coddles” poorly performing judges at both levels!
Meanwhile, they “throw the book” at desperate individuals trying their best to navigate EOIR’s broken, irrational, and intentionally “user unfriendly” parody of a “court system.” It is truly the “Twilight Zone of American Justice!”
Think of it: Four years, three tribunals, at least five Federal Judges, and a bevy of lawyers and clerks have spent time on this case. And, EOIR is no nearer to getting to the merits than the day the NTA was issued! This system needs “practical problem solvers” like Michelle, NOT “stuck in the mud” bureaucrats masquerading as judges, professional judicial leaders, and role models.
Tell Garland it’s time for a better, smarter approach to justice at EOIR! The real talent is out here! What’s he waiting for?
Is she the “Debbie Anker of Entertainment?” PHOTO: Mason Poole, CC BY 4.0 <https://creativecommons.org/licenses/by/4.0>, via Wikimedia Commons
Hon. “Sir Jeffrey” S. Chase writes:
What a beautiful tribute to a true giant and hero. I can’t even begin to state the influence Debbie has had on me. But think of how many NDPA heroes out there are former students of hers, and how many immigration law clinics around the country relied on Debbie’s clinic at Harvard as its model. It’s impossible to overstate her impact.
Clinical Professor Deborah Anker LL.M. ’84, ‘one of the architects of modern refugee law’ and founder of the Harvard Immigration and Refugee Clinical Program, moves to emerita status
By Debbie/HLS Correspondent, July 20, 2022
Credit: Kathleen Dooher
As Harvard Law School Clinical Professor Deborah Anker LL.M. ’84 moves to emerita status, she and her many students and colleagues can reflect on her formidable record of achievement — as a pioneer in the study of refugee and asylum law, the author of the seminal text on the subject, and a tireless advocate for the rights of refugees, particularly women and children. As her former student Molly Linhorst ’16 puts it — quoting a sentiment voiced by many of Anker’s admirers — “She’s the Beyoncé of asylum law.”
“As founding director of the Harvard Immigration and Refugee Clinic, Deborah Anker has played a pivotal role at Harvard Law School, not only by founding our clinic but in helping build our clinical program,” Harvard Law School Dean John F. Manning ’85, the Morgan and Helen Chu Dean and Professor of Law at Harvard Law School. “Her work in the clinic enabled countless clients to enjoy freedom and escape persecution by remaining in the U.S., and she trained and inspired scores of other lawyers to work to those same ends.”
“Debbie wins the prize for tenacity in terms of standing up for refugee rights in America,” says James Hathaway, prominent international refugee law scholar and founding director of Michigan Law’s Program in Refugee and Asylum Law. “Literally nobody has fought the good fight as often as she has done. But she is also an intellectual trailblazer, having, in particular, developed a gender-inclusive understanding of refugee status, and having made the case for the alignment of American understandings of asylum with our international obligations. She truly is a hero.”
Groundbreaking scholarship and litigation
A pioneer in the development of clinical legal education in the immigration field, Anker joined the Harvard Law faculty in the early ’80s, as a lecturer on law and later clinical professor of law in 2008. Along with her colleagues Nancy Kelly and John Wilshire-Carrera, Anker founded the Harvard Immigration and Refugee Clinical Program, or HIRC, which has since become a model for similar clinics nationwide. Her book, “Law of Asylum in the United States,” first published in 1998 under the editorship of former student Paul Lufkin and now updated annually with a cadre of HLS student editors, remains the key authoritative text in the area. She also has authored numerous amicus curiae briefs in major refugee litigation, served as an expert witness before national and international fora, and helped draft national gender refugee guidelines.
Harvard Law Clinical Professor Sabrineh Ardalan ’02, Anker’s former student and the current faculty director of HIRC, credits its significant expansion over the decades to Anker’s “commitment to advocating for immigrants’ rights and dedication to responding to the evolving challenges facing immigrants and refugees in the U.S.”
In addition to the clinical work at Greater Boston Legal Services, overseen by Kelly and Willshire Carrera, “HIRC now includes two clinics, a student practice organization [SPO], and the Harvard Representation Initiative, which serves members of the Harvard community whose immigration status is at risk. In addition to the flagship Immigration and Refugee Advocacy Clinic, there is now a Crimmigration Clinic, led and directed by Phil Torrey, which focuses on cutting-edge appellate and district court advocacy at the intersection of immigration and criminal law. And through the HLS Immigration Project, the student-practice organization, students can hit the ground running with hands-on immigration and refugee advocacy their 1L year,” said Ardalan. “Debbie built a team at HIRC that now supervises over 140 HLS students each year through the two clinics and SPO and in so doing, centered immigration and refugee law as a core component of HLS’s clinical program.”
Credit: Tsar Fedorsky Anker (left) in 2011 with HIRC students Gianna Borotto ’11 and Defne Canset Ozgediz ’11, and Sabrineh Ardalan ’02. Ardalan is Anker’s former student and the current faculty director of HIRC.
Committed to justice from an early age
Raised in New York, Anker graduated magna cum laude from Brandeis University, and went on to earn her J.D. from Northeastern before continuing her legal studies at Harvard. Even before she began formal studies, Anker was invested in the study of and advocacy for human rights. She credits that in large part to her family history and values: Her Jewish grandparents crossed the Atlantic to escape the persecution leading to the Holocaust, and both of her parents were committed public school educators. Her father was a New York City Schools chancellor during desegregation. “The belief in the equality of all people was central to how I was raised,” she said.
“From my family I got deep beliefs and commitment to anti-racism. I have a strong memory of my father telling me about Ralph Bunche, a Nobel Peace Prize recipient, one of the founders of the United Nations, leading actor in the mid-20th-century decolonization process and U.S. civil rights movement, and recipient of the Presidential Medal of Freedom,” said Anker. According to her father, Anker reports, Bunche was discriminated in obtaining housing, and refused membership in a neighboring tennis club in the area of Queens where Anker’s family moved in her early teenage years. “That was something that stuck with me,” she said. Early in her legal career, Anker represented a Black family that had moved into Dorchester during desegregation and was subject to violent attacks; this was one of the cases covered in J. Anthony Lukas’ classic 1985 book, “Common Ground.” “For me personally, a commitment to racial justice was central to my identity,” she says.
Anker credits the late Harvard Law School public interest professor Gary Bellow ’60, founder and former faculty director of Harvard Law School’s clinical programs, with advising, advocating and paving the way for her engagement in clinical education at the law school.
She also credits the ‘extraordinary determination and integrity’ of Lisa Dealy, former assistant dean of clinical education, with whom Anker worked closely, in helping to expand the school’s clinical program.
In 1984, when Anker, along with Kelly and Willshire Carrera founded the Immigration and Refugee Advocacy Clinic, the study of immigration law was still in its infancy, and clinical education was relatively new in legal education.
And, according to Kelly, Anker was writing the law from the beginning. “The article she co-authored on the legislative history of the Refugee Act [and] shaped how that law would be interpreted, with the U.S. Supreme Court citing it in support of an internationalist approach to refugee and asylum law, grounded in our treaty obligations, as signatories to the U.N. Protocol relating to the Status of Refugees,” said Kelly. “She authored some of the first empirical studies of immigration adjudication and co-authored the first study of the expedited removal process for addressing the claims of asylum seekers at the U.S. border.”
