"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
What fun, sending Black Cameroonian refugees back to rape, torture, and possible death! We don’t need to know much asylum law or real country conditions here at EOIR. We make it up as we go along. And, Judge Garland just lets us keep on playing “refugee roulette,” our favorite game! https://www.flickr.com/photos/rasputin243/ Creative Commons License
Nearly all of the deported people interviewed had fled Cameroon between 2017 and 2020 for reasons linked to the crisis in the Anglophone regions. Human Rights Watch research indicates that many had credible asylum claims, but due process concerns, fact-finding inaccuracies, and other issues contributed to unfair asylum decisions. Lack of impartiality by US immigration judges – who are part of the executive branch, not the independent judiciary – appeared to play a role. Nearly all of the deported Cameroonians interviewed – 35 of 41 – were assigned to judges with asylum denial rates 10 to 30 percentage points higher than the national average.
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The complete report gives a totally damning account of EOIR’s incompetence, ignorance of asylum law, poor decision making, “rigged” assignment of bad judges, and systemic bias directed against asylum seekers, primarily people of color. Although human rights conditions have continued to deteriorate in Cameroon, asylum grant rates have fluctuated dramatically depending on how the political winds at DOJ are blowing.
For example, judges denying asylum because of imaginary “improved conditions” in Cameroon falls within the realm of the absurd. No asylum expert would say that conditions have improved.
Yet, in a catastrophic ethical and legal failure, there is no BIA precedent “calling out” such grotesque errors and serving notice to the judges that it is unacceptable judicial conduct! There are hardly any recent BIA published precedents on granting asylum at all — prima facie evidence of the anti-asylum culture and institutional bias in favor of DHS Enforcement that Sessions and Barr actively cultivated and encouraged!
Even more outrageously, these same members of the “asylum deniers club” remain in their influential appellate positions under Garland! As inexplicable as it is inexcusable!
The HRF report details the wide range of dishonest devices used by EOIR to cut off valid asylum claims: bogus adverse credibility determinations; unreasonable corroboration requirements; claiming “no nexus” when the causal connection is obvious; failing to put the burden on the DHS in countrywide persecution involving the government or past persecution; bogus findings that the presence of relatives in the country negates persecution; ridiculous findings that severe harm doesn’t “rise to the level of persecution,” failure to listen to favorable evidence or rebuttal; ignoring the limitations on representation and inherent coercion involved in intentionally substandard and health threatening ICE detention, to name just some. While these corrupt methods of denying protection might be “business as usual” at EOIR “denial factories,” they have been condemned by human rights experts and many appellate courts. Yet Garland continues to act as if nothing were amiss in his “star chambers.”
This bench needs to be cleared of incompetence and anti-asylum bias and replaced with experts committed to due process and fair, impartial, and ethical applications of asylum principles. There was nothing stopping Sessions and Barr from “packing” the BIA and the trial courts with unqualified selections perceived to be willing and able to carry out their White Nationalist agenda! Likewise, there is nothing stopping Garland from “unpacking:” “cleaning house,” restoring competence, scholarly excellence, and “due process first” judging to his shattered system!
“It’s not rocket science, but ‘unpacking’ the Immigration Courts appears beyond Garland’s skill set!” “Unpacking” Photo by John Keogh Creative Commons License
All that’s missing are the will and the guts to get the job done! Perhaps that’s not unusual for yet another Dem Administration bumbling its way through immigration policy with no guiding principles, failing to connect the dots to racial justice, betraying promises to supporters, and leaving a trail of broken human lives and bodies of the innocent in its wake. But, it’s unacceptable! Totally!
Joseph A. Vail Asylum Workshop shares valuable immigration insights in the era of the Biden Administration
Retired Immigration Judge, U.S. Immigration Court and Former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt discusses growing immigration court backlogs.
Feb. 7, 2022 – More than 350 practitioners attended the annual Joseph A. Vail Asylum Workshop recently. The four-hour virtual event held on Jan. 28 was presented by the University of Houston Law Center’s Immigration Clinic and co-sponsored by Interfaith Ministries of Greater Houston. Interfaith Ministries joined this year to shed light on the plight of Afghani refugees who have settled in Houston since the government in Afghanistan collapsed and the Taliban takeover.
The goal of the workshop was to provide an update on immigration practices since President Biden took office. For example, while Biden halted the building of the border wall between the U.S. and Mexico and removed Migrant Protection Protocols (MPP) – where asylum seekers must remain on the Mexican side of the border while awaiting U.S. immigration court dates – a federal court order forced MPP to be reinstated. Immigration court backlogs continue to grow with former Board of Immigration Appeals Chairman Paul W. Schmidt predicting them reaching over 2 million by the end of 2022.
The first panel, moderated by Immigration Clinic Director Geoffrey Hoffman, explored the Biden Administration’s focus on Prosecutorial Discretion, Deferred Action for Childhood Arrivals (DACA), Migratory Protection Protocols (MPP), recent circuit court decisions, Afghan and Haitian case precedents, and immigration court backlogs.
“I hope you are emboldened to take a pro-bono client,” said Hoffman. “You can reach out to any of us on this call and use us as mentors.”
Panelist Magali Candler Suarez, principal at Suarez Candler Law, PLLC warned practitioners that Title 42 – a public health and welfare statue that gives the Center for Disease Control and Prevention the power to decide whether something like Covid-19 in a foreign country poses a serious danger of spreading in the U.S. – was being applied to Haitians in a racist manner.
“Many Haitians are being turned back at the border,” said Candler Suarez. “They are being denied the right to apply for asylum.”
The second panel, moderated by Parker Sheffy, a clinical teaching fellow at the Immigration Clinic, was a refresher on asylum, withholding of removal and CAT. Panelist Elizabeth Mendoza from the American Immigration Lawyers Association (AILA), which supports immigration attorneys in this work, spoke about challenges because of newly appointed immigration judges and evolving Covid practices.
“Unfortunately, things are in flux this month,” said Mendoza. “It’s not out of the ordinary to be given conflicting information.”
Well known former U.S. immigration judge, Jeffrey S. Chase, was the final panelist in this group and focused on the future of asylum in the U.S. “The Biden Administation issued a paper on climate change and migration,” said Chase. “[What] they were really talking about [though was] asylum and how climate change will impact that.”
A third panel offered insights on the use of experts in removal proceedings. UH Law Center Professor Rosemary Vega moderated the discussion which ranged from psychological experts to country experts and where to find them.
“The Center for Gender and Refugee Studies has a giant list of experts on many topics,” said panelist and UH Law Professor Lucas Aisenberg. “It’s the first place I go to when I’m working on a case.”
The workshop wrapped up with speakers from Interfaith Ministries of Greater Houston explaining what it is like to be a refugee from Afghanistan and how hard it has been to meet the needs of Afghan refugees that have arrived in the last year.
“Two years ago, we resettled 407 Afghan refugees,” said Martin B. Cominsky, president, and CEO of Interfaith Ministries of Greater Houston. “Since September 2021, we have resettled 11,081 refugees.” He implored practitioners on the call to help in any way they can.
The Joseph A. Vail Asylum Workshop has been held annually since 2014 in memory of the University of Houston Law Center Immigration Clinic’s founder. Since the clinic’s inception in 1999, it has become one of the largest in the nation, specializing in handling asylum applications for victims of torture and persecution, representing victims of domestic violence, human trafficking, and crime, and helping those fleeing civil war, genocide, or political repression. The clinic has served over 2,000 individuals who otherwise could not afford legal services.
For a full list of speakers at this year’s event, click here.
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“Immigration court backlogs continue to grow with former Board of Immigration Appeals Chairman Paul W. Schmidt predicting them reaching over 2 million by the end of 2022.”
“Aimless Docket Reshuffling” is thriving @ Garland’s EOIR. Instead of gimmicks designed to “prioritize for denial and deterrence” (how about those “engineered in absentia dockets?”) why not work with the private bar and DHS to prioritize at both the Asylum Office and EOIR those with the most compelling cases from countries where refugee flows are well-documented?
For example, why not “prioritize” represented Uyghur and Afghani cases which should be “slam dunk” asylum grants? What’s the purpose of making folks who are going to be part of our society unnecessarily spend years in limbo?
Is anybody in the Biden Administration actually planning for a possible human rights catastrophe, or just waiting for it to happen and then declaring yet another “migration emergency.”
Contrary to the uninformed view of many, backlogs aren’t just a workload problem or a hindrance to enforcement. There are huge human, psychological, economic, societal, and institutional costs with maintaining large uncontrolled backlogs.
Most of those costs fall on the individuals with strong, likely winning cases who constantly are “orbited to the end of the line” to accommodate ever-changing, ill-advised, enforcement agendas and misguided “quick fix” initiatives. That’s so that DHS and DOJ can misuse the legal system as a deterrent — by prioritizing the cases they think they can deny without much due process to “send messages” about the futility of asking for protection or asserting rights in the U.S. legal system! And, those with strong cases (and their attorneys) “twist in the wind” as denials and deterrence are prioritized.
Trying to prioritize “bogus denials” (often without hearings, lawyers, time to prepare, or careful expert judging) also creates false statistical profiles suggesting, quite dishonestly, that there is no merit to most cases. These false narratives, in turn, are picked up and repeated by the media, usually without critical examination.
Like the “Big Lie,” they eventually develop “a life of their own” simply by repetition. When occasionally “caught in action” by Article IIIs, the resulting backlog bolstering remands and “restarts” are inevitably blamed on the individuals (the victims), rather than the systematic Government incompetence that is truly responsible!
The truth is quite different from the DOJ/DHS myths.Over the years, despite facing a chronically unfair system intentionally skewed against them, some hostile or poorly qualified Immigration Judges and Appellate IJs, and wildly inconsistent results on similar cases before different judges (so-called “Refugee Roulette”), asylum seekers have won from 30% to more than 50% of the time when they actually receive an opportunity for a full, individual merits determination of their claims.
