"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 Christian Alberto Santos Garcia, a native and citizen of El Salvador, has twice travelled unlawfully into the United States — first in 2012, and again in 2016. In both instances, Garcia fled threats to his life and attacks carried out against him by the 18th Street Gang and the Salvadoran police. After seeking protection from removal before an immigration judge (the “IJ”) in 2016, Garcia was afforded relief — in the form of asylum, withholding of removal, and protection under the Convention Against Torture (the “CAT”) — by three separate IJ rulings. On each occasion, the Board of Immigration Appeals (the “BIA”) reversed the IJ rulings. Garcia, for his part, was removed to El Salvador in May 2022, and has awaited further developments in these proceedings from his home country. In this appeal, Garcia challenges and seeks reversal of three rulings made by the BIA — those being: (1) that the “particular social group” relied upon in connection with Garcia’s application for withholding of removal is not legally cognizable; (2) that Garcia was not persecuted in El Salvador on account of his political opinions; and (3) that Garcia failed to establish eligibility for CAT protection. As explained herein, we grant Garcia’s petition for review and reverse the BIA rulings in part, affirm them in part, and vacate them in part. We otherwise remand to the BIA for such further proceedings as may be appropriate.”
“Petitioner Juan Pablo Paucar petitions for review of a January 22, 2021 Board of Immigration Appeals (“BIA”) decision (1) affirming an Immigration Judge’s denial of his application for cancellation of removal and (2) denying his motion to remand. The BIA rejected Paucar’s ineffective assistance of counsel claim, declined to remand for consideration of additional hardship relating to his cancellation application, and declined to remand to await adjudication of his U visa application. Paucar argues that the BIA (1) applied an incorrect standard when reviewing his ineffective assistance of counsel claim, (2) overlooked and mischaracterized his new hardship evidence, and (3) failed to follow precedent when denying his request for remand while awaiting the adjudication of his U visa application. We are persuaded by Paucar’s arguments. Accordingly, we GRANT Paucar’s petition for review, VACATE the BIA’s decision, and REMAND for further proceedings consistent with this opinion.”
In Santos-Garcia v. Garland, the BIA’s 6-year quest to wrongfully deny protection to Santos has been thwarted, for now. But, the matter remains far from finally resolved, even though an IJ has now properly granted Santos relief three separate times, only to be wrongly reversed by the BIA on each occasion!
Rather than insuring that individual justice is done, the BIA has acted to promote injustice, create needless delay, and demoralize IJ’s who are getting it right! In the meantime, the respondent has been removed to the country where he has a well-founded fear of persecution to await his fate. This is because the 4th Circuit denied a stay they should routinely have granted in an exercise of truly horrendous judicial misjudgment.
Now, the court majority fecklessly pontificates about the need for timely resolution (you’ve got to be kidding) while hinting, but not requiring, that the “Gang That Can’t Shoot Straight” should return the respondent now. Don’t hold your breath!
Here are three of my favorite quotes from Judge King’s majority opinion in Santos Garcia v. Garland.
Put simply, the BIA declined to “interact seriously” with the record before it in reviewing Garcia’s claim for CAT protection, and its failure in that regard requires a remand.
Should we not expect a supposed “expert tribunal” like the BIA should be to “seriously interact” with the record in life-or-death cases?Why aren’t Dems in Congress and everywhere else “all over Garland like a cheap suit” to stop this kind of judicial misbehavior in his “wholly owned courts?”
In closing, we recognize that Garcia’s removal proceedings have languished before the IJ and the BIA — and now this Court — for more than six years, leaving him in limbo and presently in harm’s way in El Salvador. We are also mindful that Garcia was only 15 years old when he sought to protect his cousin from the 18th Street Gang’s advances, setting off more than a decade of hardship and uncertainty. With that, we emphasize the “strong public interest in bringing [this] litigation to a close . . . promptly.” See Hussain v. Gonzales, 477 F.3d 153, 158 (4th Cir. 2007). And although we do not direct the affirmative award of any relief, we acknowledge the compelling case for protection that Garcia has made. If, on remand, the BIA affirms either the IJ’s award of withholding of removal or the award of CAT relief, the DHS and the Attorney General should swiftly “facilitate [Garcia’s] return to the United States” from El Salvador. See Ramirez v. Sessions, 887 F.3d 693, 706 (4th Cir. 2018) (directing the government to facilitate previously removed petitioner’s return to the United States pursuant to an Immigration and Customs Enforcement Policy Directive). Moreover, if the BIA determines that Garcia’s “presence 24 is necessary for continued administrative removal proceedings” on remand, the authorities should see to his prompt return. Id.