According to Willshire Carrera, Anker “believes in bringing the reality of the law as it is experienced by real people into the classroom and into scholarship. We developed an approach of ‘legal change from the bottom up,’ changing ground-level legal institutions, which set the stage for changes at higher levels, including in precedent decisions in the federal courts.” From its earliest years, HIRC worked to bring administrative decision-making out of the shadows, publishing administrative asylum decisions, which were otherwise inaccessible to advocates and researchers.
During these early years, Anker also worked with Hathaway, who developed a structured human rights approach to interpretation of refugee law, an approach HIRC would adopt including in much of its women’s refugee work.
Credit: Kris Snibbe/Harvard Staff Photographer Anker (pictured here in 2014) with (from left) Julina Guo ’14, John Wilshire Carrera, and Nancy Kelly. Wilshire Carrera and Kelly founded the Harvard Immigration and Refugee Clinic with Anker in 1984.
Anker’s background in racial justice led her to work with Haitian refugees beginning in the mid 1980s. “I got to know civil rights lawyer Ira Kurzban, who was leading the charge on behalf of Haitian refugees fleeing a horrible and violent dictatorship, which the U.S. had backed.” Among other work, Kurzban engaged Anker as an expert witness on U.S. asylum law, in challenges he brought based on discriminatory detention and treatment generally of Haitian refugees. She would continue to be called in as an expert, including later in challenges brought by Canadian NGOs in 2005 and 2017 to exclusionary policies of the Canadian government, refusing entry to asylum seekers coming from the U.S. under the Safe Third Country Agreement.
The Canadian Supreme Court will soon issue a ruling on whether the Canadian policy of returning asylum seekers to the U.S. complies with the Canadian Charter and international law. Canadian attorney Andrew Bouwer praised Anker’s work on the Safe Third Country Agreement and says he looks forward to her continued advocacy on these issues. “Professor Anker is a force of nature! Working with her on Canada-US border issues, especially the inhumane Canada-U.S. Safe Third Country Agreement, these past 17 years has been an incredible honor and a highlight of my practice.”
Also in the 1980s, Anker helped found the Boston Committee against Deportation, defending a group of Haitians who were arrested by immigration authorities as they attempted to organize a union at Faneuil Hall market place.
HIRC continued this work with Haitian refugees who fled again during the 1990s after the violent overthrow of Haiti’s first democratically elected president, Jean Bertrand Aristide. HIRC’s early engagement with Haitian refugees led to groundbreaking work on gender asylum. “After President Aristide was deposed, there were security forces who went into women’s houses (the men had mostly fled) and raped them, because they were known, or assumed to be, supporters of Aristide,” explained Anker. “So it was really rape used as punishment based on ‘political opinion,’ one of the grounds of protection in the refugee treaty to which the U.S. is a party.”
Working in conjunction with other groups, HIRC got the administrative Board of Immigration Appeals to recognize that this was a form of what the agency called “grievous harm,” which HIRC argued fit the concept of persecution. “This case, Matter of D.V., was the first administrative gender asylum decision; along with others, we were able to convince the board to publish it as a precedent decision,” said Anker.
Meanwhile, the group traveled to Haiti to collect affidavits; their work ultimately led the Inter-American Commission on Human Rights to make the first finding by an international human rights body that rape could constitute torture.
This in turn contributed to greater global awareness of violence against women within a human rights framework. Canadian NGOs and academics took the lead, particularly through the Canadian Immigration and Refugee Board. “The Canadians worked up an amazing series of guidelines, and we [the HIRC] took those and adapted them to American law,” Anker said. “We published these and asked the U.S. government to take our guidelines and issue official government guidelines, based on them — and in fact, they did that.” Later, HIRC led a major amicus effort, drafting a brief to the then-attorney general signed by 187 organizations and individuals, arguing that violence against women in the “domestic” sphere, that is, in the home by sexual intimates, could be the basis for protection. Eventually the attorney general reversed an original denial and the petitioner, represented by the Center for Gender and Refugee Studies, was granted asylum.
(HIRC was) committed to having legal education grounded in actual clients’ experiences of persecution. … We set a precedent that law school clinics are not just a place to do policy work or major litigation, but also a place to engage with clients, to get to know them and to help them articulate their experiences. … I am grateful to the law school for allowing us to advance that approach to legal advocacy and education.
Deborah Ankernone
Personal involvement became key in Anker’s approach to teaching. “We were committed to having legal education grounded in actual clients’ experiences of persecution. Students represented clients and learned to help them tell their stories. We then gave them the time to reflect in class and to write about it. We set a precedent that law school clinics are not just a place to do policy work or major litigation, but also a place to engage with clients, to get to know them, and to help them articulate their experiences,” said Anker. “I am grateful to the law school for allowing us to advance that approach to legal advocacy and education. We now have such a rich and diverse clinical education program at the law school, which has developed in many different directions – client work, policy advocacy, regulatory reform, as well as litigation.”
Anker also points to the clinic’s work with the United Nations High Commissioner for Refugees (UNHCR) to develop general guidelines for international refugee law.
“My perception was that few academics and major practitioners around that time, the mid to late 1990’s, were thinking conceptually about this. Jim Hathaway’s work was a major force in bringing a principled, and importantly structured, human rights approach to interpretation of refugee law,” said Anker. “We got the UNHCR to adopt general guidelines recognizing gender itself as a category of protection within the refugee treaty’s ‘particular social group’ ground. In the amicus work we have done over the years, we have stuck to this approach and increasingly federal courts as well as some administrative decision makers are recognizing that gender itself can be a basis for protection, including in the ground-breaking 2020 First Circuit decision in De Pena-Paniagua v.Barr, which directly adopted language from HIRC’s lead amicus brief.”
HIRC has continued to expand its scope, working in recent years with students who were eligible for DREAM Act protection. Most recently, Anker and the group have worked on climate change and refugee law, pushing for interpretations of the law to account for the large-scale climate-based displacement that is already occurring in Central America and is expected to worsen. “We need to show decision makers and policy makers that displacement is caused by multitudes of factors and a person can qualify for protection if part of the cause is environmental,” said Anker.
“Our work has always been informed by what is happening,” Kelly said. “The gender work came from a sense of, ‘Where are the women in this system? They don’t seem to be represented’. The Haiti work was geared toward what happened to Haitian women after the coup in 1991. That brought the reality home of what was happening to Haitian women, and got that recognized in a legal context that could then be brought back to cases in the US. The two are integrally connected.”
“We pride ourselves on doing work from the ground up,” Willshire Carrera said. “We’ve had a large number of students who have gone on to be major contributors in the development of asylum law in the country. One thing for sure is that the clinic is now very well recognized. So much of that has to do with Debbie.”
Former students pay tribute
Ardalan, who now directs HIRC, acknowledges a significant personal influence. “Debbie has shaped the course of my life. I have learned so much from her advocacy and scholarship, from her empathy in working with clients, from her tremendous care for her students and colleagues, and from her incredible persistence in continuing to fight against injustice no matter what the odds. She has modeled for me how to approach teaching and lawyering with dedication, humility, strength, and compassion.”