But, getting that individual hearing has proved challenging in a system that constantly puts expediency and enforcement before due process, fundamental fairness, and human dignity! No matter how the Government tries to hide it, that means that there lots of bona fide asylum seekers out there whose cases are languishing in a broken system.
The creation of the USCIS Asylum Office was supposed to be a way of dealing with this issue through so-called affirmative applications and “quick approvals” of meritorious cases. But, during the Trump Administration even that flawed system was intentionally and maliciously “dumbed down,” “de-functionalized,” “re-prioritized,” and hopelessly backlogged. It was so bad that the Asylum Officers’ Union actually sued the Trump Administration for acting illegally.
More “gimmicks” like Garland’s failed “dedicated dockets” won’t fix his dysfunctional system. Fundamental leadership, personnel, substantive quality, procedural, and “cultural” changes are necessary to address backlogs while achieving due process and fundamental fairness at EOIR. Ironically, that was once the “EOIR Vision.” ⚖️ It’s too bad, actually tragic, Garland doesn’t share it!🤯
Hiding in plain sight on a dusty corner of this remote west Texas town, the Blackwell School stands as a lasting reminder of what Mexican American students endured during decades of segregation.
“I learned about racism here in Marfa,” said Jessi Silva, 73, who attended the school as a child in the 1950s and 1960s.
Sitting in the schoolhouse last month, Silva gestured to a wooden paddle she said teachers used to spank classmates for speaking Spanish.
Opened in 1909 as a three-room “Mexican school,” Blackwell expanded to half a dozen buildings, educating more than 4,000 children before it closed in 1965.
“Students were told to speak only English on campus,” reads a state historic marker outside the stucco and adobe school, which is now a museum. “Spanish words written on slips of paper were buried on the grounds in a mock funeral ceremony.”
“One of the other teachers came into our classroom and wrote the word ‘Spanish’ on the blackboard, gave each one of us a small piece of paper and told us to write the letters that we saw on the blackboard,” Silva recalled.
Afterward, the teacher collected the slips of paper “and then they marched us all out to the flagpole.”
“They already had a hole dug, and they had this box,” Silva recalled. “They put all the students’ papers in that box and said that we can all vote to do away with the Spanish language. Therefore, we were burying ‘Mr. Spanish.’ And we were no longer allowed to speak Spanish in school.”
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Read Molly’s full article at the link.
Kids used to come to a “first master” before me speaking a few words of English. By their second master they were speaking English and helping their family members understand. I’d tell them that they had now surpassed me in language achievement. Bilingualism is a fantastic life skill!
Born in 1921, Motley was the first Black woman to argue at the Supreme Court and the first to serve as a federal judge. Democratic presidents twice considered — and twice rejected — her for a seat on a federal appeals court.
Motley, who went by Connie, faced countless indignities. She graduated from New York University and Columbia Law School, and a Wall Street firm offered her a job interview based on her stellar academic record. But the firm wouldn’t even meet with her when she showed up for the appointment because she was Black. Instead, she took a job at the NAACP Legal Defense Fund.
She was the only female lawyer at the Fund for 15 years. During her employment interview in 1945 with then Legal Defense Fund boss Thurgood Marshall, the future Supreme Court justice asked her to climb a ladder next to a bookshelf. “He wanted to inspect her legs and feminine form,” writes Tomiko Brown-Nagin in her compelling and readable new biography of Motley, “Civil Rights Queen.” When Marshall stepped down to become a judge in 1961, he passed over Motley and picked a less experienced White man as his successor.
James Hohmann Columnist WashPost PHOTO: WashPost website
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Motley earned less than men who did the same work. Motley nonetheless won nine of the 10 cases she argued at the Supreme Court. As a new mother, struggling with postpartum depression, she drafted briefs for Brown v. Board of Education. Pursuing the implementation of the landmark decision turned out to be a decades-long slog. She successfully integrated the flagship universities in Georgia and Mississippi, where she was James Meredith’s attorney.
In 1965, Lyndon B. Johnson had intended to nominate Motley to take Marshall’s seat on the U.S. Court of Appeals for the 2nd Circuit when he resigned to become solicitor general — a stepping-stone to the Supreme Court in 1967. But then-Sen. Robert F. Kennedy (D-N.Y.), remembered by history as a civil rights champion, pressed Johnson to pick a White man over Motley for the appellate court. Kennedy called Attorney General Nicholas Katzenbach in July 1965 to complain that naming Motley would be too risky from a “political and public relations viewpoint.” Katzenbach summarized the call in a memo to Johnson. “I think there is merit in Sen. Kennedy’s assessment,” the attorney general told the president.
(Johnson nominated Motley to the District Court for the Southern District of New York a year later. The American Bar Association declined to give Motley a “highly qualified” rating on the dubious grounds that she lacked trial experience in New York, even though she’d litigated hundreds of cases in federal courts. Senate Judiciary Committee Chairman James O. Eastland (D-Miss.) accused her of being a communist sympathizer and held up Motley’s confirmation for seven months.)
A dozen years later, during Jimmy Carter’s presidency, Attorney General Griffin Bell had veto power over judicial nominations and opposed Motley’s elevation to the 2nd Circuit because they’d tangled when she was a lawyer for the Legal Defense Fund. Carter eventually nominated Amalya Kearse, a Black woman who was a partner at a major law firm and didn’t have critics inside his administration.
Along the way, Motley mentored Sonia Sotomayor after the future justice joined Motley’s court in 1992. Sotomayor, who in 1998 secured the 2nd Circuit appeals court seat that eluded Motley, famously wrote that “wise Latina” judges “would more often than not reach a better conclusion” than White male judges who lacked their lived experiences. Motley, who rejected being called a “feminist,” disagreed that female judges brought special insight to the bench. Instead, she argued for a more representative judiciary on the grounds that inclusion would strengthen democracy by increasing confidence in the rule of law among racial minorities.
Motley died in 2005 at 84, still believing in the ability of the third branch to help deliver on that promise. Biden’s pledge to name a Black woman to the Supreme Court is a validation of Motley’s enduring faith in a system that repeatedly passed her over.
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The Thurgood Marshall story shows that it wasn’t only White men who undervalued Black women. Black men displayed some of the same disgusting and condescending attitudes! Motley just kept on achieving and contributing, making the most of her opportunities, rather than stewing about what had unfairly (and probably illegally) been denied to her.
Obviously, the careers of guys like GOP Senators Wicker, Cruz, and Kennedy show that White guys still benefit from a system that still doesn’t hold them to the same standards imposed on women, particularly talented women of color.See, e.g.,https://apple.news/A-e_PL2khRhiEbrj_L7woCA
But, unlike these “snowflake right-wing whiners,” women of color are used to “plowing forward” and making their own way, despite systemic biases and obstacles placed in their path by men of limited ability who spread lies, show disgusting bias, and contribute little to the common good!
Folks, this is the same Ted Cruz who demonstrated his true character and lack of concern for his constituents by fleeing with his family to a cushy resort in Cancun while Texas was in crisis! He’s also someone who would deny legal refuge to those whose lives are actually in danger because they don’t “fit in” with his White Nationalist view of desirable demographics. (Compare “Cancun Ted’s” version of “refuge” with the camps in which real refugees and their families are rotting in Mexico thanks to righty-wing judges and GOP AGs.)
Perhaps the most interesting disconnect among the privileged GOP White guys who are opposing a Black woman nominee who hasn’t even been named yetis the juxtaposition with the performance of these dudes during the Kavanaugh confirmation hearings — an unending homage to the “birth privilege” of angry, entitled right-wing white guys. Here’s an apt quote from Chauncey Devega in Salon:
When Trump says “young men,” no adjective or modifier is needed. It is clear to everyone, given his inclinations, history, words and deeds, that “young men” of course means “white men”.
This reflects a larger sentiment in America at present. For too many white men — poor, working-class and middle-class — there is widespread anger at somehow being displaced by nonwhites and women who are “cutting ahead in line” because of “affirmative action” and other nonexistent “entitlements.”
These angry white men feel obsolete and marginalized in a changing America, frustrated by globalization and excluded by a more cosmopolitan country. But their anger is misdirected toward the groups they perceive to be receiving “special treatment.” Their collective anger would be better directed at men who look like them but who have created social inequality, injustice and immiseration in America and around the world.
President Biden should stick to his guns and nominate a talented and deserving Black woman. It’slong, long overdue! And, he should pay no attention whatsoever to the outrageous, totally disingenuous laminations of privileged guys like Cruz, Wicker, and Kennedy who have already “achieved” far above the level of their demonstrated merit, ability, or positive contributions to the common good.
We need Federal Judges and Justices who are wise, fair, talented, experienced contributors to society; we don’t need the advice or “stamp of approval” of insurrectionists and dividers who rely on racially biased myths to cover for their own all too obvious human inadequacies!
We, the undersigned organizations committed to the rights of asylum seekers and refugees, write to express our serious concerns over reports that the U.S. Department of Homeland Security (DHS) has begun a new practice of using Title 42 to expel Venezuelan migrants to Colombia. We understand that the first two Venezuelan individuals to be expelled under this policy were flown to Colombia on January 27, 2022 and that additional Title 42 expulsion flights to the country are expected to take place on “a regular basis” for Venezuelans who “previously resided” in Colombia. This practice represents a concerning and unacceptable escalation to your administration’s misguided approach to border and migration policy that flouts domestic and international refugee and human rights law. We urge you to cease these and other Title 42 expulsions immediately, to prioritize protection and access to asylum in your regional and domestic migration policies, and to engage asylum and human rights experts as you pursue new policies.
One year into your administration, you have continued the misuse of a xenophobic Trump-era policy that weaponized an obscure provision of Title 42 of the U.S. code to summarily block and expel individuals, often repeatedly, from the U.S. southern border, without providing them the opportunity to seek asylum or the ability to access any protection screening required by law. These new flights to Colombia come amidst troubling reports that your administration placed on hold plans to restart asylum processing at U.S. ports of entry and that high-level officials have resisted ending Trump-era asylum restrictions, including Title 42 expulsions.