So, after six years bouncing around the system and three separate grants of asylum by an Immigration Judge, the 4th Circuit essentially “begs” the BIA to get it right this time! This is after the court itself curiously denied the respondent’s application for stay notwithstanding the rather obvious risk of irreparable harm (e.g., death, torture) and the equally obvious substance of his timely filed appeal.
What a way to run a “justice system” (or, in this case, not)! Both the Executive and the Judiciary should be totally embarrassed by their gross mishandling of this case! But, I see resolve from neither Branch (nor the ever-absent Legislature) to put an end to this systemic mockery of due process, fundamental fairness, and simple common sense!
Here, discovering the BIA’s error in rejecting Garcia’s proposed social group of “young male family members of his cousin Emily” is no herculean task. Social groups based on family ties have been consistently approved by this Court as providing a sound basis for asylum or withholding of removal applications. See, e.g., Salgado-Sosa, 882 F.3d at 457; Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015); Cedillos-Cedillos v. Barr, 962 F.3d 817, 824 (4th Cir. 2020). Indeed, our pivotal 2011 decision on the matter — Crespin-Valladares v. Holder — recognized in no uncertain terms that “the family provides a prototypical example of a particular social group.” See 632 F.3d at 125. In tossing out Garcia’s proposed social group in March 2021, however, the BIA largely disregarded our precedent, providing no citation to or discussion of Crespin-Valladares. The BIA instead relied chiefly on its own then-existing precedent, set forth in the Attorney General’s 2019 L-E-A- II decision. As described above, L-E-A- II — which was vacated by the Attorney General in June 2021 and thus “lacks legal force” — “conflicted with [this Court’s] well-established precedent” recognizing families as cognizable social groups. See Perez Vasquez v. Garland, 4 F.4th 213, 227 n.11 (4th Cir. 2021). Surprisingly, the BIA paid little mind to L-E-A- II’s vacatur in its Reconsideration Order of 2022, doubling down on its earlier “particular social group” ruling and again inexplicably declining to apply Crespin-Valladares and its progeny.7
Notably, the “rule of Crespin-Valledares” — my case where the BIA erroneously reversed me — continues to have an impact! A dozen years post-Crespin and the BIA is still getting it wrong! Why are these guys still on the appellate bench, setting negative precedents and ignoring favorable precedents? In a Dem Administration? Seriously!
Michelle N. Mendez, ESQ Director of Legal Resources and Training National Immigration Project, National Lawyers Guild PHOTO: NIPNLG
My friend Michelle Mendez, Director of Legal Resources and Training over at National Immigration Project offered some commentary on the Second Circuit’s decision in Paucar v. Garland.
Congratulations and thank you for your superb work, Lindsay! This case offers so much and seems like the CA2 delivered.
Here are a couple of excerpts from the decision that stood out to me:
“In a January 14, 2020 written decision, the BIA dismissed Paucar’s appeal and denied his motion to reopen and remand. Three months later—after Paucar filed a petition to review the BIA’s decision in this Court—the BIA sua sponte reinstated Paucar’s appeal and motion, noting that it had not “consider[ed] all of the evidence submitted by [Paucar].” Id. at 124.” [Do we know why the BIA sua sponte reinstated the appeal and motion?] LINDSAY NASH RESPONDS: “The BIA only sua sponte reopened the appeal and motion because Paige Austin (co-counsel extraordinaire, copied here) filed a PFR and identified the missing evidence early on, prompting OIL to agree to a remand.”
“Finally, the BIA concluded that remand to await the adjudication of Paucar’s U visa petition was unnecessary because Paucar could request a stay of removal from USCIS.” [Does anyone know what the BIA was referencing here? Later on the decision says DHS and not USCIS so perhaps it is a typo.] LINDSAY NASH RESPONDS: “I think that the reference to USCIS that you flag was a typo and that it should have said DHS.”
“We conclude that the BIA should have applied the Sanchez Sosa factors in considering Paucar’s motion to remand as it pertains to his U visa or explained its reasoning for not doing so. [This is the first time that the CA2 answers the question of whether Sanchez Sosa applies to motions to remand or reopen filed during the pendency of an appeal where the noncitizen did not previously request such a continuance before the IJ].”
There is a great discussion on the BIA improperly applying Coelho (which they love to throw around in correctly) to the prejudice assessment and a paragraph discussing how the CA2 and other courts of appeals view unpublished BIA decisions.
