⚖️🗽🇺🇸JUDGE GARLAND ACKNOWLEDGES REFUGEE HERITAGE — Does He Recognize That As He Testifies, Many Of His “Soon-To-Be Judges” @ EOIR Are Intentionally Screwing Vulnerable Asylum Seekers, Harassing Their Pro Bono Attorneys, Carrying Out Miller’s White Nationalist Agenda, & Otherwise Mocking Due Process, Fundamental Fairness, & Equal Justice For Persons Of Color?

https://www.washingtonpost.com/nation/2021/02/22/merrick-garland-finally-speaks-his-words-were-worth-wait/

Robin Givhan writes @ WashPost:

. . . .

For the Republicans, justice is not something that “rolls down like waters,” it’s something that comes down like a hammer.

This was a failure that Sen. Cory Booker (D-N.J.) aimed to make clear when he asked Garland whether he was familiar with a biblical reference to justice that advises to “act justly and to love mercy.” Much of Booker’s questioning centered around racism within the criminal justice system — the disproportionate arrests of minorities, lousy legal representation for the poor, sentencing imbalances and the issue that caused Kennedy such befuddlement, implicit bias.

Garland acknowledged these issues, the flaws in the system, the need to change. And then he told in public, the story he’d told Booker in private about why he wanted to leave a lifetime appointment on the federal bench to do this job. It’s the most reasonable question, but one that so often is never asked: Why do you want to do this?

Garland acknowledged these issues, the flaws in the system, the need to change. And then he told in public, the story he’d told Booker in private about why he wanted to leave a lifetime appointment on the federal bench to do this job. It’s the most reasonable question, but one that so often is never asked: Why do you want to do this?

“I come from a family where my grandparents fled antisemitism and persecution,” Garland said. And then he stopped. He sat in silence for more than a few beats. And when he resumed, his voice cracked. “The country took us in and protected us. And I feel an obligation to the country, to pay back.”

“This is the highest, best use of my one set of skills,” Garland said. “And so I want very much to be the kind of attorney general you’re saying I could be.”

And that would be one focused on protecting the rights of the greatest and the least — and even the worst. Punishment is part of the job. But it’s not the definition of justice.

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

Read Robin’s complete article at the link. She can write! So delighted the Post got her off the “fashion beat” where her talents were being squandered, and got her onto more serious stuff!

Judge Garland’s awareness and humility are refreshing. But, unless he takes immediate action to redo EOIR and the rest of the DOJ’s immigration kakistocracy, it won’t mean much.

Judge, it could have been YOUR family forced to suffer kidnapping, extortion, murder threats, family separation, and other overtly cruel and inhuman treatment in squalid camps in Mexico, waiting for “hearings” that would never come before “judges” known for denying almost 100% of claims regardless of merit! YOUR family’s plea for refugee could have been rejected by some nativist bureaucrat or “hand-selected by the prosecutor” “Deportation Judge” for specious, biased reasons!

YOUR family was welcomed! But what if the only thought had been how to “best deter” “you and others like you” from coming?

Maybe because you and yours are White and hail from Eastern Europe, the “rule of law” has a different meaning and impact than it would if you were Brown, Black, or some other “non-White” skin color and had the misfortune to be from a “shithole” country where we have no concern for what happens to humanity? Or, worse yet, what if your family’s claim had been based on your Grandmother’s gender status? You would really be out of luck under today’s overtly misogynist approach to refugee law flowing out of EOIR!

Then, where would you and your nice family be today? Would you even be? THOSE are the questions you should be asking yourself!

Unfortunately, it’s easy to see that folks like Cotton, Hawley, Cruz, and Kennedy will be deeply offended if you attack their White Nationalist privilege, views, and agendas in any meaningful way.

And, if you actually make progress in holding the Capitol insurrectionists accountable, you’ll have to deal with the unapologetic, disingenuous, anti-democracy, insurrectionist actions of folks like Hawley and Cruz. That won’t be too “bipartisanly popular” with a GOP gang that just overwhelmingly worked and voted to ignore the evidence and “acquit” the “Chief Insurrectionist.” Who, by the way, was a main purveyor of the institutionalized racism that infects EOIR and the rest of the DOJ. It’s no real secret that “America’s anti-democracy party” aids, abets, encourages, and exonerates White Supremacists and domestic terrorists.

In the GOP world, “mercy” and “due process” are reserved for White guys like Trump, Flynn, Stone, White Supremacists, and “Q-Anoners.” Folks of color and migrants exist largely below the floor level of the GOP’s definition of “person” or “human.” For them, justice is a “hammer” to beat them into submission and punish them for asserting their rights.

So, restoring the rule of law at the DOJ is going to be a tough job — you need to clean house and get the right folks (mostly from outside Government) in to help you. And, you must examine carefully the roles of many career civil servants who chose to be part of the problems outlined by Chairman Durbin in his opening remarks.

You’re also going to have to “tune out” the criticism, harassment, and unhelpful “input” you’re likely to get from GOP legislators in both Houses who are firmly committed to the former regime’s White Nationalist agenda of “Dred Scottification,” disenfranchisement, nativism, and preventing equal justice for persons of color, of any status!

Think about all the reasons why you and your family are grateful for the treatment you received from our country. Then, think of the ways you could make those things a reality for all persons seeking refuge or just treatment, regardless of skin color, creed, or status. That’s the way you can “give back” at today’s DOJ! That’s the way you can be remembered as the “father of the diverse, representative, independent, due-process exemplifying 21st Century Immigration Judiciary!” 🧑🏽‍⚖️👩‍⚖️👨🏻‍⚖️

🇺🇸🗽⚖️Due Process Forever!

PWS

02-23-21

⚖️JOHN D. TRASVINA WILL HEAD OPLA @ ICE! — Should Be Good News!

From Dan Kowalski at LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/posts/will-john-d-trasvina-reform-ice-opla-i-have-high-hopes

Will John D. Trasviña Reform ICE OPLA? I Have High Hopes…

In late January 2021 John D. Trasviña was appointed Principal Legal Advisor at ICE.

Here is his ICE bio dated 1-26-21, and here is his Wikipedia entry.

Call it wishful thinking, but I hope he can revamp the ICE legal team from top to bottom and set a new direction, especially regarding who gets put into proceedings and why.

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

I share your high hopes, Dan!

I dealt with John on occasion in some of my “prior incarnations,” several decades ago. Always found him thoughtful, fair, reasonable, and helpful. Most of all, he was a guy with some compassion and empathy as well as a firm grasp of the “big picture” of immigration policies and their relationship to labor, jobs, the economy, and social and racial justice. Instilling those same qualities in OPLA and ICE would be a fantastic start!

🇺🇸👍🏼⚖️🗽Due Process Forever!

PWS

PROPHET 🔮 IN HIS OWN TIME: IN 2015, PROFESSOR GEOFFREY HOFFMAN CALLED FOR BETTER IMMIGRATION JUDGES 🧑🏽‍⚖️👩‍⚖️👨🏻‍⚖️⚖️ — The Situation Is 10X Worse Now! — Judge Garland Must Act To End This National Disgrace That Otherwise Will Quickly Become A Blot On The Biden Record! — “[L]et’s draw from the ranks of those with proven compassion, like the YMCA directors, legal aid attorneys, and people who will never belittle a child, never lose themselves in the power and prestige, and be resilient and persevere in one of the hardest jobs imaginable.”

From LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/newsheadlines/posts/geoffrey-hoffman-eoir-needs-better-immigration-judges

Geoffrey Hoffman: EOIR Needs Better Immigration Judges

Prof. Geoffrey Hoffman, Nov. 24, 2015 – “It is important, I think, to note the import but also the paradox behind the BIA’s latest precedent decision, Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015) that admonishes IJ’s not to bully minors. In the decision, the Board discusses conduct by an Immigration Judge that can be construed as “bullying or hostile” behavior and says it is “never appropriate,” particularly in cases involving “minor respondents,” concluding such behavior may result in remand to a different Immigration Judge. I am glad that the Board is finally taking to task this kind of egregious IJ behavior. On the one hand, we should applaud the Board for pointing out this behavior and finally holding it up to the light of day in an important new precedent decision. On the other hand, it is a sad commentary on the behavior of some judges that the appellate body of the EOIR has to even say this publicly. Of course judges should not behave this way, and the fact that recusal is mandated by the BIA in such situations is something to congratulate the Board for now getting behind. But, one wonders whether this response is at all sufficient. Whether, as an IJ, I can now say, “Well, the worst that will happen is that I will have the case taken away from me on remand, and therefore I do not have to deal with this mess anymore.” It doesn’t seem like much of a deterrent.

In a case which I handled on appeal, the IJ denied the respondent’s attorney the opportunity to call a psychologist to testify about the respondent’s mental condition and disease (bipolar disorder), a fact which went directly to the particular social group and seemed particularly relevant to me. When the attorney respectfully requested permission to put on the expert witness, and specially whether the witness could testify about any medications the respondent had taken or was taking the IJ in response asked the attorney whether she was on any medications. Was she on any medications? I read and re-read that line again and again as I prepared the appeal thinking perhaps I had missed the joke. But this wasn’t a joke. It was simply intemperate behavior by an IJ. Thankfully, the BIA correctly and compassionately remanded the case but based on the bipolar condition, recognizing that it could form a valid PSG. No mention was made of the issue of judicial impropriety I had raised in the brief. In other appeals I have done before the Board, I have noticed that when raising issues with the Board about IJ’s missing evidence or even misconstruing the factual background, the Board does not seem to deal with these issues head-on but instead bases their decisions on some other ground, preferring to adjudicate the appeal on a legal ground rather than on the basis of judicial misconduct or judicial mistake. And there is nothing surprising here, with the Board insulating IJ’s from admonishment and not highlighting their misunderstandings of the record, but there is I think a cost which has been underreported or perhaps not even appreciated. The cost is that IJs become used to behaving in a way that can be described as intemperate at best and demeaning or demoralizing and abusive, at worst.

This said, I do have a lot of sympathy for many IJs, having worked very hard myself for a federal judge for two years after law school, and seeing and appreciating the incredible stress and responsibilities of being a judge. The IJs, it should be mentioned, have it worse: they have to juggle a case load of hundreds and hundreds of cases, while at the same time maintaining compassion and composure at all times, and at the same time providing a clear, cogent and correct legal analysis in all cases and contexts. However, and this needs to be said, I think some IJs should not be IJs and should not have been selected to be IJs. If we want to make the immigration court system work we need to do a better job in vetting these judges, choosing based on temperament and suitability to deal with the rigors of handling all these cases with compassion and professionalism.

This is the time now (at this very moment) to make this statement as loudly and boldly as possible, since EOIR right now is advertising for 50+ new judgeships across the country. Since we have approximately 250+ judges, this represents an approximate 20 percent increase. I implore EOIR to make these decisions with due regard to how the judges might act in future, not just whether they have experience deporting people, working for the government in other capacities, or experiences such as being in the military. While those are factors, let’s draw from the ranks of those with proven compassion, like the YMCA directors, legal aid attorneys, and people who will never belittle a child, never lose themselves in the power and prestige, and be resilient and persevere in one of the hardest jobs imaginable.”

Geoffrey A. Hoffman

Director-University of Houston Law Center Immigration Clinic

Clinical Associate Professor

4604 Calhoun Road

TU-II, Room 56

Houston, TX 77204-6060

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

Unfortunately, the Obama Administration ignored Geoffrey’s plea. Instead of creating a well-qualified, independent, progressive judiciary that could achieve the “EOIR Vision” of: “Through teamwork and innovation becoming the world’s best tribunals, guaranteeing fairness and due process for all,” the Obama Administration handed out immigration judgeships like they were service awards for DHS prosecutors, DOJ attorneys, and other government lawyers.

The Obama selections appeared designed primarily to avoid appointing anyone who might have the background, backbone, and courage to “rock the boat” and stand up for immigrants’ rights even when it meant rejecting ill-advised and legally questionable Administration enforcement policies and procedures. In other words, truly independent judging and thinking was discouraged in favor of a “go along to get along” atmosphere mischaracterized as “collegiality.”

Sure, collegiality has its benefits. But, in the end, independent judging is about justice for the individuals coming before the courts, not about institutional survival, job preservation, making friends, achieving bureaucratic performance goals, or pleasing political “handlers” who don’t want to read about their “subordinates” in the “funny papers.” When I was ousted from the BIA as part of the so-called “Ashcroft purge,” I noticed that those those judges who were “collegial” but outspoken about immigrants’ legal rights got punished right along with those who were perceived as “less collegial” in standing up for the same rights.

Moreover, the Obama folks designed an unwieldy and astoundingly inefficient “Rube Goldberg selection system” that took more than two years to fill an average IJ vacancy — much longer than the Senate confirmation process! This was at a time when backlogs were building and the NAIJ and the “line IJs” were begging “EOIR management” for help. “Management” could have achieved comparable results simply by throwing darts at a board containing the names of government attorneys. And, it would have cut the red tape.

Inept as the Obama Administration might have been, the Trump kakistocracy of course proved to be our worst nightmare. They “weaponized” the EOIR immigration judiciary into a tool of White Nationalist nativist enforcement, racial injustice, and misogyny. Here are some of the things Sessions and Barr did at the behest of Stephen Miller:

“Packed” the BIA with judges known as “asylum deniers” — some with denial rates in excess of 90%;
Appointed IJs from the Atlanta Immigration Court, which had generated Matter of Y-S-L-C-, to the BIA in an overt attempt to replicate the “Asylum Free Zone” as Atlanta was known throughout the private bar;
“Rewarded” with BIA appointments several judges who had complaints lodged against them for their rude and unprofessional in-court behavior, open hostility to asylum seekers (particularly women), and unprofessional treatment of private attorneys;
Issued bogus EOIR and BIA precedents, some on their “own motion,” that were almost 100% against respondents and in favor of DHS Enforcement while undoing long-standing rules that had promoted fairness to asylum seekers and sound docket management;
Appointed almost all government/prosecutorial background Immigration Judges, many without immigration qualifications, others associated with anti-immigrant or anti-gay groups;
“Decertified” the National Association of Immigration Judges (“NAIJ”) as punishment for speaking out against gross mismanagement at EOIR and DOJ;
Imposed due-process-denying unprofessional “production quotas” on IJs intended to increase deportation rates;
Deprived IJs of effective management control over their dockets, while engaging in endless “Aimless Docket Reshuffling;”
Unethically exhorted IJs to treat the DHS as their “partners” in enforcing immigration laws;
Gave the Director — essentially a political appointee disguised as a career executive — authority to interfere with BIA decision making in certain cases;
Basically reduced Immigration Judges to the status of “deportation clerks” while falsely claiming that they were “management officials” to “bust” the union;
“Dumbed down” immigration judge training;
Artificially “jacked up” the Immigration Court backlog to an astounding 1.3 million cases — even with twice the number of IJs on the bench.

