"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.
Thousands of Haitian migrants removed from a makeshift camp near Texas have been sent back to Haiti. Now we’re getting our first up-close look at what they are facing upon their arrival. NBC’s Jacob Soboroff reports for TODAY from Port-au-Prince, Haiti.
Sept. 30, 2021
Eleanor Acer Senior Director for Refugee Protection, Human Rights First
Human Rights First debunks myth that seekers present a COVID health threat:
ASYLUM DOES NOT THREATEN PUBLIC HEALTH
The last week saw more of the Biden administration’s despicable deportation of Haitians and use Title 42 to deny their right to seek asylum. The administration perpetuates the false claim that their use of Title 42 is not an immigration policy, but a public health one, despite the vehement disagreement of public health experts.
Courtesy Washington Times
Migrants, many from Haiti, wade across the Rio Grande
river to leave Del Rio, Texas to avoid possible deportation.
Human Rights First also responded to the administration’s plans to use Guantanamo Bay as a migrant detention facility.
“Sending people who are seeking protection to a place that is notorious for being treated as a rights-free zone is the last thing that the Biden administration should do,” Eleanor Acer, Senior Director of Refugee Protection at Human Rights First told NPR. “It is nothing more than a blatant attempt to evade oversight, due process, human rights protections and the refugee laws of the United States.”
Maria Sacchetti Immigration Reporter, Washington Post
Even in rolling out otherwise more reasonable enforcement priorities for ICE, Mayorkas insisted on making the bogus claim that recent border arrivals present a “national security threat,” as reported by the WashPost’s Maria Sacchetti:
Mayorkas said in his memo Thursday that migrants who cross the border illegally, particularly those who arrived unlawfully over the past year or so, remain a “threat to border security” and a priority for removal. But the ACLU has argued in its lawsuit that migrants have a legal right to seek asylum.
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“Courtside’s” rating of Mayorkas’s claims: 🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥
Who would have thought that more than eight months into the Biden Administration, we’d still be arguing about basics like “migrants have a legal right to seek asylum in the US?” See, INA section 208.
There are enormous downsides to border disorder, to immigration policy paralysis and to leaving the fates of more than 11 million current immigrants without any path to a secure future — even beyond the reinforcement it provides to the United States’ growing international reputation for dysfunction. No one gains by the chaos except smugglers who soak desperate migrants financially on their way north in hopes of a better life. The losers include not only the “dreamers” brought to this country as children, who must live in perpetual anxiety, but also the country as a whole, which loses the value of immigrants, skilled and otherwise, who would turbocharge entrepreneurship, create jobs and help the economy grow.
There are available solutions if Congress could overcome its horror of bipartisan compromise. The goal should be to establish a realistic annual quota of immigrant visas for Central Americans, Haitians and others desperate to reach this country who otherwise will cross the border illegally — a number that recognizes the U.S. labor market’s demand for such employees. That must be supplemented by a muscular guest worker program that enables legal border crossing for migrants who want to support families remaining in their home countries.
. . . .
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Read the complete editorial at the link.
It’s worth adding that the current “border disorder” is largely the result of White Nationalist, legally defective, anti-immigrant policies of the Trump regime compounded by the failure of Mayorkas and Garland to take the obvious, available, common sense steps necessary to reopen legal border ports of entry, to make the long overdue necessary reforms to establish a fair, efficient, and generous legal asylum system at the USCIS Asylum Offices and the Immigration Courts, and to insist on the creation of a robust, functional refugee program for Latin America and the Caribbean.
None of the this is “rocket science!” 🚀 Plenty of great blueprints for administrative reforms and the potential expert leadership to implement them were “out there for the taking” at the beginning of the Biden Administration. By dawdling, tapping the wrong leaders, and continuing enforcement policies and bad judicial practices that were proven failures, the Administration predictably put itself “behind the eight-ball” in establishing order and implementing the rule of law at our borders!
Until the Biden Administration ends its disgraceful, cowardly, illegal, cruel, ineffective, and inhumane reliance on bogus “Title 42” restrictions to suspend orderly legal processing at the border, they will continue to bobble the next predictable “border crisis.” The GOP will continue to spout nativist nonsense. Desperate people will continue to do desperate things. Only a tone-deaf Administration would continue to ignore this reality!
Several Black immigration organizations have filed a formal complaint with the Department of Homeland Security’s Office of Civil Rights and Civil Liberties, demanding that the Biden administration halt its continued deportations of Haitian asylum seekers.
The complaint filed by four groups ― the Haitian Bridge Alliance, UndocuBlack Network, African Communities Together and Black Alliance for Just Immigration ― requests that any potential witnesses of Border Patrol abuses be allowed to remain in the U.S. while their asylum claims are investigated. The complaint was first reported by theGrio, and signed by dozens of advocacy groups.
More than 13,000 Haitians were camped along the river at the Texas border town of Del Rio last weekend when Border Patrol officers on horseback charged at some of those gathered there, verbally assaulting and appearing to whip them. Photos of the violence shocked the public.
. . . .
The complaint by the organizations notes that the migrants have been denied access to attorneys, interpreters, adequate medical care, fear-based screening and proper nourishment and sanitation, all under intense heat. It also highlights physical intimidation and violence against migrants by Border Patrol officers, and misleading statements made by Homeland Security officers to Haitians about where they were being flown to.
“We’re not living up to our obligation as a nation to be a place of refuge for people seeking a better life,” former Obama administration Cabinet member Julián Castro told HuffPost earlier this week. “And in the least, asylum seekers, whether they’re from Haiti, or from one of these Northern Triangle countries should be allowed to make their asylum claim, instead of being severely expelled from the country. This was not the change we were hoping for on immigration policy.”
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Mayorkas’s defense of his grotesque, “Trumpist” misuse of Title 42, which actually has been rejected by a Federal Judge, on “Meet the Press” was as disgraceful as it was dishonest!
Either Mayorkas doesn’t understand reality, or he’s too intellectually dishonest to speak truth! Regardless, it’s not good!
Re-establishing the rule of law and treating asylum seekers fairly and generously, as the law requires, is not an option! It’s a legal and moral obligation! There is absolutely no reason to “apologize” for treating asylum seekers fairly and humanely, no matter what racist GOP nativists like Texas “Governor Death” Greg Abbott and Senator “Cancun Ted the Insurrectionist” Cruz say!
The US homeland security secretary, Alejandro Mayorkas, on Sunday defended the Biden administration’s decision to send thousands of Haitians to a home country they fled because of natural disasters and political turmoil.
White House criticizes border agents who rounded up migrants on horseback
Mayorkas told NBC’s Meet the Press the removals were justified because of the coronavirus pandemic, a point disputed by advocates and public health experts.
“The Centers for Disease Control [and Prevention, or CDC] has a Title 42 authority that we exercise to protect the migrants themselves, to protect the local communities, our personnel and the American public,” Mayorkas said.
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“The pandemic is not behind us. Title 42 is a public health policy, not an immigration policy.”
Since Donald Trump’s administration implemented Title 42 in March 2020, advocates and dozens of public health experts have called for its end.
Under Title 42, people who attempt to cross the border are returned to Mexico or deported to their home countries without an opportunity to test asylum claims.
In January, Joe Biden stopped the rule from applying to children. Despite that, at least 22 babies and children were deported to Haiti in February.
More than 30 public health experts wrote to Mayorkas and the head of the CDC, Rochelle Walensky, earlier this month, saying Title 42 was “scientifically baseless and politically motivated”.
This coalition has repeatedly said the policy violates the right to seek asylum and ignores how basic public health measures can reduce the spread of Covid-19.
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“Title 42 runs counter to the government’s own commitment to address Covid-19 globally,” the coalition said. “The absence of effective Covid-19 mitigation services at the border and the expulsion of people to situations in which they may be exposed to Covid-19 and unable to practice prevention are contrary to the US government commitment to address Covid-19 globally.”
On Sunday, Mayorkas told CNN about 4,000 Haitians who arrived in the past two weeks have been expelled, 13,000 others had been allowed to enter the US to pursue their immigration cases in court and 8,000 had voluntarily chosen to return to Mexico.
NBC’s Meet the Press host Chuck Todd questioned Mayorkas about why thousands were being sent to Haiti even though they had traveled to the US from South America.
“These are Haitian nationals,” Mayorkas said. “Some of them don’t have documents from the countries from which they just left. So they are subject to removal.”
. . . .