Title 42 expulsions have nothing to do with protecting public health and are not necessary to protect the public from the spread of COVID-19. Since the start of the COVID-19 pandemic, public health experts, the UN Refugee Agency, and other humanitarian advocates have demonstrated that it is possible to protect public health and ensure access to asylum simultaneously. In fact, the Centers for Disease Control and Prevention (CDC) objected to the use of Title 42 for mass expulsions of migrants and confirmed such expulsions lacked a valid public health basis. Your Chief Medical Advisor Dr. Anthony Fauci has himself stated that immigrants are “absolutely not” driving a COVID-19 outbreak and that expelling migrants is not a solution to an outbreak.
Over the past twelve months, your administration expelled people—often expelling the same person repeatedly—from the U.S. southern border more than one million times. In just the first seven months of your administration, U.S. border officials carried out 704,000 expulsions, a significant increase from the Trump administration’s 400,000 expulsions conducted over ten months. In addition to the new expulsion flights to Colombia, DHS also carries out land expulsions to Mexico and expulsion flights to send individuals and families back to their countries of origin, including Haiti, Guatemala, Honduras, and Brazil. Even though your administration has acknowledged that “Haiti is grappling with a deteriorating political crisis, violence, and a staggering increase in human rights abuses…” – the U.S. has since September 2021, inexplicably chartered nearly 150 flights of almost 16,000 Haitians, including families with infants, back to a country that is unquestionably unsafe without offering them any opportunity to seek protection before expulsion. These expulsions under Title 42 violate the law and risk sending people back to dangerous conditions – sometimes the very ones that caused them to seek safety in the first place.
As you are aware, Venezuela is currently facing a severe economic, political, and humanitarian crisis. Millions of Venezuelans have left the country due to political persecution, a collapse of basic services, food insecurity, and rampant violence. Over 1.7 million Venezuelans are being hosted in Colombia and many have been granted temporary status there and only a small percentage of Venezuelans have sought asylum in the United States; however, Colombia is not safe for all Venezuelan migrants and refugees. Venezuelans, and all other individuals fleeing persecution have the right to seek asylum under U.S. law and to have their claims for protection assessed on a case-by-case basis. Your administration is blatantly violating the law by expelling these people to other countries in the region, such as Colombia, and we are deeply troubled by the informal and opaque arrangements with third countries that facilitate these expulsions. Your administration terminated several such agreements with Central American countries when you came into office, making these new flights especially concerning.
During its first year in office, your administration committed to a comprehensive regional approach to migration, aiming to strengthen asylum systems and refugee resettlement programs in the region and promote “safe, orderly, and humane migration.” Despite this pledge, your administration’s actions suggest that the United States seeks out negotiations with countries throughout Latin America that externalize its borders further south, shifts responsibility to countries already hosting millions of refugees, and impedes people’s ability to seek protection in the United States. Earlier this month, under pressure from your administration, the Mexican government implemented new requirements that Venezuelans obtain a visa to travel to Mexico. According to reports, your administration has also requested that Mexico sign a safe third country agreement, which could effectively block most individuals (except Mexicans) from seeking asylum in the United States.
We urge your administration to abandon efforts to prevent people from seeking asylum through externalized migration controls in the region and to undermine the right of people to seek protection in the United States. As you pursue other regional efforts, it is imperative that your administration operate with increased transparency and engage with asylum and human rights experts about potential efforts such as anticipated regional compacts on migration with other countries in the Americas. While regional protections must be strengthened, these efforts must not and need not come at the expense of existing protection mechanisms and access to asylum at the U.S.-Mexico border, including at ports of entry.
Your administration has the responsibility to uphold U.S. refugee law and treaty obligations. We call on your administration to cease further expulsions of Venezuelan migrants to Colombia, and to immediately end its use of all expulsions under Title 42. Our organizations continue to welcome the opportunity to engage on and inform how to promote a protection centered approach to “safe, orderly, and humane migration,” including restoring access to asylum at the border, including at ports of entry.
immigrants’ rights = human rights = civil rights = racial justice = economic stability = common good
By failing miserably on the first, the Administration has found itself flailing and failing on the rest.
Nowhere is this more apparent than at DOJ! Garland has squandered the precious first year in office by NOT cleaning house at EOIR and bringing in practical experts in immigration/human rights/due process to remake and reform the system so that it can deal fairly, timely, and justly with asylum applicants applying at the border and and elsewhere in the U.S., as they are legally entitled to do.
Instead of expertly culling the vast majority of backlogged pending cases which are neither priorities nor viable removal cases at this point, Garland has built the unnecessary, largely self-created backlog at a record pace to more than 1.6 million with no end in sight! Add that to his disgraceful failure to stand up against illegal and immoral policies and clear violations of human rights at the border by his own Administration and you get today’s catastrophic situation.
“Standing tall” for the rule of law (and human decency) is supposed to be the Attorney General’s job. Why are these NGOs being forced to do it for him?
How bad have things gotten at Garland’s DOJ? This has already been a tough week that saw his DOJ attorneys “blow” a plea bargain in a major civil rights case, be excoriated by the 4th Circuit in a published case for a miserably botched performance in what should have been a routine “reasonable fear” case, and have Chairwoman Lofgren introduce her Article 1 bill with a broadside against DOJ’s horrible stewardship over EOIR.
As if to punctuate Chairwoman Lofgren’s critique, Garland topped it off with this gem: a beatdown in a pro se Salvadoran asylum case, which OIL basically failed to “pull” although the BIA decision conflicted with Garland’s own more recent precedent, from a Fourth Circuit panel that included two recent Trump appointees not heretofore known for vigorously defending asylum seekers’ rights!https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/pro-se-ca4-psg-remand-luna-deportillo-v-garland
Folks, this is NOT “good government.” Not by a long shot!
There is no more important task — NONE — facing DOJ than pumping some due process and quality back into immigration law and making the long overdue management, personnel, procedural, and legal quality reforms at EOIR.
Yes, that apparently would require Garland to take on some folks at the White House who obviously consider human rights to be a “political strategy,” integrity and courage optional, and live in mortal fear of Stephen Miller and far-right nativists. It would mean taking decisive actions to treat asylum seekers and other migrants (including many individuals of color) as “persons” under our Constitution. It would end the intentional “Dred Scottification of the other.” It would send some Sessions/Barr “plants and holdovers” packing from their current jobs!
Unquestionably, these moves would incite predictable, tiresome, apoplectic reactions by Miller and the GOP White Nationalist cabal on the Hill. They would put Garland “in the spotlight” and interrupt the serenity of his inner sanctum on the 5th floor of the DOJ where he apparently likes to contemplate the world and “things other than due process for immigrants.”
But, taking on folks like that is what good lawyers are supposed to do. As a public lawyer, it’s not just about being somebody’s “mouthpiece” — it’s standing up for the rule of law!
I among many others have said from the outset that Garland won’t be able to sweep the total meltdown at EOIR and in immigration legal positions under the table, much as he obviously would like them to go away! Yes, he inherited an awful mess from his Trump predecessors. But, almost a full year in, that doesn’t absolve him of responsibility for failing to initiate the common sense steps to fix it and to bring in experts who actually know what they are doing and have the guts and backbone to follow through — even when the going gets tough, as it undoubtedly will. The problems at DOJ go far beyond EOIR; but,EOIR must be the starting place for fixing them. There is no more time to lose!
It’s time for Garland to start worrying about running “America’s most unfair and dysfunctional courts,” defending grotesque human rights violations and scofflaw policies by his own Administration, and a DOJ that takes untenable and embarrassingly bad legal positions before the Federal Courts. Much as he’d like to pretend that “immigration doesn’t matter,” or expressed a different way “human lives don’t matter if they are only migrants,” he’s starting to get pressure from Congress, the Article IIIs, and NGOs to fix EOIR and “shape up” the DOJ’s lousy, sometimes unprofessional and ethically questionable, approach to immigration, human rights, and racial justice issues. Justice for immigrants is the starting point for achieving racial justice in America. PHOTO: Wikipedia Commons
Garland’s failure to institute widely recommended common sense legal reforms — government for the common good — at EOIR undermines our democracy while endangering “real” human lives every day! That’s a toxic legacy that he won’t be able to avoid!
The first three lessons learned from the BIA’s recent decision in Matter of Laparra1 are: (1) the Board knows only one tune; (2) that tune is the “Falls Church Two-Step,” and (3) the tune does not improve with repeated listening.
As background, Congress in 1996 passed a statute creating a document called a Notice to Appear, or “NTA” for short, which is used to commence removal proceedings before the Immigration Court. Congress defined an NTA to require that it include the time and place of the first hearing; the document is, after all, called a “notice to appear.”
However, for many years, the Department of Homeland Security cut a corner by leaving that crucial information out of hundreds of thousands of NTAs. The courts (which are not part of DHS, the entity issuing the NTA) would later send a different document telling the person when and where to appear. That second document might be sent weeks, months, or even years later.
As an aside, in other areas of immigration law, EOIR has applied a literal approach to interpreting statutory terms. An unfortunate example is found in the asylum context, where the BIA felt a strong need to add “particularity” and “social distinction” requirements for particular social group recognition, creating significant obstacles for asylum seekers. Yet the government’s defense of those terms has been based on the argument that every word in the term “particular social group” must be accorded a very literal meaning.
However, when it comes to the term “Notice to Appear,” the Board inexplicably doesn’t seem to think meaning should matter. According to the online version of the Cambridge English Dictionary, “notice” is defined as “(a board, piece of paper, etc. containing) information or instructions.” A “Notice to Appear” would therefore be a piece of paper containing information or instructions about when and where to appear. However, that is exactly the information or instructions that DHS saw fit to leave out of this particular document. The BIA nevertheless long stood firm in its conviction that a document which provides as much information or instruction about an upcoming hearing as a take-out menu from L&B Spumoni Gardens meets the legal definition of a “Notice to Appear.”