As one of my esteemed Round Table colleagues said, “since [Geoffrey’s article] was written, record numbers of good IJs resigned over the past 4 years, many good candidates wouldn’t apply (or if they did, likely weren’t chosen) over the past 4 years, and then just the general drop in quality that comes with that degree of expansion [in the absence of competent planning].”

The lack of compassion, glaring disregard for the protective purposes of refugee law, and absence of human understanding as to what it means to be a refugee seeking salvation simply screams out from the last four years of perverse AG and BIA precedents as well as from some of the elementary mistakes made by EOIR judges at all levels in the numerous cases reversed by Courts of Appeals over the past four years.

And, this is just the “tip of the iceberg.” Many seeking protection are denied any hearings at all, railroaded out without understanding what’s happening, or simply give up without appealing wrong decisions and denials of due process — worn down by the abusive and unnecessary detention that EOIR helps promote and the intentionally “user unfriendly” procedures developed to discourage individuals from asserting their legal and human rights.

While the broken and reeling Department of Justice presents many challenges, I predict that Judge Garland’s tenure will be remembered largely by how he deals, or doesn’t deal, with the total disaster in the U.S. Immigration Courts. The Trump regime’s attack on democracy and people of color began with immigration, and the effort to dehumanize and degrade migrants continued until the final day.

Will Judge Garland leave behind a reformed, progressive, due-process-oriented system that is a model judiciary? One that finally fulfills the vision of — “Through Teamwork and innovation action becoming the world’s best tribunals, guaranteeing fairness and due process for all?” A court that can easily transition out of the DOJ intro an independent Article I Judiciary? Or will he leave behind another disgraceful mess and the dead bodies, broken dreams, and visible betrayals of American values to prove it?

Only time will tell! But, the NDPA will be watching. And, there isn’t much patience out here for more of the “EOIR Clown Show!”🤡🦹🏿‍♂️

🇺🇸🗽⚖️Due Process Forever! Better judges 🧑🏽‍⚖️👩‍⚖️👨🏻‍⚖️ for a better America. And that starts (but doesn’t end) with the U.S. Immigration Courts!

PWS

02-14-21

🏴‍☠️TRUMP REGIME LEFT BEHIND AWFUL MESS 🤡 @ EOIR: BACKLOGS GREW EXPONENTIALLY, CASES TOOK LONGER TO COMPLETE, BUT MORE (LESS QUALIFIED) JUDGES WERE ON THE BENCH — Haste Makes Waste Gimmicks Created “Worst Of All Worlds!”

EYORE — “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

Transactional Records Access Clearinghouse

Immigrants Facing Deportation Wait Twice as Long in FY 2021 Compared to FY 2020

FOR IMMEDIATE RELEASE

The latest available case-by-case Immigrant Court records show that immigration cases that were completed in the first four months of FY 2021 took nearly twice as long from beginning to end as cases completed in the first four months of FY 2020. Cases that were completed between the beginning of October 2020 and the end of January 2021 took, on average, 859 days compared to 436 days over the same period a year before. The duration was calculated as the number of days between the date the Notice to Appear was issued to the date of completion as recorded in the Immigration Court’s records.

The top ten Immigration Courts with the most case completions thus far in FY 2021 accounted for four out of every ten closures (42%). The Miami Immigration Court was the most active with 2,129 case closures. Completion times at the Miami Immigration Court have increased since November 2020, but were slightly lower than the national average at 832 average days. In November, the Miami court took on average 787 days. The Immigration Court in Los Angeles had the second highest number of case completions with 1,857 case closures, followed closely by San Francisco with 1,849. Baltimore and Dallas were in fourth and fifth place.

The longest disposition times were found in the Atlanta Immigration Court where it took on average 1,577 days to close a case. The Cleveland Immigration Court was close behind, taking an average of 1,573 days. The Arlington Immigration Court was in third place with completion times so far in FY 2021 averaging 1,535 days. Newark and Boston Immigration Courts were in fourth and fifth place. Cases completed by immigration judges in Atlanta, Cleveland, Arlington, and Newark all took, on average, longer than four years.

The full report is found at:

https://trac.syr.edu/immigration/reports/639/

To examine a variety of Immigration Court data, including asylum data, the backlog, MPP, and more now updated through January 2021, use TRAC’s Immigration Court tools here:

https://trac.syr.edu/imm/tools/

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

Maliciously incompetent management fuels “Aimless Docket Reshuffling!”

It’s what happens when you combine White Nationalism, maliciously incompetent management, bad judging, and endless “enforcement-only” gimmicks that tried to cut corners and short-circuit justice — “Aimless Docket Reshuffling” (“ADR”) to the max. What has been absent from this system for years is leadership that understands immigration, views migrants as humans, and is committed to due process, fundamental fairness, and best practices.

Pretty much what AILA pointed out in today’s report (policy brief).

🎇🧨💣BLOCKBUSTER NEW REPORT MAKES COMPELLING CASE FOR IMMEDIATE END TO EOIR CLOWN SHOW! 🤡🦹🏿‍♂️ — Lays Out Blueprint For Restoring Due Process, Enhancing Justice In America’s Most Dysfunctional, Unfair, and Abusive “Courts!”

The system can’t improve without better personnel — not necessarily more — just better qualified to get the job done in a fair and timely manner consistent with due process and human dignity!

🇺🇸⚖️🗽Due Process Forever!

PWS

02-12-21

IT’S NOT ROCKET SCIENCE! 🚀 — GREG CHEN & PROFESSOR PETER MARKOWITZ CAN CUT THE IMMIGRATION COURT BACKLOG IN HALF IMMEDIATELY WITH NO ADDITIONAL RESOURCES! — And, That’s Just The Beginning! — “Team Garland” Needs To Get The “A-Team” In Place @ EOIR & End The Nonsense, Injustice, & Waste Of “America’s Star Chambers!”

https://thehill.com/opinion/immigration/536794-unclogging-the-nations-immigration-court-system

From Immigration Impact:

. . . .

That is why the Justice Department must also identify categories of non priority immigration court cases that can be dismissed now. One obvious category is the estimated 460,000 cases — an astounding 37 percent of the current backlog — that involve individuals who could qualify, under current law, for legal status. It makes little sense to waste limited enforcement resources by having immigration prosecutors and judges spend years trying these cases in court, when trained adjudicators at another agency, U.S. Citizenship and Immigration Services, can handle them more efficiently through paper applications.

Supreme Court cancels border wall, asylum policy hearings after Biden…

Another category of cases that should be removed from judges’ dockets are the 200,000 cases that have been pending for more than five years. By definition, these old cases are ones that prosecutors and judges have deemed low priorities.

Biden has noted that the Obama administration “took too long” to begin fixing the nation’s immigration system. His initial steps are a promising indication that he intends to move swiftly to build the fair, humane and functional immigration enforcement system he has promised. To guarantee results, the new president must use his first 100 days to identify and remove the non priority cases bottlenecked in America’s immigration courts.

Greg Chen is senior director of government relations for the American Immigration Lawyers Association. Peter L. Markowitz is a professor of law at the Benjamin N. Cardozo School of Law where he directs the Kathryn O. Greenberg Immigration Justice Clinic.

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

Read the full article at the link.

Presto: 1.3 million million docket becomes 640,000. And that’s just the beginning!

Here are some more low-budget, immediate action “No-Brainers:”

Vacate all of the anti-asylum, backlog expanding “precedents” issued by Sessions, Whitaker, Barr, and the BIA over the past four years (immediately returning needed flexibility and some degree of fairness to the system);
Reassign the current BIA and replace with expert judges committed to due process who know how to grant asylum and establish precedents on how “clear grants” can be easily identified, properly documented, and consistently adjudicated (eliminate “refugee roulette” — largely a product of an “any reason to deny culture” combined with defective judicial selection, poor training, and lousy leadership);
Return all asylum cases denied over the past four years to the USCIS Asylum Office for adjudication without all the anti-asylum precedents and dehumanizing policies of the Trump regime;
Work with the private bar and NGOs to increase representation with universal representation as the goal;
Eliminate inane and demeaning “production quotas” for EOIR judges (thus placing the emphasis back on careful decision making, thoughtful analysis, and getting the correct result the first time — also restoring IJs’ ability to schedule and manage dockets).

Realistically, 500 Immigration Judges can complete approximately 250,000 to 300,000 cases annually. A combination of 1) the “Chen-Markowitz plan;” 2) the “Schmidt Addendum;” and 3) the more sensible and realistic enforcement priorities initiative already underway at DHS will have EOIR “operating in real time” (and, significantly, in the national interest) in no time at all — without legislation or busting anyone’s budget!

Of course, these initial steps are just the “tip of the iceberg” of the reforms necessary at EOIR, leading to the fulfillment of the vision of “through teamwork and innovation becoming the world’s best tribunals guaranteeing fairness and due process for all.” Congress must at the earliest opportunity create an independent Article I Immigration Court to institutionalize and preserve these reforms and “best practices.”

But, in the meantime, lives and our national interests are imperiled by the current deadly (and wasteful) dysfunction @ EOIR. There is every reason to fix the system now! And, it’s not “rocket science” — just expertise and common sense.

Which leads me to another obvious point — Members of the NDPA like Chen, Markowitz, Dean Kevin Johnson, Michelle Mendez, Associate Dean Professor Jaya-Ramji Nogales, Professor Phil Schrag, Professor Michele Pistone, up and coming all-star Lauren Wyatt, Judge Dana Marks and other leaders of the NAIJ, experienced due process oriented Immigration Judges like my former BIA colleague Judge Noel Brennan, and many others like them should be in charge of this effort to reform EOIR and create a model court system.

The Biden Administration must apply the same principles to EOIR Reform that they have elsewhere: Get rid of the “middlemen” and “bring in the experts” to run the show! Articles, papers, speeches, TV interviews, encounter groups, studies, and blogs are great — but putting the right folks in the right places to take action to solve problems is much better and more efficient! Put the folks with the answers in charge!

That would not only create a “laboratory of best judicial practices” that could be applied to the floundering Article III Judiciary, but also would provide the Biden Administration with source of well-trained progressive candidates for the Article III Judiciary. Leadership, including “leading by example” is critical in any well-functioning judicial system; it has been sorely lacking at EOIR (and in the Article III Judiciary) over the past four years. As the Biden Administration has already recognized, the only real leadership among the Federal Judiciary has come from “resistors” like Judge Ashley Tabaddor, now at USCIS.

Incidentally, in her current position at USCIS, Judge Tabaddor is perfectly placed to work with EOIR in carrying out the “Chen-Markowitz plan” to get cases of those potentially eligible for residence out of the EOIR backlog and into USCIS where they can be handled more efficiently.

Suggestion for EOIR Acting Director Jean King: Perhaps you weren’t aware that EOIR just posted the following recruitment notice for Attorney Advisor (Counsel to the Deputy Director) (not a joke, sadly): https://lnks.gd/l/eyJhbGciOiJIUzI1NiJ9.eyJidWxsZXRpbl9saW5rX2lkIjoxMDAsInVyaSI6ImJwMjpjbGljayIsImJ1bGxldGluX2lkIjoiMjAyMTAyMDMuMzQ1MzcxMTEiLCJ1cmwiOiJodHRwczovL3d3dy5qdXN0aWNlLmdvdi9sZWdhbC1jYXJlZXJzL2pvYi9hdHRvcm5leS1hZHZpc29yLWNvdW5zZWwtZGVwdXR5LWRpcmVjdG9yIn0.HqH7tPMLAQqeCW9Xc0ooJNBRk_97S44aMG-xy02Pesc/s/842922301/br/97008185548-l

To state the obvious, EOIR needs more “headquarters personnel” like a hole in the head! What you need is a streamlined staff of better-qualified individuals across the board: real judges and professional judicial administrators who will restore due process and get this system functioning again — sooner rather than later.

Additionally, the current Deputy Director Carl C. Risch is a notorious “Trump political burrower” who should be gone by the end of the month. 🧹🪠 https://immigrationcourtside.com/category/department-of-justice/executive-office-for-immigration-review-eoir/office-of-chief-administrative-hearing-officer-ocaho/judge-james-mchenry/carl-c-risch/

Consequently, there is no apparent need for additional “counsel” in his office right now. To say the least, this ill-timed “example of the “Continuing Clown Show at EOIR”🤡 has already become a “internet mini-sensation!” At the very least, you should wait until Risch’s replacement arrives and let her or him make the selection.

Undoubtedly, a reformed IJ tenure program (considering not only discipline but also retention of current judges and improved professional training) that is transparent, fair, and effective is a badly needed and long overdue improvement. But, hiring another bureaucrat (on short notice, which is likely to produce a less than “best qualified” candidate) isn’t the answer.

That being said, I’ve already heard from a number of private practitioners who would love to be in charge of “professional responsibility for Immigration Judges.” They have lots of great ideas for improvements and a number of places where they would start the process immediately, if not sooner!

⚖️🗽🇺🇸Due Process Forever!

PWS

02-04-21

🏴‍☠️LOTS OF TALK, BUT ICE’S ACTIONS SHOW LITTLE RECOGNITION THAT BIDEN ADMINISTRATION IS IN CHARGE — Deportations Of Victims, Deaths In Gulag, Defending Inhumane & Wasteful Policies In Court Continue “As Usual”

https://www.theguardian.com/us-news/2021/feb/01/el-paso-mass-shooting-survivor-deported-to-mexico?CMP=Share_iOSApp_Other

Outrage after survivor of El Paso mass shooting deported to Mexico

Police reportedly stopped the woman due to a non-functioning brake light, took her to a local jail and then soon deported her

Kenya Evelyn in Washington

Published:

12:00 Monday, 01 February 2021

Follow Kenya Evelyn

A survivor of a Walmart mass shooting that killed 23 people in El Paso, Texas, and targeted Latino people has been deported to Mexico, triggering widespread outrage among activists and local politicians.

Police reportedly stopped the woman – who was not named in full – due to a non-functioning brake light, then took her to a local jail. She was then placed into the custody of Immigration and Customs Enforcement (Ice), where she was soon deported to Mexico.

Best

The legal defense team working on her behalf confirmed to local KVIA that city police arrested the woman, identified as just Rosa. She was booked into the El Paso county jail annex.

Diocesan Migrant & Refugee Services told local KTSM that on Wednesday, the survivor was pulled over and, during the traffic stop, found to have two, five-year-old citations still outstanding.

By Friday morning, Rosa had been deported to Cuidad Juárez where she has remained ever since.