Again, really great work and outcome! Thanks for sharing with all of us, Dan!
For a case distinguishing Coelho and applying a “reasonable likelihood of success” standard to a MTR, see Matter of L-O-G-, 21 I&N Dec. 436 (BIA 1996), written by me! The BIA ignores it or misapplies it in many cases. But, it’s still “good law!” Just another instance in which the BIA evades “older” precedents that could produce favorable outcomes for respondents!
In this case the IJ denied the respondent’s applications and ordered removal in May 2018, five years ago. Nobody contests that the respondent was ineffectively represented at that time.
Through new pro bono counsel, respondent Paucar filed a timely appeal with the BIA. Less than two months following the IJ’s decision, new counsel filed a copiously documented motion to the BIA to remand for a new hearing because of the ineffective representation.
Rather than promptly granting that motion for a new hearing, the BIA set in motion five years of dilatory effort on their part to avoid providing a hearing. Obviously, several new merits hearings could have been completed during the time occupied by the BIA’s anti-immigrant antics!
Along the way, according to the Second Circuit, the BIA “improperly imposed a heightened standard,” “erred by discounting the impact of counsel’s ineffectiveness,” “improperly relied] on the IJ’s tainted findings,” “overlooked and mischaracterized the record evidence,” “erred by overlooking or mischaracterizing evidence,” “overlooked and mischaracterized material evidence,” and failed, without explanation, “to follow its own precedent.” What else could they have screwed up? The file number?
This would be highly unacceptable performance by ANY tribunal, let alone one entrusted with making life or death decisions about human lives and whose decisions in some instances have been unwisely insulated from effective judicial review by Congress. Individuals appearing before EOIR deserve better! American justice deserves better! How long will AG Garland continue to get away with failing to “clean house” at America’s most dysfunctional court system and bring order, due process, fundamental fairness, legal expertise, and judicial professionalism to this long-overlooked, yet absolutely essential, foundation of our entire U.S. justice system!
Wasting time and resources looking for bogus ways to deny that which better, more expert, fairer judges could easily grant his had a huge negative impact on the EOIR backlog and is a driver of legal dysfunction throughout the immigration bureaucracy, and indeed throughout our entire legal system, all the way up to and including the Supremes!
Start by fixing “that within your control!” That’s a simple message that Dems, unfortunately, don’t seem to get when it comes to immigration, human rights, and racial justice in America!
Associate Provost/Co-Director of the Immigration Clinic/Professor of the Practice Laila L. Hlass Tulane Law
Laila, my friend, everywhere I look you’re making news! Here’s Dan Kowalski @ LexisNexis on Layla’s well-deserved Lisa Brodyaga Award from the National Immigration Project:
Laila was a “guest lecturer” in my Refugee Law and Policy class during her time as a Fellow at the CALS Asylum Clinic at Georgetown Law. Since then, I have “returned the favor” by traveling to Tulane Law, both virtually and in person, to speak to Laila’s class and other immigration events. Laila has been recognized for “putting Tulane Law on the map” for innovative practical scholarship in immigration and international human rights and excellence in clinical teaching. No wonder she carries a “string of titles” at Tulane Law!
Laila is also one of many exciting examples of how clinical immigration and human rights professors have not only moved into the “academic mainstream” at major American law schools, but have been recognized as leaders and innovators by the larger academic communities in which they serve. Immigration law teaching has come a long way since the late INS General Counsel Charlie Gordon’s Immigration Law Class at Georgetown was the “only game in town.” (Historical trivia note: My good friend the late BIA Judge Lauri Filppu and I “aced” Charlie’s class in 1974, thus “besting” our then-supervisor at the BIA. That could have been a “career limiting” move. But, we both ended up on the “Schmidt Board” in the 1990s.)
Many congrats, Laila, on an already amazing career with even more achievements and recognition in your future. Thanks for being such a brilliant, inspiring, and dynamic role model for the New Due Process Army!
Thanks for speaking out Andrea!Andrea is a former Arlington Immigration Court intern and one of the “charter members” of the NDPA. As captured on this video, she was assaulted by ICE while trying to assist her child client in reuniting with his mother! A civil suit against the agent involved is pending.
Here’s an array of reports on how America under the Trump regime has joined the ranks of dictatorships, torturers, child abusers, persecutors, and human rights criminals!
Eugene Robinson Opinion Columnist Washington Post Source: WashPost Website
Eugene Robinson @ WashPost:
What kind of people are we? As a society, are we so decadent and insecure that we show “toughness” by deliberately being cruel to innocent children? Is this what our nation has come to? Or are we better than that?