Not surprisingly, this government shortcut was successfully challenged by noncitizens wishing to seek a path to legal status in this country called cancellation of removal. One can’t apply for cancellation of removal unless they’ve been present in the U.S. for ten years,2 but once one is served with a Notice to Appear, the accrual of time towards that ten years stops.3 So whether or not what ICE was handing out met the definition of an NTA would determine whether hundreds of thousands of people would be eligible to apply for legal status. In a case called Pereira v. Sessions,4 the Supreme Court resoundingly held that an NTA without the time and place of hearing was not an NTA, and therefore did not stop the noncitizen from accruing time to reach the 10 years of presence necessary to apply for cancellation of removal.
The BIA’s response was to issue a precedent decision, Matter of Mendoza-Hernandez,5 in which it held that in spite of the Supreme Court’s clear view to the contrary, the combination of the non-NTA and a later-sent document that is also not an NTA containing the missing information together form a valid NTA, which stops the noncitizen from continuing to accrue time towards the ten years.
The matter again reached the Supreme Court, where, at oral argument, Justice Gorsuch referred to the case as “Pereira groundhog day,” and actually asked counsel for the government why it was pursuing the case in light of the Court’s 8-1 decision in Pereira.6 In its 2021 decision in that case, Niz-Chavez v. Garland,7 the Court held that an NTA must be a single document containing all of the required information, and that the two-step method endorsed by the Board does not constitute one valid NTA, and thus will not stop the accrual of time.
Although Pereira and Niz-Chavez involved what is known as the “stop-time rule” described above, the question of proper service of an NTA also arises in other contexts. For those who missed their initial removal hearing and were ordered removed as a result, the Supreme Court decisions seemed to offer a new opportunity.
The reason is because the statute provides for in absentia removal orders only where the noncitizen failed to appear for their hearing “after written notice required under paragraph (1) or (2) of section 1229(a) of this title has been provided” to the noncitizen or their lawyer.8 Section 1229(a) is the section of the law that lists the requirements for an NTA to actually be an NTA; it was the specific section interpreted by the Supreme Court in Pereira and Niz-Chavez. Pursuant to those decisions, no one who was issued an NTA lacking a time and place of hearing received proper notice under section 1229(a) of the Act, which specifically requires that the time and place information be provided in a single document. Where notice was not proper, the law allows the filing of a motion to rescind an in absentia order, and further permits the motion to be filed at any time.9
The U.S. Court of Appeals for the Fifth Circuit addressed this issue of proper notice in a published decision issued in September, Rodriguez v. Garland.10 The decision cited the Supreme Court’s holding in Niz-Chavez, and determined that a single document containing all of the required information (including the time and place) is required in the in absentia context as well. The Fifth Circuit made clear that where the NTA did not contain the time and place, it could not be cured by the mailing of a subsequent notice for in absentia purposes.
Anyone unable to guess the BIA’s response has not been paying attention. The BIA issued Matter of Laparra in order to say that the recipient of an in absentia removal order did in fact receive proper notice pursuant to section 1229(a) even if their NTA lacked a time and place of hearing, as long as the court subsequently sent an entirely different paper days, months, or years later containing the missing information.
How did the BIA believe it could reach this same conclusion yet again in spite of the Supreme Court decisions to the contrary? Please try to follow along as we review the Board’s explanation.
First, the Board emphasized that the statute governing in absentia orders (8 U.S.C. § 1229a(c)(5)(A)) states that such order may be entered “after written notice required under paragraph (1) or (2) of section 239(a) has been provided.” The Board emphasized the words “written notice,” which it distinguished from “a written notice,” which the Supreme Court interpreted to indicate a single document.11 The Board’s position seems to be seriously undermined by the fact that “written notice under paragraphs (1) or (2) of section 239(a)” is subsequently referred to twice more in the same section of the law as “the written notice.”
The Board employed a novel approach here. It dropped a footnote in which it admitted to the two subsequent mentions of “the written notice.” But the Board then said that it reads those two subsequent uses of “the” as simply referring back to the initial “written notice” (without the definite article).12 And apparently, because they are referring to the first mention of “written notice,” the definite article “the” can just be ignored in those other two usages. Why is that? To explain, the Board cited a Supreme Court decision in a non-immigration case decided in 2015, Yates v. U.S.13
Yates involved a fisherman apprehended at sea with a catch containing a large number of undersized fish. However, by the time the ship reached shore, only fish of legal size remained on board. After a long delay, Yates was charged and convicted under 18 U.S.C. § 1519, prohibiting tampering with a “tangible object” in order to impede a federal investigation.
Fish would meet the dictionary definition of “tangible objects.” However, in a decision authored by the late Justice Ruth Bader Ginsburg, the Supreme Court employed a canon of statutory interpretation called noscitur a sociis, under which aid in determining a term’s meaning can derive from the meaning of surrounding terms used in the same section of law.14 As the term “tangible object” in 18 U.S.C. § 1519 is preceded by “makes a false entry in any record, document…,” the Court determined that “tangible object” was meant to refer to items containing records or documents. So tampering with an external hard drive would be covered by the statute; tampering with a fish would not.
This approach has been employed by the BIA (using the closely-related concept of ejusdem generis) in its 1985 decision in Matter of Acosta15 to determine that the term “particular social group” should be defined by an immutable characteristic, the same common denominator found in the surrounding terms of race, religion, nationality, and political opinion. It bears noting that what the Board did in Laparra bears no similarity to the manner in which the canon was applied in either the Board’s earlier usage in Acosta or by the Supreme Court in Yates. In Laparra, there was no comparison to the meaning of surrounding terms; instead, the Board seemed to make a random decision to ignore two usages of the definite article. The only similarity I can see to Yates is that what the Board did seems fishy.
However, even if we do as the Board would like and look only at the first usage of “written notice” contained in section 1229(a)(1), there is still a fatal flaw in the remainder of the Board’s argument. As noted above, the statute in that first usage requires not just any written notice, but specifically, written notice under paragraph (1) or (2) of section 1229(a), i.e., the section titled “Notice to appear.” Paragraph (1) of that section begins: “In removal proceedings under section 1229a of this title, written notice (in this section referred to as a “notice to appear”)…” A notice to appear! Paragraph (1) thus clearly refers to a single document, which as the Supreme Court has now told us twice, must contain the time and place of hearing.
Paragraph (2) of that same section says that “in the case of any change or postponement in the time and place of such proceedings,” then a written notice shall be provided specifying the new time and place of the proceeding, and the consequences of a failure to appear.
The meaning of paragraph (2) was by no means a matter of first impression for the Board to interpret in Laparra as it saw fit. In its decision in Pereira, the Supreme Court said:
If anything, paragraph (2) of § 1229(a) actually bolsters the Court’s interpretation of the statute. Paragraph (2) provides that, “in the case of any change or postponement in the time and place of [removal] proceedings,” the Government shall give the noncitizen “written notice . . . specifying . . . the new time or place of the proceedings.” § 1229(a)(2)(A)(i). By allowing for a “change or postponement” of the proceedings to a “new time or place,” paragraph (2) presumes that the Government has already served a “notice to appear under section 1229(a)” that specified a time and place as required by § 1229(a)(1)(G)(i). Otherwise, there would be no time or place to “change or postpon[e].”16
We know that the BIA is well aware of this; the above language from Pereira was specifically quoted in the six-judge dissenting opinion in Matter of Mendoza-Hernandez, under the heading “Plain Language.”17
Also, in its later decision in Niz-Chavez, the Court stated that “the government could have responded to Pereira by issuing notices to appear with all the information §1229(a)(1) requires—and then amending the time or place information if circumstances required it. After all, in the very next statutory subsection, §1229(a)(2), Congress expressly contemplated that possibility.”18
Thus, the Supreme Court left no doubt in its two decisions that paragraph (2) involves a change in the time and place of hearing that was previously included in the NTA, as the statute requires. Paragraph (2) in no way, shape, or form allows ICE to serve the noncitizen with the L&B Spumoni Gardens menu and then have the immigration court send a second paper that provides a time and place for the first time.
Somehow, the Board chose to ignore this clear and obvious reading twice affirmed by the highest court in the land. Instead, it focused on only one word – the “or” in “paragraph (1) or (2) of section 1229(a).”19 The Board then pretended (can we find a more appropriate word than this?) not only that the “or” somehow allowed paragraph (2) to be read as if paragraph (1) didn’t exist, but also as if the words “any change or postponement in the time and place of such proceedings” could somehow be read as “change or postponement? What a poor choice of words! What we really meant to say was, ‘the absolutely very first time and place ever set.’ Wasn’t that obvious? We feel so foolish. Please just interpret this any way you see fit.”
The Board did acknowledge the Fifth Circuit’s contrary view in Rodriguez, but attributed it to that court’s failure to focus on the “paragraph (1) or (2)” language.20 Apparently, in the Board’s view, had the Fifth Circuit also focused on that word “or,” it would have reached the same twisted conclusion as the Board. Perhaps realizing how unrealistic this might seem, the Board quickly pointed out that “[i]n any event, Rodriguez does not apply here because this case arises in the First Circuit.”21
Speaking of other circuits, it bears noting that the U.S. Court of Appeals for the Third Circuit recently stated for the second time in a published decision that the BIA’s analysis was “more akin to the argument of an advocate than the impartial analysis of a quasi-judicial agency.”21 I believe that the same can be said of the Board’s decision in Laparra. It will be interesting to see if this issue reaches the Supreme Court for a third time. If so, one should wonder why the Board might expect a different result.
Notes:
28 I&N Dec. 425 (BIA Jan. 18, 2022).
8 U.S.C. § 1229b(b)(1)(A).
8 U.S.C. § 1229b(d)(1), often referred to as the “stop-time rule.”
To be clear, the government is capable of providing all required information in a single NTA. EOIR had provided DHS access to schedule Master Calendar hearings through the agency’s Interactive Scheduling System (ISS), which was employed between those agencies until May 2014. And in a memo issued shortly after the Supreme Court’s Pereira decision, then EOIR Director James McHenry stated that EOIR had begun providing hearing dates to DHS in detailed cases, and was working to again provide it access to ISS for scheduling non-detained cases.