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Of course, Haiti clearly is not a safe place to return migrants:
‘They treated us like animals’: Haitians angry and in despair at being deported from US
‘They treated us like animals’: Haitians angry and in despair at being deported from US
Haitian deportees arriving from Texas say they were ‘rounded up like cattle and shackled like criminals’
Joe Parkin Daniels in Port-au-Prince
Published:
05:00 Sunday, 26 September 2021
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About this content
When Evens Delva waded across the Rio Grande with his wife and two daughters, he had dreams of starting a new life in Florida. But less than a week later, he and his family stepped on to the tarmac in Port-au-Prince, the sweltering and chaotic capital of Haiti, with nothing except traumatic memories and a feeling of bubbling anger.
Delva, along with nearly 2,000 other Haitians, was deported from southern Texas this week to Haiti, despite having lived in Chile for the past six years and having few remaining connections to his home country. His younger daughter, who is four, does not hold Haitian citizenship, having been born in Chile, and speaks more Spanish than Haitian Creole.
“I don’t know what we’ll do, we don’t have anywhere to stay or anyone to call,” the 40-year-old said, moments after getting off the plane in the blistering midday Caribbean heat. “All I know is that this is the last place I want to be.”
Evens Delva and his wife at Port-au-Prince airport in Haiti on Friday after being deported from Texas. Photograph: Joe Parkin Daniels/The Guardian
It is not hard to understand why. Haiti, the poorest country in the western hemisphere, is mired in overlapping crises. Gasoline shortages and blackouts are a daily reality, while warring gangs routinely kidnap for ransom and wage battle on the streets.
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The grim situation only worsened when the president, Jovenel Moïse, was assassinated in his home on 7 July, triggering a political power struggle and further instability and street violence. On 14 August, a 7.2-magnitude earthquake struck the country’s poor southern peninsula, killing more than 2,200 people and leaving tens of thousands homeless.
US envoy to Haiti resigns over ‘inhumane’ decision to deport migrants
The Biden administration’s decision to deport thousands of Haitians under such circumstances drew opprobrium around the world, and prompted the US envoy to Haiti to resign in protest. Haiti is “a country where American officials are confined to secure compounds because of the danger posed by armed gangs in control of daily life”, he wrote in his resignation letter. “Surging migration to our borders will only grow as we add to Haiti’s unacceptable misery.”
Last week, the world was shocked by images of police officers on horseback charging at desperate Haitian migrants near a camp of 12,000, set up under the Del Río-Ciudad Acuña International Bridge. Delva was on his way to buy food and water for his family when the cavalry charge sent him and dozens of his compatriots running in a frenzy.
“We were rounded up like cattle and shackled like criminals,” he said, having spent the six-hour flight from San Antonio with his hands and legs tied.
“They treated us like animals,” added Maria, his wife.. “We’ll never forget how that felt.”
. . . .
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David K.Shipler American Author PHOTO: Twitter
David Shipler does a great job of exposing the hypocrisy and intellectual dishonesty of Mayorkas and other Biden Administration immigration officials.
America’s Callous Border
By David K. Shipler
Several years ago, a gray-haired passport control official at Heathrow Airport in London, noting “writer” under “occupation” on my landing card, asked me what I wrote. I was finishing a book on civil liberties, I told him, with a chapter on immigration. That caught his interest. He leaned forward, glanced around, lowered his voice and said, “I loathe borders.”
Funny line of work you’re in, I said. We shared a chuckle, he stamped my passport, and I crossed the border that he loathed.
We have nation states, and so we have borders. Dictatorships need them to keep people in, lest their countries be drained of the talented and the aspiring. Democracies need them to keep people out—often those with talent and aspiration who are fleeing to safety and opportunity. So far, the United States is lucky enough to be the latter. So far.
When desperate fathers and mothers are drawn with admiring naïveté to the beacon of America, when they carry their children through months of torment by mountain jungles and predatory gangs, when their courage and towering fortitude set them apart from the masses, shouldn’t they be embraced when they reach the final border of a nation of fellow immigrants that touts its compassion and humanity?
Cut through the crazy tangle of immigration laws, regulations, and inconsistent enforcement to the essential ethic, and the answer is an obvious yes. But the obvious is not obvious in the White House or in the Department of Homeland Security or in the ranks of the beleaguered Border Patrol, whose horsemen scramble, as if herding cattle, to intercept frantic Haitians wading from the Rio Grande onto the banks of freedom and promise.
Instead, a new torment is found: Haitians with enough grit to leave their country a decade or so ago and build lives on the margins in Brazil, Chile, and elsewhere are taken from their first steps onto U.S. soil and summarily—summarily, without due process—deported. And where to? To Haiti, a failed state where many have long since lost family or work or even places of shelter. To Haiti, which has collapsed into such violence and disarray that the State Department warns Americans on its website: “Do not travel to Haiti due to kidnapping, crime, civil unrest, and COVID-19.”
What is wrong with the air in the White House? Is there not enough oxygen? What accounts for the impaired thinking that seems to transcend administrations, from Republican to Democratic. Where is the regard for human dignity? Why is it so often absent in the calculations that create policy?
Donald Trump wore callousness on his sleeve and was proud of it. His base hooted its applause at his vilification of Mexican immigrants as rapists and drug dealers. By contrast, Joe Biden wears a badge of empathy. His mantra is compassion. “Horrible” and “outrageous” were the words he found to describe the photographed attacks on Haitians from horseback. He halted the use of horses and vowed that agents responsible “will pay.” He also said, “It’s simply not who we are.”
But it is who we are. The images have been compared to old photos of white overseers on horseback commanding enslaved Blacks in the fields. The Border Patrol in cowboy hats have been compared to Texas Rangers “who were celebrated for their excellent ‘tracking skills’ that were put to use to hunt and capture enslaved people,” said historian Monica Martinez of the University of Texas.
These are compelling analogies with painful resonance. They are also flawed as parallels, for the Black migrants at the border are not slaves. They are clamoring to be here, crossing illegally, seeing the border as a threshold. They were not brought here in chains against their will. Some are being removed in chains against their will.
Nevertheless, in a sense they are enslaved by their blackness. If white Canadians tried this up north, does anybody truly believe that they would be treated as the Black Haitians are? Animating America’s conscience should not require reaching back to the sin of slavery. The present ought to be enough.
Our borders always put our split personality on display: We are cruel and welcoming, hateful and helpful, defined by doors closed at times to entire ethnic groups and then opened to invigorate the nation with willing hands and vital contributions.
In fact, if the country is not sufficiently moved by simple morality, then it might consider self-interest. The U.S. population growth rate has been falling steadily since 2008, dropping to a mere 0.58 percent from 2020 to 2021. Many regions lack skilled workers, as homeowners and small business owners and even hospitals can testify from trying to hire carpenters, plumbers, electricians, welders, mechanics, and nurses. We should have winced when one Haitian deportee was quoted as describing himself as a welder and carpenter.
Using abuse to manipulate determined people did not work under Trump—a lesson that Biden and his advisers might have learned. Trump’s administration separated children from their parents at the border, his aides reasoning that families heading north would get the message and—what?–abandon their fortitude and survival instincts, turn around, and head back to life-threatening misery?
So, too Biden officials are reportedly figuring that tossing Haitian expatriates into Haiti’s maelstrom will dissuade others from coming. In other words, don’t be humane, and folks will give up. But they won’t give up. They will still roll the dice, because there’s always a chance, especially since some are being allowed to stay, at least for a while, pending proper examination of their asylum claims as the law requires. When your ship has sunk, you don’t stop clinging to a piece of flotsam just because some shipmates have slipped off into the sea.
What the Biden White House needs is somebody in an influential position who has made this journey, who has shepherded family and children through jungles and ganglands to reach this supposedly promised land. That official might bring to the Oval Office a glimmer of understanding and respect for the force of personality and perseverance that drive a person toward our callous border.
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Something about the DHS Secretary job seem to require checking honesty, common sense, historical perspective, and humanity at the door, not to mention the true “rule of law.”