On a Saturday morning in early August 2019, a 21-year-old man walked into the El Paso Walmart Super Center and opened fire, first into the parking lot before taking aim at the store’s entryway. The attack killed 13 Americans, eight Mexicans and one German.

. . . .

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

Read the full article at the link.

Undoubtedly, it’s hard to “get a handle” on the failed DHS bureaucracy — a more than willing enforcer of Trump’s cruel, White Nationalist, often illegal immigration agenda.

But, if the Biden Administration wants to change policy, they must find the right people to do just that — sooner, rather than later! Otherwise, like past Dem Administrations, they will end up with a file (or drive) full of reasonable policy memos that everyone ignores.

PWS

02-01-21

🌞😎DAWNING OF A NEW ERA — First Gibson Report of The Biden Presidency (01-25-21) Shows Potential For Returning Sanity, Humanity, Focus On Human Rights, Good Government To America While Highlighting Continuing Problems @ EOIR & Deficiencies @ Supremes! — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group! — Judge Garland Must Take Notice & Fix This Outrageous Mess If He Doesn’t Want to Become Part of It! — There Will Be No “Grace Period” For The Continuing Abuses Of Justice @ Justice! — We Have A “Supreme Problem” In Our Failing Justice System!

Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

COVID-19 & Closures

Note: Policies are rapidly changing, so please verify information with the government and colleagues.

EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, February 19, 2021. NYC non-detained remains closed for hearings.

TOP NEWS

AILA: First 100 Days of the Biden Administration: Tracking executive actions and proposals.

Biden Took Eight Administrative Actions on Immigration. Here’s What You Need to Know

IAC: Here is a summary of eight immigration-related changes the new administration just implemented:

1. Scaling back Trump’s unchecked immigration enforcement.

2. 100-Day moratorium on most deportations.

3. The end of the Muslim and African travel bans.

4. Protecting people with DACA.

5. Expedited and extended access to green card processing for Liberians.

6. Pausing construction on the border wall.

7. Ending Trump’s unconstitutional census executive order.

8. Suspending new enrollments in the so-called “Migrant Protection Protocols.”

Biden EO: Early Calendar of Themed Days

White House: January 29: Immigration

1. Regional Migration/Border Processing EO : Directs creation of strategies to address root causes

of migration from Central America and expand opportunities for legal migration, while taking

steps to restore the U.S. asylum system by rescinding numerous Trump Administration policies

2. Refugee Policy EO (tent.) : Establishes the principles that will guide the Administration’s

implementation of the U.S. Refugee Admission Program (USRAP) and directs a series of actions

to enhance USRAP’s capacity to fairly, efficiently, and security process refugee applications

3. Family Reunification Task Force EO : Creates task force to reunify families separated by the

Trump Administration’s Immigration policies

4. Legal Immigration EO : Directs immediate review of the Public Charge Rule and other actions

to remove barriers and restore trust in the legal immigration system, including improving the

naturalization process

Texas sues Biden administration over 100-day deportation ‘pause’

WaPo: Paxton’s lawsuit claims the deportation freeze defies an agreement between Texas and DHS finalized Jan. 8 — less than two weeks before Trump left office — requiring the department to provide 180 days notice before making changes to immigration policy and enforcement practices. See also Bronx man set to be deported despite 100-day moratorium, attorney says (flight canceled following advocacy) .

Biden is starting to roll back Trump’s “Remain in Mexico” program

Vox: The Biden administration announced that, starting Thursday, it will no longer enroll asylum seekers newly arriving on the southern border in a Trump-era program that has forced tens of thousands to wait in Mexico for a chance to obtain protection in the United States. The Homeland Security Department urged anyone currently enrolled in the program, known as the Migrant Protection Protocols (MPP) or colloquially as the “Remain in Mexico” policy, to “remain where they are, pending further official information from U.S. government officials.”

Trump blocks Venezuelans’ deportation in last political gift

AP: With the clock winding down on his term, U.S. President Donald Trump shielded tens of thousands of Venezuelan migrants from deportation Tuesday night, rewarding Venezuelan exiles who have been among his most loyal supporters and who fear losing the same privileged access to the White House during the Biden administration.

The U.S. Citizenship Act of 2021: Help for Asylum Seekers, U Visas, Military Aides

ImmProf: There’s a lot to unpack there. First: eliminating one-year deadline for filing asylum claims. Second: increasing “protections for U visa, T visa, and VAWA applicants.” Third: raising the cap on U visas for 10,000 to 30,000. Fourth: expanding protections for foreign nationals assisting U.S. troops. But see GOP Lawmakers Propose Major Immigration Restrictions.

Biden wants to remove this controversial word from US laws

CNN: Biden’s proposed bill, if passed, would remove the word “alien” from US immigration laws, replacing it with the term “noncitizen.”

Sen. Hawley moves to block swift confirmation for Biden’s homeland security pick

WaPo: Homeland security nominee Alejandro Mayorkas told senators he would carry out President-elect Joe Biden’s immigration overhaul while intensifying efforts to combat domestic extremism, during a hearing Tuesday that highlighted Republican opposition to his confirmation.

The State of the Immigration Courts: Trump Leaves Biden 1.3 Million Case Backlog in Immigration Courts

TRAC: While the Trump administration hired many new immigration judges and implemented a range of different strategies aimed in part at reducing the Immigration Court backlog, the backlog grew each month. Some of Trump’s changes in court operations arguably slowed case processing. However, the primary driver of the exploding backlog was not only the lack of immigration judges but the tsunami of new cases filed in court by the Department of Homeland Security.

Bad conduct, leering ‘jokes’ — immigration judges stay on bench

SFChron: Interviews with dozens of attorneys across the country and current and former government officials, as well as internal documents obtained by The Chronicle, show the problems have festered for years. The Justice Department has long lacked a strong system for reporting and responding to sexual harassment and misconduct.

Vera Statement on Governor Cuomo’s 2021 State of the State Address

Vera: Gov. Cuomo reaffirmed his commitment to funding the Liberty Defense Project, which provides essential legal services for immigrants across New York State. This is excellent news for families facing separation, deportation and other horrors caused by the federal government’s actions.

LITIGATION/CASELAW/RULES/MEMOS

District Court Halts Most of EOIR Filing Fee Rule from Going into Effect

A district court judge issued a nationwide stay of the effective date of the 12/18/20 EOIR final fee review rule and a preliminary injunction to enjoin most of its implementation. The rule was set to go into effect on 1/19/21. (CLINIC, et al., v. EOIR, et al., 1/18/21) AILA Doc. No. 21011933

White House Issues Memo on Regulatory Freeze Pending Review

White House Chief of Staff Ronald A. Klain issued a memorandum for the heads of executive departments and agencies instituting a regulatory freeze pending review. AILA Doc. No. 21012090

DHS and DOJ Delay Effective Date of Final Rule on Pandemic-Related Security Bars to Asylum and Withholding of Removal

Advance copy of a document that will be published in the Federal Register on 1/25/21, delaying the effective date of the final rule “Security Bars and Processing,” which was scheduled to become effective on 1/22/21. The effective date is delayed until 3/21/21. AILA Doc. No. 21012143

DHS Acting Secretary Issues Memorandum on Immigration Enforcement Policies

Acting DHS Secretary Pekoske issued a memorandum directing DHS components to conduct a review of immigration enforcement policies, and setting interim policies for civil enforcement during that review. Beginning 1/22/21, DHS will pause removals of certain noncitizens ordered deported for 100 days. AILA Doc. No. 21012136

President Biden Issues Executive Order Revising Civil Immigration Enforcement Policies and Priorities

President Biden issued an Executive Order revoking EO 13768 of 1/25/17, and directing the DOS Secretary, the Attorney General, the DHS Secretary, and other officials to review any agency actions developed pursuant to EO 13768 and to take action, including issuing revised guidance, as appropriate. AILA Doc. No. 21012135

Presidential Proclamation on Ending Discriminatory Bans on Entry to the United States

President Biden issued a proclamation revoking EO 13780, PP 9645, PP 9723, and PP 9983. The proclamation directs the DOS secretary to direct embassies/consulates, consistent with visa processing procedures, including any related to COVID-19, to resume visa processing consistent with the revocations. AILA Doc. No. 21012002

President Biden Issues Executive Order on Promoting COVID-19 Safety in Domestic and International Travel

President Biden issued an EO, which, among other things, directs government officials to assess CDC’s order requiring a negative COVID test from airline passengers traveling to the U.S., and to take “further appropriate regulatory action” to implement public health measures for international travel. AILA Doc. No. 21012300

Presidential Proclamation Terminating Restrictions on Entry of Certain Travelers from the Schengen Area, the U.K., Ireland, and Brazil

In light of a CDC order issued on 1/12/21, President Trump issued a proclamation on 1/18/21, effective 1/26/21, removing travel restrictions from the Schengen Area, the U.K., Ireland, and Brazil. (86 FR 6799, 1/22/21) AILA Doc. No. 21011930

DHS Suspends New Enrollments in the MPP Program

DHS announced that it is suspending new enrollments in the Migrant Protection Protocols (MPP) Program and will cease adding individuals into the program effective 1/21/21. DHS advised current MPP participants to remain where they are, pending further information. AILA Doc. No. 21012001

President Biden Issues Memorandum on Preserving and Fortifying DACA

On 1/20/21, President Biden issued a memorandum directing the DHS Secretary, in consultation with the Attorney General, to take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA. (86 FR 7053, 1/25/21) AILA Doc. No. 21012130

President Biden Issues Memorandum Reinstating Deferred Enforced Departure for Liberians

On 1/20/21, President Biden issued a memo deferring through 6/30/22, the removal of any Liberian national, or person without nationality who last habitually resided in Liberia, who is present in the U.S. and who was under a grant of DED as of 1/10/21. (86 FR 7055, 1/25/21) AILA Doc. No. 21012131

President Biden Issues Executive Order Revoking Prior Presidential Actions Excluding Undocumented Immigrants from the Apportionment Base Following the Decennial Census

On 1/20/21, President Biden issued an executive order revoking prior presidential actions that sought to exclude undocumented immigrants from the apportionment base following the 2020 census. (86 FR 7015, 1/25/21) AILA Doc. No. 21012134

Presidential Proclamation Terminating Emergency with Respect to the U.S. Southern Border and Redirecting Funds Diverted to Border Wall Construction

President Biden issued a proclamation terminating the national emergency declared by Proclamation 9844, and continued on 2/13/20 and 1/15/21. The proclamation directs officials to pause work on construction on the southern border wall and to develop a plan to redirect funds and repurpose contracts. AILA Doc. No. 21012132

President Trump Issues Memorandum on Deferred Enforced Departure for Certain Venezuelans

On 1/19/21, President Trump issued a memo directing DHS and DOS to defer, with certain exceptions, for 18 months the removal of any Venezuelan national, or individual without nationality who last habitually resided in Venezuela, who is present in the U.S. as of 1/20/21. (86 FR 6845, 1/25/21) AILA Doc. No. 21012030

Supreme Court Vacates Decision of Ninth Circuit in ICE v. Padilla

The U.S. Supreme Court granted the petition for a writ of certiorari, vacated the judgment of the Ninth Circuit, and remanded for further consideration in light of DHS v. Thuraissigiam. (ICE, et al. v. Padilla, et al., 1/11/21) AILA Doc. No. 21011934

BIA Rules §58-37-8(2)(a)(i) of the Utah Code Is Divisible with Respect to the Specific Controlled Substance Involved in Statue Violation

The BIA ruled that §58-37-8(2)(a)(i) of the Utah Code, which criminalizes possession or use of a controlled substance, is divisible with respect to the specific “controlled substance” involved in a violation of that statute. Matter of Dikhtyar, 28 I&N Dec. 214 (BIA 2021) AILA Doc. No. 21012237

CA1 Remands Asylum and Withholding Claims of Iraqi National Who Worked for U.S. Army During War

The court vacated and remanded the BIA’s denial of the asylum and withholding of removal claims of the petitioner, who feared that he would be subjected to harm on account of his work as a paid contractor for the U.S. Army during the war in Iraq. (Al Amiri v. Rosen, 1/11/21) AILA Doc. No. 21012039

CA4 Remands Plaintiffs’ Claim That DHS Unreasonably Delayed Adjudication of Their U Visa Petitions

Vacating in part the district court’s decision, the court held that the plaintiffs had pled sufficient facts to allege a plausible claim that DHS unlawfully withheld or unreasonably delayed adjudication of their U visa petitions. (Fernandez Gonzalez, et al. v. Cuccinelli, et al., 1/14/21) AILA Doc. No. 21012048

CA5 Finds Petitioner Failed to Show Due Diligence Where He Waited Eight Months After Lugo-Resendez to File Motion to Reopen

The court upheld the BIA’s conclusion that the petitioner did not demonstrate due diligence because he had waited approximately eight months after the court’s decision in Lugo-Resendez v. Lynch to file his current motion to reopen under INA §240(c)(7). (Ovalles v. Rosen, 1/6/21) AILA Doc. No. 21011943

CA5 Dismisses for Mootness After Finding Inadmissibility Was Not a Collateral Consequence of BIA’s Withholding-Only Decision

The court held that even if the BIA had erred in denying withholding of removal to the petitioner, inadmissibility was not a collateral consequence of the BIA’s decision, because the petitioner would still be subject to his February 2012 removal order. (Mendoza-Flores v. Rosen, 12/29/20) AILA Doc. No. 21011942

CA6 Says BIA Abused Its Discretion by Finding That No Exceptional Circumstances Justified Minor Petitioner’s Failure to Appear

The court held that, based on the totality of the circumstances, including petitioner’s young age and her inability to travel from New York to Memphis for the hearing, the petitioner had established exceptional circumstances justifying her failure to appear. (E. A. C. A. v. Rosen, 1/12/21) AILA Doc. No. 21012040

CA6 Says It Has Jurisdiction to Review BIA’s Ultimate Hardship Conclusion for Cancellation of Removal After Guerrero-Lasprilla

The court held that the BIA’s ultimate hardship conclusion is the type of mixed question over which it has jurisdiction to review after the Supreme Court’s decision in Guerrero-Lasprilla v. Barr, but found that petitioner failed to show the requisite hardship. (Singh v. Rosen, 1/7/21) AILA Doc. No. 21011944

CA7 Finds BIA Did Not Err in Denying Asylum to Mexican Petitioner Whose Family Was Targeted by Sinaloa Cartel

The court held that substantial evidence supported the BIA’s determination that the petitioner had failed to establish the requisite nexus between his fear of persecution from the Sinaloa Cartel upon return to Mexico and his family membership. (Meraz-Saucedo v. Rosen, 1/15/21) AILA Doc. No. 21012044