Matter of Laparra, supra at 430.
Id. at 436: “The court reasoned that section 240(b)(5)(C)(ii) requires ‘notice’ under ‘section 239(a),’ which Niz-Chavez held must be a single document in the form of a notice to appear. However, the court based this reasoning on a recitation of section 240(b)(5)(C)(ii) that omitted the disjunctive phrase ‘paragraph (1) or (2)’ from the statute and relied solely on a reference to ‘section 239(a).’”
Id.
Nsimba v. Att’y Gen. of U.S., No. 20-3565, ___ F.4th ___ (3d Cir. Dec. 22, 2021) (slip. op. at 10).
Copyright 2022 Jeffrey S. Chase. All rights reserved.
Republished by permission.
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As Jeffrey points out, the legal and practical problems with notice at EOIR and DHS are chronic, well-documented, and consequential! Yet, given a golden opportunity to make a new start while complying with due process and establishing “best practices” Garland has miserably failed!
Instead of appointing a BIA consisting of “practical scholar expert judges” and competent, professional judicial administrators to clean up this awful mess it’s “same old, same old” under Garland’s poor leadership. Indeed, not only has Garland chosen to retain the very folks who created and aggravated the notice problems, he has actually made it worse! How many times do I have to say it: EOIR is supposed to be a “court of law,” not a highly bureaucratic, “headquarters bloated,” “agency” modeled on and “operating” (a term I use lightly with EOIR) like the very worst aspects of the “Legacy INS.” For Pete’s sake, even DHS has done a somewhat better job of automating files than EOIR!
Tal Kopan Washington Reporter, SF Chronicle. She exposes Garland’s mismanagement of EOIR!
At best, these bogus orders require burdensome motions to reopen, rescheduling, and “restarts” that unnecessarily build backlog. They also generate more bogus statistics and false narratives, more endemic problems at EOIR that Garland has ignored or aggravated.
At worst, improper in absentia orders generate improper arrests, detention, and illegal removals of individuals who were clueless about their actual hearing dates!
Having “supervisors and managers” supposedly in charge of operating a fair hearing system engineer and then “cheer” the absence of any hearings at all shows the depths to which EOIR has plunged under Garland’s poor leadership. But, perhaps that shouldn’t surprise us! It comes from an AG who has failed after nearly a year to re-establish a fair hearing system for asylum applicants at the border and who mounts ethically-challenged defenses of Stephen Miller’s complete eradication of asylum at the border based on a bogus, pretextual rationale rejected by almost all migration and public health experts! Why is this acceptable performance from an alleged Democratic Administration?
Judge Merrick B. Garland, U.S. Attorney General Official White House Photo Public Realm. Appointed by a Democrat, he runs the DOJ largely with Trump holdovers, no accountability, and as if Stephen Miller were still looking over his shoulder. The result corrodes the “retail level” of justice in our Immigration Courts and threatens to de-stabilize our entire legal system!
No wonder Garland is building the already incredible 1.6 million case EOIR backlog at a ”new record” pace!
The speculation on Biden’s Supreme Court pick is “sucking all the air out of the room.” But, Garland’s disgraceful failure to counter the Trump AGs’ “packing” of the BIA with unsuitable judges and filling EOIR “senior management” with unqualified individuals who lack the requisite expertise and consistently tilt in favor of DHS Enforcement and against Due Process, fundamental fairness, immigrants’ rights, and best practices will have more immediate corrosive effects on racial justice in America and individual human lives than any court in America outside the Supremes!
And, unlike the Supremes, Garland “owns” all the picks for the “Supreme Court of Immigration!” Rather than standing up for progressive reforms, and giving new progressive judicial talent a chance to shine, he has chosen to enable and empower regressive forces and to frustrate progressive experts, further undermine the rule of law, and thwart best practices!
But, even these somewhat “understated” critics of Garland don’t fully grasp the catastrophic consequences for our entire justice system and our democracy of Garland’s unwillingness and/or inability to prioritize the creation of a progressive due-process/equal-justice-oriented judiciary of experts to replace his regressive, oppressive, deadly, and beyond dysfunctional immigration judiciary at DOJ!
As Jeffrey cogently relates, “same old, same old” failed approaches by “holdover judges” doesn’t “cut it!” Sessions and Barr recognized the cosmic importance of the immigration judiciary and the imperative to “weaponize it for evil” and to use their limited time in office to maximize and further a White Nationalist agenda developed and promoted by Stephen Miller. It’s a pity that Garland has failed to act on the legal and moral imperatives to “mine and realize EOIR’s ‘counter-potential’ for good!”
That potential was memorialized in the long-forgotten “EOIR vision of yore:” “Through teamwork and innovation, be the world’s best administrative tribunals guaranteeing fairness and due process for all!” Remarkably, that “noble due process vision” was once displayed in bold letters on EOIR’s internal website. Now, folks like Garland are too embarrassed and spineless to even admit that such a goal ever existed.
Funny how right-leaning supposed “textualists” and “strict constructionists” have difficulty following clear statutory commands when the result might favor the individual while holding the Government accountable for intentionally violating the law. Also, strange how an Administration that got into office in no small measure by promoting its competence and strong commitment to humane values and equal justice for all, particularly racial justice, continues to fail on all counts! Go figure!
Not all of the white men who served on the court were paragons of morality. Not all of them went to college, let alone law school. But they each had the golden ticket: low melanin and high testosterone.
So now, it is fascinating to watch as people work themselves into conniptions about Joe Biden committing to choosing a Supreme Court nominee from a group that has long been overlooked: Black women.
. . . .
I say, look at it another way.
Of the 115 justices who have served on the bench since 1789, 108 — roughly 94 percent — have been white men. Zero percent have been Black women.
Viewed this way, through the long sweep of American history, the United States has some work to do.
There is no legitimate or logical argument against inclusion. Consciously including racial groups can be one of the most effective reparative remedies for centuries of racial exclusion.
Only when we disentangle the concepts of whiteness and maleness from the concept of power can we see the damage the association has done. Only then can we truly accept and celebrate the power of inclusion, diversity and equity. Only then can representative democracy in a pluralistic society begin to live up to its ideals.
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Read the full article at the link.
Black women historically have made outsized, grossly under-appreciated contributions to America.
I also note that the overall qualifications of Biden’s list of potential nominees exceed those of the Trump McConnell nominees. The latter’s qualifications were largely limited to proven subservience to right wing judicial activism (particularly elimination of a woman’s right to choose and civil rights for individuals of color), indifference to human suffering, compassion, and practicality, combined with support from out of the mainstream, right wing legal organizations like the Federalist Society and the Heritage Foundation. Being White and Christian also didn’t appear to hurt their chances.
The idea that Brett Kavanaugh and Amy Coney Barrett were the two “best qualified lawyers in America” to serve on the High Court is preposterous!
Inside the Gulag In the fine tradition of Josef Stalin, like US Presidents before him, President Biden finds it useful to have a “due process free zone” to stash people of color.
In 2017, after serving 22 years in prison for a gang-related murder I committed as a teenager, the California parole board granted me early release due to my rehabilitation and leadership while incarcerated. I was incredibly fortunate to get what I thought would be a second chance at life, and I committed myself to using my freedom to improve the world around me.
But I had to put those plans on hold. Because I was undocumented, I was immediately transferred to Immigration and Customs Enforcement custody at Yuba County Jail. The two years I spent there awaiting a decision on my immigration status were far worse than the over two decades I spent in 12 different prisons serving out my sentence.
Yuba County Jail is the last county jail under contract with the federal government to hold immigrant detainees in California. For the two years I fought my immigration case, I was psychologically, emotionally and physically abused by the Yuba County Sheriff’s Department. Some of the cells I lived in had no drinking water, others did not have working toilets and others had no lights, leaving me and other detainees in the dark all day long. My stress increased and my blood pressure became dangerously high. In 2018, after a year at the jail, I finally won my immigration case. But Department of Homeland Security attorneys appealed the judge’s decision, keeping me separated from my family, fueling my depression and suicidal thoughts. After another year of fighting the appeal, I had to make an impossible choice: Die inside Yuba County Jail or risk imminent death in my native land. After two years of inhumane treatment, I chose the latter. I signed the paperwork for self-deportation and went back to my home country.
My story is just one of thousands playing out in federally contracted county jails and privately operated ICE detention centers across the country. Despite President Biden’s campaign promise to end the use of private prisons for immigration detention, for undocumented people being held at Yuba County Jail, no relief is coming.
Yuba County Jail has a long history of violating national detention standards. From 2010 to 2021, ICE’s own detention office conducted at least eight inspections at the jail and found 171 violations. Among those violations, inspection officials determined that a sergeant, who was involved in two use-of-force incidents at the jail, participated in his own reviews. As a result of the findings, 24 members of Congress wrote a letter to Secretary of Homeland Security Alejandro Mayorkas demanding that the department terminate ICE’s contract with Yuba County. At the state level, California legislators passed SB29, forbidding local governments to enter into new detention agreements with ICE. But as The Chronicle’s reporting pointed out, in 2018, the same year SB29 took effect, ICE and Yuba County officials “quietly extended their contract” to 2099.
Why would Yuba County officials establish an indefinite contract with ICE as the rest of the state moves to end the use of its jails by federal immigration authorities? Follow the money. The contract with ICE earns the Yuba County Sheriff’s Department a minimum of just under $24,000 a day, whether or not any detainees are being held in the jail, totaling about $8.66 million per year.
When the pandemic hit, conditions inside the jail worsened. Following an April 2020 class-action lawsuit, court orders led the jail to decrease its detainee population. Thanks to the work of human right advocates and formerly detained undocumented people like myself, and others, the jail went from having 127 detainees in May 2020 to zero in late 2021. For those of us who had fought, staged hunger strikes and protested, both inside and outside the jail, it felt like we were finally seeing the end of immigrant detainment.