Anker’s influence also goes far beyond Harvard Law School. According to Mark Fleming ’97, who studied with her at Harvard Law and is now a partner at WilmerHale, “Debbie’s contribution to how young lawyers thought about immigration law really can’t be overstated. She was the first person I met at HLS who was not only a gifted academic, but devoted to using her knowledge to represent clients. She used her knowledge to manage a significant group of people who were trying to push immigration law in a good direction and to help people who needed it. That was a new thing to me.”
Fleming currently does pro bono work in the immigration field and cites this as an example of Anker’s influence. “One of the more important lessons she taught me is that immigrants who come to our country are thrown into a very complicated system without anybody to help them. She showed me that things immediately change when a lawyer shows up, so a pro bono lawyer can make an enormous difference.” This, he said, goes back to his days at Harvard Law. “As a law student, the opportunity to walk down the street, to what used to be called Cambridge and Somerville Legal Services, had an impact. First of all, it was terrifying, because I had no idea what to do. But also very rewarding, because people in the system are otherwise forced to navigate it by themselves.”
“Debbie’s seminar influenced the way I think about asylum,” said Fatma Marouf ’02, who now directs the Immigration Rights Clinic at Texas A&M University School of Law. “The way she talked about absorbing each person’s story, I never forgot that. She walked us through each element of her incredible text about the law of asylum, and made sure we had a great understanding of it. She helped us connect the cases we were working on with the thinking behind it. And I loved that she really got in an international perspective — not just U.S. asylum law but how the U.K., Canada, Australia might approach it.”
Marouf particularly credits Anker with emphasizing the connection between asylum and human rights law. “When I teach my own clinic I talk about the importance of bringing in a comparative perspective of what asylum should be, versus how it is — and that’s all Debbie’s. I don’t know if I could have gone into immigration law without her, much less fallen in love with teaching.”
Credit: Brooks Kraft
“She built a program at a time when immigration clinics were not found at many law schools,” said David B. Thronson ’94, who went on to teach international human rights law at Michigan State University. “Part of what impressed me from the beginning is that her work is absolutely compelling and consequential; it changes peoples’ lives. You’re talking about people who are going to face persecution in their home countries if they are returned. It’s not an equal fight, the stakes and the consequences are high and their resources are often minimal; the government is always well represented but the migrant seldom is. To find someone with Debbie’s expertise and willingness to take on those issues — and who is also a tremendously human person that you can get to know — makes a huge difference, and it was a really defining law-school experience for me.”
That experience stuck with Thronson through his career. “I got the realization that things could go together; I could be a professor and still make a difference in the real world, representing clients — and hopefully I can do that in a way that lets my students grow and have good experiences. Debbie taught me that those aren’t mutually exclusive things to do.”
Another former student, Rebecca Sharpless ’94, now directs the immigration clinic at the University of Miami School of Law. “Debbie was the single most influential professor during my time at HLS. As I started my first year, I knew that I wanted to be a social justice lawyer, but I didn’t know what kind. Debbie taught me the urgency and importance of working with immigrants. Her work on some of the most difficult issues relating to the protection of refugees has been pathbreaking, but to me she is first and foremost a teacher and mentor. Under her guidance, I argued in immigration court, organized a trip to Miami to help Haitian refugees, and contributed to federal court briefing. Without a doubt, she made me into the immigration lawyer and teacher that I am today.”
Looking back on a lifetime of impact
Anker has been designated a Woman of Justice by the Massachusetts Bar Association, and in 2011 was elected as a fellow to the American Bar Foundation. The HIRC’s Women’s Refugee Project, which spearheaded work on gender asylum, received the American Immigration Lawyers Association’s (AILA) most prestigious “Founders Award.” HIRC also received AILA’s Human rights award for its work in clinical legal education and advocacy on behalf of refugees. Anker has received AILA’s Elmer Fried Excellence in Teaching Award; two awards for gender asylum work from the Federal Bar Association; the Massachusetts Governor’s New American Appreciation Award; and the CARECEN Award from the Central American Refugee Center.
Presenting her with the latter honor, lead attorney Patrick Young called Anker “one of the architects of modern refugee law. She really defined the field from its inception and her essays and her seminal treatise, ‘Law of Asylum in the United States,’ have helped educate and train two generations of asylum lawyers. Without her thoughtful guidance, it is doubtful CARECEN and many other refugee defense programs could have succeeded in protecting the persecuted as effectively as we have.”
In addition to those already mentioned, Anker notes that “HIRC and I are so fortunate to have on staff attorneys Sameer Ahmed, Jason Corral, Tiffany Lieu, Mariam Liberles and Cindy Zapata. HIRC’s staff also includes our head of social work, Liala Buoniconti; paralegal Karina Buruca; Mary Hewey; and Anna Weick, our chief administrator.” Anker credits her faculty assistant, Sophie Jean, as being an incredible resource, organizing work on “Law of Asylum” research with students, among other invaluable assistance. “Not much can be accomplished without her amazing intelligence and commitment, and of course thank you to those who have come and gone like the incomparable Jordana Arias, a force of nature, and all my assistants going way back to wonderful Delona Wilkins.”
In entering emerita status, Anker reflects back with much gratitude at the opportunities she has been given. “I love this community and I love this work. It truly has been an honor. I am so very grateful.”
***************************
Thanks and many congrats, Debbie, my long-time friend, for all you have done for due process, justice, humanity, and the future generations of the “New Due Process Army!” I wholeheartedly concur in the comments of my friend and Round Table colleague “Sir Jeffrey!” Through your intellectual brilliance, moral courage, extraordinary leadership, and ability to teach and inspire others, you have certainly left a permanent mark on the worldwide, eternal quest for justice!
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
Reuters: The 10th U.S. Circuit Court of Appeals in a 2-1 decision said the law, which is part of a broader statute barring human smuggling, criminalizes “vast amounts of protected speech” such as urging family members to remain in the U.S. after their visas expire or informing non-citizens about available social services.
CBS: The head of U.S. Immigration and Customs Enforcement (ICE) has directed agents to take several steps to protect the parental rights of immigrant detainees with underage or incapacitated children, according to an agency memo published Thursday.
Roll Call: One House office said their USCIS-related casework in 2021 was more than triple what it was in 2020, while another reported receiving more than a dozen USCIS-related requests each day from constituents.
TRAC: The latest case-by-case records show that the Immigration Court backlog reached 1,821,440 at the end of June 2022. This is up 25 percent from the backlog just at the beginning of this fiscal year.
TRAC: The federal government is facing a flurry of lawsuits for failing to take action on a variety of immigration-related applications. In May 2022, the federal civil courts recorded 647 immigration-related lawsuits for writs of mandamus (a type of lawsuit that seeks to compel the government to take a lawful action) and other immigration actions, the vast majority of which were linked to procedural delays or decisions by the Department of Homeland Security.
NPR: It would do this by allowing more farmers — like dairy and pork producers — to hire temporary workers year-round. Currently, year-round employers cannot use that worker visa program, known as the H-2A temporary agricultural program used by seasonal employers. It would also satisfy some goals for labor rights advocates by providing a pathway to legalization for workers who show a dedicated history of farm work.