CA7 Remands Petitioner’s Request for Administrative Closure After Finding BIA Did Not Exercise Its Discretion According to Law

The court held that the petitioner was entitled to have his request for administrative closure considered as a proper exercise of discretion under law, including BIA precedents and the factors set forth in Matter of Avetisyan and Matter of W-Y-U. (Zelaya Diaz v. Rosen, 1/15/21) AILA Doc. No. 21012041

CA8 Affirms BIA’s Denial of Deferral of Removal to Somali Petitioner Who Feared Torture by Al-Shabaab for Minority-Clan Membership

The court affirmed the BIA’s decision denying petitioner’s request for deferral of removal to Somalia, finding that substantial evidence supported the IJ’s and BIA’s conclusions that he was unlikely to be tortured by Al-Shabaab due to his minority-clan membership. (Hassan v. Rosen, 1/15/21) AILA Doc. No. 21012045

CA8 Holds That DHS Was Permitted to Substitute CIMTs Charge for Immigration Fraud Charge as Basis for Petitioner’s Removal

The court held that, in seeking the petitioner’s removal, DHS could choose to rely on a claim that the petitioner had committed crimes involving moral turpitude (CIMTs), rather than on the alternative claim that she had committed immigration fraud. (Herrera Gonzalez v. Rosen, 1/4/21) AILA Doc. No. 21011945

CA9 to Rehear En Banc Case Involving Derivative Citizenship

The court ordered rehearing en banc and vacated its prior decision in Cheneau v. Barr, which held that the petitioner did not derive citizenship from his mother’s naturalization because his claim was foreclosed by the court’s precedent. (Cheneau v. Rosen, 1/6/21) AILA Doc. No. 21011948

CA9 Affirms District Court’s Denial of Government’s Motion to Terminate Flores Settlement Agreement

The court held that the district court had correctly concluded that the Flores Settlement Agreement was not terminated by new regulations adopted by HHS and DHS in 2019, and that the government did not show that changed circumstances justified termination. (Flores v. Rosen, 12/29/20) AILA Doc. No. 21011946

CA9 Holds That Petitioner Who Adjusted to Permanent Resident Under SAW May Be Removed at Present Time

The court held that, under the Special Agricultural Worker program (SAW), a noncitizen who was inadmissible at the time of his adjustment to temporary resident status may be removed after his automatic adjustment to permanent resident status. (Hernandez Flores v. Rosen, 12/30/20) AILA Doc. No. 21011947

CA9 Reverses and Remands Habeas Petition Denial Where Petitioner Claimed His ICE Arrest Was Retaliation for Protected Speech

Where the petitioner had filed a petition for a writ of habeas corpus under 8 USC §2241 arguing that his immigration arrest and re-detention was retaliation for his protected speech, the court reversed the district court’s denial of the petition and remanded. (Bello-Reyes v. Gaynor, 1/14/21) AILA Doc. No. 21012047

CA9 Upholds Denial of Asylum to Pakistani National Who Claimed He Feared Persecution from Taliban

The court held that the IJ had provided the pro se petitioner with a full opportunity to present testimony, and found the BIA did not err in concluding that petitioner’s description of generalized violence failed to meet his burden to show targeted persecution. (Hussain v. Rosen, 1/11/21) AILA Doc. No. 21012046

CA11 Says Substantial Evidence Supported BIA’s Finding That Petitioner Committed Fraud with Loss Amount over $10,000

The court upheld the BIA’s finding that petitioner’s Florida convictions for money laundering and workers’ compensation fraud were aggravated felonies because each conviction involved fraud in which the amount of loss to the victim exceeded $10,000. (Garcia-Simisterra v. Att’y Gen., 12/30/20) AILA Doc. No. 21012038

Notice of Proposed Settlement Regarding Asylum Applicants with Employment Authorization Who Were Denied Safety Net Assistance in New York

The NY County Supreme Court approved a proposed settlement in Colaj v. Roberts benefiting a class of asylum applicants with work authorization who were denied Safety Net Assistance between 8/7/14 and 11/21/17. Under the agreement, the applicants will get a certain amount of back benefits.AILA Doc. No. 21011935

DOS Notice Designating Cuba as a State Sponsor of Terrorism

On 1/12/21, DOS issued a notice designating Cuba as a State Sponsor of Terrorism. (86 FR 6731, 1/22/21) AILA Doc. No. 21012233

ICYMI: EOIR Issues Guidance on “Enhanced Case Flow Processing” in Removal Proceedings

EOIR issued guidance on the implementation of an enhanced case flow processing model for non-status, non-detained cases with representation in removal proceedings. Memo is effective 12/1/20. AILA Doc. No. 20120130

DOS Provides Annual Immigrant Visa Waiting List Report as of November 1, 2020

DOS provided a report from the NVC showing the total number of immigrant visa applicants on the waiting list in the various family- and employment-based preference categories and subcategories subject to the numerical limit as of 11/1/20. The figures only reflect petitions received by DOS. AILA Doc. No. 21012232

EOIR Releases Policy Memo on Adjudicator Independence and Impartiality

EOIR issued a policy memo (PM 21-15) reiterating and memorializing EOIR’s policy regarding adjudicator independence and impartiality. The memo notes that it remains EOIR policy that adjudicator decisions should be based solely on the record before the adjudicator and the applicable law. AILA Doc. No. 21012033

Duckworth Asks President Biden To Prohibit Deportation Of Veterans And Strengthen Naturalization Process For Servicemembers

Duckworth: Combat Veteran and U.S. Senator Tammy Duckworth (D-IL) is urging President Joe Biden to take immediate action to prevent the deportation of Veterans, repatriate deported Veterans, strengthen the military naturalization process and remove barriers to accessing VA care faced by Veterans living broad.

RESOURCES

2020 USCIS Statistical Annual Report

AILA: Practice Alert: Biden Administration Executive Order Promoting COVID-19 Safety in Domestic and International Travel

AILA: Practice Alert: Federal Court Grants Partial Injunction of Proposed EOIR Fee Increases

AILA: Practice Alert: President Biden Protects DACA

AILA: Practice Alert: Presidential Proclamation on Ending Discriminatory Bans on Entry to the United States

AILA: Avoiding Disciplinary Action for Requesting Multiple Continuances in Immigration Court

AILA: Current Leadership of Major Immigration Agencies

AILA: Bite-Sized Ethics: Withdrawing When a Client Goes MIA

Legal Aid: What You Need to Know About Deferred Enforced Departure for Venezuelans (including English/Spanish Fact Sheets)

White House FACT SHEET: President Biden Sends Immigration Bill to Congress as Part of His Commitment to Modernize our Immigration System

IARC: Summary and Analysis of The U.S. Citizenship Act of 2021

ICYMI: Legislative and Administrative Updates

CLINIC: FOIA Disclosures on Special Immigrant Juvenile Status Policies After Bringing Lawsuit, CLINIC v. USCIS

CLINIC: Current USCIS Guidance on Adjudicating Disability Waivers

CLINIC: Practice Advisory: Adjustment Options for TPS Beneficiaries

CLINIC: Practice Pointer: EOIR Policy Memo on Case Flow Processing

Penn State Fact Sheet: Proclamation on Ending Discriminatory Bans on Entry to The United States

Senate Committee on Foreign Relations: Cruelty, Coercion, and Legal Contortions: The Trump Administration’s Unsafe Asylum Cooperative Agreements with Guatemala, Honduras, and El Salvador

ILRC: Special Immigrant Juvenile Status & Visa Availability

ILRC: Executive Action on DACA under Biden

ILRC: The “Migrant Protection Protocols”

GAO: DHS and DOJ Have Implemented Expedited Credible Fear Screening Pilot Programs, but Should Ensure Timely Data Entry

EVENTS

CUNY Immigration Seminar Series, Spring 2021: Feb 5: Holding Fast, Feb 19: Hyper Education, Mar 5: Citizenship Reimagined, Mar 12: The President and Immigration Law, Mar 26: The Browning of the New South, Apr 9: Reuniting Families, Apr 23: Represented But Unequal, Apr 30: Pursuing Citizenship in the Enforcement Era.

1/25/21-2/8/21 Three-Part Webinar Series: All About Public Charge Inadmissibility

1/26/21 Entries, Exits, Re-entries: Dealing with 212(a)(9) Inadmissibility Issues

1/27/21 EOIR’s New Case Flow Processing – Live

1/28/21 3rd Annual Western New York Refugee Film Festival

1/28/21 Preparing Your Client to Testify — How to Ethically Prepare Your Witness

1/28/21-03/11/21 Case Management Techniques and Strategies

1/29/21 Nuts and Bolts of DACA Filings in 2021

2/1/21 Current Status of the USCIS Fee Rule and Fee Waivers

2/2/21 Post-Inauguration: An Immigration Update

2/4/21 Basic Immigration Law 2021: Business, Family, Naturalization and Related Areas

2/5/21-2/6/21 2021 New York Asylum & Immigration Conference

2/5/21 Asylum, Special Immigrant Juvenile Status, Crime Victim, and Other Immigration Relief 2021

2/5/21 Addressing Domestic Violence 2021: Remote Family and Immigration Law Practice During Pandemic or Disaster

2/5/21 Refugee Advocacy and Higher Education Access

2/9/21 U Visa Certifications, T Visa Declarations and NYC Agencies

2/9/21 What Every Lawyer Should Know About U.S. Immigration Law

2/10/21 #EndSIJSBacklog National Strategy Call

2/10/21 Public Charge Emerging Issues

2/10/21 All About DOJ Recognition and Accreditation

2/16/21 DACA: Updates and Changes to the Program

2/17/21 Out of Order and Out of Control – IJ Complaints, Disciplinary Procedures, Ethics, and EOIR Reform

2/25/21-4/8/21 Introduction to Family-Based Immigration Law

3/2/21 SIJS-based Adjustment of Status before EOIR

3/4/21 TPS Updates

3/5/21-3/26/21 Webinar Series: Selected Issues in Inadmissibility

3/12/21 Strategies and Tactics for Successful Immigration Appeals

3/16/21 Representing Immigrants in Family Court

3/17/21-3/18/21 Legal Remedies for Immigrant Survivors: Introductory Seminar Series – Part II: Preparing The Case

3/23/21 Complex Naturalization: How to Get Your Clients to Citizenship

3/23/21 Understanding the Conditional Permanent Residence Petition (Form I-751)

3/30/21 Public Charge and the Affidavit of Support

4/15/21 DACA

4/20/21 Hot Topics in Naturalization Adjudications

4/21/21 Working with Domestic Violence Immigrant Survivors: The Intersection of Basic Family Law, Immigration, Benefits, and Housing Issues in California 2021

4/28/21 Community Defense: Legal Service Partnerships with Organizers

5/4/21 Public Charge: Current State of Play

5/6/21 Hot Topics in Asylum Law

5/13/21 Marijuana and Immigrants

5/18/21 Ethics in Representing Family Members in U Visa, U AOS/929, and VAWA Cases

5/26/21 Hot Topics in Removal Defense

6/1/21 VAWA Adjustment of Status Fundamentals

6/9/21 Hot topics: Adjudication and Enforcement Trends

6/10/21 Public Charge and Hot Topics in Consular Processing

6/15/21 U Visa Hot Topics

6/22/21 Defending Immigration Removal Proceedings 2021

6/30/21 Immigration Update – June 2021

ImmProf

Monday, January 25, 2021

CUNY Immigration Seminar Series – Spring 2021

Republican counterproposals to Biden’s anticipated Citizenship Act of 2021

Immigration Article of the Day: Border Solutions from the Inside by Raquel Aldana

Sunday, January 24, 2021

Texas Sues Feds Over Suspension of Deportation

President Biden Tells Mexico’s President Obrador of U.S. Immigration Policy Changes

Saturday, January 23, 2021

Crossing the Darién Gap

American Immigration Council Fact Sheet on the “Migrant Protection Protocols”

Friday, January 22, 2021

The U.S. Citizenship Act of 2021: Help for Asylum Seekers, U Visas, Military Aides

Immigration Article of the Day: Language Access and Due Process in Asylum Interviews by Pooja Dadhania

Book Event: Immigrant California: Understanding the Past, Present, and Future of U.S. Policy

Empirical evidence that words matter: Biden proposal to update INA terms

PennState Law Fact Sheet on President Biden’s Proclamation on Ending Discriminatory Bans on Entry to the United States

Bad conduct, leering ‘jokes’ — immigration judges stay on bench

Death on the Border: The Many Nameless Migrant Skeletons Buried Along America’s Border

Bringing Racial Justice to Immigration Law

Thursday, January 21, 2021

The U.S. Citizenship Act of 2021: Replacing “Alien” with “Noncitizen”

Biden Administration Suspends MPP

Stories from the Border: A Conversation with Community Storytellers on the Deportation of Childhood Arrivals and Family Separation

Bruce Springsteen’s Land of Hopes and Dreams Kicks off the Inauguration Concert

Feedback on President Biden’s Initial Immigration Moves

Immigration Article of the Day: Unseen Policies: Trump’s Little-Known Immigration Rules as Executive Power Grab by Jaclyn Kelley-Widmer

Wednesday, January 20, 2021

Biden Administration’s Executive Actions

Senator Duckworth Asks President Biden to Prohibit Deportation of Veterans

Trump Presidential Memorandum Benefits Venezuelans in US

President Biden’s Day One Immigration Bill

DHS Nominee Hits Snag in Senate

President Trump Pardons Former Chief Political Strategist Steve Bannon

Immigration Article of the Day: The Institutional Hearing Program: A Study of Prison-Based Immigration Courts in the United States by Ingrid V. Eagly & Steven Shafer

Tuesday, January 19, 2021

Confirmation hearing for DHS Secretary Nominee Alejandro Mayorkas

Federal Court Blocks Immigration Courts Fee Increases

The State of the Immigration Courts: Trump Leaves Biden 1.3 Million Case Backlog in Immigration Courts

Guest Post: The “Complete Helplessness” of Matter of A-B- And One More Last Ditch Effort to Torpedo Asylum by Geoffrey A. Hoffman *

Birthright Citizens and Paper Sons by Amanda Frost

TODAY: UC Davis Webinar — Immigration Policy: Ideas for the Biden Administration

Immigration Article of the Day: Socialism and Empire: Labor Mobility, Racial Capitalism, and the Political Theory of Migration by Ines Valdez

Monday, January 18, 2021

Achieving America’s Immigration Promise: ABA Recommendations to Advance Justice, Fairness and Efficiency

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

A better Monday right off the bat, as I had predicted and hoped! But, the work has just begun!

However welcome the Biden Administration’s immediate actions are, they have barely “touched the tip of the iceberg” on the human rights, civil rights, and human dignity abuses left behind by the just-departed kakistocracy.