This election demands we answer those questions. The choice between President Trump and Joe Biden is not just political. It is also moral. And perhaps nothing more starkly illustrates the moral dimension of that decision than the Trump administration’s policy of kidnapping children at the southern U.S. border, ripping them away from their families — and doing so for no reason other than to demonstrate Trump’s warped vision of American strength.
We learned this week that some of those separations will probably be permanent. As NBC News first reported, 545 boys and girls taken as many as three years ago — the children of would-be immigrants and asylum seekers, mostly from Central America — have not been reunited with their parents and may never see their families again.
These are not among the nearly 3,000 families separated at the border in 2018, when children were kept in cages like animals or shipped away to facilities across the country, hundreds or thousands of miles from the border. We now know, thanks to the American Civil Liberties Union and other pro bono lawyers, that an additional 1,500 children were torn away from their families beginning in 2017, when the Trump administration conducted a trial run of the separation policy.
Please think about that. The shocking scenes we saw two years ago did not result from a sudden spasm of presidential anger. They didn’t stem from a Fox News segment Trump might have seen one evening. Rather, the administration rehearsed this form of cruelty.
What the administration did not plan for was how to reunite the children taken in 2017 with their families. Many of the parents were deported, and their children were placed in shelters around the country, then ostensibly released to parents or guardians, placements that the ACLU is still trying to confirm.
[Our Democracy in Peril: A series on the damage Trump has caused — and the danger he would pose in a second term]
The ACLU and other organizations have sent investigators to towns and villages in Central America in an attempt to find the kidnapped children’s families — an effort complicated not just by time and distance, but also by the covid-19 pandemic. Parents of 545 children have not been found, the ACLU reported this week.
Disturbingly, the Department of Homeland Security suggested that some of the parents declined to get their children back so they could remain in the United States. Keep in mind that most of these families were seeking asylum from deadly violence in their home countries. The Trump administration changed immigration guidelines to make it unlikely that the families would ultimately be allowed to stay in the United States, but federal law gives them the right to apply for asylum and to have their cases heard. They did nothing wrong. They should never have been asked to choose between parenting their children and getting them to safety — not by their home countries, and not by the United States.
Trump’s racism and xenophobia have been hallmarks of his presidency from the beginning, so perhaps it should be no surprise that he would preside over such an outrage. But he didn’t do this by himself. He had plenty of help.
Former attorney general Jeff Sessions seized an opportunity to make his rabid antipathy toward Hispanic immigration into policy. White House senior adviser Stephen Miller, a former Sessions aide in the Senate, was the architect of Trump’s “zero tolerance” immigration policy. Then-White House Chief of Staff John F. Kelly said in 2018 that the children taken would be “taken care of — put into foster care or whatever.” Former homeland security secretary Kirstjen Nielsen said last year that she regretted that “information flow and coordination to quickly reunite the families was clearly not in place” — but not the separations themselves.
President Donald Trump’s administration started and carried out a policy that took more than 4,000 children from their parents, at least 545 of whom are still split apart years later. But at Thursday’s debate, the president insisted that he did nothing wrong at all ― blaming his Democratic predecessors and even insisting the kids are doing fine.
“They are so well taken care of,” Trump said of the children taken from their parents by his administration. “They’re in facilities that were so clean.”
Trump’s first term was marked by a full-out assault on immigration, both legal and unauthorized. The most dramatic was his “zero tolerance” policy on unauthorized border-crossing, used in a 2017 pilot program and expanded more broadly in 2018, that led to criminal prosecution of parents and locking up their kids separately. Splitting up families was intentional and calculated, according to multiple reports.
Thanks to mass public outrage and a court order, Trump was forced to stop his family separation policy. Most families were reunited, but the American Civil Liberties Union, which was part of the lawsuit against the government that stopped the policy, said this week that at least 545 kids are still away from their parents.
“Their kids were ripped from their arms and separated,” Democratic nominee Joe Biden said during the debate. “And now they cannot find over 500 sets of those parents and those kids are alone. Nowhere to go. Nowhere to go. It’s criminal.”
Washington Post Columnist Ruth Marcus, moderates a panel discussion about chronic poverty with Education Secretary John B. King and Agriculture Secretary Tom Vilsack, during the National Association of Counties at the Washington Marriott Wardman Park, in Washington, DC, on Tuesday, Feb. 23, 2016. U.S. Department of Agriculture photo by Lance Cheung.
Ruth Marcus @ WashPost:
545.