“Adel Ghanem, a former lawful permanent resident of the United States, seeks to avoid removal to Yemen, from which he fled to avoid persecution on account of political opinion. He pursues three forms of relief that were denied by the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA): asylum under the Immigration and Nationality Act, 8 U.S.C. § 1158(a), withholding of removal under the Act, 8 U.S.C. § 1231(b)(3), and withholding of removal under the Convention Against Torture, 8 U.S.C. § 1252, 8 C.F.R. § 1208.16(c). Ghanem was kidnapped and tortured before being convicted and sentenced to ten years’ imprisonment for political opposition to the Houthi regime. We will therefore grant the petition for review and remand to the BIA. … We begin by reviewing the agency’s determination that Ghanem was ineligible for asylum under the INA because he was not persecuted “on account of” political opinion. We perceive two errors in its analysis: First, the Board’s conclusion ignores overwhelming evidence that Ghanem was persecuted on account of political opinion. Second, it erroneously treated familial relationships as disqualifying and failed to give the proper weight to the substantial record evidence that a protected ground remains one central reason for Ghanem’s persecution. … Illustrating “gross, flagrant [and] mass violations of human rights” that he would be unable to escape, the record evidence not only fails to support but directly contradicts the BIA’s conclusions that Ghanem is not likely to be tortured with the government’s acquiescence, if returned to Yemen. 8 C.F.R. § 1208.16(c)(3)(iii).8 The denial of relief under CAT therefore cannot withstand even our most deferential review. … For the foregoing reasons, we will grant Ghanem’s petition, vacate the BIA’s order, and remand to the agency for further proceedings consistent with this opinion.”
How is the BIA’s grotesque misapplication of asylum and CAT law and intentional distortion of the record evidence acceptable adjudication from a Federal Court, even a “quasi-judicial administrative tribunal?” Lives are at stake are here! But, Garland remains indifferent to the deadly ☠️ daily injustices and stunning judicial incompetence and bias he promotes, coddles, defends, and enables at his dysfunctional EOIR!
And what is his OIL doing defending this garbage before the Circuits? Garland’s DOJ is an ethical cesspool and a slimy mess of legal incompetence! Where’s the long overdue “thorough housecleaning” of this gross abuse of taxpayer dollars and walking talking insult to the Canons of Legal and Judicial Ethics!
These aren’t just “honest legal mistakes!” No way! They are the product of an anti-asylum, anti-immigrant, anti-due process, anti-people of color “culture” which was actually encouraged and promoted at EOIR during the Trump regime and still endures!
It starts, but doesn’t end, with aBIA “packed” with a number of Trump/Miller appointees who were nationally renowned for their unsuitability to fairly adjudicate ANY asylum case, let alone to be “elevated” to the highest immigration tribunal. But, it’s not like any BIA Appellate Judge has the guts and integrity to stand up and speak out for immigrants’ rights, human rights, and constitutional due process!
It’s outrageous that the BIA as currently comprised is charged with setting precedents, maintaining consistency, and guaranteeing fairness for asylum applicants, particularly women and people of color. Of course this type of misconduct and incompetence will continue to generate huge, uncontrolled backlogs! THIS national, even international, disgusting disgrace will be Garland’s lasting legacy!
The proposed “asylum reform regulations” and all other immigration and racial justice reforms put forth by Biden will fail without a better, progressive, expert BIA totally committed to due process, fundamental fairness, and racial justice! Why hasn’t Congress demanded an accounting from Garland for his jaw-dropping mismanagement of the Immigration Courts and his failure to make obvious administrative reforms?
Demand better from Garland and the Biden Administration! This disgraceful, dysfunctional, deadly mess at EOIR is NOT OK!🤮👎🏽
DHS Outlines Strategy to Address Increase in Migrants in Del Rio
The Department of Homeland Security (DHS) is immediately implementing a new, comprehensive strategy to address the increase in migrant encounters in the Del Rio sector of South Texas. It has six key components.
First, within the next 24-48 hours, U.S. Customs and Border Protection will have surged 400 agents and officers to the Del Rio sector to improve control of the area. If additional staff is needed, more will be sent. The Del Rio Port of Entry has temporarily closed, and traffic is being re-routed from Del Rio to Eagle Pass to more effectively manage resources and ensure uninterrupted flow of trade and travel.
Second, U.S. Border Patrol (USBP) is coordinating with Immigration and Customs Enforcement and the U.S. Coast Guard to move individuals from Del Rio to other processing locations, including approximately 2,000 yesterday, in order to ensure that irregular migrants are swiftly taken into custody, processed, and removed from the United States consistent with our laws and policy.
Third, DHS will secure additional transportation to accelerate the pace and increase the capacity of removal flights to Haiti and other destinations in the hemisphere within the next 72 hours.
Fourth, the Administration is working with source and transit countries in the region to accept individuals who previously resided in those countries.
Fifth, DHS is undertaking urgent humanitarian actions with other relevant federal, state, and local partners to reduce crowding and improve conditions for migrants on U.S. soil. DHS has already taken a number of steps to ensure the safety and security of individuals as they await processing, including having Border Patrol emergency medical technicians on hand and providing water, towels, and portable toilets.
Finally, the White House has directed appropriate U.S. agencies to work with the Haitian and other regional governments to provide assistance and support to returnees.
The majority of migrants continue to be expelled under CDC’s Title 42 authority. Those who cannot be expelled under Title 42 and do not have a legal basis to remain will be placed in expedited removal proceedings. DHS is conducting regular expulsion and removal flights to Haiti, Mexico, Ecuador, and Northern Triangle countries.
Beyond the six steps outlined above, the Biden Administration has reiterated that our borders are not open, and people should not make the dangerous journey. Individuals and families are subject to border restrictions, including expulsion. Irregular migration poses a significant threat to the health and welfare of border communities and to the lives of migrants themselves, and should not be attempted.
Haitians on Texas border undeterred by US plan to expel them
JUAN A. LOZANO, ERIC GAY and ELLIOT SPAGAT, Associated Press
Updated: Sep. 18, 2021 10 p.m.
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48A dust storm moves across the area as Haitian migrants use a dam to cross into and from the United States from Mexico, Saturday, Sept. 18, 2021, in Del Rio, Texas. The U.S. plans to speed up its efforts to expel Haitian migrants on flights to their Caribbean homeland, officials said Saturday as agents poured into a Texas border city where thousands of Haitians have gathered after suddenly crossing into the U.S. from Mexico.Eric Gay/APShow More
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48Haitian migrants use a dam to cross into and from the United States from Mexico, Saturday, Sept. 18, 2021, in Del Rio, Texas. The U.S. plans to speed up its efforts to expel Haitian migrants on flights to their Caribbean homeland, officials said Saturday as agents poured into a Texas border city where thousands of Haitians have gathered after suddenly crossing into the U.S. from Mexico.Eric Gay/APShow More
DEL RIO, Texas (AP) — Haitian migrants seeking to escape poverty, hunger and a feeling of hopelessness in their home country said they will not be deterred by U.S. plans to speedily send them back, as thousands of people remained encamped on the Texas border Saturday after crossing from Mexico.
Scores of people waded back and forth across the Rio Grande on Saturday afternoon, re-entering Mexico to purchase water, food and diapers in Ciudad Acuña before returning to the Texas encampment under and near a bridge in the border city of Del Rio.
Junior Jean, a 32-year-old man from Haiti, watched as people cautiously carried cases of water or bags of food through the knee-high river water. Jean said he lived on the streets in Chile the past four years, resigned to searching for food in garbage cans.
“We are all looking for a better life,” he said.
The Department of Homeland Security said Saturday that it moved about 2,000 of the migrants from the camp to other locations Friday for processing and possible removal from the U.S. Its statement also said it would have 400 agents and officers in the area by Monday morning and would send more if necessary.
The announcement marked a swift response to the sudden arrival of Haitians in Del Rio, a Texas city of about 35,000 people roughly 145 miles (230 kilometers) west of San Antonio. It sits on a relatively remote stretch of border that lacks capacity to hold and process such large numbers of people.
. . . .
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Not surprisingly, Haiti wants no part of the Biden Administration’s scofflaw nonsense:
As one of my esteemed colleagues summed up the Biden Administration’s latest attack on the rule of law and humanity: “Not a word about asylum, withholding, CAT, humanitarian parole.…”
The Biden Administration has thrown down the gauntlet! Progressive human rights experts had better get out the big litigation guns! Because Biden has basically ripped up “sign-on letters of outrage and concern” and thrown the pieces to the wind. He has delivered a Washington Monument sized “big middle finger” 🖕 to human rights advocates and Black supporters of Haitian refugees! What, if anything, will they do about it!
Whatever happened to our first Black Veep, Kamala Harris? Once, she was a strong voice for an end to racism and fair, humane treatment of asylum applicants, regardless of race. Now, she seems to have disappeared from the racial justice playing field!
Vice President Kamala Harris — Our first Black Veep has “disappeared” on the issue of human rights for Black Haitian asylum seekers! Official Senate Photo Public Realm
DEL RIO, Tex. — Thousands of Haitian migrants who have crossed the Rio Grande in recent days are sleeping outdoors under a border bridge in South Texas, creating a humanitarian emergency and a logistical challenge U.S. agents describe as unprecedented.