There is a mess in the Federal Judiciary, from the lowest levels (EOIR) to the highest levels (Supremes). For example, the Supremes’ totally wrong-headed remand of ICE v. Padilla (described in Elizabeth’s report) shows a deficient Court that overtly fails to uphold the Constitution for asylum seekers and whose false and stilted jurisprudence continues to advance Jim Crow, White Nationalism, and Dred Scottification well into the 21st Century. Totally outrageous!

Let’s think about the Supremes in “real life” terms! The most vulnerable among us — asylum seekers who are being openly abused by our Government while their lives are being trashed by our legal “system” get the shaft from El Supremos. But, yesterday the same Supremos issued corrupt traitor Prez Trump a “free pass” by going along with a corrupt scheme to “run out the clock” on “emoluments clause cases” that those seeking to uphold the rule of law had won below!

Suffering, death, and unfairness to the most vulnerable; free passes to the powerful and overtly corrupt! The problems with our failing justice system begin at the top and obviously have filtered down to places like EOIR where nobody expects any accountability for “going along to get along” with the Trump-Miller White Nationalist, racist, degradations of humanity!

Quoting Justice Sonia Sotomayor: “This is not justice!” Not even close!

Judge Garland must end the White Nationalist mess at EOIR by replacing (what passes for) administration and the BIA immediately, while quickly developing due process-expert-equal justice-human rights-diversity criteria and meaningful public participation in the judicial appointment process for the Immigration Courts. Then apply those criteria not only to new appointments, but also to retention decisions for the existing judiciary which is the product of a skewed “insider only,” “prosecutor and hard liner biased” defective system.

Some Immigration Judges are well qualified, fair, and well respected; some are not. Judge Garland needs to figure out quickly who should serve, who shouldn’t, and who the best-qualified, fairest, and most universally respected “experts” are to create “the world’s best administrative judiciary” that will serve as a model for a better Article III Judiciary!

This is also the first step to reform throughout the Federal Judiciary all the way up to the failed Supremes. A functioning due-process-oriented, practical, progressive, independent Immigration Judiciary should become a source of better Article III Judges who handle high volume and promote best practices while actually improving due process and efficiency. A big winner for America!

A “model Immigration judiciary” (in place of the “Star Chambers”) will also be the centerpiece of a new independent legislative Article I Immigration Court that Judge Garland must push aggressively to insure that his reform work is institutionalized and is not destroyed by a future DOJ kakistocracy.

As one of my esteemed judicial colleagues in the NAIJ said, immediately and radically reforming the current EOIR while pushing forward with Article 1 legislation requires the “ability to walk and chew gum at the same time.”

Surely, Judge Garland, Vanita Gupta, Lisa Monaco and the rest of the incoming team at Justice have the demonstrated ability to do just that!

It’s up to all of us in the NDPA, the human rights and immigration advocacy community, the civil rights community, and the “good government movement” to keep pressure on Judge Garland and his team to fix EOIR and get the Federal Judicial reform movement moving at full speed. Raise hell if you have to, but don’t let this issue be delayed or “back burnered!”

This is not a “tomorrow” issue! Folks are suffering, dying, and the justice system is deteriorating — from the Supremes to “America’s Star Chambers” every day that the current EOIR due process and fundamental fairness disaster remains unaddressed. Courageous lawyers who have fought to save our democracy from the “creeping and creepy kakistocracy” are being outrageously abused in “Star Chamber Courts” every day that the Biden Administration fails to take bold corrective action @ EOIR!

🇺🇸⚖️🗽Justice @ Justice Can’t Wait! Fix The EOIR Clown Show 🤡🦹🏿‍♂️ Now! Due Process Forever!

PWS

01-26-21

⚖️🗽🇺🇸SLAVIN, BENÍTEZ, KOWALSKI, SCHMIDT SPEAK OUT ON BROKEN COURTS — Yilun Cheng Reports For “Borderless Magazine”

fl-undocumented-minors 2 – Judge Denise Slavin, former executive vice president of the National Association of Immigration Judges in an immigration courtrrom in Miami. Mike Stocker, Sun Sentinel — Judge Slavin is a member of the Round Table of Former Immigration Judges

GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Paulina Vera

Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

https://borderlessmag.org/2021/01/13/for-undocumented-immigrants-a-shot-at-lawful-residency-requires-risking-it-all/

From “For Undocumented Immigrants, a Shot at Lawful Residency Requires Risking It All” by Yilun Cheng in Borderless Magazine:

. . . .

The risk has become even higher in recent years as the Trump administration filled the immigration court system with hardline judges, according to Paul Schmidt, a former judge at the U.S. Immigration Court in Arlington, Virginia. For years, legal groups have urged the government to hire judges from diverse backgrounds to guarantee fairness in the courts, but the situation has only deteriorated in recent years, Schmidt said.

. . . .

“The Obama administration was just negligent,” Schmidt said, suspecting that former president Barack Obama left dozens of vacant immigration judgeships when he left the White House. “The new administration got a chance to fill those positions with a far-right judiciary.”

. . . .

“It’s very much a law enforcement-oriented and not a due process-oriented judiciary,” Schmidt said. “It’s just a bad time to be an individual with a case in the immigration court right now, with a bunch of unsympathetic judges, political hacks pulling the strings, and inconsistent COVID policies.”

. . . .

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

Read Yilun’s full article at the link.

In the article, my friend and Round Table 🛡⚔️ colleague Judge Denise Slavin gives an excellent description of how “Aimless Docket Reshuffling” operates in a bogus “court” system run by political hacks with enforcement (and in the defeated “regime” racist) motivations.

“Ready to try” cases, many of which could be granted or should be closed, are shuffled off to the end of the docket, some without any notice on the day of trial when the respondent, his or her lawyer, and often witnesses who have taken the day from work arrive only to find out that their case has been “orbited” into the “outer space” of the EOIR backlog.

Meanwhile, cases of individuals who haven’t had time to get lawyers or been granted the preparation time required by due process are put at the front of the docket to make denial of their cases easier for “judges” who have been told that they are basically functionaries of DHS enforcement. Sometimes, the very same lawyers who have had their years-old prepared cases arbitrarily reset to oblivion are then improperly pressured and required to go forward with cases they haven’t had a chance to properly prepare or document.

Often, individuals whose cases are improperly “accelerated” recieve inadequate notice, resulting in carelessly issued, illegal “in absentia” orders that could result in improper removal or at least require heroic efforts by lawyers to get the case reopened and restored to the docket. Meanwhile, the bogus “no-show” statistics caused by the Government’s improper actions are used to build an intentionally false narrative that asylum seekers don’t show at their hearings.

The truth, of course, is the exact opposite: When given a chance to get competent representation and when the system is explained to them in understandable terms, asylum seekers show up for the overwhelming majority of their hearings, regardless of the ultimate result of their cases.

As cogently studied and stated by highly-respected “practical scholar” Professor Ingrid Eagly of UCLA Law and her colleague UCLA empirical researcher Steven Shafer, in a recent published study:

Contrary to claims that all immigrants abscond, our data-driven analysis reveals that 88% of all immigrants in immigration court with completed or pending removal cases over the past eleven years attended all of their court hearings. If we limit our analysis to only nondetained cases, we still find a high compliance rate: 83% of all respondents in completed or pending removal cases attended all of their hearings since 2008. Moreover, we reveal that 15% of those who were ordered deported in absentia since 2008 successfully reopened their cases and had their in absentia orders rescinded. Digging deeper, we identify three factors associated with in absentia removal: having a lawyer, applying for relief from removal (such as asylum), and court jurisdiction.

https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=9695&context=penn_law_review

Professor Ingrid Eagly
UCLA Law
PHOTO: Twitter

I’d be willing to bet that at least an equal number of individuals with in absentia orders are illegally deported because they aren’t knowledgeable enough to reopen their cases, or their reopening motions are wrongfully denied but they lack to resources to pursue appeals, which often involve prolonged periods of dangerous and abusive detention.

Obviously, an Administration actually interested in solving problems (presumably “Team Garland”) would “can the false narratives and bogus enforcement gimmicks” and concentrate on getting asylum seekers represented and increasing and raising the quality of judicial review of detention decisions. The regime’s immigration kakistocracy, of course, has moved in exactly the opposite direction.

Cooperation and coordination with the private, often pro bono, bar, essential to any well-functioning court system, has become non-existent. In fact, it is actively discouraged by DOJ politicos and their “management toadies” at EOIR, who often have mischaracterized the private bar as “the enemy” or out to “game” the system. Perversely, of course, the exact opposite is true. The regime’s immigration kakistocracy has tried over and over to use illegal methods and bogus narratives to illegally and unconstitutionally “game” the system against legitimate asylum seekers and their hard-working attorneys (actually, the only “players” in this sorry game trying to uphold “good government” and the rule of law.)

As a result, the only way for the private bar to be heard is by suing in the “real” Article III Federal Courts. This has resulted in a string of injunctions and TROs against EOIR and DHS misconduct, illegal regulations, and unlawful policies throughout the country, further adding to the chaos and inconsistencies. It also has clogged the Federal Courts with unnecessary litigation and frivolous, often disingenuous or unethical, “defenses to the indefensible” by DOJ lawyers.

This is how a dysfunctional “court system” that actually is a veneer for out of control enforcement and institutionalized racist xenophobia builds backlog. The corrupt “leaders” of this dysfunctional and unconstitutional mess then blame their victims for the delays caused by gross Government mismanagement. In turn, they use this “bogus scenario” to justify further unconstitutional restrictions of immigrants’ rights, due process, and judicial independence.

It’s a “scam” of the highest order! One that actually harms ☠️ and kills ⚰️ people, harasses lawyers, undermines the rule of law, and wastes taxpayer resources. One that has brought disgrace upon the DOJ and undermines the entire U.S. Justice system🏴‍☠️. One that Judge Garland and his incoming team at the DOJ must immediately end and totally reform, while holding accountable those responsible for this gross miscarriage of justice, fraud, waste, and abuse.

This is not “normal Government” or a question of “differing philosophies.” It’s outright fraud, intentional illegality, abuse of Government resources, and instititutionalized racism. It must be treated as such by the Biden Administration.

⚖️🗽🇺🇸Due Process Forever!

PWS

01-18-21

🇺🇸🗽⚖️FLASH: BIDEN ANNOUNCES LEGALIZATION PLAN: Important Step In Rapidly Eliminating Unnecessary Immigration Court Backlog, Ending “New American Gulag,” Restoring & Enhancing Due Process, Transitioning To Independent Immigration Court — Quick End To Toxic, Dysfunctional “EOIR Clown Show”🤡🦹🏿‍♂️ In Sight?

https://apple.news/Aw4kuHzfCQEuY_Kbk8FmoLg

From the LA Times:

During his first days in office, President-elect Joe Biden plans to unveil a legislative proposal that would include a path to citizenship for 11 million immigrants in the U.S. illegally, according to activists in communication with his transition team.

By CINDY CARCAMO, ANDREA CASTILLO, MOLLY O’TOOLE

January 16, 2021

During his first days in office, President-elect Joe Biden plans to send a groundbreaking legislative package to Congress to address the long-elusive goal of immigration reform, including what’s certain to be a controversial centerpiece: a pathway to citizenship for an estimated 11 million immigrants who are in the country without legal status, according to immigrant rights activists in communication with the Biden-Harris transition team.

The bill also would provide a shorter pathway to citizenship for hundreds of thousands of people with temporary protected status and beneficiaries of Deferred Action for Childhood Arrivals who were brought to the U.S. as children, and probably also for certain front-line essential workers, vast numbers of whom are immigrants.

CALIFORNIA

DACA changed a generation of California immigrants. These are some of their stories

In a significant departure from many previous immigration bills passed under both Democratic and Republican administrations, the proposed legislation would not contain any provisions directly linking an expansion of immigration with stepped-up enforcement and security measures, said Marielena Hincapié, executive director of the National Immigration Law Center Immigrant Justice Fund, who has been consulted on the proposal by Biden staffers.

. . . .

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

Read the full story at the link.

This will present Judge Garland and Vanita Gupta @ DOJ with a timely, outstanding opportunity to get rid of the “EOIR Clown Show🤡,” replace it with a functioning expert judiciary 🧑🏽‍⚖️👨🏻‍⚖️⚖️ and competent judicial administrators, get the vast bulk of these cases off the largely “manufactured” backlog, and get the Immigration Courts and the BIA operating at or near “real time.”

That, in turn will give a new group of expert judges at the BIA, with practical asylum and human rights backgrounds, a chance to implement the fair, generous, consistent interpretation of asylum law intended under the Refugee Act of 1980 and to institute a fair and efficient U.S. asylum system that will serve humanity, honor and exemplify Constitutional due process, and advance our national interests.🗽🇺🇸

Should be a win-win-win for the country and refugees provided that the right, progressive, “steeped in due process and fundamental fairness” judicial talent is put in place to lead and direct the “new EOIR.” No more “Clown Show!” 🤡No more “Amateur Night at the Bijou!” 🤹 Time to give the immigration and human rights experts, a new generation of “practical scholars,” the chance to solve problems and lead the now-broken Immigration Courts to better days!

Not surprisingly, the current “Clown Show” 🤡 and “band of malicious incompetents”🦹🏿‍♂️ @ EOIR “management” are totally out of step — and actually mocking — the direction the Biden Administration is taking on immigration and asylum, even as their time runs out. At a minimum, that warrants immediate reassignment to jobs where they can do no further damage to the American justice system and those who rely upon it. For some who have actually aided and abetted the “human rights criminals” in the DOJ kakistocracy and squandered public resources on illegal gimmicks, further action and accountability could be necessary and appropriate down the line!

Due Process Forever!

PWS

01-16-21

THE GIBSON REPORT 01-11-21 — THE DISHONOR 👎🏻 ROLL🧻: Immigration Kakistocracy Attempts To Keep Rolling Out The “Crimes Against Humanity,”☠️🤮 Even As Neo-Nazi Regime ☠️⚰️ & GOP Apologists Disintegrate Into A Failed Insurrection 🏴‍☠️Against America! — Biden Must Restore Integrity, Competence, & Loyalty To Government 🇺🇸⚖️☠️ — EOIR “Clown Show” Must Be One Of The First (But Certainly Not Last) 🤡🦹🏿‍♂️ To Go — DHS also Needs Top To Bottom “Clean Out!”🧹🪠

COVID-19

Note: Policies are rapidly changing, so please verify information on the relevant government websites and with colleagues as best you can.

EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, February 5, 2021. NYC non-detained remains closed for hearings.

TOP NEWS

Judge blocks wide-ranging asylum limits, finding DHS chief did not have authority to issue them

CBS: Another federal judge on Friday ruled that Chad Wolf was likely unlawfully appointed to his position at the helm of the Department of Homeland Security (DHS), issuing a decision that blocked a set of broad asylum limits slated to take effect Monday.