That is the number of children still separated from their families by the Trump administration — separated deliberately, cruelly and recklessly. They might never be reunited with their parents again. Even if they are, the damage is unimaginable and irreparable.
545.
Even one would be too many. Each one represents a unique tragedy. Imagine being ripped from your parents, or having your child taken from you. Imagine the desperation that the parents feel, the trauma inflicted on their children.
545.
That number represents an indelible stain on President Trump and every individual in his administration who implemented this policy, flawed at the conception and typically, gruesomely incompetent in the execution. It is, perhaps in the technical sense but surely in the broader one, a crime against humanity. It is torture.
545.
That number — I will stop repeating it, yet it cannot be repeated enough — represents a moral challenge and responsibility for the next administration. If Joe Biden is elected president, he must devote the maximum resources of the federal government to fixing this disaster. The United States broke these families; it must do whatever it takes to help them heal.
Nothing like that would happen in a second Trump term, because Trump himself doesn’t care. He doesn’t grasp the horror that he oversaw. He doesn’t comprehend the policy, and he is incapable of feeling the pain it inflicted.
Those truths could not have been clearer cut than during Thursday night’s debate.
Moderator Kristen Welker of NBC News asked the president a simple question: “How will these families ever be reunited?”
First, Trump misstated the situation: “Their children are brought here by coyotes and lots of bad people, cartels, and they’re brought here, and they used to use them to get into our country.”
No. These are children separated from their families, not separated from smugglers. They are children brought by their parents in desperate search of a better life, desperate enough that they would take the risk of the dangerous journey.
Then Trump pivoted to the irrelevant: “We now have as strong a border as we’ve ever had. We’re over 400 miles of brand new wall. You see the numbers. And we let people in, but they have to come in legally.”
Welker persisted: “But how will you reunite these kids with their families, Mr. President?”
Trump responded by pointing his finger at his predecessor: “Let me just tell you, they built cages. You know, they used to say I built the cages, and then they had a picture in a certain newspaper and it was a picture of these horrible cages and they said look at these cages, President Trump built them, and then it was determined they were built in 2014. That was him.”
This is typical Trumpian deflection, bluster undergirded by ignorance. The “cages” are ugly but irrelevant to the topic at hand: the deliberately cruel plan to deter border-crossing by separating children from parents. That was a Trump administration special, implemented with callous sloppiness and so extreme that even the Trump administration abandoned it.
Welker, for the third time: “Do you have a plan to reunite the kids with their families?”
At which point Trump made clear that he did not: “We’re trying very hard, but a lot of these kids come out without the parents, they come over through cartels and through coyotes and through gangs.” The children, he added later, “are so well taken care of, they’re in facilities that were so clean.”
The third and final presidential debate gave Donald Trump and Joe Biden the opportunity to make their final pitch to the American people before the 2020 election. For the Democratic nominee, that meant driving home the point that he believes in science, that he’ll take the COVID-19 pandemic seriously, that climate change is real, and that systemic racism must be dealt with. For Trump, it meant making it clear that in addition to being a science-denying, QAnon-promoting dimwit, he’s also an actual monster who thinks separating small children from their parents, in some cases permanently, is absolutely fine.
Asked by moderated Kristen Welker about the news that parents of 545 children separated at the border—60 of whom are under the age of five—cannot be located, Trump defended the policy and gave no explanation for how the government plans to find these people and reunite their families. “Children are brought here by coyotes and lots of bad people, cartels, and they’re brought here and they used to use them to get into our country,” Trump said, which is objectively false, as they are brought here by their parents, which is why it’s called the family separation policy. “We now have as strong a border as we’ve ever had. We’re over 400 miles of brand new wall. You see the numbers and we let people in but they have to come in legally.”
Noting that Trump hadn’t answered the question, Welker pressed: “But how will you unite these kids with their families?”
“They built cages, they used to say I built cages…that was him,” Trump said, pointing to Biden and referring to the fact that the Obama administration did build temporary enclosures but failing, naturally, to mention that his predecessor did not separate families.
“Do you have a plan to reunite the kids with their parents?” Welker asked a third time. Again, Trump responded by claiming that the children “come without the parents, they come over through cartels and through coyotes and through gangs.”
At this point, Joe Biden was given a chance to weigh in and used his time to describe the policy implemented by Trump as the horror show all non-sociopaths know it to be. “Parents, their kids were ripped from their arms and they were separated and now they cannot find over 500 sets of those parents and those kids are alone, nowhere to go. It’s criminal.”