But our celebrations were brief. In the two months that the jail had no detainees, the county’s contract with ICE was still in place, earning it an estimated $1.4 million. And in December, ICE transported its first detainee back into the jail. As of this week, three people are now detained there under ICE custody.
The repopulation of the jail by ICE only means we will fight even harder for liberation and the termination of the contract. Over the past year, and despite being thousands of miles away, I found ways to raise my voice. I connected with others who were detained alongside me and who were also deported and encouraged them to join the fight. My wife, along with other mothers, sisters, and family members joined us as well. We hosted Instagram live videos as a space for storytelling. For weeks, I met with congressional offices and shared my story and the story of others, which ultimately led to their support.
At a recent Yuba County Board of Supervisors meeting, newly named Chairman Randy Fletcher said that the claims made in a letter sent by the ACLU to the Yuba County sheriff and Board of Supervisors about the multiple violations and unlawful conditions at the jail were not true. “They make a lot of accusations. … It’s not true. It’s just not true,” he said. But I and the other undocumented people who were detained there know what we suffered through is true. And it needs to stop.
. . . .
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Read the rest of the story at the link.
Coercion and punishment have long been part of the plan. That’s because the Supremes have fabricated the concept that “civil” imprisonment isn’t “punishment.” Pure balderdash!
Also, how does a jail get paid $1.4 million by taxpayers for nothing? Sounds like a “fleecing of America.”
But, of course, neither Garland nor Mayorkas bother to look into these questionable practices. Rather curious in light of the recommendation of a “select task force of experts” at the end of the Obama Administration that detention contracts (which frequently make establishing accountability for abuses difficult or impossible) be ended and that DHS phase out unnecessary detention.
Lack of accountability for DHS Detention is a chronic problem. So are defective bond procedures by EOIR that several Federal Courts have found unconstitutional, but which Garland continues to defend! Arbitrary bond procedures, weak internal appellate review, and lack of helpful precedents all feed the system.
Also, EOIR’s brushing aside the intentional coercion, lack of access to counsel, absence of resources, inability to prepare and document cases all contribute to the dangerous dysfunction. New, independent, expert, progressive “real judges” at EOIR would not allow Mayorkas and Garland to keep sweeping these abuses under the carpet!
Perhaps that’s why Garland has been content to allow his “courts” to malfunction using a majority of Trump/Miller holdovers and some notorious “go along to get along” bureaucrats as “judges.” Voices of expertise and reason among the IJs, and there are some, are often “silenced,” “neutered,” or “intentionally frustrated” by a BIA stacked with apologists, sometimes flat-out advocates, for DHS Enforcement and anti-immigrant policies.
Meanwhile, journalists, advocates, and those who have experienced “The Gulag” first hand need to keep it in the headlines, continue to litigate vigorously against it, and make a record of the disgraceful gap between what America claims to stand for and what it actually does! And, they would do well to “keep turning up the heat” on Garland’s “star chambers” and on his own lack of accountability for the daily disasters that unfold under his auspices.
At ICE, there’s no need to bother presenting evidence, arguments, or making a record below because we know we can “rack up” victories before our stooges at Garland’s BIA!
“In 2019, the Department of Human Services (“DHS”) sought to remove Ilir Osmani, a refugee of the Kosovo War, based on his criminal convictions and crimes of moral turpitude. An Immigration Judge (“IJ”) granted Osmani’s petition for an adjusted status under 8 U.S.C. § 1159(a) and for waiver under 8 U.S.C. § 1159(c). The Board of Immigration Appeals (“BIA”) reversed the IJ’s ruling based on new arguments the government, after failing to take any position before the IJ or to provide any notice to Osmani, raised for the first time on appeal and denied Osmani’s motion to remand for additional factfinding on the conditions in Kosovo. We find the BIA legally erred by considering arguments the government did not present to the IJ, put Osmani on notice of, or develop any record evidence to support. In denying Osmani’s motion to remand, the BIA also abused its discretion by engaging in impermissible factfinding. Accordingly, we grant Osmani’s petition for review and remand to the BIA. … Accordingly, we GRANT the petition for review; VACATE the Board’s decision in this case; and REMAND to the BIA for further proceedings consistent with this opinion.”
[Hats way off to pro bono publico counsel Illyana A. Green, Chuck Roth and Matthew E. Price! Query: ICE removed Osmani in 2021…will they bring him back? Listen to the oral argument here.]
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The outrageous errors, pro-DHS bias, gross incompetence, and lack of judicial qualifications reflected by this BIA decision is absolutely stunning, as is the Biden Administration’s:
Deportation of the respondent while this court challenge to this error-fest was pending (the respondent was removed based on this illegal order in April 2021, well after the Biden Administration took office and a month after Garland was sworn in as Attorney General);
The DOJ’s prima facie unethical defense of the BIA’s denial of due process, failure to follow precedent, clear abuse of discretion, and legally indefensible actions here;
Continuing abuse of scarce pro bono resources and Article III judicial time by not bringing in fair, expert, new, due–process-dedicated BIA judges who would get these right in the first place, set proper precedents, and follow them (rather than avoiding them when they spell victory for the individual);
Also, who at DHS authorized an improper appeal on this record? (Obviously, DHS recognized that given the BIA’s pro-DHS bias, they could “mail it in” before the IJ, take a frivolous appeal, andSTILL HAVE THE BIA HAND THEM A TOTALLY UNDESERVED VICTORY!)
Folks, this is a Democratic Administration enabling this pattern of biased, unprofessional, and illegal conduct against immigrants which should bring a smile to Stephen Miller’s face! It’s also unfair and demoralizing to Immigration Judges who take the time to get it right and grant relief only to be arbitrarily and illegally reversed by Garland’s unqualified BIA on appeal!
Garland should have replaced leadership at EOIR and OIL, and also replaced the BIA, on “day one.” Instead, more than a year into a supposedly due-process-oriented Administration, the garbage continues to flow into the Article IIIs from Garland’s EOIR unabated, while the indefensible continues to be defended by OIL, like it’s “business as usual.” This happens because Garland’s message is that “Dred Scottification” of “the other” will be tolerated, defended, and protected at his DOJ.
Why is Garland being allowed to get away with running this system into the ground, ignoring due process, “blowing off” judicial and legal ethics, treating migrants unfairly, and building the unnecessary backlog at record levels?
Biden’s immigration polices leave Haitians stranded in Mexico
Friday, January 21, 2022
By Immigration Prof
Nicole Narea of Voxreports that the U.S. has deported nearly 14,000 Haitians to Mexico since September, according to data released by UN’s International Organization for Migration. In 2021, Mexico received more than 131,ooo asylum applications, of which an estimated 45% were Haitians and their Chilean-born children. Haitians in Mexico “face pervasive racism, and many are unable to work, have no access to medical care, and are targets for criminals,” Narea writes.
Mexico is seeing an uptick in Haitian asylum applicants.
The Biden administration continues to enforce pandemic-related border restrictions that have kept out the vast majority of asylum seekers, including Haitians.
This disingenuous action by the Administration comes at a rather inopportune time, just as they are “getting heat” for failing to deliver on promises to Black voters. Additionally, the latest Pew Study shows that immigrants now make ump 10% of the U.S. Black population and that they are “more than holding their own” in terms of education and economic contributions.
Looks like many of the “immigrants we need” (and who also need us), according to Suzanne Clark of the U.S. Chamber of Commerce, have mindlessly been dumped in Mexico at great human and fiscal cost that actually results in a “negative achievement.” (That’s notwithstanding the White Nationalist myths perpetrated by the 5th Circuit and GOP AGs and not always effectively opposed by the Biden Administration. How do you purport to end “Remain in Mexico” while denying asylum seekers any right to seek refuge at the border? Not very effectively, it appears!)
“Aires Daniel Benros Da Graca petitions for review of a decision of the Board of Immigration Appeals (the “Board”) affirming his order of removal and denying his requests for cancellation of removal and voluntary departure. Because we find that a conviction under Rhode Island General Laws (“RIGL”) § 31-9-1 is not categorically a theft offense, we grant the petition for review, vacate the decision below, and remand for further proceedings.”
“Appellant Imad Jaffal, born in Jordan, seeks a declaration that he is entitled to derivative U.S. citizenship under former 8 U.S.C. § 1432(a). That statute provides that “a child born outside the United States automatically acquires United States citizenship if, while the child is under the age of eighteen, the parent with legal custody of the child is naturalized while that child’s parents are legally separated.” Jaffal’s father was naturalized when Jaffal was seventeen years old, and Jaffal presented evidence to the District Court that he was in the sole legal custody of his father when his father was naturalized and his parents were separated. The District Court, however, declined to accept Jaffal’s evidence of his parents’ divorce. Because we conclude that was error, we will reverse the order of the District Court and remand the matter with instructions to issue a judgment declaring Jaffal to be a national of the United States.”
Here’s my favorite quote from Judge Torresen’s decision inDa Garcia v. Garland:
Despite this apparent disconnect between RIGL § 31-9-1 and the Board’s definition of theft offense, the Board in Da Graca’s case determined that to prove the statute’s overbreadth, the Petitioner was required to identify actual cases in which Rhode Island had enforced the statute against de minimis deprivations of ownership interests. Da Graca contests the Board’s imposition of an actual case requirement and argues that he “need not necessarily proffer specific examples of Rhode Island prosecutions in order to establish a ‘realistic probability’ that the state would apply its statute to conduct that falls outside the generic definition of a crime.” We agree with Da Graca.
Essentially, Garland’s BIA “makes it up as it goes along” to reach a denial, then Prelogar’s DOJ attorneys defend the illegal result. Sounds like a really bad system, lacking accountability, expertise, common sense, and, sometimes, professional responsibility.