Reuters: The United States will simplify the application process for Afghan special immigrant visas with applicants only needing to file one form, according to a statement issued on Monday by the Department of Homeland Security (DHS).
Truth Out: While the Court unexpectedly decided to allow Biden to end the Trump-era Remain in Mexico policy, it is still unclear what the Supreme Court will decide regarding deportations. In the interim, the fate of immigrants attempting to migrate to the country will be in the hands of local Immigration and Customs Enforcement officers’ own determinations.
AP: A series of agreements the two countries hammered out as their leaders spoke called for several other concrete moves, including expanding the number of work visas the U.S. issues, creating a bilateral working group on labor migration pathways and worker protections and welcoming more refugees. Both also pledged to continue joint patrols for Mexico and Guatemala to hunt human smugglers along their shared border.
ReliefWeb: The amendments passed out of the House Appropriations Committee are particularly harmful because they make Title 42’s rescission contingent on termination of the COVID-19 emergency declaration, a decision with widespread public health and safety ramifications.
USCIS: To help demystify the naturalization process and share the life-changing impact of U.S. citizenship, USCIS selected eight community leaders across the United States to connect with aspiring citizens. Newly selected citizenship ambassadors will connect eligible populations with the USCIS mission by: Sharing their own experiences with the naturalization process;
Highlighting available information and resources; Emphasizing the advantages of U.S. citizenship; Addressing myths and misconceptions; and Providing inspiration for others pursuing citizenship.
Law360: Texas, Louisiana and 19 other Republican-led states have urged the U.S. Supreme Court to continue blocking the Biden administration from focusing removal efforts only on certain groups of migrants, arguing that not only they but the whole U.S. will suffer from the strategy’s alleged ill effects if it is allowed to go into effect.
Law360: The Fifth Circuit said a Guatemalan immigrant couldn’t use a faulty notice to appear in immigration court to contest a 17-year-old removal order, saying he wasn’t entitled to proper notice as he hadn’t given immigration officers his home address.
Law360: The full Ninth Circuit unanimously ruled that the government can prosecute an immigrant for reentering the U.S. after being ordered removed, upholding the validity of the initial deportation order despite defects in the government’s notice for the immigrant to appear in immigration court.
Law360: The Tenth Circuit struck down as unconstitutional a federal immigration law that made it a crime to encourage noncitizens to enter or live in the United States, saying the law violated free speech protections under the First Amendment.
CNN: A nurse at the privately run Stewart Detention Center in Lumpkin, Georgia, according to the complaint, took advantage of his position to coerce the women “into giving him access to private parts of their body without medical justification or need.”
WaPo: An immigrant detention center in Virginia’s Farmville community that saw more than 300 inmates infected by the coronavirus in 2020, one of whom died, will be limited to a quarter of its capacity under a federal court settlement.
ICE: It is the policy of ICE to ensure that the agency’s civil immigration enforcement activities do not unnecessarily disrupt or infringe upon the parental or guardianship rights of noncitizen parents or legal guardians of minor children or incapacitated adults, consistent with all legal obligations and applicable court orders.
USCIS: The U.S. Department of Homeland Security (DHS) has extended the time beneficiaries paroled into the United States under Uniting for Ukraine have to attest to their compliance with the medical screening for tuberculosis and additional vaccinations, if required.
AILA: The CIS Ombudsman’s Office provides a reminder that USCIS updated the special instructions on its Form I-130, Petition for Alien Relative page to help filers ensure that USCIS sends their form to the correct location after it is approved.
OIL: In addition to the foregoing reasons, OIL will consider remanding cases in order to facilitate exercises of prosecutorial discretion by DHS, or in other circumstances in which DHS believes that reopening of the case before the Board of Immigration Appeals is appropriate (e.g., cases in which a petitioner may have recently become eligible for adjustment of status or presents other equities such that DHS Immigration and Customs Enforcement would not oppose reopening by the Board).
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
The OIL Guidelines are welcome. Whether they will be uniformly and effectively applied remains to be seen.
The “real answer,” of course, is better judges and leadership at EOIR and elevation of quality and due process over expediency and the “haste makes waste, anti-immigrant” culture that still permeates far too much of EOIR.
Police reports are an ubiquitous feature of Immigration Court. The NIJC report on why they are “inherently unreliable” and how to contest them should be mandatory reading for all immigration litigators and Federal Judges who hear or review immigration cases.
Finally, on a positive note, the article about the Senate negotiations on agricultural workers reaffirms the inevitability of human migration, its benefit both to the U.S. and to migrants, and the pressing need for additional and more realistic legal avenues for legal immigration. Nolan Rappaport over at The Hill has pointed out on a number of occasions the other areas of potential compromise if the two parties could just get beyond “posturing.” See, e.g., https://wp.me/p8eeJm-7y4.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
“Sir Jeffrey Chase forwards our Round Table’s latest effort to promote reality, reasonableness, and due process in EOIR’s dysfunctional world:
Amici curiae are 38 former immigration judges (““IJs””) and members of the 2
Board of Immigration Appeals (““BIA””).2
Amici have dedicated their careers to improving the fairness and efficiency of
the United States immigration system, and have an interest in this case based on their combined centuries of experience administering the immigration laws of the United States. Amici collectively have presided over thousands of removal proceedings and thousands of bond hearings in connection with those proceedings, and have adjudicated numerous appeals to the BIA.
In denying Anderson Alphonse’’s (““Mr. Alphonse”” or ““Petitioner””) petition for writ of habeas corpus, the United States District Court for the District of Massachusetts (Saylor, J.), relied in part on the premise that it was ““readily foreseeable that proceedings will conclude in the near future”” because Mr. Alphonse’’s appeal to the BIA was ““fully briefed.”” This premise—at best aspirational when made in January 2022—has proven erroneous: nearly six months later, Mr. Alphonse’’s BIA appeal remains undecided. This is, regrettably, unsurprising given the surging caseload in the immigration courts, which now exceeds 1.8 million
1
1Amici state that this brief was not authored in whole or in part by counsel for any
party, and no person or entity other than Amici or their counsel made a monetary contribution to fund the preparation or submission of this brief.
2
2 See the appendix for a complete list of signatories.
pending cases. This crushing backlog—adding significantly to the backlog facing the BIA—-iis extremely relevant to the question of when a removal proceeding is likely to conclude. In fact, it might be the most important factor in this equation. Yet this factor is absent from the First Circuit’’s current analytical framework, opening the door to erroneous suppositions and conclusions based on a cursory review of a removal proceeding’’s posture, such as the one made by the District Court here.
Thus, Amici write to respectfully urge the Court to reassess the impact the backlog of cases facing the immigration courts may have on the ability of courts to accurately forecast when removal proceedings will conclude. Given their extensive experience with the immigration courts and BIA appeal process, Amici are uniquely positioned to provide insight into this narrow, but critical, issue.