Authorities in Del Rio say more than 10,000 migrants have arrived at the impromptu camp, and they are expecting more in the coming days. The sudden influx has presented the Biden administration with a new border emergency at a time when illegal crossings have reached a 20-year high and Department of Homeland Security officials are straining to accommodate and resettle more than 60,000 Afghan evacuees.
The migrants arriving to Del Rio appear to be part of a larger wave of Haitians heading northward, many of whom arrived in Brazil and other South American nations after the 2010 earthquake. They are on the move again, embarking on a grueling, dangerous journey to the United States with smuggling organizations managing the trip, according to border authorities and refugee groups.
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Read the rest of the article at the link.
The arrival of asylum seekers at the Southern Border is predictable. Contrary to GOP right wing nativist BS, asylum seekers don’t present a significant national security threat to the U.S.
On the other hand, Texas Governor Gregg Abbott and his GOP right wing crazies are a clear and present existential danger to our heath and security as a nation. Don’t let Abbott and his neo-fascist gang shrift the focus away from their lawless, stupid, and immoral behavior — with glaring racial overtones!
The current disorder is the direct result of Mayorkas and Garland not taking the obvious steps to re-establish credible fear screening at ports of entry and the lack of progressive leaders and judges at EOIR who could cut through the self-created backlog and establish and enforce fair precedents and procedures that would enable timely, yet fair and efficient, processing of asylum cases in Immigration Court for those who pass credible fear.
Instead, Garland has gone with inane, backlog-building, aimless-docket-reshuffling encouraging “gimmicks” like “Dedicated Dockets,” and ill-advised proposals to increase use of “expedited removal” and limit the rights of asylum seekers to de novo hearings, without instituting the major EOIR reforms necessary to make such a system credible.
So far, the results have been predictably chaotic and ineffective. By dragging their feet on elimination of the Title 42 farce initiated by Trump & Miller, Garland and Mayorkas now find themselves “between a rock and a hard place” because of District Judge Sullivan’s recent order finding the misuse of Title 42 to “orbit” asylum seekers to doom without any process was likely illegal.
A restored, fair, legal asylum system inevitably would result in the legal admission of more asylees. Again, contrary to the GOP blather, that is something 1) our law requires, and 2) our country needs. Running a viable refugee program for the Americas outside U.S. borders is also something that should already have been in operation and could reduce the necessity for irregular entries.
Restoration of the rule of law and morality at the border would also take the regulation of immigration out of the hands of smugglers and cartels and restore it to the Government. But, that requires both an understanding of the dynamics of human migration and the courage to do the right thing in making the system work — not as a “false deterrent” but as a fair, generous, efficient, and equitable system, led by and composed of progressive human rights experts.
In the wake of the DOJ’s decision to appeal Judge Sullivan’s order and reports that the Biden Administration will begin illegal deportations of Haitians back to danger zones in Haiti without any due process, 71 human rights organizations wrote a letter blasting the Administration’s actions.
September 17, 2021
Hon. Joseph R. Biden, Jr. President of the United States 1600 Pennsylvania Avenue, NW Washington, DC 20500
Hon. Alejandro N. Mayorkas
Secretary of Homeland Security
U.S. Department of Homeland Security 2707 Martin Luther King Jr. Avenue, SE Washington, DC 20528
Hon. Merrick Garland
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue NW Washington, DC 20530
Dear President Biden, Secretary Mayorkas, and Attorney General Garland:
In the wake of multiple federal court decisions holding that your administration’s policies are likely unlawful, we, the 71 undersigned organizations, are appalled that you have chosen to file a notice of appeal in the Huisha-Huisha litigation, resisting an order to process the protection claims of families with children who seek asylum. This decision serves as a particularly disturbing step in what is emerging to be a clear pattern of failure to uphold the refugee laws enacted by Congress. We write to urge you to immediately change course before you further tarnish this administration’s record and inflict even more harm on families, children and adults seeking our country’s protection. We call on the administration to immediately end its embrace, defense, and advancement of illegal and cruel Trump administration policies that harm families and people seeking protection and bolster xenophobic rhetoric by treating people seeking protection as threats. Instead, we urge your administration to restore access to U.S. asylum at ports of entry and also to immediately stop blocking and expelling asylum seekers and migrants to life-threatening dangers.
On September 16, a federal district court held that the government likely does not have authority under U.S. law to implement the Title 42 policy, which subjects people to “real threats of violence and persecution” by returning them to danger in Mexico or the countries they fled, and enjoined the use of the policy against families. Rather than respect human rights and restore asylum in compliance with this ruling, the administration has already filed a notice of appeal in this case. Earlier this month, another federal district court held that the government’s policy of turning back people seeking protection at ports of entry is likely unlawful under the Immigration
and Nationality Act. Your administration must reverse course and accept these court rulings, immediately take steps to restart asylum processing, and permanently end these policies, which were designed to deter and punish people seeking safety in the United States and betray our values and legal obligations towards refugees.
Rather than abiding by campaign promises to uphold the legal right to seek asylum and treat migrants humanely, your administration has embraced and escalated the unlawful Title 42 policy created by the Trump administration to use public health as a pretext to evade U.S. refugee laws. In August 2021, your administration issued a new Centers for Disease Control and Prevention (CDC) order extending the policy and relying on much of the same dangerous and false rhetoric that the Trump administration relied on in its CDC orders.
The human toll of the Title 42 policy during your first eight months in office is enormous. Since January 2021, there have been at least 6,356 public and media reports of violent attacks— including rape, kidnapping, trafficking, and assault—against people blocked from requesting asylum protection at the U.S.-Mexico border and/or expelled to Mexico. The U.N. Refugee Agency (UNHCR) and other international bodies have repeatedly condemned the use of Title 42 to return refugees to danger in violation of international law and urged the United States to restore access to asylum. Leading public health experts have warned the administration time and time again that the policy has no scientific basis as a public health measure and urged the use of rational science-based measures to process asylum seekers and migrants to safety. In its ruling enjoining the use of Title 42, the district court also emphasized that the government’s public health arguments were specious.
This month, the Department of Homeland Security (DHS) expelled dozens of Haitian families and adults to danger in Haiti under Title 42, despite ongoing turmoil following the assassination of the country’s president in July and a major earthquake in August, and flew more than 6,000 Guatemalan migrants and asylum seekers directly to the danger they had fled in Guatemala without an opportunity to apply for U.S. asylum. Since August, DHS has also expelled asylum seekers and migrants directly to southern Mexico, where Mexican immigration authorities forced them to cross the border into remote areas of Guatemala. These expulsions to southern Mexico sparked public condemnation from UNHCR, which warned that this practice “increases the risk of chain refoulement—pushbacks by successive countries— of vulnerable people in danger, in contravention of international law and the humanitarian principles of the 1951 Refugee Convention.”
We further call on your administration to take all necessary legal steps to end the Migrant Protection Protocols (MPP), most importantly by immediately making a public commitment to issue a new policy memo that provides a fuller explanation for the decision to terminate MPP and that resolves any perceived Administrative Procedure Act (APA) issues identified by the district court in its ruling requiring the government to restart this shameful program. The APA
2
was the singular concern cited by the Supreme Court in its decision upholding the district court’s preliminary injunction, and the administration’s failure to date to commit to issuing a new policy memo raises serious concerns over whether you intend to use the legal challenge as cover to backtrack on your commitment to fulfill your campaign promise to end MPP.
During the two years that MPP was in effect, there were over 1,500 publicly reported cases of violent attacks against people returned to Mexico, including asylum seekers who were brutally murdered. In addition to subjecting individuals to life-threatening dangers under MPP, the program violated the due process rights of asylum seekers and migrants by stranding them in Mexico without access to legal counsel, forcing them to risk their lives to attend their court hearings—there have been numerous reports of asylum seekers in MPP being kidnapped while attempting to reach immigration court—and requiring many to prepare their cases while facing unrelenting fear and insecurity. It is clear that there is no way to make MPP lawful, humane, safe, or rights-respecting. The administration should take all lawful and necessary steps to preserve the MPP wind down and continue processing individuals previously subjected to MPP into the United States while taking immediate steps to address the District Court’s concerns to terminate the policy once and for all.
Policies that turn back, block, expel, and force asylum seekers and migrants to wait in danger are unlawful, as now confirmed by multiple federal courts, and we entreat your administration to immediately stop inflicting violence on people seeking safety in our country by permanently ending these policies and restoring asylum in compliance with U.S. and international refugee laws.