Lest you think that the legal nonsense being produced by Garland’s BIA and the USCIS is “below Prelogar’s radar screen” in her exulted position, that’s NOT true! Every adverse decision suffered by the USG must be reported to the SG’s Office with an analysis and recommendations from the agency’s attorneys, the litigators who handled the case, the appellate section of litigating division (here the Civil Division), and the SG’s staff. No appeal, petition for rehearing en banc, or petition for cert. can be filed without the express authorization of the SG’s Office.
So, Prelogar is well aware of the bad positions, unfairness, and poor work product DOJ attorneys are defending (sometimes with a lack of candor or misleading the courts) and their abuses of the time of the Article IIIs.
Even with the “real” (Article III) Federal Courts moving markedly to the right (following four years of Trump-McConnell appointments and eight years of lackadaisical performance by the Obama Administration), and rules that strongly favor the Government on judicial review, DOJ’s haphazard performance under Garland and Prelogar continues to earn a stream of avoidable “kickbacks” from the Article IIIs. The DOJ system is broken in many places — EOIR is just the most obvious, most pressing, and most easily addressed area of failure.
At the same time they acknowledge but downplay the existential crippling effects of Garland’s failure to bring progressive reforms to EOIR, his defense of disgraceful, immoral, and inhumane “Miller Lite” positions in Federal Court, his intentional indifference to human suffering and the complete breakdown of the rule of law at our borders, and his disdain for removing the Trump enablers, deadwood, and poor lawyers from DOJ — at all levels.
I have a radically different perspective on the future of meaningful progressive immigration reforms, based on my nearly 50 years of involvement with the system on both sides and at all levels — more than most folks.
There will be no meaningful, sustainable immigration reforms without a radically reformed, remade, Immigration Court system with a judiciary of due-process-oriented progressive experts who have the courage to “speak truth to power,” stand up for the legal, constitutional, and human right of the most vulnerable, and put integrity, humanity, and the best interests of our nation above career advancement, survival, or “ingratiation with the powers that be.” That’s NOT Garland’s DOJ — which remains largely the out of control, often ethically challenged morass that he inherited from his predecessors.
Let’s not forget that through intentional misuse of precedents, weaponization of EOIR, and White Nationalist litigation strategies, Jeff Sessions was able to largely disable the entire asylum system, including USCIS Asylum Offices, and shift USCIS Adjudications from service to “enforcement only,” in preparation for the “final eradication” of asylum and crippling of our entire legal immigration system by his crony and former subordinate, Stephen Miller. And, the folks who helped him do that and “went along to go along” with abuses are still largely on board and in key positions in Garland’s DOJ — actually operating with his apparent “stamp of approval.” Outrageous!
From a due process, human rights, progressive, good government, equal justice, racial equality standpoint, as well as from any aspect of moral leadership on fundamental values, Garland’s performance at DOJ has been unacceptable. Has Garland visited any of the camps in Mexico or gone to the “New American Gulag” to witness first-hand the human carnage for which he is responsible? Heck no! That’s a job for progressive experts whose input and advice he then shuns, ignores, and “tunes out!”
For progressive advocates to downplay the Biden Administration’s gross failures or “over-cheer” incremental progress that means little without fundamental reforms at EOIR and the DOJ only deepens the fecklessness of their own positions and furthers the disrespect and under-appreciation of their efforts, potential power, and value that has become an endemic feature of the Democratic Party.
The Biden Administration might talk a good game, particularly around election time; but, in reality, they are governing largely in fear of and like nativist Republicans — but getting no “political return” whatsoever for betraying their supposed values and their base (see, Catherine Rampell). Advocates reward and tolerate such disgraceful and intellectually dishonest conduct at their own peril!
Meanwhile, Suzanne Clark, President of the U.S. Chamber of Commerce, certainly no “progressive shill,” speaks truth about the need for and our ability to accept more immigrants:
Allowing more immigrants into the US would help mitigate both soaring inflation and the current labor shortage, the CEO of the US Chamber of Commerce said.
“We need more workers,” Suzanne Clark told reporters Tuesday, per CNN. “We should welcome people who want to come here, go to school, and stay.”
“That is a place the government could be particularly helpful and we do believe it would be anti-inflationary,” she said, per CNN.
Those immigrants are right in front of us: rotting in camps at the border, being returned to danger or death with no process — both as a result of Garland’s failure to re-establish our legal asylum system at the border — or languishing in Garland’s mushrooming 1.6 million Immigration Court backlog!It doesn’t take a “rocket scientist” to see that instead of wasting time, money, and resources on mindless “enforcement” intended to deter and discourage those who might help us by helping themselves, we should have set up fair and timely processing systems, staffed by experts, that would identify the many individuals at the border and already in the U.S. who can qualify to remain under fair and properly generous interpretations of asylum law, withholding, CAT, U & T visas, “stateside processing waivers,” cancellation of removal” (for those already here), TPS, and other possibilities.
This is just as much”law enforcement” and “maintaining the integrity of our system” as are the efforts to increase deportations, terrorize communities, or close borders to “deter” migrants (primarily those of color) that has been practiced to some degree by every Administration. It also makes sense, economically, practically, and ethically.
It starts with an Attorney General and DOJ with the courage and vision to end the “deterrence only” misconstruction of our laws and stand up for the legal and human rights of migrants, regardless of race, color, creed, or manner of entry. That’s not what Garland has been doing to date! Too bad, because there will be no resolution of immigration issues — nor will there be racial justice in America — without an AG who will stand up for the real rule of law rather than the parody of the law and justice purveyed by Miller and his White Nationalists and still being parroted and too often defended by Garland and his minions.
Garland’s methods for attracting, recruiting, hiring, and retaining Immigration Judges have not inspired confidence from the NDPA and other expert critics of his totally dysfunctional, wholly-owned and operated, exponentially backlogged, poorly performing Immigration “Courts.” PHOTO: Thomas Hawk Creative Commons Amateur Night
The latest judge-by-judge data from the Immigration Courts indicate that more judges are resigning and retiring. Turnover is the highest since records began in FY 1997 over two decades ago. These results are based on detailed records obtained by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University under the Freedom of Information Act (FOIA) from the Executive Office for Immigration Review (EOIR) which administers the Courts.
During FY 2019 a record number of 35 judges left the bench. This is up from the previous record set in FY 2017 when 20 judges left the bench, and 27 judges left in FY 2018. See Figure 1.
. . . .
There has also been an increase in hiring (see Table 1). The combination of elevated hiring plus a record number of judges leaving the bench means more cases are being heard by judges with quite limited experience as immigration judges.
Currently one of every three (32%) judges have only held their position since FY 2019. Half (48%) of the judges serving today were appointed in the last two and a half years. And nearly two-thirds (64%) were appointed since FY 2017[1]. See Figure 2.
. . . .
Thus, record judge turnover means the Court is losing its most experienced judges, judges whose services would be of particular value in helping mentor the large number of new immigration judges now joining the Court’s ranks. Even with mentoring, new judges appointed without any background in the intricacies of immigration law face a very steep learning curve. And without adequate mentoring, there is a heightened risk that some immigrants’ cases could be decided incorrectly.
. . . .
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Read the complete report, with charts and graphs, at the above link.
It certainly didn’t help that Garland inexcusably wasted dozens of his “first picks” on Barr’s pipeline appointments — a group that contained few, if any, recognizable “practical scholars” in immigration/human rights/due process/equal justice.
This also shows why adding more judges under Garland’s indolent and ineffective “leadership to the bottom” is likely to aggravate, rather than alleviate, the myriad of problems and the uncontrolled mushrooming backlogs in his dysfunctional courts.
Garland’s mind-boggling failure to act on principles and make obvious, long overdue personnel and structural reforms at EOIR threatens to shred the Dem party and endanger the future of American democracy! It also underlines the hollowness of Biden’s pledge to fight for equal justice and voting rights reforms.
Faced with a wholly owned system badly in need of progressive reforms, the Biden Administration has carried on many of the scurrilous traditions of its Trump predecessors (“MillerLite policies”) while shunning and disrespecting the advice, values, and participation of progressives committed to due process and fair treatment of all persons, regardless of race, color, creed, or status.
And, of course, it goes without saying that Garland has failed to address the glaring integrity and access problems infecting EOIR data, as outlined in the TRAC report above. With “disappearing records,” “stonewalling party lines,” and institutionalized “lack of transparency,” who really knows what the real size of Garland’s backlog is or what other problems are hidden in his EOIR morass?
It just underlines the need for an independent team of professionals to take over Garland’s broken system, “kick some tail,”and get to the bottom of its many, many, largely self-created and often hidden from the public problems and enduring failures!
Overall, a disappointing and disgraceful first-year performance by an experienced Judge and DOJ vet from whom much, much better was expected and required.
Too bad we didn’t get an Attorney General with the guts to lead and engage on progressive reforms at EOIR! One bright spot, though: Some of the “best ever” judges just leave the bench and call “Sir Jeffrey” Chase to enlist in the Round Table’s battle to advance due process and fundamental fairness! 🛡⚔️ And, they are welcomed with appreciation, respect, friendship, and love — things that few, if any, sitting judges in Garland’s dysfunctional and discombobulated system get!
🇺🇸Due Process Forever! Garland’s “Amateur Night @ The Bijou” Never!
But these are, mostly, obscure policy changes or unrealized proposals. When Miller et al. condemn Biden’s “immigration record,” they zero in on his decisions at the Southern border.
Which is, frankly, odd. You’d never know it from the right-wing hysteria about Biden’s supposedly “open borders,” or Biden’s own campaign promise to “end Trump’s detrimental asylum policies.” But Biden has continued Trump’s most restrictionist, inhumane and possibly illegal border policies.
In some cases Biden has even expanded them.
As evidence of Biden’s supposedly lax border policies, Republicans sometimes cite his attempt, on Day One of his presidency, to end the program informally known as “Remain in Mexico.” This Trump-created program forced asylum seekers to wait in dangerous camps in Mexico while their U.S. cases were processed; there, vulnerable immigrants have been frequent targets for rape, kidnappings, torture and murder.