Trump Announced He Withdrew The Nomination Of Chad Wolf To Run DHS After He’d Criticized The Capitol Riot

Buzzfeed: White House officials said the withdrawal, taking place two weeks before the end of Trump’s term, was not connected to Wolf’s statement.

Trump’s refugee resettlement policy blocked by federal appeals court

WaPo: The U.S. Court of Appeals for the 4th Circuit said the administration’s policy undermines the national resettlement program created four decades ago by Congress.

Biden plans to nominate Merrick Garland as his attorney general

WaPo: President-elect Joe Biden plans to nominate federal judge Merrick B. Garland, a Democratic casualty of the bitter partisan divide in Washington, to be the next attorney general, tasked with restoring the Justice Department’s independence and credibility, according to people familiar with the decision.

Despite Senate Wins, Broad Immigration Reform Still Far Off

Law360: Democratic victories in Georgia’s heated Senate runoffs gave the party a slim majority in Congress, but without enough votes to end a filibuster.

To stay or to go?

WaPo: More than 2,500 detainees, most with no serious criminal history, have given up their cases since March, according to records from the Transactional Records Access Clearinghouse, a research group at Syracuse University. Those records also show that detainees put in deportation proceedings in July 2020 were twice as likely to opt for voluntary departure than those from a year before.

First new DACA applications approved in final weeks of 2020

WaPo: Over 170 new applicants have become the first individuals in several years to win approval to the Obama-era Deferred Action for Childhood Arrivals program for immigrants brought to the U.S. as young people, the U.S. government revealed in a court filing Monday.

Honduras president took bribes from drug traffickers, US prosecutors say

Guardian: US federal prosecutors have filed motions saying the Honduran president, Juan Orlando Hernández, took bribes from drug traffickers and had the country’s armed forces protect a cocaine laboratory and shipments to the US.

Governor Cuomo Outlines 2021 Agenda: Reimagine | Rebuild | Renew

NY: This year, Governor Cuomo will continue to support the Liberty Defense Project to keep fighting for immigrants seeking a better life for themselves and their families. New York’s strength, character, and pride are found in the diversity and rich culture that makes us the Empire State.

LITIGATION/CASELAW/RULES/MEMOS

District Court Issues Nationwide Preliminary Injunction Against New Asylum Regulations

A federal district court in California preliminarily enjoined the government from implementing, enforcing, or applying the 12/11/20 final rule, “Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review.” (Pangea Legal Services, et al. v. DHS, et al., 1/8/21) AILA Doc. No. 21011107

EOIR Issues Policy Memo on Continuances

EOIR issued a memo (PM 21-13) updating and replacing OPPM 17-01, Continuances, to account for legal and policy developments subsequent to its issuance. The memo provides a non-exhaustive list of legal and policy principles as an aid to adjudicators considering common types of continuance requests. AILA Doc. No. 21011101

High Court Nixes 9th Circ. On Asylum-Seekers’ Bond Hearings

Law360: The U.S. Supreme Court on Monday threw out a Ninth Circuit ruling that detained asylum seekers who clear an initial fear screening must be given a prompt bond hearing, sending the case back to the appeals court for reconsideration.

SCOTUS grants cert in TPS case

SCOTUSblog: The case asks whether a grant of Temporary Protected Status authorizes eligible noncitizens to obtain lawful-permanent-resident status if those noncitizens originally entered the United States without being “inspected and admitted” – a term of art referring to lawful entry and authorization by an immigration officer.

The Solicitor General’s Extraordinary Push to Place Even More Immigration Cases on the Supreme Court Docket

ImmProf: There are four immigration related cases set to be considered, with three being petitions by the government (more SG petitions on distinct immigration issues than one would usually expect in the course of an entire year), and the other involving a case in which the SG is agreeing that certiorari is appropriate (also a rare position for the SG). The SG’s position in each of these cases shows an unusual aggressiveness towards the role of the Supreme Court.

BIA Rules on Adverse Credibility Findings Based on Fraudulent Documents

The BIA found that IJs may find a document to be fraudulent without forensic analysis if it contains obvious defects or readily identifiable hallmarks of fraud, and the party submitting the document is given an opportunity to explain the defects. Matter of O-M-O-, 28 I&N Dec. 191 (BIA 2021) AILA Doc. No. 21010801

CA3 Holds That Conspiracy to Commit Fraud of Over $10,000 in Intended Losses Is an Aggravated Felony

The court held that a conspiracy or attempt to commit fraud or deceit involving over $10,000 in intended losses is an aggravated felony, and remanded to determine whether petitioner’s convictions under 18 USC §1037(a) reflected over $10,000 in intended losses. (Rad v. Att’y Gen., 12/21/20) AILA Doc. No. 21010500

CA3 Finds Conferral of TPS Does Not Constitute an Admission

The court reversed the district court opinion and disagreed with CA6 and CA9 interpretations of the statute, by holding that a grant of TPS does not constitute an “admission” into the United States under INA §1255. (Sanchez v. Wolf, 7/22/20) AILA Doc. No. 21011100

CA8 Upholds Denial of Petitioner’s Motion to Reopen Removal Proceedings Based on Changed Country Conditions in Somalia

The court upheld the BIA’s denial of petitioner’s motion to reopen based on changed country conditions in Somalia, finding that the BIA did not fail to consider al-Shabaab’s increase in power or ISIS-Somalia’s emergence and growing violence from 2011 to 2018. (Mohamed v. Barr, 12/23/20) AILA Doc. No. 21010502

CA9 Finds Petitioner’s Proposed Social Group of “Known Drug Users” Lacked Particularity

The court held that the Vietnamese petitioner had waived review of the BIA’s discretionary denial of asylum relief, and that his proposed social group comprised of “known drug users” was not legally cognizable because it lacked particularity. (Nguyen v. Barr, 12/21/20) AILA Doc. No. 21010503

CA9 Upholds Presidential Authority to Issue Healthcare Insurance Proclamation

The court reversed an injunction of PP 9945, which requires IV applicants to demonstrate acquisition of health insurance or ability to pay for future healthcare costs. The court found the proclamation within the president’s executive authority. (Doe, et al., v. Trump, et al., 12/31/20) AILA Doc. No. 21010436

President Trump Issues Memorandum on Inadmissibility of Persons Affiliated with Antifa Based on Organized Criminal Activity

President Trump issued a memorandum directing the Secretary of State to assess whether to classify Antifa as a terrorist organization under 8 USC §1182(a)(3)(B)(vi), and to take steps to consider listing Antifa in 9 FAM 302.5-4(B)(2)(U), Aliens Who Are Members of an Identified Criminal Organization. AILA Doc. No. 21010635

USCIS Provides Update on Receipt Notice Delays for Forms Filed with USCIS Lockbox

USCIS provided additional updates about lockbox operations, noting that applicants may face delays of four to six weeks in receiving receipt notices for some applications and petitions filed at a USCIS lockbox facility. Delays may vary among form types and lockbox locations. AILA Doc. No. 20121534

RESOURCES

AILA: Trump Policies That May Be Finalized Before Inauguration Day 2021

AILA: Practice Alert: Form I-485 Rejections for Employment-Based Derivative Applicants

AILA: Emotional Intelligence for Lawyers: An Introduction and Resources

AILA: Policy Brief: Increase in Indefinite ICE Detention Without Foreseeable Removal Dates During COVID-19 Pandemic

AILA: Screaming Into the Void: Five Reasons to Always Comment on Proposed Regulations

AILA: Frequently Asked Questions on Ethics During the Pandemic

AILA: Practical and Ethical Considerations in Detention Cases

ILRC: Document Gathering Guide for VAWA Self-Petitioners

ILRC: Practice Alert: Temporary Changes to U.S. Citizenship and Immigration Services (USCIS) in Response to COVID-19

Toolkit for Informing LPRs about the Status of Fee Waivers and Naturalization Fees

ICE Air Flights December and December Year-to-Date 2020

EVENTS

1/12/21 Unemployment Insurance

1/12/21-2/26/21 Comprehensive Overview of Immigration Law

1/13/21 Office of the Citizenship and Immigration Services Ombudsman’s Webinar Series: How the Department of Homeland Security is Combatting Human Trafficking and Forced Labor in Imported Goods

1/13/21 Practical Tips for Preparing Cover Letters, Memos, and Client Statements

1/14/21 USCIS Webinar: 2020 Revised Naturalization Civics Test

1/14/21 Documentary: “Searching for Disappeared Migrants”

1/14/21 COVID Flexibility Provisions with Form I-9 and E-Verify

1/21/21 Forever Virtual: Positive and Ethical Virtual Changes to Your Practice During and After the Pandemic

1/21/21 Immigration in 2021: Anticipating Changes under a New Administration

1/22/21 Immigrant eligibility for public benefits in New York State

1/25/21-2/8/21 Three-Part Webinar Series: All About Public Charge Inadmissibility

1/26/21 Entries, Exits, Re-entries: Dealing with 212(a)(9) Inadmissibility Issues

1/28/21 3rd Annual Western New York Refugee Film Festival

1/28/21-03/11/21 Case Management Techniques and Strategies

1/29/21 Nuts and Bolts of DACA Filings in 2021

2/1/21 Current Status of the USCIS Fee Rule and Fee Waivers

2/2/21 Post-Inauguration: An Immigration Update

2/4/21 Basic Immigration Law 2021: Business, Family, Naturalization and Related Areas

2/5/21-2/6/21 2021 New York Asylum & Immigration Conference

2/5/21 Asylum, Special Immigrant Juvenile Status, Crime Victim, and Other Immigration Relief 2021

2/5/21 Addressing Domestic Violence 2021: Remote Family and Immigration Law Practice During Pandemic or Disaster

2/9/21 What Every Lawyer Should Know About U.S. Immigration Law

2/10/21 Public Charge Emerging Issues

2/10/21 All About DOJ Recognition and Accreditation

2/16/21 DACA: Updates and Changes to the Program

2/25/21-4/8/21 Introduction to Family-Based Immigration Law

3/2/21 SIJS-based Adjustment of Status before EOIR

3/4/21 TPS Updates

3/12/21 Strategies and Tactics for Successful Immigration Appeals

3/16/21 Representing Immigrants in Family Court

3/23/21 Understanding the Conditional Permanent Residence Petition (Form I-751)

3/30/21 Public Charge and the Affidavit of Support

4/15/21 DACA

4/20/21 Hot Topics in Naturalization Adjudications

4/21/21 Working with Domestic Violence Immigrant Survivors: The Intersection of Basic Family Law, Immigration, Benefits, and Housing Issues in California 2021

4/28/21 Community Defense: Legal Service Partnerships with Organizers

5/4/21 Public Charge: Current State of Play

5/6/21 Hot Topics in Asylum Law

5/13/21 Marijuana and Immigrants

5/18/21 Ethics in Representing Family Members in U Visa, U AOS/929, and VAWA Cases

5/26/21 Hot Topics in Removal Defense

6/1/21 VAWA Adjustment of Status Fundamentals

6/9/21 Hot topics: Adjudication and Enforcement Trends

6/10/21 Public Charge and Hot Topics in Consular Processing

6/15/21 U Visa Hot Topics

6/22/21 Defending Immigration Removal Proceedings 2021

6/30/21 Immigration Update – June 2021

ImmProf

Monday, January 11, 2021

Why Immigrants With Strong Ties to the US Should Be Allowed to Stay by Emma Winger

Daniel Black: The Capitol attack was White supremacy, plain and simple

Supreme Court VGRs Another Expedited Removal Case

Biden’s law enforcement priorities on Border Criminologies

Trump’s “victory tour” headed to U.S./Mexico Border this Week

Sunday, January 10, 2021

Now Streaming: Coyote

Saturday, January 9, 2021

Biden’s AG will be Merrick Garland

Supreme Court to Review Adjustment of Status/TPS Case

FEDERAL JUDGE BLOCKS TRUMP ADMINISTRATION’S “DEATH TO ASYLUM” RULE

Immigration Article of the Day: Deconstructing Invisible Walls: Sotomayor’s Dissents in Era of Immigration Exceptionalism by Karla Mari McKanders

Friday, January 8, 2021

Immigration Article of the Day: Entry Denied: COVID-19, Race, Migration, and Global Health by Matiangaly V. S. Sirleaf

President Withdraws Nomination of Chad Wolf for DHS Secretary

Thursday, January 7, 2021

AALS 2021: New Voices in Immigration Law

On the unprecedented events at the U.S. Capitol

Case preview: Justices will confront statutory puzzle on bond eligibility for noncitizens contesting deportation — Might Chevron deference be reconsidered?

A White Supremacist Insurrection? “Trump’s white supremacist insurrection overtakes the Capitol”

Columbia Law Honors Hong Yen Chang

Wednesday, January 6, 2021

Job Announcement: Rutgers Immigrant Rights Clinic seeks Staff Attorney or Senior Staff Attorney

New America National Fellowships

Podcast: Undocumented Momhood

“Remain in Mexico” Harms Children, Families Two Years into Program, Thousands Face Violence, Trauma, Uncertainty

Tuesday, January 5, 2021

Why Are We Talking About Denying Vaccines to Undocumented Meatpackers in NE?

Guest Post Nancy Morawetz: The Solicitor General’s Extraordinary Push to Place Even More Immigration Cases on the Supreme Court Docket

At the Movies in the Age of Coronavirus: Moonstruck (1987)

Virtual Book Launch: You Are Not American: Citizenship Stripping from Dred Scott to the Dreamers by Amanda Frost

Nolan Rappaport: Could we learn from how Canada manages its foreign workers?

From the Bookshelves: Immigrant California: Understanding the Past, Present, and Future of U.S. Policy. Edited by David Scott FitzGerald and John D. Skrentny

Monday, January 4, 2021

Immigrant of the Day: Judge David Bernhard

Administrative Law Review Podcast: Racism in Immigration Law

Position Opening: President and CEO, Young Center for Immigrant Children’s Rights

Immigration Article of the Day: Labor Unions and Undocumented Immigrants by Els de Graauw and Shannon Gleeson

Immigration Article of the Day: Asylum Under Attack: Is It Time for A Constitutional Right? by Stephen Meili

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

Thanks, Elizabeth!😎

I sure hope that Judge Garland and Secretary-Designate Mayorkas are paying close attention!

Because unless they take some immediate forceful action to disable the “regime’s immigration kakistocracy” and make the radical bureaucratic changes necessary to regain control, their “dream jobs” are going to turn into “Nightmare on Elm Street” overnight!