Sincerely,
ADL (Anti-Defamation League) African Communities Together Aldea – The People’s Justice Center Alliance San Diego
America’s Voice
American Friends Service Committee
American Immigration Lawyers Association
Asylum Seeker Advocacy Project (ASAP)
Bellevue Program for Survivors of Torture
Border Angels
Border Kindness
Border Organizing Project
Bridges Faith Initiative
Capital Area Immigrants’ Rights Coalition
CARECEN SF – Central American Resource Center of Northern California
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Catholic Charities of Southern New Mexico Catholic Legal Immigration Network, Inc. Center for Justice and International Law (CEJIL) Center for Victims of Torture
Church World Service
Detention Watch Network
Familia: Trans Queer Liberation Movement
First Focus on Children
Florence Immigrant & Refugee Rights Project Grassroots Leadership
Haitian Bridge Alliance
HIAS
Hope Border Institute
Houston Immigration Legal Services Collaborative Human Rights First
Human Rights Initiative of North Texas
Immigrant Defenders Law Center
Immigration Equality
International Mayan League
International Refugee Assistance Project (IRAP) International Rescue Committee
Japanese American Citizens League
Jesuit Refugee Service/USA
Jewish Activists for Immigration Justice of Western MA Justice Action Center
Justice in Motion
Karen Organization of San Diego
Kino Border Initiative
Latin America Working Group (LAWG)
Lawyers for Good Government (L4GG)
National Immigrant Justice Center
National Immigration Law Center
National Immigration Project (NIPNLG)
National Network for Immigrant & Refugee Rights NETWORK Lobby for Catholic Social Justice
Oasis Legal Services
Oxfam America
Physicians for Human Rights
Project Blueprint
Refugees International
4
Safe Harbors Network
San Diego Immigrant Rights Consortium
South Bay Peope Power
Student Clinic for Immigrant Justice
Tahirih Justice Center
The Advocates for Human Rights
Transgender Law Center
Unified U.S. Deported Veterans resource Center
Unitarian Universalist Refugee & Immigrant Services & Education VECINA
Vera Institute of Justice
Washington Office on Latin America (WOLA)
Witness at the Border
Women’s Refugee Commission
Young Center for Immigrant Children’s Rights
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Obviously, the Biden Administration has little regard for the human rights advocates who helped put them in office. Only time will tell whether disrespecting, antagonizing, and making enemies and adversaries out of a highly talented and motivated group of progressives, who successfully fended off some of the most grotesque human rights violations by the Trump kakistocracy, and who have demonstrated the capacity to consistently “out-litigate” the floundering DOJ, will prove to be a successful strategy!
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” — Those who don’t die in the river, the desert, or at the hands of traffickers while trying to seek asylum in an arrogant America that disdains human rights and moral values face arbitrary and illegal removal to potential torture, rape, and death in the countries they fled! Why is the Biden Administration, like the Trump kakistocracy, afraid to make fair and honest determinations of qualifications for asylum? EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
Finally, Defendants argue that “[a]ny time [the government]
is enjoined by a court from effectuating statutes enacted by
representatives of its people, it suffers a form of irreparable
injury.” Defs.’ Opp’n, ECF No. 76 at 38 (quoting Maryland v.
King, 133 S. Ct. 1, 3 (2012)). But, as explained above, the
Title 42 Process is likely unlawful, and “[t]here is generally
no public interest in the perpetuation of an unlawful agency
action.” Newby, 838 F.3d at 12.
*********************************“
“There is generally no public interest in the perpetuation of an unlawful agency action.” Yup! Couldn’t have said it better myself!
Who knows if this will stand. Both the DC Circuit and the Supremes have too often been willing to allow continued Government abuse of the rights of “mere migrants,” mostly of color, because they can’t really see them as fellow human beings, entitled to due process, justice, and human dignity!
But, at least for this moment in time, it’s a victory for due process, humanity, and judicial integrity.
BTYB – Student Success, Equity, and Community and the Weissberg Program in Human Rights & Social Justice
The Office of Student Success, Equity & Community Ousley Scholar In Residency honors the legacy of Grace Ousley, the first black woman to graduate from Beloit College. It is a junior scholar/activist/organizer/intellectual committed to the theory and practice of social justice. They should embody the “academic hustler” who fights for “social justice” in all aspects of their work. Support for the residency comes from the Weissberg Program in Human Rights and Social Justice and the Office of Student Success. Equity & Community.
This promises to be a great program! And, the Ousley Residence Program is a fantastic contribution to educating and inspiring new generations of Americans about the many challenges still facing us in achieving social justice in our nation.
The abrogation of due process and dehumanization of people of color has, outrageously, become part of the dysfunctional U.S. Immigration Court System. The last Administration specifically encouraged and promoted this ugly, anti-democracy, phenomenon and then used it to spearhead an all-out assault on racial justice, gender equality, LGBTQ rights, religious tolerance, economic progress, voter rights, and humane progressive values throughout American society.
Unfortunately, many progressives have been slow to “connect the dots” and insist that meaningful social justice change start with fixing the racial and gender bias problems in our Immigration Courts, tribunals that are under the complete control of the Biden Administration!
For example, current Attorney General Merrick Garland rather incredibly claims to be standing up for women’s rights in Texas and defending voting rights for minorities while continuing to run misogynistic, regressive “Star Chambers” at EOIR, staffed with many judges hand-selected by Jeff Sessions and Billy Barr, and tossing vulnerable women refugees of color back across our Southern Border into harm’s way without any “process” at all, let alone “Due Process of Law.” Garland also continues to enable human rights abuses in the “New American Gulag” of DHS civil detention! We can see this process of dehumanization of the “other” before the law, called “Dred Scottification” by many of us, spreading throughout our legal system and being endorsed and “normalized” all the way up to the Supremes.
From the summary in the announcement above, it appears that Denea, based on her own inspiring life and achievements as a “Dreamer,” will help us to “connect the dots” between racial justice, immigrant justice, and equal justice for all. Immigrants’ Rights = Human Rights = Everyone’s Rights!
If you’re a person who believes it’s literally no one’s business who gets an abortion other than that of the pregnant individual undergoing the procedure, you’ve likely been incandescent with rage since the Supreme Court’s conservative majority decided to allow Texas to proceed with an insane law that prohibits terminating pregnancies after six weeks, with no exceptions for rape or incest. That anger likely stems from not just the law itself but having to listen to the chorus of dumbass voices who’ve come out backing Texas for effectively banning people from obtaining an abortion, from Tucker Carlson, who opined that the law shows “democracy does still exist,” to California gubernatorial candidate Caitlyn Jenner, who ironically commented that she supports Texas’s right to choose its own laws.
Of course, another one of those voices is the Lone Star state governor Greg Abbott, who signed the bill into law in May, saying at the time, “Our creator endowed us with the right to life and yet millions of children lose their right to life every year because of abortion,” and that the Texas Legislature “worked together on a bipartisan basis to pass a bill that…ensures that the life of every unborn child who has a heartbeat will be saved from the ravages of abortion.” (That both sides of the aisle supported the bill would be news to Texas Democrats, as just a single one of them voted for it.)
Asked on Tuesday why his state felt the need to “force a rape or incest victim to carry a pregnancy to term,” Abbott responded like only a person who really, really hates women can, claiming, “It doesn’t require that at all.” He added: “Because obviously it provides at least six weeks for a person to be able to get an abortion, so for one it doesn’t [require] that. That said, however, let’s make something very clear. Rape is a crime and Texas will work tirelessly to make sure that we eliminate all rapists from the streets of Texas by aggressively going out and arresting them and prosecuting them and getting them off the streets.”
There’s a lot to unpack here, so let’s start with the fact that Abbott is claiming that because the law allows for abortion up to six weeks, it’s not forcing anyone to do anything. As doctors, people who’ve been pregnant before, and people who’ve bothered to read a book on the subject before crafting legislation on it have noted, by the time a person misses her first period, she’s already roughly four weeks pregnant. That means that under Texas law, someone would have no more than two weeks, not six, to determine she’s pregnant and decide whether or not to get an abortion. Even in the case of people who are actively trying to get pregnant, that window can narrow even further for numerous reasons including if they have irregular cycles. Usually, then, one would make an appointment with a doctor to confirm the pregnancy, and as Abbott may or may not know, healthcare in America is not the greatest, so she may not be able to be seen for several weeks. And that hugely generous two weeks is not only a joke for many people actively trying to have a child, but for the majority of people who are not. “It is extremely possible and very common for people to get to the six-week mark and not know they are pregnant,” Jennifer Villavicencio, M.D., lead for equity transformation at the American College of Obstetricians and Gynecologists, told The New York Times. In other words, Abbott should fuck all the way off with his “obviously it provides at least six weeks for a person to be able to get an abortion.”