The case is Alphonse v. Moniz, currently pending in the 1st Cir. Here’s a complete copy of our brief:
Many thanks to our wonderful pro bono counsel Matthew Levitt and Evan Piercy at MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
Although BIA decisions, particularly in non-detained cases, might take many months or even years to decide, the appellant is given only a relatively short period of time to file a brief — 21 days. A single 21 day extension may be requested and is usually granted, although it is common for the appellant not to be notified that the extension has been granted until after the extension period has expired.
Requests for additional or longer extensions are rarely granted. Motions to accept late-filed briefs, even those only a day or two tardy, are often denied. On the other hand, failure to file a timely brief after requesting a briefing schedule is a potential ground for summary dismissal of an appeal regardless of the merits! 8 C.F.R. § 1003.1(d)(2)(i)(E).
These rigid procedures might give the false impression that the EOIR system is driven by a sense of urgency in dispensing justice. Additionally, BIA and AG decisions often disingenuously pontificate about the supposedly “critical importance” of finality in immigration decisions. It’s all BS!
As you might note, the only “urgency” at EOIR is the potentially severe consequences imposed on the appealing party, usually the migrant. One the “compressed briefing” is complete, there is no particular assurance that the appeal will be decided on the merits for months, years — or ever! Additionally, the BIA can sometimes make dismissal of an appeal easier by ignoring an untimely brief or even by summarily dismissing an appeal for failure to file a brief without dealing with the merits.
Moreover, the hopelessness of the 1.82 million case EOIR backlog and the “assembly line justice” encouraged by EOIR’s “political masters” at DOJ results in a sloppy, “haste makes waste” approach to “justice.” This, in turn, means wrongful removals or unnecessary “remands” from Circuit Courts.
But, not to worry — there is neither penalty nor accountability for the BIA’s poor performance. Wrongly deported individuals are “out of sight, out of mind” — assuming they are even still alive.
Moreover, court remands actually give the BIA unlimited opportunities to correct their sloppy and unprofessional work, often with the benefit of a more thoughtful analysis from the Circuit Court. Not that such beneficial treatment by the Circuit necessarily means the BIA will get it right on remand. The BIA has been known to get “chewed out” by Circuit Courts for ignoring or “blowing off” their mandates.
“Red flags” 🚩 should be popping up all over the Falls Church horizon — so big that even the often “asleep at the wheel” immigration policy folks at the Biden Administration can see them! But, don’t hold your breath! Our Round Table, however, will continue “speaking truth to power” and revealing the real, awful due process mess at EOIR.
The respondent in this case is ably represented by Associate Dean Mary Holper of Boston College Law and her Immigration Clinic. In a way, this is a classic illustration of why Garland has been unable to fix EOIR. Dean Holper is an accomplished, universally-respected litigator, teacher, writer, practical scholar, and administrator. She is exactly the type of NDPA All-Star/Expert whom Garland should have recruited on “Day 1,” brought in, and empowered to fix EOIR and reinstate and realize its due process mission. Instead, Garland’s EOIR continues to flail and fail while the talent who could fix it are lined up in court against him!
As one more reminder of what we’ve lost, the text of the 1973 Roe v Wade ruling is unlikely to console us. Even so, I recommend downloading the pdf. In the wake of its overturning, this beautifully written document – which reads like a long form essay – is not only interesting in itself but now seems like another sign of how much has changed over the last half century, in this case for the worse.
Drafted by Justice Harry Blackmun, the ruling includes a clear and persuasive summary of the history of abortion law. “At the time of the adoption of our Constitution, and throughout the major portion of the 19th century, a woman enjoyed a substantially broader right to terminate a pregnancy that she does in most States today.” It tracks the centuries-old debate over when life begins, and dismisses the argument that a fetus is a person guaranteed the protections afforded US citizens. Throughout, it strikes us as the careful explication and clarification of a law, of legal precedent, unlike Justice Alito’s ruling in Dobbs v Jackson Women’s Health, which seems more like an expression of religious conviction masquerading as an unbiased interpretation of the constitution.
The Roe ruling is not about states’ rights. It’s about power and control | Derecka Purnell
What’s most striking about Roe v Wade – and its difference from the ruling that overturned it – is its eloquence. Blackmun’s lucid, frequently graceful language reflects a commitment to decency and compassion. The judges are clear about the dangers of carrying an unwanted child or a high-risk pregnancy to term. They strive to see the issue from the perspective of those confronting a serious life crisis, and to imagine the devastating outcomes that pregnant women and their families may face.
Advertisement
Support the Guardian and enjoy the app ad-free.
Support the Guardian
“Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by childcare. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it.”
The passage I admire most is the one in which Blackmun, at once profound and lyrical, describes the atmosphere surrounding the issue of abortion, the way our opinions are formed, and the pressures that the law must acknowledge and keep in balance.
“We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion. In addition, population growth, poverty, and racial overtones tend to complicate and not to simplify the problem.”
And there it is: a superbly rendered catalogue of the factors that come to mind when we consider the factors that will now determine whom Dobbs will hurt most: poverty, race, and life on the raw edges of human existence – an edge, one might say, on which every decision about abortion is made.
. . . .
****************
Read the rest of Francine’s article at the link.
Let’s face it. The concern for human life of out of touch righty ideologues like Alito ends at birth. After that, the “others” are expendable — particularly if they are women or folks of color!
All their claimed concern about “personhood” ends at delivery — when it can no longer be used to threaten vulnerable pregnant women or medical professionals. After that, the GOP program for kids (whether wanted or not) consists of things like:
Valuing their lives below the “right” of every Tom, Dick, and Harriett in America to own and use military-style assault weapons (something that certainly wasn’t the “original intent” of the drafters of the 2d Amendment);
Cutting education budgets, “dumbing down” public school curriculums, and harassing teachers, school administrators, and school board members;
Imposing work requirements on public assistance without regard to the needs and availability of suitable child care;
Deporting their parents to far away countries without concern for the welfare of children (US citizen and others);
Declaring “war” on vulnerable kids who aren’t heterosexuals;
Opposing provisions that would expand the availability of health insurance to kids;
Spreading misinformation about life-saving vaccines for children;
Falsely denying climate change that threatens the world we will leave to our kids and future generations;
Spreading fear and terror in ethnic communities containing “mixed families” to discourage them from taking advantage of available community services;
Threatening the educational rights of non-citizen children currently guaranteed by Plyler v. Doe (but perhaps not for long, if the Clarence Thomases of the world have their way);
Treating kids in Immigration Court as less than “persons” entitled to full due process (for example, forcing toddlers to “represent themselves” in life or death asylum cases);
Separating families;
Detaining families and children in grossly substandard conditions;
Making it more difficult for people of color to vote and thus exercise their legal and political rights;
Being more concerned about BLM protests than in the loss of young black lives that generated them.
I could go on an on.
One essential starting place and training ground for a “new generation” of Federal Judges who will be committed to humane values, empathy, accurate historical understanding, due process, and equal justice for all is the “retail level” of our justice system — the U.S. Immigration Courts, currently controlled solely by AG Merrick Garland. That’s why Garland’s disturbing failure to instill progressive values and install scholarly progressive judges — the best, brightest, and most courageous — in his now-dysfunctional EOIR system should be of grave concern to advocates of individual choices and anyone who cares about equal justice for all and the future of our nation!