Human rights are being violated and taxpayer funds (in an already “over budget” USG) are being poured down the toilet 🚽 by the minute by the out of control, maliciously incompetent kakistocrats at EOIR, DHS, and in the SG’s Office to name just a few of the most obvious “national disgraces” that need an immediate fix!

The defeated anti-American, neo-Nazi regime was “not normal” and neither Garland nor Mayorkas can afford to treat the wreckage of democracy and human decency and those who did the regime’s bidding at DOJ and DHS as “acceptable” for another minute!

🇺🇸⚖️🗽Due Process Forever! Kakistocracy ☠️🤮 Never!

PWS

01-13-21

⚖️NDPA NEWS: LEADING “PRACTICAL SCHOLARS” UNITE TO CHALLENGE SCOFFLAW ASYLUM REGS THAT ARE NOTHING MORE THAN “CODIFIED CRIMES AGAINST HUMANITY” — Here’s Their Brief!

Peter S. Margulies
Professor of Law
Roger Williams University School of Law
Photo: RWU website

From: Wadhia, Shoba Sivaprasad <ssw11@psu.edu>

Sent: Monday, January 04, 2021 1:21 PM

To: immprofslist Professors List <immprof@lists.ucla.edu>; ICLINIC@LIST.MSU.EDU

Cc: Margulies, Peter <pmargulies@rwu.edu>

Subject: [immprof] Amicus Brief on Behalf of Immigration Law Scholars on “Monster” Asylum Rule

Dear Colleagues:

Happy New Year! I hope you are staying well. We are pleased to share an amicus brief filed in the Northern District of California last week challenging the “monster” asylum rule, published as a final rule in December 2020. We are grateful to the immigration law scholars who signed onto this brief. The brief is focused on three aspects of the rule: 1) expansion of discretionary bars in general; 2) discretionary bars on unlawful entry and use of fraudulent documents in particular; and 3) expansion of the firm resettlement bar. The brief argues that these bars conflict with the immigration statute and further that the Departments have failed to provide a reasonable explanation for departing from past statutory interpretation with regard to these bars.

Co-counsel included Loeb & Loeb, Peter Margulies, and myself. We are grateful to the Harvard Immigration and Refugee Clinical Program and other organizations who served as counsel to plaintiffs in this case.

Best wishes, Peter and Shoba

Shoba Sivaprasad Wadhia (she, her)

Associate Dean for Diversity, Equity and Inclusion

Samuel Weiss Faculty Scholar | Clinical Professor of Law

Director, Center for Immigrants’ Rights Clinic |@PSLCt4ImmRights

Penn State Law | University Park

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

Many thanks to Peter, Shoba, Loeb & Loeb, and all the many great minds with courageous hearts ♥️ involved in this effort!

I’ve said it often: It’s time to cut through the BS and bureaucratic bungling that have plagued past Dem Administrations and put progressive practical scholars like Shoba, Peter, and their NDPA expert colleagues in charge of EOIR, the BIA, and the rest of the immigration bureaucracy. It’s also time to end “Amateur Night at the Bijou” 🎭🤹‍♀️and put “pros” like this in charge of developing and implementing Constitutionally compliant, legal, practical, humane immigration and human rights policies that achieve equal justice for all (one of the Biden-Harris Administration’s stated priorities), further the common interest, and finally rationalize and optimize (now “gonzo out of control”) immigration enforcement.

⚖️🗽Due Process Forever! Cut the BS!💩

PWS

01-06-21

“SIR JEFFREY” CHASE ⚔️🛡 KICKS OFF 2021: Misuse of CDC Authority🤮 Part Of The Scofflaw Regime’s White Nationalist Agenda☠️🏴‍☠️ — Why Have the Federal Courts Let Bogus Pretexts “Overrule” Truth & The Rule of Law?🤥

https://www.jeffreyschase.com/blog/2021/1/3/the-next-level-shamelessness-of-the-covid-security-regs

The Next-Level Shamelessness of the COVID Security Regs

On December 23, EOIR and USCIS published final rules designed to brand most people a “security risk,” and thus ineligible for asylum. The rules won’t become effective until January 22 (i.e. after the Biden Administration is in office), so will presumably be pulled back before they hurt anyone other than the reputations and careers of those responsible for their publication. Nevertheless, it seems worthwhile to refute the present administration’s claimed justification for such a rule. First, there will certainly be other bad administrations in our future, and as we’ve seen with the present one, they might look to the past for inspiration.

Furthermore, even without the rule going into effect, individual immigration judges will still be faced with interpreting the clause it invokes on a case-by-case basis. I’m hoping the following analysis will prove useful, as I’m pretty sure it wasn’t covered in the judges’ training.

But most importantly, the assaults of the past four years on facts and reason have taught us the need to constantly reinforce what those presently in charge hope to make us forget: that there are laws passed by Congress; that the Judiciary has created strict rules governing their interpretation, and that executive agencies are not free to simply ignore or reinvent the meaning of those laws to their own liking.

The regulations in question seek to take advantage of the present pandemic to render any asylum seeker who either exhibits symptoms of the virus, has come in contact with it, or has traveled from or through a country or region where the disease is prevalent ineligible for asylum. The administration seeks to justify this by claiming that there are reasonable grounds for regarding the above a danger to the security of the United States.

The “danger to the security of the United States” bar to asylum1 which the new regulations reference derives from Article 33(2) of the 1951 Convention Relating to the Status of Refugees, which serves as the international law basis for our asylum laws. That treaty (which is binding on the U.S.) states that the prohibition against returning refugees shall not apply to those “whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”

However, Article 33(2) applies to those who have already been recognized as refugees, and have then committed crimes in the country of refuge, which is not the class to whom the new regulations would apply. The bases for excluding those seeking refugee status for reasons arising prior to their arrival are found under Article 1D through 1F of the 1951 Convention. The prohibitions found there cover three groups: those who are already receiving protection or assistance (Article 1D); those who are not considered to be in need of protection (Article 1E); and those “categories of persons who are not considered to be deserving of international protection (Article 1F).2 Individuals posing a danger to the community fall into the final category.

No ground contained in the 1951 Convention excludes those in need of protection for health-related purposes. To understand why, let’s look closer at the Convention’s use of the word “deserving” as it relates to refugee protection. In 1997, UNHCR published a note providing additional insight into the Article 1F “exclusion grounds.” Explaining that “the idea of an individual ‘not deserving’ protection as a refugee is related to the intrinsic links between ideas of humanity, equity, and the concept of refuge,” the note explains that the primary purpose of the clauses “are to deprive the perpetrators of heinous acts and serious common crimes, of such protection.” The note explains that to do otherwise “would be in direct conflict with national and international law, and would contradict the humanitarian and peaceful nature of the concept of asylum.”

The European Council on Refugees and Exiles covered this same issue in its 2004 position paper on Exclusion from Refugee Status. At page 8, the ECRE stated that the “main aim” of Article 1F was not “to protect the host community from serious criminals,” but rather to preserve the integrity of the international refugee system by preventing it from being used to “shelter serious criminals from justice.” These sources make it extremely clear that the intent was certainly not to exclude someone who might have been exposed to a virus.

In including six exceptions to eligibility in our asylum statute,3 Congress followed the lead of the 1951 Convention, as all six domestic clauses fall within the three categories listed in paragraph 140 of the UNHCR Handbook as listed above. Of the six grounds listed under U.S. law, the last one, regarding persons firmly resettled in another country prior to arrival in the U.S., is covered by the Convention categories of those already receiving assistance or not in need of assistance.

The remaining five exceptions under U.S. law fall within the category of those not considered to be deserving of protection (Article 1F). The statute lists those categories as: (i) persecutors of others; (ii) persons posing a danger to the community of the U.S. by virtue of having been convicted of a particularly serious crime; (iii) persons whom there are serious reasons to believe committed serious nonpolitical crimes prior to their arrival in the U.S.; (iv) persons whom “there are reasonable grounds for regarding…as a danger to the security of the United States,” and (v) persons engaged in terrorist activity.

Agencies may only apply their own interpretation to the term “as a danger to the security of the United States” to the extent such term is ambiguous. But the courts have instructed that in determining whether a statute is in fact ambiguous, traditional tools of construction must be employed, including canons.4 The Supreme Court has recently applied one such canon, ejusdem generis, for this purpose.5 In its decision, the Court explained that “where, as here, a more general term follows more specific terms in a list, the general term is usually understood to ‘ “embrace only objects similar in nature to those objects enumerated by the preceding specific words.”’”6

Former Attorney General Barr himself recently applied the ejusdem generis canon to the term “particular social group,” stating that pursuant to the canon, the term “must be read in conjunction with the terms preceding it, which cabin its reach…rather than as an “omnibus catch-all” for everyone who does not qualify under one of the other grounds for asylum.”7

A very similar canon to ejusdem generis is noscitur a sociis (the “associated words” canon). Whereas ejusdem generis requires a term to be interpreted similarly to more specific terms surrounding it in a list, noscitur a sociis applies the same concept to more specific terms across the same statute.8

In 8 U.S.C. § 1158(b)(2)(A), the more general term “danger to the security of the United States” is surrounded by the more specific terminology describing the accompanying grounds of asylum ineligibility. When thus “cabined” by the more specific classes of persecutors of others, those convicted of serious crimes, and those engaged in terrorist activities, it is clear that Congress intended a “risk to security” to relate to similar types of criminal activity, and not to health grounds. As the intent of Congress is clear, the term “threat to the security of the United States” is not open to any interpretation the agencies might wish to apply to it. Yet in its published rule, EOIR and USCIS here create the type of “omnibus catch-all” that the Attorney General himself has elsewhere declared to be impermissible.

The rule is further at odds with circuit case law in its application to those who simply “may” pose a risk. The Third Circuit has found the statutory language of the clause in question to unambiguously require that the asylum-seeker pose an actual, rather than merely a possible, threat to national security.9 Even if it were assumed that COVID could somehow fit into the category of security risk, simply having traveled from or through an area where the virus is prevalent doesn’t establish that the individual presents an actual risk.

There is also the issue of the transient nature of the risk. In the same decision referenced above, the Third Circuit relied on the Refugee Act’s legislative history to conclude “that Congress intended to protect refugees to the fullest extent of our Nation’s international obligations,” allowing for exceptions “only in a narrow set of circumstances.”10 This is obviously a correct reading where exclusion can lead to death, rape, or indefinite imprisonment. The other classes deemed undeserving of asylum are defined by more permanent characteristics. In other words, the attribute of being a terrorist, a persecutor, or a serious criminal will not wear off in two weeks time. To the contrary, any risk posed by one exposed to COVID-19 is likely to pass within that same time frame. Wouldn’t the “fullest extent” of our obligations call for simple quarantining for the brief period in question?

These issues were all raised in comments to the proposed regs. And of course, dubious reasons were employed to dismiss these arguments. For example, the agencies acknowledged the need for the danger posed be an actual rather than a merely possible one. But somehow, that requirement was dismissed by the inadequate excuse that the danger posed by a pandemic is “unique.”

The rule stands as one of the final examples of the extremes this administration will go to in order to circumvent our asylum laws and turn away those entitled to avail themselves of our immigration courts in order to determine if they are entitled to protection. As demonstrated here, the degree to which this administration veered from the actual intent of the statute in interpreting the security bar wouldn’t have been much greater if it attempted to deny asylum to those wearing white after Labor Day.11 The law must not be twisted or ignored by executive branch agencies when it conflicts with an administration’s policy objectives.

Notes:

8 U.S.C. § 1158(b)(2)(A).

UNHCR Handbook at ❡ 140.

8 U.S.C. § 1158(b)(2)(A).

See, e.g., Arangure Jasso v. Whitaker, 911 F.3d 333, 338-39 (6th Cir. 2018).

See Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1625 (2018).

Ibid (citing Circuit City Stores, Inc. v. Adams, 121 S.Ct. 1302, 149 (2001); National Assn. of Mfrs. v. Department of Defense,138 S.Ct. 617, 628–629 (2018)).

Matter of L-E-A-, 27 I&N Dec. 581, 592 (A.G. 2019).

Thanks to Prof. Jaclyn Kelley-Widmer for sharing her expertise on these terms. See Jaclyn Kelley-Widmer and Hillary Rich, “A Step Too Far: Matter of A-B-, Particular Social Group, and Chevron,” 29 Cornell J. of Law and Public Policy 345, 373 (2019).

Yusupov v. Att’y Gen. of U.S., 518 F.3d 185, 201 (3d Cir. 2008).

Id. at 203-204.

If it had done so, EOIR would undoubtedly have defended the move through the traditional, completely acceptable, totally normal method of issuing a “Myths vs. Facts” sheet. The document might contain the following entry: “Myth: EOIR issued a rule banning asylum to anyone wearing any color at any time. Fact: That’s completely absurd! Only those wearing white (which technically might not even be a color) are banned, and even then, only after Labor Day. As Pantone lists 1,867 colors, white consists of .05 percent of all colors one could wear. And that’s only if white is in fact a color. And, again, only after Labor Day.”

Copyright 2021 Jeffrey S. Chase. All rights reserved.

Republished by permission.

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

Jeffrey’s article points out how deeply the corruption and racism of the regime have penetrated into the Federal Bureaucracy, even infecting supposedly “professional and apolitical” agencies like CDC. Fixing this will be a formidable task for the Biden-Harris Administration.

But, there is a larger issue here: Why has the Supremes’ GOP majority “lapped up” the transparent pretexts for unconstitutional actions presented by the regime’s ethics-challenged DOJ lawyers? While an impressive array of U.S. District Court Judges, from both parties, have generally courageously stood tall for the rule of law against White Nationalist abuses, not so the GOP majority of the Supremes!

Let’s go back to the beginning of the regime. After a string of lower Federal Court defeats, “ethics-free” DOJ lawyers massaged and slightly watered down Trump’s “Muslim Ban” and repackaged it as a bogus “national security” measure. But, even as these disingenuous lawyers were advancing this bogus pretext in court, Trump was reassuring his White Nationalist base that this was indeed the “Muslim Ban” he had promised to his supporters.

https://www.cato.org/blog/dozen-times-trump-equated-travel-ban-muslim-ban

Nevertheless, the Supremes’ GOP majority “bought into” the patently (and demonstrably) bogus “national security” pretext, hook, line, and sinker:

Of the Supreme Court’s decision on Muslim ban 3.0, Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, said, “This ruling will go down in history as one of the Supreme Court’s great failures. It repeats the mistakes of the Korematsu decision upholding Japanese-American imprisonment and swallows wholesale government lawyers’ flimsy national security excuse for the ban instead of taking seriously the president’s own explanation for his action.”