Then Trump interjected with what he apparently believed was an important point that would cast his administration in a much more favorable light and perhaps might even win it some awards or sainthood by the Catholic church. “Kristen, I will say this,” he told the moderator, of the children stolen from their parents. “They’re so well taken care of. They’re in facilities that are so clean.
With regard to that claim, NBC News reporter Jacob Soboroff weighed in on that after the debate, telling Rachel Maddow: “I was one of the reporters I guess the president mentioned, they invited me to go to the epicenter of this policy…what I saw was little children sitting on concrete floors, covered by mylar blankets, supervised by security contractors in a watchtower, it makes me sick every time I recall it. And Physicians for Human Rights…called this torture…the American Academy of Pediatrics called this state-sanctioned child abuse, and the president of the United States I guess interprets that as children being well taken care of.”
Jacob Soboroff NBC Correspondent Jacob Soboroff at the ABC News Democratic Debate National Constitution Center. Philadelphia, PA. Creative Commons License
Here’s a video from NBC New’sJacob Soboroff, who has actually been inside “Trump’s Kiddie Gulag.” Surprise spoiler: It’s not “nice.” More like “torture” and “child abuse.”
There is neither moral nor legal justification for what the Trump regime has done to asylum seekers and other migrants over the past four years as part of their racist, White Nationalist, nativist agenda. But, we can show that we’re a better country than his horrible vision by voting him and all of his enablers out of office! Vote ‘Em out, vote ‘Em out!
Close immigration courts now: A coronavirus necessity to protect public health
BySTEPHEN YALE-LOEHR andJACLYN KELLEY-WIDMER
NEW YORK DAILY NEWS |
MAR 31, 2020 | 1:36 PM
In this Nov. 15, 2019, file photo, a detainee talks on the phone in his pod at the Stewart Detention Center in Lumpkin, Ga. While much of daily life has ground to a halt to reduce the spread of the coronavirus, the Trump administration is resisting calls from immigration judges and attorneys to stop in-person hearings and shutter all immigration courts. They say the most pressing hearings can still be done by phone so immigrants aren’t stuck in detention indefinitely.(David Goldman/AP)Imagine you’re an immigration lawyer. You have a case scheduled for trial in immigration court, but you’ve got a cough, a sore throat and shortness of breath. In normal times, you probably would have gone to court for the trial. In current times, you’re worried. We all know what those symptoms mean.
You call your doctor, who tells you that you’re displaying symptoms consistent with COVID-19. The doctor recommends that you self-quarantine.
Your immigrant client is detained by Immigration and Customs Enforcement (ICE) and counting on you to present their asylum case. You’ve been preparing for months. Your client’s ability to avoid being deported to a country where they face torture or death depends on your performance.
Even though most courts around the country are closed in response to the pandemic, your court date is still on. The Justice Department is keeping its detained immigration courts open, ignoring joint letters from the National Association of Immigration Judges, the American Immigration Lawyers Association and the union representing ICE attorneys calling for a shutdown during the pandemic.
As of your trial date, you haven’t been able to meet with your client in person to prepare for at least two weeks. At the time, ICE wouldn’t let you use your regular attorney visit rooms due to disease risk, so you were stuck waiting in line for the one glass-partitioned attorney room at the detention center. You never got to the front of the line for the room, so you were only able to talk to your client through glass and on the telephone.
Then ICE issued a new directive on March 21 requiring all attorneys to bring their own gloves, mask and eye protection for contact visits with clients. Your office doesn’t have any of this gear. Even if you could get protective gear, you wouldn’t take it away from the medical professionals who truly need it.
Despite all of this, you hope the immigration judge will sympathize with your predicament. You file a motion asking for more time to better represent your client after all of this is over. You cite your own illness, your inability to meet with your client to prepare, and local and national public health warnings.
Despite your objections, the immigration judge proceeds with your client’s asylum trial. The judge gives you the choice of abandoning your client to face the fight of his life by himself or proceeding as his attorney via telephone. Reluctantly, you find a folding table to put your file on and try the case from your couch, unable to see or communicate privately with your client. You cannot see anything that is happening in court.
All you know is that the immigration judge, ICE prosecutor and interpreter are there.
. . . .
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Read the rest of the article at the above link.
And here’s my good friend and former Georgetown Law colleague Leila, now at Tulane Law, with her plea in Slate for some sanity and humanity on unnecessary and demonstrably harmful and dangerous continued incarceration of children in DHS’s “New American Gulag.”