The GOP-dominated Federal Judiciary has become a tool of authoritarians and religious zealots who seek to wipe out established individual rights, reduce humanity, and insert themselves and their out of touch views into every aspect of human existence — ultimately threatening the very future of humanity!
The Dems, by contrast, are the party of individual rights and human freedom. Too bad they haven’t done a better job of selling, and sometimes of following and boldly acting upon, their own stated values!
Jarndyce v. Jarndyce: “The suit does not sleep; we wake it up, we air it, we walk it about. Thats something.” From “Bleak House” by Charles Dickens (1895). Garland has created a “Dickensonian” nightmare @ EOIR — including rushing some arbitrarily selected poor souls through his broken system to deportation orders with little or no process at all, let alone due process of law!
TRAC Immigration reports:
Transactional Records Access Clearinghouse
Pace of Immigration Court Processing Increases While Backlog Continues to Climb
The latest case-by-case records show that the Immigration Court backlog reached 1,821,440 at the end of June 2022. This is up 25 percent from the backlog just at the beginning of this fiscal year. These figures are based on the analysis of the latest court records obtained through Freedom of Information Act (FOIA) requests by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.
New Immigration Court cases continue to outstrip the number of cases being closed. So far during the first nine months the court received 634,594 new cases, but has only managed to dispose of 287,711. These closures took 1,130 days on average or more than three years from the date of the Notice to Appear (NTA) to the court’s disposition. Part of the delay represents the time it took from the Department of Homeland Security to actually file the NTA after it was issued. This delay reached record levels during the Trump administration three years ago, but NTAs are being filed much more promptly under the current administration.
The pace of court closures also has been accelerating. After the partial government shutdown in March 2020, court closures averaged just 6,172 per month for the remainder of that fiscal year. During FY 2021, court closures roughly doubled to 12,055 on average per month. By the end of the first six months of FY 2022, monthly closures had again doubled to an average of 23,957 per month. And this last quarter covering just the three-month period from April – June 2022, monthly closures doubled again to 47,991 on average each month.
According to court statistics, immigration judges on board at the beginning of this past quarter had increased just 6 percent over levels at the beginning of FY 2022. Thus, the increase in judge hiring only accounts for some of this speedier pace. A more important factor appears to be the many changes implemented by the Biden administration to increase the speed that court cases get scheduled and decided. However, as TRAC has reported, the increase in speed has come with heightened due process concerns, increasing the number of asylum seekers unable to secure legal representation which then greatly diminishes their opportunity to adequately prepare and present their asylum claims.
For more highlights on the Immigration Court, updated through June 2022, go to:
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:
David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University Peck Hall
601 E. Genesee Street
Syracuse, NY 13202-3117
315-443-3563
trac@syr.edu
https://trac.syr.edu
The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (https://whitman.syr.edu) and the Newhouse School of Public Communications (https://newhouse.syr.edu) at Syracuse University. If you know someone who would like to sign up to receive occasional email announcements and press releases, they may go to https://trac.syr.edu and click on the E-mail Alerts link at the bottom of the page. If you do not wish to receive future email announcements and wish to be removed from our list, please send an email to trac@syr.edu with REMOVE as the subject.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
“Sir Jeffrey” Chase reports:
9th Circuit Decision in U.S. v. Bastide-Hernandez
Hi all:Attached please find the published, en banc decision of the 9th Circuit issued yesterday in U.S. v. Bastide-Hernandez.As expected, the court held that the absence of a date and time of hearing does not deprive the Immigration Court of jurisdiction.
However, please note the concurring opinion of Judge Friedland, stating that although the court held that the issue is not jurisdictional, “there are strong argument for the contrary position,” adding that the Supreme Court may reach a different conclusion.
Judge Friedland also quoted our Round Table’s amicus brief at length, as follows:
“An amicus brief filed by former immigration judges elaborates on why it better serves clarity, efficiency, and due process to include the time and location of the hearing in an NTA in the first instance. As amici explain, incomplete initial notice documents create uncertainty both for noncitizens, who are left in the dark as to when and where a potentially life-changing proceeding will be held, and for immigration judges, who cannot be sure if a case can proceed. Amici also note that the Government’s notice-by- installment practice creates additional fact-finding obligations for immigration judges, who may need to look to multiple documents to determine whether informational gaps in the initial notice have been filled. And amici caution that, because immigration judges are already overburdened and face pressure to complete cases, ambiguities about notice may lead immigration judges to order noncitizens removed when they fail to show up at their hearings, even if the noncitizens never received notice of those hearings at all.”
I think that this lengthy reference demonstrates the importance of our work.
In the words of Ninth Circuit Judge Michelle Friedland (Obama appointee): “[I]t better serves clarity, efficiency, and due process to include the time and location of the hearing in an NTA in the first instance.”
What if we had an EOIR where all judges at the trial and appellate levels and all senior administrators were unswervingly committed to due process, fundamental fairness, and best practices?
Instead, we have a dysfunctional organization where DHS’s wishes, perceived expediency, and keeping the “political bosses” happy (thus providing “job security”) triumphs over the public interest and the cause of justice. Currently, we’re “saddled” with a broken system that sees Immigration Court as a “soft deterrent” rather than a dispenser of justice could actually make our immigration, human rights, and justice system run more smoothly by applying fair procedures and “best interpretations.” That would facilitate the legal admission of many more migrants, while starting to “disempower smugglers,” cut backlog, discourage poor practices at DHS Enforcement, promote consistency, and keep many disputes that should be resolved in favor of respondents out of the Article IIIs!
Better, more reasonable administrative precedents that adhered to the proper interpretations of asylum and protection laws and provided positive guidance on how to apply them to recurring situations would also “leverage” the Asylum Office by allowing many more cases to be granted at the first level. As long as the current lousy BIA precedents prevail, far too many cases will just be denied at the AO level and referred to Immigration Court — making it a colossal waste of time. “So-called streamlining” will only work if it results in significantly more AO grants of protection!
We “win some, lose some.” But, our Round Table’s cause is justice; we’re not going to give up until this system makes the long overdue, radical personnel, procedural, attitude, and “cultural” changes necessary to become the “best that it can be!”
That means fulfilling the Immigration Courts’ once and future vision of “through teamwork and innovation become the world’s best tribunals guaranteeing fairness and due process for all.”
Bonus Coverage:
“Sir Jeffrey’s” skills aren’t confined to the legal arena. Here are some pictures he took from his balcony of last night’s “Super Moon:”
“Super Moon” July 13, 2022 By Hon. Jeffrey S. Chase
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
See More from Elizabeth Gibson
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
USCIS: Where community levels are high, all federal employees and contractors—as well as visitors two years old or older—must wear a mask inside USCIS offices and physically distance regardless of vaccination status. Chicago is no longer listed as High. NYC is now listed as High. Check CDC Level for Your Region.
DHS Announces Extension of Temporary Protected Status for Venezuela
DHS: The 18-month extension of TPS for Venezuela will be effective from September 10, 2022, through March 10, 2024. Only beneficiaries under Venezuela’s existing designation, and who were already residing in the United States as of March 8, 2021, are eligible to re-register for TPS under this extension.