Then there’s the hilarious remark that he’s going to eliminate rape in Texas, so not allowing individuals to terminate pregnancies that result from heinous crimes is a moot point. Really, Abbott is going to make Texas rape-free? If he had that power, why didn’t he do it prior to enacting this law? The victims of the 14,824 reported rapes in his state in 2019, when he was four years into his first term, would probably love to know! (For those of you keeping up at home, that figure made Texas the No. 1 state for rape that year.)
Of course, Abbott is far from the first politician to say something ridiculously idiotic about abortion and rape. In fact, he joins a long line of assholes who’ve smugly offered their moronic two cents on the matter, an illustrious group that includes:
The Ohio state legislature, which introduced a bill in 2019 requiring doctors to “reimplant an ectopic pregnancy” into the uterus, or face charges of “abortion murder,” despite the fact that such a procedure is medically impossible;
Former Texas state representative Jodie Laubenberg, who claimed while in office that rape victims don’t need access to legal abortion, because they can get “cleaned out” with rape kits, which obviously is not at all how rape kits work;
Representative Michael Burgess, who somehow obtained a medical degree in 1977, and declared that male fetuses masturbate in utero—naturally, there is no evidence of this—, so abortions shouldn’t be allowed;
Former North Carolina state representative Henry Aldridge, who once said, “The facts show that people who are raped—who are truly raped—the juices don’t flow, the body functions don’t work, and they don’t get pregnant. Medical authorities agree that this is a rarity, if ever.” (Medical authorities do not agree with this);
Former congressman Todd Akin, who boldly declared on the campaign trail: “If it’s a legitimate rape, the female body has ways to try to shut that whole thing down.”
Welcome to the club, Greg! Can’t wait to hear you parse the nuances of putting $10,000 bounties on the heads of individuals trying to help people escape your barbaric law.
In other Abbott news…
When he’s not signing and defending disgraceful abortion bills, he’s disenfranchising millions of his constituents. Per Bloomberg:
Greg Abbott on Tuesday signed one of the nation’s most aggressive laws curbing access to the ballot, joining a wave of such restrictions enacted after former President Donald Trump’s false claim that the 2020 election was stolen. The legislature passed the measure last month after an exodus from the state by Democratic lawmakers during the first of two special sessions. After the walkout sputtered, Republican lawmakers passed the bill without delay.
Republicans have spent months raising doubts about the 2020 election, which experts say was one of the nation’s most secure. Now, supporters of new state laws say too many voters have lost faith in voting systems, and must be reassured.
“We must have trust and confidence in our elections,” Abbott said at a signing ceremony in Tyler, Texas. “The bill that I’m about to sign helps to achieve that goal. It ensures that every eligible voter will have the opportunity to vote.” Of course, that’s an interesting way to describe a law that makes it harder to vote, by, among other things, ending drive-thru voting, limiting mail-in voting, and endowing partisan poll watchers with more power. In a tweet, the American Civil Liberties Union wrote “This law is unconstitutional and anti-democratic. Texas—we’ll see you in court. Again.” Beto O’Rourke, the former Democratic U.S. representative from El Paso, wrote in a statement: “Governor Abbott is restricting the freedom to vote for millions of Texans. Instead of working on issues that actually matter, like protecting school kids from Covid or fixing our failing electrical grid, Abbott is focused on rigging our elections and implementing extreme, right-wing policies.”
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You can check out the rest of the always lively and entertaining “Levin Report” at the above link. Like their lost idol, Abbott & DeSantis are plumbing the absolute bottom of American politics and actually killing and irreparably harming their “constituents” as they do it. Undoubtedly, that will make them “heroes” in today’s existentially dangerous “anti-heroic, anti-democracy” GOP!
There was a time in the distant past when all BIA judges were not required to be members of the pro-immigration enforcement “mob!” https://www.flickr.com/photos/rasputin243/ Creative Commons License.
“Under 8 U.S.C. § 1226(c), the Government must detain noncitizens who are removable because they committed certain specified offenses or have connections with terrorism, and it must hold them without bond pending their removal proceedings. This appeal asks us to decide what process is due when such detainees contend that they are not properly included within § 1226(c) and whether noncitizens who have substantial defenses to removal on the merits may be detained under § 1226(c). Because the District Court granted relief in the form of a class-wide injunction, we must also decide whether 8 U.S.C. § 1252(f)(1) permits class-wide injunctive relief. For the reasons set forth below, we agree with the District Court that § 1226(c) is constitutional even as applied to noncitizens who have substantial defenses to removal. But for those detainees who contend that they are not properly included within § 1226(c) and are therefore entitled to a hearing pursuant to In re Joseph, 22 I. & N. Dec. 799 (BIA 1999), we hold that the Government has the burden to establish the applicability of § 1226(c) by a preponderance of the evidence and that the Government must make available a contemporaneous record of the hearing, consisting of an audio recording, a transcript, or their functional equivalent. Because we also conclude that § 1252(f)(1) does not authorize class-wide injunctions, we will reverse the District Court’s order in part, affirm in part, and remand for the entry of appropriate relief.”
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As as interesting footnote, like most of my colleagues at the Arlington Immigration Court, I always recorded bond hearings, long before this court ordered it as required by due process. One of the first things one of my colleagues told me when I arrived at Arlington was “record everything that happens in open court.” Recording protects everyone in the courtroom, including the judge!
It also helped our Judicial Law Clerks and interns “reconstruct” the bond record and understand our reasoning in the infrequent event that a “bond appeal” were filed. Otherwise, the “bond memorandum” would have to be based on the IJ’s notes and his or her recollection of what had transpired.
Talk about a defective system that should have been changed ages ago! But, that’s EOIR!And, it’s not going to improve without some major personnel changes and dynamic leadership that actually understands what happens in Immigration Court and is willing to think creatively, progressively, and change long-outdated practices and procedures, many of them in effect since EOIR was created in the early 1980s!
Here’s my favorite quote from Judge Krause’s opinion:
Having considered the standards urged by the Government and by Plaintiffs, we settle on one in between: To comport with due process, the Government must show by a preponderance of the evidence that the detainee is properly included within § 1226(c) as both a factual and a legal matter. See Addington, 441 U.S. at 423–24. It must show, in other words, that it is more likely than not both that the detainee in fact committed a relevant offense under § 1226(c) and that the offense falls within that provision as a matter of law. Cf. Joseph, 22 I. & N. Dec. at 809 (Schmidt, Chairman, dissenting) (contending that the Government must “demonstrate[] a likelihood of success on the merits of its charge” at the Joseph hearing).
Here’s a link to the full opinion, including my separate opinion, in Matter of Joseph, 22 I&N Dec. 799 (BIA 1999) (Joseph II):
Here’s the full text of my concurring/dissenting opinion (very “compact,” if I do say so myself):
CONCURRING AND DISSENTING OPINION: Paul W. Schmidt, Chairman; in which Fred W. Vacca, Gustavo D. Villageliu, Lory D. Rosenberg, and John Guendelsberger, Board Members, joined
I respectfully concur in part and dissent in part.
I join entirely in the majority’s rejection of the Immigration and Naturalization Service’s appellate arguments and in the unanimous conclusion that, on this record, the Service is substantially unlikely to prevail on the merits of the aggravated felony charge. Therefore, I agree that the respondent is not properly included in the category of aliens subject to mandatory detention for bond or custody purposes.
However, I do not share the majority’s view that the proper standard in a mandatory detention case involving a lawful permanent resident alien is that the Service is “substantially unlikely to prevail” on its charge. Matter of Joseph, 22 I&N Dec. 3398, at 10 (BIA 1999). Rather, the standard in a case such as the one before us should be whether the Service has demonstrated a likelihood of success on the merits of its charge that the respondent is removable because of an aggravated felony.
Mandatory detention of a lawful permanent resident alien is a drastic step that implicates constitutionally-protected liberty interests. Where the lawful permanent resident respondent has made a colorable showing in cus- tody proceedings that he or she is not subject to mandatory detention, the Service should be required to show a likelihood of success on the merits of its charge to continue mandatory detention. To enable the Immigration Judge to make the necessary independent determination in such a case, the Service should provide evidence of the applicable state or federal law under which the respondent was convicted and whatever proof of conviction that is available at the time of the Immigration Judge’s inquiry.