With nearly 3,000 deaths and more than 160,000 infected by COVID-19 in the United States, it’s clear no one will be spared from impacts of the pandemic. In the past week, four children in immigration detention and seven employees of the Office of Refugee Resettlement who work in children’s detention facilities in New Jersey and Texas tested positive for the virus. Doctors working with detained immigrants have warned members of Congress that immigrant detention centers pose a “tinderbox scenario,” where social distancing precautions are impossible.
Two separate lawsuits are asking federal courts to force the release of unaccompanied children as well as families in immigrant detention, citing the grave health risks of contracting the coronavirus and spreading the disease. These risks are particularly serious because of the confluence of factors in family detention centers: crowded quarters, limited cleaning supplies, and the influx of new families into the detention centers. While it is understood children are usually less at risk of serious complications from COVID-19, a handful of children in the U.S. with COVID-19 have died in the past few days, and children may be more likely to more rapidly spread the disease.
Instead of a public health–oriented response to COVID-19 in the immigration legal system, we are seeing political opportunism. The Trump administration is using the virus as an excuse to swiftly deport unaccompanied minors at the border, despite laws that require that children be allowed to have their cases heard first by an immigration judge. Similarly, the Department of Justice is defying public health guidelines by forcing judges, attorneys, and immigrants to appear in select immigration courts across the country, despite positive COVID-19 tests from court personnel and risks inherent to crowded courtrooms, in order to continue deportation proceedings.
This mistreatment of children is not new. Before the outbreak, children were finding themselves in an increasingly punishing immigration legal system—where they had been separated from their parents, detained in record-breaking numbers for longer periods of time, and held in shocking and abusive detention conditions, including “dog cage” holding cells without mattresses, overflowing toilets, and frigid temperatures. Children do not have to be held in these conditions; unaccompanied children can and should be released more expeditiously to live with family in the U.S., and children detained with parents could be released as a family unit to pursue their legal case outside of detention.
Detained children have experienced forced hunger, dehydration, and sleeplessness.Holly Cooper, an attorney representing detained children, stated: “In my 22 years of doing visits with children in detention I have never heard of this level of inhumanity.” One 15-year-old boy, detained at the jail-like Shenandoah Valley facility, wrote “I want us to be treated as human beings.”
As a law professor and immigration attorney for more than a decade, I have seen firsthand how the immigration system mistreats children. In a recent law journal article, I argue adultification bias can help explain the mistreatment of immigrant children, who are largely teenagers of color. Adultification is the phenomenon whereby children of color are perceived as more adultlike and therefore less innocent than white peers. Adultification has created systemic harm for children of color within public systems like education, juvenile justice, and child welfare. In particular, the disproportionate rates of arrests, adjudications, and sentencing for children of color within the juvenile justice system has been studied closely.
Immigration laws were not designed to protect children. In fact, only a few areas of the law consider the special circumstances of children. The Flores settlement sets minimum standards for detaining minors, limited to children under 18. Under Flores, children should be released as soon as possible to family, when feasible. Furthermore, the Office of Refugee Resettlement, not U.S. Immigration and Customs Enforcement, is tasked with the custody of detained unaccompanied minors. According to legislative history, this is because ORR, under the Department of Health and Human Services, has more expertise in child care. Another child-focused measure is the Trafficking Victims Protection Reauthorization Act of 2008, or TVPRA, which expands legal protections for children including in the areas of asylum law and special immigrant juvenile status, a pathway to legal permanent residence and citizenship available for some children. Lastly, the government has issued guidelines for children’s cases to improve immigration court procedures.
. . . .
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Read the rest of Leila’s article at the link.
“Adultifiation,”“Adjudication Bias,”“Dred Scottification,”“dehumanization,” it’s all pretty much the same thing. As human beings, we must ask ourselves every day why have we empowered the cowardly bullies of the Trump regime to commit what are essentially “crimes against humanity” against the most vulnerable among us, their courageous representatives (about the only folks in the country brave enough to stand up for all of our Constitutional and human rights), and even their own employees? Compare their brave performance with the complicity of many Federal Judges, all the way up to the Supremes, and many legislators who stand by and watch these preventable and outrageous human and legal disasters occur, yet do nothing to stop them!
Why do we have the best and brightest legal and public health minds in the country pleading with the regime to take straightforward, common sense, prudent steps that even a minimally competent government would have taken long before now? How have we allowed the kakistocracy and the wanton cruelty and “malicious incompetence” they inflict on almost everything they touch become the “face of America?”
Due Process Forever! Vote Like YOUR Life Depends On It This November; Because It Does!