WaPo: Texas Gov. Greg Abbott ordered state National Guard soldiers and law enforcement officers Thursday to apprehend and return migrants suspected of crossing illegally back to the U.S.-Mexico border, testing how far his state can go in trying to enforce immigration law — a federal responsibility.
LATimes: The new effort, called the Trusted Adult Relative Program, is being tested at a Border Patrol station in Texas, according to three sources who were not authorized to speak publicly. A Department of Homeland Security official, who spoke on the condition of anonymity, said a few dozen children have been reunified with family members since the program began in May. Agency officials said the program utilizes existing procedures to unify families in an efficient way.
Documented: ICE is moving New Jersey immigrants like Hercules Aleman – who face charges in criminal or family court – to out-of-state immigration detention facilities. But the agency is usually not notifying the group of immigration legal providers funded by the state to represent these detained immigrants.
CNN: The Biden administration asked the Supreme Court on Friday to stay a court order blocking the Department of Homeland Security from implementing immigration enforcement priorities — potentially setting up Justice Ketanji Brown Jackson’s first vote since joining the court.
Politico: The nine-month investigation, which culminated in a 511-page report by the department, found no evidence that agents used horse reins to strike people during an “unprecedented surge in migration” of about 15,000 Haitians near the international bridge. However, agents acted in unprofessional and dangerous ways, including an instance in which an agent “maneuvered his horse unsafely near a child,” investigators wrote.
TRAC: According to the latest data released by Immigration and Customs Enforcement (ICE), the agency held 23,156 immigrants in detention on July 5, 2022. Of these, 17,116 were arrested by Customs and Border Protection (CBP) while 6,040 were arrested by ICE agents. Detention numbers have increased slightly from about 20,000 in early 2022 to now hovering around 24,000, but have not otherwise seen significant growth that would lead to the large numbers of immigrants that were detained prior to the pandemic when the detained population topped out at more than 60,000.
TRAC: The number of criminal referrals sent by the Border Patrol and other Customs and Border Protection (CBP) officers have recently begun to rise. Detailed case-by-case government records obtained by TRAC after successful litigation show that during April 2022, CBP referred 2,015 individuals for criminal prosecution to federal prosecutors. This is the first time referrals topped the 2,000 mark since the pandemic began slightly more than two years ago. Levels in April 2022 were up 31 percent from one year earlier when in April 2021 there were a total of 1,537 criminal referrals from CBP.
NYT: Extensive details of their years together were also left behind in grainy snapshots, police reports, immigration forms, nonprofit records, court transcripts and old emails. See also The Story of 2 Homeless Men and the Meaning of Friendship.
Law360: The Fifth Circuit refused to reinstate the Biden administration’s attempt to narrow the number of immigrants prioritized for removal, splitting sharply from the Sixth Circuit to find that the effort likely violated federal immigration law.
LexisNexis: [T]he agency failed to consider and explain the impact of evidence that the Salvadoran government’s efforts in the “war on the gangs” had not been successful, such that gang members operate with impunity and security forces commit extrajudicial killings of suspected gang members, both of which pose threats to Giron.
LexisNexis: Consistent with our own precedent and that of every other circuit to consider this issue, we hold that the failure of an NTA to include time and date information does not deprive the immigration court of subject matter jurisdiction, and thus Bastide-Hernandez’s removal was not “void ab initio,” as the district court determined.
Law360: The Ninth Circuit on Friday declined to review a Mexican man’s bid to vacate a deportation order, saying he should have applied for a green card before a law preventing inadmissible individuals from becoming lawful permanent residents took effect.
LexisNexis: The BIA affirmed based upon the IJ’s adverse credibility determination. We grant Barseghyan’s petition for review because three out of four inconsistencies relied upon by the BIA are not supported by the record.
LexisNexis: [W]e find that the respondent’s conviction for injury to a child in violation of Texas Penal Code § 22.04(a)(3), does not require “physical force” as defined in 18 U.S.C. § l6(a), and interpreted in Johnson and Stokeling. Thus, the respondent has not been convicted of a crime of violence aggravated felony and is not barred from establishing her eligibility for cancellation of removal.
Law360: Private contractors will no longer be used by U.S. Immigration and Customs Enforcement to make immigration arrests at California jails and prisons, as part of a settlement ICE reached with a detainee represented by the American Civil Liberties Union.
Law360: A 15-year U.S. Department of Homeland Security veteran and an agent who retired from the agency gave secret information to Chinese spies engaged in a harassment and repression campaign against U.S.-based critics of the Chinese government, the U.S. Department of Justice said Thursday.
AILA: The CIS Ombudsman’s Office provides a reminder that USCIS updated the special instructions on its Form I-130, Petition for Alien Relative page to help filers ensure that USCIS sends their form to the correct location after it is approved.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
Federal Courts at all levels continue to lose credibility because of their adherence to a biased far-right agenda that is bad for American democracy.
Let’s see, the BIA manufactures inconsistencies to reach a bogus “adverse credibility” ruling in an asylum case(9th Cir.). They also ignore clear evidence of the complicity/total ineptitude of the Salvadoran Government in a CAT case (2d Cir.).
Folks, these aren’t contract cases, property disputes, commercial squabbles, or minor misdemeanors. They are life or death matters — persecution and/or torture can result in extreme pain, suffering, permanent damage, and death.Serious matters require serious judging by qualified exert judges!
Meanwhile, a righty panel of poorly qualified 5th Circuitjudges drives over established law on Executive prosecutorial discretion to uphold Trump toady Judge Drew Tipton’s clearly wrong-headed attempt to wrest control of ICE enforcement away from the Biden Administration. This gross judicial malpractice is nothing short of a national disgrace that impugns the integrity of the entire Article III Judiciary.
There are still far too many examples of how Garland is contributing to the problem by failing to root out the deadwood (and worse) at EOIR. He should be bringing in new judicial talent committed to due process, scholarship, and best practices.
A “Better EOIR” would not only begin fixing many of the legal and practical problems plaguing our immigration, human rights, and racial justice systems in America, but also could “model” a better American judiciary for the future. It would be a training ground for future, better qualified, Article III judicial appointments: Folks who actually understand and respect delivering justice at the “retail level” and are committed to serving humanity, not kowtowing to party bosses or wooden, perverse, retrograde ideologies.
It is possible for good judges to solve problems rather than creating them or making them infinitely worse. But, you sure wouldn’t say that is happening with today’s out of touch, ivory tower, and poorly performing Federal Judiciary. A better EOIR could keep cases out of the Circuits, thereby eliminating the opportunity for right-wing ideologues to screw up immigration and human rights laws in their White nationalist restrictionist crusade!
This is a judiciary now dominated by far too many right wing judges who got their jobs by demonstrating a commitment to far righty ideology and furthering the GOP’s political agenda rather than by distinguished legal careers that exemplified courage and improving humanity by insuring fair and reasonable applications and interpretations of the law.