The majority’s enunciated standard of “substantially unlikely to prevail” is inappropriately deferential to the Service, the prosecutor in this matter. Requiring the Service to demonstrate a likelihood of success on the merits of its charge would not unduly burden the Service and would give more appropriate weight to the liberty interests of the lawful permanent res- ident alien. Such a standard also would provide more “genuine life to the regulation that allows for an Immigration Judge’s reexamination of this issue,” as referenced by the majority. Matter of Joseph, supra, at 10.
The Service’s failure to establish a likelihood of success on the merits would not result in the release of a lawful permanent resident who poses a threat to society. Continued custody of such an alien would still be war- ranted under the discretionary criteria for detention.
In conclusion, mandatory detention should not be authorized where the Service has failed to demonstrate a likelihood of success on the merits of its charge. Consequently, while I am in complete agreement with the decision to release this lawful permanent resident alien, and I agree fully that the Service is substantially unlikely to prevail on the merits of this aggravated felony charge, I respectfully dissent from the majority’s enunciation of “substantially unlikely to prevail” as the standard to be applied in all future cases involving mandatory detention of lawful permanent resident aliens.
“Pushback” from appellate judges actually committed to the then-EOIR vision of “guaranteeing fairness and due process for all,” was essential! Once the “Ashcroft purge” “dumbed down” the BIA and discouraged dissent and intellectual accountability, the system precipitously tanked! It got so bad that it actually provoked harsh criticism and objections from Circuit Judges across the political/ideological spectrum.
Eventually the Bush II DOJ was forced to back off a few steps from their all-out assault on immigrants’ rights. But, the damage was done, and there were no meaningful attempts to restore balance and quasi-judicial independence at EOIR thereafter. Indeed, Ashcroft’s Bush-era successors blamed the Immigration Judges for the meltdown engineered by Ashcroft, while sweeping their own role in creating “disorder in the courts” under the carpet in the best bureaucratic tradition!
EOIR continued to languish under Obama before going into a complete “death spiral” under the Trump DOJ kakistocracy.
Despite unanimous recommendations from experts that he make progressive reform and major leadership and personnel changes at EOIR one of his highest priorities, AG Garland has allowed the mess and the fatal absence of progressive, due-process-focused, expert judges and best practices at EOIR fester.
Long-deposed progressive judges willing to speak up for due process and fundamental fairness, even in the face of a “go along to get along” culture at DOJ, are still making their voices heard, even decades after they were sent packing! It’s tragic that Garland is letting the opportunity to create a long-overdue and necessary independent progressive judiciary at EOIR slip through his fingers. Progressive Dems might “dream” of transforming the Article III Judiciary; but, it’s not going to happen while Dems are running a “regressive judiciary” at the “retail level” in the one potentially powerful judiciary they do completely control.
Sadly, vulnerable individuals, many of them women, children, and people of color, will continue to suffer the brunt of Garland’s indifferent approach to judicial justice at EOIR. Beyond that, however, his failure to transform EOIR into an independent progressive court system willing to stand up for constitutional due process, equal justice, racial equity, best judicial practices, and the rule of law undermines democracy and diminishes the rights of everyone in America!
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” — According to the NYT, Biden immigration policy officials always shared this vision of “ultimate border deterrence” with Gauleiter Stephen Miller. Now, they are secretly relieved that Trump’s righty judges have “forced” them to continue running a lawless border and killing asylum seekers without legal process. EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
MATAMOROS, Mexico — When the Supreme Court effectively revived a cornerstone of Trump-era migration policy late last month, it looked like a major defeat for President Biden.
After all, Mr. Biden had condemned the policy — which requires asylum seekers to wait in Mexico — as “inhumane” and suspended it on his first day in office, part of an aggressive push to dismantle former President Donald J. Trump’s harshest migration policies.
But among some Biden officials, the Supreme Court’s order was quietly greeted with something other than dismay, current and former officials said: It brought some measure of relief.
Before that ruling, Mr. Biden’s steps to begin loosening the reins on migration had been quickly followed by a surge of people heading north, overwhelming the southwest border of the United States. Apprehensions of migrants hit a two-decade high in July, a trend officials fear will continue into the fall.
Concern had already been building inside the Biden administration that the speed of its immigration changes may have encouraged migrants to stream toward the United States, current and former officials said.
In fact, some Biden officials were already talking about reviving Mr. Trump’s policy in a limited way to deter migration, said the officials, who have worked on immigration policy but were not authorized to speak publicly about the administration’s internal debates on the issue. Then the Supreme Court order came, providing the Biden administration with the political cover to adopt the policy in some form without provoking as much ire from Democrats who reviled Mr. Trump’s border policies.
Now, the officials say, they have an opportunity to take a step back, come up with a more humane version of Mr. Trump’s policy and, they hope, reduce the enormous number of people arriving at the border.
. . . .
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Read the rest of Natalie’s article at the link.
Who would have thought that neo-Nazi Stephen Miller would be the real winner of the 2020 election?
When he ”wins,” America and humanity “lose.” But, apparently that’s “A-OK” with some Biden Administration officials who lack the expertise, ability, courage, and political will to establish the rule of law for asylum seekers at our Southern Border! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com.
Five decades of experience, including plenty of wall and fence building, civil detention, expedited dockets, restrictive interpretations, criminal prosecutions, family detentions, toddlers without lawyers, money to corrupt foreign governments, “don’t come, we don’t want you and care nothing about your lives messages,” in English and Spanish, says the Biden version of the “Miller Lite” approach will fail and ultimately expand the extralegal population of the U.S.
Of course, it also will kill more desperate humans in the desert, in Mexico, in squalid “camps,” and back in their home countries. Just so long as it’s “out of sight, out of mind.” The great thing about desert deaths is that often the bodies are never found or identified. Therefore, nothing can be proved, and it’s like these people “never happened.” It’s a real bureaucratic triumph! Foreign deaths are almost as good, as they seldom get much “play” in U.S. media and always can be blamed on something other than failed U.S. policies or foreign interventions.
I’d already observed that the DOJ’s “defense” of undoing Trump immigration policies seemed as half-hearted as it was ineffective. Perhaps their lackadaisical approach came right from the top!
And, the “policy geniuses” in the Biden Administration who think “Miller-Lite Time” will be a political “happy hour” (at humanity’s expense) should remember that the right will still successfully label them as “open borders” just as they did when Obama established himself as “deporter-in-chief!”
Meanwhile, their former progressive supporters will see through the false humane rhetoric. Does it really matter if we call individuals “foreign nationals” rather than “illegals” while we’re illegally exterminating them?
I’m afraid we know the answer to “Casey’s question:” NO!
”Sorry, Casey! Not only can’t anyone in the Biden Administration ‘play this game,’ they don’t even have the guts to suit up! They view a ‘forfeit’ to “Team Miller” as good as a ‘W.’ Remember, it’s not THEIR family, friends, or relatives dying at our border. It’s just ‘the other guys,’ so who cares? When it comes to U.S. immigration policy, foreign nationals all too often find that their lives and human dignity are just another form of expendable political capital.” PHOTO: Rudi Rest Creative Commons
Heather Cox Richardson Historian Professor, Boston CollegeFrances Perkins (1880-1965) U.S. Secretary of Labor (1933-45) PHOTO: Public realm
From “Letters From An American:”
September 5, 2021
By Heather Cox Richardson
On March 25, 1911, Frances Perkins was visiting with a friend who lived near Washington Square in New York City when they heard fire engines and people screaming. They rushed out to the street to see what the trouble was. A fire had broken out in a garment factory on the upper floors of a building on Washington Square, and the blaze ripped through the lint in the air. The only way out was down the elevator, which had been abandoned at the base of its shaft, or through an exit to the roof. But the factory owner had locked the roof exit that day because, he later testified, he was worried some of his workers might steal some of the blouses they were making.
“The people had just begun to jump when we got there,” Perkins later recalled. “They had been holding until that time, standing in the windowsills, being crowded by others behind them, the fire pressing closer and closer, the smoke closer and closer. Finally the men were trying to get out this thing that the firemen carry with them, a net to catch people if they do jump, the[y] were trying to get that out and they couldn’t wait any longer. They began to jump. The… weight of the bodies was so great, at the speed at which they were traveling that they broke through the net. Every one of them was killed, everybody who jumped was killed. It was a horrifying spectacle.”