“It is ultimately the people of this country who will determine its character and future. The court failed today, and so the public is needed more than ever. We must make it crystal clear to our elected representatives: If you are not taking actions to rescind and dismantle Trump’s Muslim ban, you are not upholding this country’s most basic principles of freedom and equality.”

https://www.aclu-wa.org/pages/timeline-muslim-ban

In doing so, the GOP Supremes’ associated themselves with a long line of racially biased pretexts used by courts to uphold invidious discrimination that violated our Constitution

Internment of Japanese-Americans (but not German-Americans) is about national security.
- Truth: Dehumanize, punish, and dispossess Japanese Americans on the West Coast;
Poll taxes are about raising revenue.
- Truth: Preventing African-Americans from voting;
Literacy tests (“grandfathering” ignorant White guys) are about insuring an informed electorate.
- Truth: Excluding African-American voters;
Separate is equal.
- Truth: Insuring that African-Americans will be educationally disadvantaged;
Voter ID laws are about election integrity.
- Truth: Designed by a primarily White GOP ruling class to suppress African American, Latino, and other minority voters who tend to support Democrats;
Gerrymandering to favor the GOP can be solved through the political process.
- Truth: Gerrymandering is intended by the GOP to rig the political process so that voters of color will never achieve political representation proportional to their numbers.

These are just a few of the obvious examples of how the “legal power structure” has often been on the “wrong side of history.” Sadly, it continues with today’s GOP Supremes’ majority which often embraces obvious pretexts and bogus “right wing legal gobbledygook” to systematically dump on vulnerable minorities and others whose political power and humanity they refuse to recognize.

Finally, to reinforce what Jeffrey and others have said, we have a legal obligation to protect refugees. Article 33 of the Convention to which we are party, now incorporated into the INA, is mandatory, not “optional” or “discretionary.”

As I pointed out before, refugees more often than not arrive in times of international crisis and turmoil. “Tough times” or internal problems (in this case aggravated and magnified by a maliciously incompetent regime) are NOT a legal (not to mention moral) basis for us to jettison our legal obligation to offer them protection.

Had the Supremes courageously and unanimously stood up for the Constitution, rule of law, and simple human decency against the regime’s obvious lies, false narratives, overt racism, religious bigotry, and general disregard for the rule of law (now in full, foul bloom every day), the last four years might have been very different. Lives lost forever could have been saved.

Folks, here we are, two decades into the 21st Century. Yet, we have a highly “un-representative” Supremes’ GOP majority that has willingly promoted the anti-democracy antics of, and carried water for, a patently corrupt White Nationalist regime seeking to “Dred Scottify” tens of millions of persons of color, religious minorities, and those “suspected” of not supporting the GOP.

Even if many would like to, this is not something that can simply be swept under the table (again). Failure of the Supremes majority to stand up for the individual rights and human dignity of all persons in America is something that will haunt us until it is fixed or we disappear as a nation!

Lousy judging has a huge cost for humanity and democracy. We need and deserve better from the highest levels of our privileged, yet too often ineffective and feckless in the face of tyranny, life-tenured judges!

Better Judges for a Better, Fairer America.🇺🇸 Make Equal Justice Under Law ⚖️ A Reality Rather Than an Ongoing, Judicially-Enabled, Charade!

Due Process Forever!⚖️🗽🇺🇸

PWS

01-04-21

🤮NO PEACE ON EARTH GOODWILL TOWARD MEN (WOMEN, OR ESPECIALLY CHILDREN) FROM REGIME OF “BAD SANTAS” 🦹🏿‍♂️🎅🏻— Illegally Separated Families Continue To Suffer Irreparable Trauma, 😰 Volunteer Groups 😇🗽⚖️ Left To Pick Up Pieces — A Reminder That Defeated Regime Has Mocked, Disparaged, & Trashed Christ’s Values & Assaulted Humanity Over Four Christmases!🏴‍☠️🤮☠️⚰️👎🏻

Jacob Soboroff reports for NBC News:

Inside the effort to provide mental health care to migrant families

SHARE THIS –

COPIED

Seneca Family of Agencies provides mental health care to migrant families separated by the Trump administration. NBC News’ Jacob Soboroff reports on the obstacles faced by the nonprofit in locating families.

Dec. 22, 2020

Watch Jacob’s report here.

https://www.nbcnews.com/nightly-news/video/inside-the-effort-to-provide-mental-health-care-to-migrant-families-98295877800

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

Jacob and his terrific NBC News colleague Julia Edwards Ainsley have been at the forefront of exposing the irreparable human carnage and lasting trauma caused by the regime’s unlawful, racist, White Nationalist immigration policies (some of which were unconscionably “greenlighted” by an immoral and irresponsible Supremes GOP majority that views themselves and their rotten to the core, inhumane, right-wing ideology as above the needless human suffering they further and encourage).

The “perps” like,”Gonzo” Sessions, Grauleiter Miller, Kirstjen Nielsen, “Big Mac With Lies” McAleenan, Noel Francisco, Rod Rosenstein, et al, walk free while the victims continue to suffer and others, like the Christ-like folks at Seneca Family of Agencies, are left to pick up the pieces! How is this “justice?”

Our national policies have truly abandoned Christ’s values of self-sacrifice, mercy, generosity in spirit and deed, courage in the face of oppression, human compassion, justice, and assistance for the most vulnerable among us under the perverted and immoral “leadership” of a man and his party without humane values or respect for truth who stand for absolutely nothing that is decent in the world.

As Americans suffer and die from the pandemic he mocked, downplayed, and mishandled; unemployed Americans are dissed and shortchanged by his party of underachieving, out of touch fat cats, liars, cowards, and truth deniers; asylum seekers needlessly suffer in squalid camps in Mexico; refugees scorned, unlawfully and immorally abandoned and abused by the world’s richest country face persecution, torture, despair, and death; and non-criminals rot in DHS’s “New American Gulag,” the immoral Grifter-in-Chief lives it up at taxpayer expense for one last Christmas at his Florida resort; fumes about a fair and square election that he lost big time; savors a rash of holiday executions; delays bipartisan COVID relief; ferments treason against our republic; and pardons a wide range of scumbags, felons, war criminals, family members, cronies, fraudsters, and other totally undeserving characters.

But, there is hope for our world at Christmas: 27 days and counting to the end of the kakistocracy, expulsion of the unqualified con-man and his motley crew of criminals and cronies, and the ascension of a real President and Vice President, Joe Biden and Kamala Harris, to lead us, and perhaps our world, out of the current mess to a kinder, brighter future. That might be the best present of all this Christmas.

Due Process Forever!⚖️🗽👍🏼

PWS🎅🏻🎄😎

12-24-20

DUH OF DA DAY: White Nationalist Agenda, Anti-Asylum Gimmicks, Grotesque Mal-Administration Leads To Longer Waiting Times @ Disastrously Dysfunctional EOIR 🤮 — Biden-Harris Administration Must End America’s Disgraceful Star Chambers ⚰️!

Star Chamber Justice — “Justice”
Star Chamber
Style

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

Transactional Records Access Clearinghouse

Immigration Court Case Completion Times Jump as Delays Lengthen

FOR IMMEDIATE RELEASE

Not surprisingly, Immigration Court closures and delays in hearings for courts that are conducting hearings have drastically reduced the number of completed cases for the first two months of this fiscal year as compared with prior years at the same time.

New cases continue to drastically outpace case completions. In October and November 2020, the Immigration Courts received 29,758 new filings. This is fewer filings than usual, but still almost twice the 15,990 cases they completed.

As a result, the court’s active backlog at the end of November 2020 reached 1,281,586. This is up 18,821 cases in just the last two months. Adding to the court’s workload are not only new filings, but previously closed cases that have been reopened, remanded for reconsideration, or otherwise placed back on the court’s docket.

Disposition times for closed cases have also shot up this year. Cases disposed of in FY 2020 took on average 460 days. During the first two months of FY 2021, the courts disposed of a much smaller number of cases, but the disposition times were much longer at an average of 755 days—or 64 percent longer. The longest disposition times were found in the Cleveland Immigration Court where it took on average 1,617 days.

For the latest disposition times at each Immigration Court read the full report at:

https://trac.syr.edu/immigration/reports/634/

To examine a variety of Immigration Court data, including asylum data, the backlog, MPP, and more now updated through November 2020, use TRAC’s Immigration Court tools here:

https://trac.syr.edu/imm/tools/

If you want to be sure to receive a notification whenever updated data become available, sign up at:

https://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1

Follow us on Twitter at:

https://twitter.com/tracreports

or like us on Facebook:

https://facebook.com/tracreports

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:

https://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors

Transactional Records Access Clearinghouse

Syracuse University

Suite 360, Newhouse II

Syracuse, NY 13244-2100

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.

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

As mom used to say, “Haste makes waste.” Taking more time to decide cases would be perfectly defensible if it actually produced useful deliberation, thoughtful scholarship, and just and fair results. But, this currently is a system that must limit its intake while it develops the expertise, scholarship, analytical skills, quality control mechanisms, and best practices necessary for judicial efficiency that complies with due process and fundamental fairness (not to mention basic asylum law). That’s a “complete rebuild.”

Then, once that system is running well, it could be methodically and rationally expanded, if actually necessary. But, aimlessly building more assembly lines producing defective products and then ratcheting up the speed will, not surprisingly, produce nothing except more dangerous and defective products.

Not exactly rocket science that a bunch of hacks implementing racist policies, trying to speed up the assembly line, engaging in “Aimless Docket Reshuffling,” eradicating due process, discouraging fairness and deliberation, eliminating their own jurisdiction to control the dockets, and denying everything while mindlessly throwing more resources into a broken beyond belief “(non)system” at war with its own essential employees and those whom it (dis)serves would produce total chaos and dysfunction. Also, throw in lack of best technology and overt disregard for public health and safety.

And, while this is going on, an undisciplined, out of control, and for all practical purposes worse than useless ICE continues to pour new cases into the maelstrom at twice the rate it can get turn them out! As the late NY Met’s Manager Casey Stengel once said, “Can’t anyone here play this game?”

This is an ongoing and increasingly visible unmitigated national disgrace. It’s also an abuse of public funds and a betrayal of the public trust — fundamentals of sound government.

And, it won’t be “swept under the table” in the finest tradition of incoming Administrations. As I’ve said before, the Biden-Harris Administration either fixes EOIR🤡 immediately with some new faces with real expertise, or it “owns” it. And, the current White Nationalism infested atrocity and den of “malicious incompetence” at EOIR🤡 is not something an Administration striving to achieve equal justice and racial reconciliation should want to own!

Due Process Forever!

Hey hey, ho ho, the EOIR Clown Show 🤡 has got to go!

EOIR Clown Show Must Go T-Shirt — “EOIR Clown Show Must Go” T-Shirt Custom Design Concept

PWS

12-22-20

🏴‍☠️☠️🤮👎🏻IN NYT OP-ED, FORMER TRUMP DOJ ATTORNEY ERICA NEWLAND ADMITS COMPLICITY! — Having Undermined Democratic Institutions, Sold False Narratives To (Too Often Willing) Federal Judges, & Participated In Racist-Inspired “Dred Scottification” (“Dehumanization”) Of the Other Is Actually a BIG Deal! — So Is The Destruction Of Due Process & Fundamental Fairness In The Immigration Courts (Now, “Clown Courts”🤡, or “America’s Star Chambers”☠️)

https://www.nytimes.com/2020/12/20/opinion/trump-justice-department-lawyer.html?referringSource=articleShare

. . . .

Watching the Trump campaign’s attacks on the election results, I now see what might have happened if, rather than nip and tuck the Trump agenda, responsible Justice Department attorneys had collectively — ethically, lawfully — refused to participate in President Trump’s systematic attacks on our democracy from the beginning. The attacks would have failed.

. . . .

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

Read the full op-ed at the link. That’s right Erica. Lack of ethics, morality, and failing to uphold the Constitution and the rule of law have consequences. Helping to “custom design” obvious pretexts for racist and hate inspired policies, for consumption by right-wing judges who only seek “cover” for going along to get along with fascism, is wrong. Duh!

It’s no surprise that the clearly unconstitutional and racially and religiously bigoted “Travel Ban,” willingly embraced by an intellectually dishonest and morally compromised Supremes majority, was first on the list in Erica’s “confession.”

But, don’t expect any apologies from the vast majority of Trumpist lawyer/enablers who violated their oaths of office or from the big time law firms (one where I was formerly a partner) who have granted them undeserved refuge at fat salaries! Nor should we expect large-scale redemption from the legions of Government lawyers in DOJ, DHS, and elsewhere who will assert the “Nuremberg defense” of “just following orders.” But, that doesn’t mean that the rest of us can’t demand some accountability for participation in what are essentially “crimes against humanity.”

Erica’s article largely echoes what my friend and colleague Judge Jeffrey Chase, many of our colleagues in the Round Table of Former Immigration Judges, ⚔️🛡 and numerous members of the New Due Process Army (“NDPA”) have been saying throughout this Administration. Indeed, I frequently have noted that the once-respected Solicitor General’s Office and EOIR operated as basically “ethics free zones” under the disgraced “leadership” of Sessions, Whitaker, and Barr.

It’s also why the the Biden-Harris team that takes over at DOJ must:

immediately remove all the current “executives” (and I use that term lightly) at EOIR as well as all members of the BIA and transfer them to positions where they can do no further damage to asylum seekers, migrants, their (often pro bono or low bono) lawyers, or the rest of humanity;
replace them with qualified individuals from the NDPA; and
be circumspect in eventually making retention decisions for Immigration Judges, taking into account public input as to the the degree to which each such judge’s jurisprudence during the Trump kakistocracy continued to reflect adherence to constitutionally required due process and fundamental fairness to migrants, respect for migrants and their representatives, best practices, and interpretations that blunted wherever reasonably possible the impact of the kakistocracy’s xenophobic, racist, White Nationalist policies.

American justice has been ill-served by the DOJ and the Immigration Courts over the past four years. That’s something that must not be swept under the carpet (as is the habit with most incoming Administrations).

The career Civil Service overall, and particularly complicit and often ethics-free government lawyers, failed to put up the necessary resistance to an overtly anti-American regime with an illegal and immoral agenda. Lives were lost or irreparably ruined as a result. That’s a big-time problem that if not addressed and resolved will likely make continuance of our national democratic republic impossible.

⚖️🗽🧑🏽‍⚖️👍🏼🇺🇸Due Process Forever! Complicity Never☠️🤮🏴‍☠️👎🏻!

PWS

12-21-20

🇺🇸🗽⚖️Due Process Forever!

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Hey hey, ho ho, the EOIR Clown Show 🤡 has got to go!

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⚖️🗽🧑🏽‍⚖️👍🏼🇺🇸Due Process Forever! Complicity Never☠️🤮🏴‍☠️👎🏻!

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