Michelle N. Mendez, ESQ Director of Legal Resources and Training National Immigration Project, National Lawyers Guild PHOTO: NIPNLG
Michelle writes:
Sent: Wednesday, July 6, 2022 7:38 PM
While the facts were definitely bad in this case, I do think the decision provides a helpful framework for a fairly common issue–impeachment leading to adverse credibility– whereas before we did not have a framework and relied on the Federal Rules of Evidence. Through this decision, we now know and can argue that impeachment evidence may contribute to a credibility determination only where the evidence is probative and its admission is not fundamentally unfair, and the witness is given an opportunity to respond to that evidence during the proceedings. It is up to us to enforce these limitations. Furthermore, note a few helpful footnotes. Footnote 3 notes that proceedings were continued after DHS submitted impeachment evidence and both parties were given the opportunity to provide evidence and argument. This is what should happen. Footnote 4 refers to DHS correctly using the evidence as impeachment evidence as opposed to submitting late-filed evidence under the guise of impeachment, which is what usually happens and we must object to. Footnote 5 reminds us tochallenge the IJ’s determination that the border official’s notes are accurate and reliable pursuant to Matter of J-C-H-F-, 27 I&N Dec. 211, 216 (BIA 2018), which is a case we cover during our trial skills trainings. All in all, a bad outcome for this respondent, but a helpful case to the rest of us who want to avoid a similar outcome.
Michelle
N. Méndez | she/her/ella/elle
Director of Legal Resources and Training
National Immigration Project of the National Lawyers Guild
Thanks Michelle, my friend!Please note that Michelle is now Director of Legal Resources & Training at NIPNLG and has provided her new contact information above.
NDPA advocates should also check out these other recent practice advisories from Michelle and her terrific team that transitioned from CLINIC to NIPNLG, two of which were in partnership with ILRC:
Practice Advisory: Understanding and Overcoming Bars to Relief Triggered by a Prior Removal Order (June 29, 2022):
I always offered the respondent a continuance to examine the impeachment evidence. However, few took my offer. I think that was because:
For those in detention, it meant further extending the period of detention;
For those on the always backlogged non-detained docket, continuances often meant months before the hearing could resume.
Instead, most counsel just took my offer of a short recess to examine the evidence and discuss it with the respondent.
As Michelle points out, it will be up to counsel to insure that these rules are enforced. In the “rush to deny for any reason” — still a major “cultural” problem at EOIR that Garland has failed to systemically address — precedents and aspects of precedents favorable to the respondent are too often ignored, glossed over, or distinguished on bogus grounds. It’s up to the NDPA to “hold EOIR Judges’ and ICE ACCs’ feet to the fire” on these points!
Garland had a chance to bring in folks like Michelle and other NDPA superstars to “clean up” EOIR and restore first class scholarship, due process, and fundamental fairness as the mission, but failed to do so. The results of his failure are pretty ugly, especially for those individuals seeking justice in a dysfunctional system where fair, legally correct results are a “crap shoot” 🎲 — at best! It doesn’t have to be that way!
Hon. Ilyce Shugall U.S. Immigraton Judge (Retired) Member Round Table of Former Immigration Judges
SUMMARY OF ARGUMENT
A criminal conviction vacated due to a substantive or procedural defect does not qualify as a “conviction” establishing a noncitizen’s removability under the Immigration and Nationality Act (INA). By the statute’s plain language, vacatur under section 1473.7(a)(1) conclusively establishes that the underlying conviction rested on a substantive or procedural defect: It allows people no longer in criminal custody to seek vacatur of convictions that were “legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.”
Even though a California court vacated the conviction of petitioner Jose Adalberto Arias Jovel under section 1473.7(a)(1), the BIA declined to sua sponte
2 Further statutory references are to the California Penal Code unless otherwise indicated.
-2-
RESTRICTED Case: 21-631, 07/05/2022, DktEntry: 35.1, Page 12 of 34
reopen Mr. Arias’ removal proceedings because it held that, as a noncitizen,
Mr. Arias had the burden to show that his conviction under section 1473.7(a)(1) was vacated on the merits, and Mr. Arias failed to meet that burden. If affirmed, the BIA’s holding creates several problems.
First, the holding requires IJs to second-guess a state court’s determination under section 1473.7(a)(1), despite the statute allowing vacatur only for prejudicial defects. The plain language of section 1473.7(a)(1) requires “prejudicial error” that renders the conviction “legally invalid,” and IJs should accept that the state court must have vacated the conviction due to a substantive or procedural error of law. Precedent requires IJs to apply the INA to a section 1473.7(a)(1) vacatur without second-guessing the state court’s ruling.
Second, even if a section 1473.7(a)(1) vacatur doesn’t conclusively establish a substantive or procedural defect, the burden is not on noncitizens like Mr. Arias to demonstrate their convictions were vacated on the merits. IJs are bound by Ninth Circuit precedent, which holds that the government bears the burden of proving whether a vacated conviction can still form the basis for removal. To shift the burden of proof to noncitizens (who do not have a constitutional right to counsel, may be detained, and often have limited English proficiency) is contrary to the law and will inevitably increase the likelihood of due process violations.
-3-
RESTRICTED Case: 21-631, 07/05/2022, DktEntry: 35.1, Page 13 of 34
Third, the government’s interpretation of section 1473.7(a)(1) will exacerbate the growing backlog of immigration cases and the enormous pressure that IJs face to eliminate the backlog. Given the severe time and resource constraints applied to the immigration court, deviating from the established law governing vacated convictions will greatly hinder the fair and efficient administration of immigration proceedings.
Many thanks to NDPA Superstar 🌟 Judge Ilyce Shugall for taking the lead on this!
*************************
Here’s a nice “thank you” from respondent’s counsel Tomo Takaki at Covington & Burling, LA Office:
Dear former IJs and BIA members and GMSR Counsel,
Apologies for the delayed email, but thank you all again for your excellent and powerful brief. It was truly invaluable to get the perspective of former IJs and BIA members on this important issue, especially regarding the unworkability of the BIA’s decision here. It was particularly helpful to get GMSR’s appellate expertise on board here with such well-written advocacy. Our client, and many like him, I’m sure deeply appreciate your efforts on their behalf.
Best,
Tomo Takaki
Covington & Burling LLP
And, of course many, many thanks to our all-star 🌟 pro bono counsel Stefan C. Love and Tina Kuang ofGREINES, MARTIN, STEIN & RICHLAND LLP in Los Angeles. Couldn’t do it without you guys and your excellence in appellate advocacy!
Garland’s DOJ inexplicably defends a bad BIA decision, unworkable and slanted against immigrants! Why don’t we deserve better from the Biden Administration?
Why are scarce pro bono resources being tied up on wasteful litigation when Garland could appoint a “better BIA” dedicated to due process, fundamental fairness, practical scholarship, and best practices? Why not get these cases right at the Immigration Court level? Why not free up pro bono resources to represent more respondents at Immigration Court hearings? What’s the excuse for Garland’s poor leadership and lack of vision on immigration, human rights, and racial justice?
Sure, there have been a few modest improvements at EOIR. But, it’s going to take much, much more than “tinkering around the edges” to reform a broken system that routinely treats individuals seeking justice unfairly, turns out bad law that creates larger problems for our legal system, and builds wasteful and uncontrolled backlogs.
Accountability and bold progressive reforms don’t seem to be politically “in” these days.But, they should be! Responsibility for the ongoing mess at EOIR and the corrosive effects on our justice system rests squarely on Garland and the Biden Administration.