And, here’s the “complete transcript of proceedings” prepared by Sophia Barba (good practice for a future stint as a Judicial Law Clerk at the U.S. Immigration Court, Sophia):
Congratulations again to Sophia, Amanda, and the other wonderful members of the TILS. Honored to have you join the NDPA. Also thanks to Professor Mary Yanik and my good friend and former Georgetown Law colleague Professor Laila Hlass for being the “faculty support” for TILS. And, of course, it was a singular honor to have been your inaugural speaker.
The United States immigration regime has a long and sordid history of explicit racism, including limiting citizenship to free whites, excluding Chinese immigrants, deporting massive numbers of Mexican immigrants and U.S. citizens of Mexican ancestry, and implementing a national quotas system preferencing Western Europeans. More subtle bias has seeped into the system through the convergence of the criminal and immigration law regimes. Immigration enforcement has seen a rise in mass immigrant detention and deportation, bolstered by provocative language casting immigrants as undeserving undesirables: criminals, gang members, and terrorists. Immigrant children, particularly black and Latino boys, are increasingly finding themselves in the crosshairs of a punitive immigration system, over-policing within schools, and law enforcement, all of which can be compounded by racial biases and a lack of special protections for youth in the immigration regime. The confluence of these systems results in a trajectory that has been referred to as “the school to deportation pipeline.”
Gang allegations in immigration proceedings are an emerging practice in this trajectory. Using non-uniform and broad guidelines, law enforcement, school officials, and immigration agents may label immigrant youth as gang-affiliated based on youths’ clothes, friends, or even where they live. These allegations serve as the basis to detain, deny bond, deny immigration benefits, and deport youth in growing numbers. This Article posits that gang allegations are a natural outgrowth of the convergence of the criminal and immigration schemes, serving as a means to preserve racial inequality. This Article further suggests excluding the consideration of gang allegations from immigration adjudications because their use undermines fundamental fairness. Finally, this Article proposes a three-pronged approach to counter the use of gang allegations, including initiatives to interrupt bias, take youthfulness into account, and increase access to counsel in immigration proceedings.
Hlass, Laila, The School to Deportation Pipeline (2018). Georgia State University Law Review, Vol. 34, No. 3, 2018; Tulane Public Law Research Paper No. 18-1. Available at SSRN: https://ssrn.com/abstract=3132754
HERE ARE SOME “KEY QUOTES:”
“To be sure, the problem of gang violence in this country is a serious one. It is a problem that requires sustained attention to the complex (and diverse) sociological and neurological reasons that young people decide to associate with gangs or, as the case may be, disengage from them.27 Those concerns, however important, are beyond the scope of this Article. Instead, the goal of this Article is to shed light on the practical realities faced by immigrant youth caught in the school to deportation pipeline, where entrenched biases and insufficient procedural safeguards virtually guarantee their removal based on gang affiliation, no matter how flimsy the evidence supporting that label.28”
. . . .
“Gang allegations in immigration proceedings are part of the immigration regime’s long and ignoble history of explicit and implicit racism. Immigrant children, particularly youth of color, increasingly find themselves in the crosshairs of a punitive immigration system and subject to over-policing within schools and by law enforcement. These factors converge with existing racial biases and a lack of special protections for youth in the immigration regime, creating a perfect storm. To address this problem, gang allegations and related evidence should be excluded from immigration adjudications due to their unreliability and prejudicial nature. Furthermore, safeguards must be implemented to address this phenomenon, particularly as gang allegations appear to be on the rise. The immigration agency should attempt to interrupt adjudicator bias through education, improved decision-making conditions, and data collection. Secondly, youth should explicitly be a positive factor in discretion and bond decisions. Finally, to stall the school to deportation pipeline, children should have access to representation in immigration adjudications.”
AND, HERE’S A LINK TO THE FULL ARTICLE IN THE GEORGIA STATE UNIVERSITY LAW REVIEW:
Laila was my colleague at Georgetown Law when she was a Fellow at the CALS Asylum Clinic. In fact, she was a “Guest Lecturer” in my Immigration Law & Policy class.
Although Laila takes the much more scholarly approach, I have been saying consistently that this Administration’s harsh rhetoric and strictly law enforcement approach to diminishing the power of gangs is not only likely to fail, but is almost guaranteed to make the problems worse. Indeed, it’s basically an “on rhetorical steroids” version of the gang enforcement policies that have consistently been failing since the Reagan Administration.
But, we now have folks in charge who glory in their ignorance and bias. Consequently, they refuse to learn from past mistakes and will not embrace more effective community-based strategies that over time would deal with the causes of gang membership and help reduce gang violence.