If Biden had terminated the program, that would have been a good thing, from a human rights perspective (not a Republican priority, apparently). But Biden did not succeed. After a legal challenge, a federal judge ordered the program to be resurrected — and the Biden administration not only obeyed but also expanded the program’s scope to cover even more categories of immigrants.
[Catherine Rampell: Joe Biden is president. Why is he maintaining Trump’s immigration agenda?]
Worse, Biden has maintained Trump’s Title 42 order. This likely illegal order involves automatically expelling hundreds of thousands of people encountered at the border without ever allowing them to apply for asylum, in contravention of rights guaranteed under both U.S. and international law. Both Trump and Biden have cited a little-used public health provision as pretext for this policy, even though legions of public health experts have argued that it doesn’t protect public health.
Perversely, continuing this Trump policy has also given ammunition to the hard-right nativists, because it has the unintended consequence of inflating the count of U.S. border crossings. Many of those expelled immediately turn around and attempt another crossing; in fiscal 2021, 27 percent of individuals were apprehended multiple times by Border Patrol, nearly quadruple the share in 2019.
The disconnect between GOP claims about “open borders” and Biden’s actually-quite-Trumpy border policies, is enormous. Two of Biden’s own political appointees who resigned last fall lambasted his actions as “inhumane” on their way out the door; six other high-level immigration officials have recently announced they were leaving the administration, without much public explanation.
It’s unclear why Biden has maintained his predecessor’s policies. One possibility is politics — that these choices were intended to stave off right-wing attacks about lax enforcement. If that was the motivation, though, it failed. Instead, Biden has delivered the worst of all worlds: inhumane, immoral, potentially illegal policy — and bad-faith political blowback about “open borders” all the same.
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Yup! It’s what “Courtside” has been saying all along!Read her complete article at the link!
Catherine sees much more clearly than any member of the Biden Administration the ridiculous failings of their so-called “immigration policies” (actually a series of disjointed, often self-contradictory, knee-jerk responses that sometimes undermine each other and reflect a total lack of thoughtful, morally courageous, informed leadership).
And, Catherine doesn’t even highlight the single biggest failure — one that cuts across every failure she mentions and also goes to the heart of our legal system!
That’s, of course, the abject failure of Biden AG Merrick Garland to bring due process reforms and better judges to his totally dysfunctional, grotesquely unfair, wholly-owned U.S. Immigration Courts. These “courts” — that function more like 21st Century Star Chambers than anyone’s concept of a “real court” — were “weaponized” by Garland’s Trumpy predecessors, Sessions and Barr.
They filled the courts at all levels with less than well qualified judges, many with no immigration experience or prosecutorial experience only, who were intended to help carry out the White Nationalist, anti-asylum, anti-immigrant policies developed by Gauleiter Stephen Miller. Garland has not replaced these unqualified judges with better talent, selected in a open, transparent, merit-based process with “outside input.” He has failed to make the substantive and procedural reforms necessary to bring order and some semblance of efficiency to his hopelessly backlogged “courts.”
He has declined to remove poor leaders appointed by his predecessors; nor has he tapped the large supply of progressive, expert human rights/immigration talent who could begin the process of restoring due process. He has continued to promote enforcement “gimmicks” — like “Dedicated Dockets” and the illegal use of Title 42 — that accelerate “Aimless Docket Reshuffling” and have led to even higher backlogs.
His refusal to bring common sense, achievable reforms, and better judges to the Immigration Courts has demoralized lawyers and made pro bono representation even more difficult.
He has ignored the pressing need for better judicial training implemented by qualified outside experts. He hasn’t bothered to engage with those like the VIISTA Villanova program turning out exceptionally well-trained potential “accredited representatives” who could help reduce the staggering representation gap in his courts. Worse yet, he has allowed EOIR bureaucrats to create entirely new backlogs in the agency process for recognizing pro bono organizations and accrediting their representatives.
Garland’s horrible failure to energize and attract the progressive leadership and judicial talent who know how to begin solving these problems (rather than aggravating them) might eventually go down as one of the biggest “blown opportunities” for due process reforms in modern American legal history! This is the “low hanging fruit” that Garland and the Biden Administration has allowed to “rot on the tree.” What a (needless and deadly) tragedy!
Every year, on the third Monday in January, America hosts a Sadie Hawkins-style role-reversal where the entire country pretends to celebrate a man whose achievements and values they spent the previous 364 days ignoring, demonizing and trying to dismantle. Today, your favorite vote suppressors will take a brief respite from disenfranchising Black voters, denying history and increasing inequality to celebrate a real American hero.
That’s right, it’s MLK Day!
You might think it’s a little disrespectful to refer to a great American hero by his initials but, in this specific case, it’s perfectly fine. The actual Martin Luther King Jr who lived and breathed is not the man most people will be honoring today because that Martin Luther King is dead and gone. No, the man upon whom they will heap their performative praise with social media virtue-signaling is MLK, a caricature of a man whose likeness has been made palatable for white consumption. Like BLM, CRT and USA, the people who King fought against have now managed to flatten a three-dimensional symbol to a three-letter, chant-worthy phrase worthy of demonization or deification.
. . . .
Although, in death, he became one of the most revered figures in US history, for the entirety of the 39 years that King lived and breathed, there wasn’t a single day when the majority of white Americans approved of him. In 1966, Gallup measured his approval rating at 32% positive and 63% negative. That same year, a December Harris poll found that 50% of whites felt King was “hurting the negro cause of civil rights” while only 36% felt he was helping. By the time he died in 1968, three out of four white Americans disapproved of him. In the wake of his assassination, 31% of the country felt that he “brought it on himself”.
One does not have to reach back into the historical archives to explain why King was so despised. The sentiments that made him a villain are still prevalent in America today. When he was alive, King was a walking, talking example of everything this country despises about the quest for Black liberation. He railed against police brutality. He reminded the country of its racist past. He scolded the powers that be for income inequality and systemic racism. Not only did he condemn the openly racist opponents of equality, he reminded the legions of whites who were willing to sit idly by while their fellow countrymen were oppressed that they were also oppressors. “He who passively accepts evil is as much involved in it as he who helps to perpetrate it,” King said. “He who accepts evil without protesting against it is really cooperating with it.”
. . . .
“The first thing I would like to mention is that there must be a recognition on the part of everybody in this nation that America is still a racist country,” said King days before a white supremacist put a bullet in his face. “Now however unpleasant that sounds, it is the truth. And we will never solve the problem of racism until there is a recognition of the fact that racism still stands at the center of so much of our nation and we must see racism for what it is.”
See how many times someone mentions that quote today.
Oh, wait … King made that speech at Grosse Pointe High School, where Michigan’s Republican-controlled House of Representatives recently passed an anti-CRT bill making it illegal to teach that the “United States is a fundamentally racist country”.
Never mind.
. . . .
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Read the full article at the link.
Like the figure of Christ in Dostoyevsky’s The Grand Inquisitor, if Dr. King returned to earth today he would be imprisoned, interrogated, condemned and permanently banished by the corrupt and cowardly right-wing pols, religious bigots, disingenuous judges, pundits, and others who falsely claim to be honoring his memory and vision of racial equality!
So what should we tell our students? Many are dispirited and cynical because, as far into the future as they can see, this court appears likely to do more harm than good to democracy.
First, we shouldn’t hide the reality that judicial decisions often depend on who is on the bench. That has never been more true because the entrenched partisan Senate confirmation process now guarantees that a Supreme Court nominee will be chosen to carry out political and ideological aims. For the first time in American history, the ideology of the justices precisely corresponds to the political party of the president who appointed them. All six conservatives were appointed by Republican presidents and all three liberals were appointed by Democrats.
Until recently, there were moderate liberals, such as John Paul Stevens and David H. Souter, appointed by Republicans, and there were moderate conservatives, such as Byron White and Felix Frankfurter, who had been appointed by Democrats. Trump picked three of the most ideologically conservative judges on the federal bench.
If students are to one day become effective litigators on constitutional rights, they will need to understand the ideologies of the justices interpreting the law. In the past, we certainly discussed the ideology of the justices with our students, but we must focus on it far more now as the ideological differences between the Republican-appointed justices and judges and those appointed by Democratic presidents are greater than they have ever been.
Second, we must remind students that there have been other bleak times in constitutional law when rights were contracted. From the 1890s until 1936, a conservative Supreme Court struck down over 200 progressive federal, state and local laws protecting workers and consumers. In the late 1940s and early 1950s, the court refused to stand up to the hysteria of McCarthyism. The current court will not last forever, though it may feel like that to them.
Third, we should direct focus on other avenues for change. Students need to look more to state courts and legislatures, at least in some parts of the country, as a way to advance liberty and equality. For instance, the Massachusetts Legislature passed a law known as the “Roe Act,” protecting a woman’s right to abortion under state law, no matter what the Supreme Court decides. We need to teach our students how to use the power of local governments to protect fair housing, public education and public health.
Fourth, we must encourage them to look at the sweep of history. In the early 1960s, almost half the states had Jim Crow segregation laws, there were few women going to law school, and every state had a law criminally prohibiting same-sex sexual activity. The Rev. Martin Luther King Jr. was right when he said that the arc of the moral universe is long and it bends toward justice — if we work for it.
There really are just two choices: Give up or fight harder, even if there will be a lot of losses along the way. If we can instill in students a desire to defend justice, even if victory is distant, it will be a good semester, no matter what the Supreme Court decides.
Erwin Chemerinsky is dean of the UC Berkeley School of Law and a contributing writer to Opinion. Jeffrey Abramson is professor of law and government at the University of Texas at Austin.
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Read the full article at the above link.
Sometimes, the best you can do is save as many lives as you can, one at a time. Eventually, it adds up. Also, as the article suggests, it’s critical to get involved and speak out on local political issues. That’s where the fascist far-right has made huge inroads.