By the time the Triangle Shirtwaist Fire was out, 147 young people were dead, either from their fall from the factory windows or from smoke inhalation.
Perkins had few illusions about industrial America: she had worked in a settlement house in an impoverished immigrant neighborhood in Chicago and was the head of the New York office of the National Consumers League, urging consumers to use their buying power to demand better conditions and wages for workers. But even she was shocked by the scene she witnessed on March 25.
By the next day, New Yorkers were gathering to talk about what had happened on their watch. “I can’t begin to tell you how disturbed the people were everywhere,” Perkins said. “It was as though we had all done something wrong. It shouldn’t have been. We were sorry…. We didn’t want it that way. We hadn’t intended to have 147 girls and boys killed in a factory. It was a terrible thing for the people of the City of New York and the State of New York to face.”
The Democratic majority leader in the New York legislature, Al Smith—who would a few years later go on to four terms as New York governor and become the Democratic presidential nominee in 1928—went to visit the families of the dead to express his sympathy and his grief. “It was a human, decent, natural thing to do,” Perkins said, “and it was a sight he never forgot. It burned it into his mind. He also got to the morgue, I remember, at just the time when the survivors were being allowed to sort out the dead and see who was theirs and who could be recognized. He went along with a number of others to the morgue to support and help, you know, the old father or the sorrowing sister, do her terrible picking out.”
“This was the kind of shock that we all had,” Perkins remembered.
The next Sunday, concerned New Yorkers met at the Metropolitan Opera House with the conviction that “something must be done. We’ve got to turn this into some kind of victory, some kind of constructive action….” One man contributed $25,000 to fund citizens’ action to “make sure that this kind of thing can never happen again.”
The gathering appointed a committee, which asked the legislature to create a bipartisan commission to figure out how to improve fire safety in factories. For four years, Frances Perkins was their chief investigator.
She later explained that although their mission was to stop factory fires, “we went on and kept expanding the function of the commission ’till it came to be the report on sanitary conditions and to provide for their removal and to report all kinds of unsafe conditions and then to report all kinds of human conditions that were unfavorable to the employees, including long hours, including low wages, including the labor of children, including the overwork of women, including homework put out by the factories to be taken home by the women. It included almost everything you could think of that had been in agitation for years. We were authorized to investigate and report and recommend action on all these subjects.”
And they did. Al Smith was the speaker of the house when they published their report, and soon would become governor. Much of what the commission recommended became law.
Perkins later mused that perhaps the new legislation to protect workers had in some way paid the debt society owed to the young people, dead at the Triangle Shirtwaist Fire. “The extent to which this legislation in New York marked a change in American political attitudes and policies toward social responsibility can scarcely be overrated,” she said. “It was, I am convinced, a turning point.”
But she was not done. In 1919, over the fervent objections of men, Governor Smith appointed Perkins to the New York State Industrial Commission to help weed out the corruption that was weakening the new laws. She continued to be one of his closest advisers on labor issues. In 1929, when Franklin Delano Roosevelt replaced Smith as New York governor, he appointed Perkins to oversee the state’s labor department as the Depression worsened. When President Herbert Hoover claimed that unemployment was ending, Perkins made national news when she repeatedly called him out with figures proving the opposite and said his “misleading statements” were “cruel and irresponsible.” She began to work with leaders from other states to figure out how to protect workers and promote employment by working together.
In 1933, after the people had rejected Hoover’s plan to let the Depression burn itself out, President-elect Roosevelt asked Perkins to serve as Secretary of Labor in his administration. She accepted only on the condition that he back her goals: unemployment insurance; health insurance; old-age insurance, a 40-hour work week; a minimum wage; and abolition of child labor. She later recalled: “I remember he looked so startled, and he said, ‘Well, do you think it can be done?’”
She promised to find out.
Once in office, Perkins was a driving force behind the administration’s massive investment in public works projects to get people back to work. She urged the government to spend $3.3 billion on schools, roads, housing, and post offices. Those projects employed more than a million people in 1934.
In 1935, FDR signed the Social Security Act, providing ordinary Americans with unemployment insurance; aid to homeless, dependent, and neglected children; funds to promote maternal and child welfare; and public health services.
In 1938, Congress passed the Fair Labor Standards Act, which established a minimum wage and maximum hours. It banned child labor.
Frances Perkins, and all those who worked with her, transformed the horror of the Triangle Shirtwaist Fire into the heart of our nation’s basic social safety net.
“There is always a large horizon…. There is much to be done,” Perkins said. “It is up to you to contribute some small part to a program of human betterment for all time.”
Aftermath of the Triangle Shirtwaist Fire (1911) ILGWU Archives Public Realm
Get more from HCR at the above link!
Perkins is one of the most important and under-recognized heroes of modern American history. Perkins believed that Government was there to promote the public good.
But, it wasn’t just a hollow slogan like those spouted by many of today’s politicos. She actually “walked the walk,” using her powerful intellect, energy, talent, advocacy skills, persistence, and influence with FDR to make America a much better place.
Just think of it: “unemployment insurance; health insurance; old-age insurance, a 40-hour work week; a minimum wage; and abolition of child labor.” An amazing list of accomplishments for which she has received far, far too little credit from historians. Today, most Americans probably think of Perkins, if at all, as the “first female Cabinet Secretary.” But she was more than that. Much more!
Perkins also used her position as Labor Secretary (prior to WW II the cabinet officer with responsibility for immigration) creatively in an attempt to save Jewish refugees from Nazi Germany. Although she won a major legal battle on the positive use of “charge bonds” to assist refugees, the actual effects of her humanitarian efforts appear to have been unfortunately limited.
In the xenophobic, anti-Semitic, isolationist America of the 1930s, she also became a target of the far right for her strong commitment to human rights. In 1939, Congressional xenophobes initiated an unsuccessful impeachment attempt.
In 1940, FDR transferred responsibility for immigration from the Labor Department to the Department of Justice. That spelled not only the end of Perkins’s efforts to help Jewish refugees, but also was a death sentence for many who might have been saved.
The DOJ threw up a powerful combination of restrictive requirements and bureaucracy to guarantee the death of more European Jews in the Holocaust. Indeed, the DOJ went one better by putting Japanese-American U.S. citizens in concentration camps based on “national security” claims that have since been shown to be both bogus and racially motivated. Sound familiar?
You can read all about this disgraceful chapter in American history and Perkins’s largely fruitless attempts to “swim against the tide” here, in this article by Rebecca Brenner Graham in Contingent Magazine: https://contingentmagazine.org/2019/08/23/no-refuge/.
Dr. Rebecca Brenner Graham Teacher, Author, Historian PHOTO: Rebeccabrennergraham.com
I really enjoyed Rebecca’s very lively, accessible historical writing that brings to life one of the ugliest episodes in modern American history, now largely swept under the carpet by today’s nativist revisionists. It’s also covered in the a Holocaust museum, an exhibit that contains much of the same bogus “America is full” xenophobic rhetoric spouted by too many of today’s GOP nativists.
This really horrible response by Western democracies to lives in peril was what gave rise to the Geneva Refugee Convention, the basis for the Refugee Act of 1980 and our current refugee and asylum system! How quickly we forget! The Trump Administration, with help from the Supremes, basically abrogated the legal system for refugees and asylees, without legislation. Despite promises to restore the rule of law, the Biden Administration has basically allowed most of Trump’s illegal and immoral policies to continue damaging humanity and diminishing us as a nation.
What would Frances Perkins have done? Certainly more than Garland and Mayorkas! At any rate, I enjoyed Rebecca’s historical writing and look forward to more!
A few years ago, Cathy and I had the pleasure of touring the Perkins Family Homestead, near Damariscotta, Maine, now owned by the Frances Perkins Center, with our dear, now departed Boothbay Harbor neighbor Sue Bazinet. It certainly opened my eyes to what true progressive values, lived and acted upon, were and still are!
Frances Perkins Homestead Damariscotta, ME PHOTO: Francis Perkins Center
We could use more leaders like Perkins today! Many thanks to the always-fabulous HCR for highlighting this great American!
Torture? What torture? It’s merely “enhanced fact-finding!”
Public realm“They all want to voluntarily waive further hearings and take final orders!” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
The phrase appears in multiple 9/11 volumes, usually uttered by top officials adamant that they were going to get things done, laws and rules be damned. Anti-terrorism efforts were always “lawyered to death” during the Clinton administration, Tenet complains in “Bush at War,” Bob Woodward’s 2002 book on the debates among the president and his national security team. In an interview with Woodward, Bush drops the phrase amid the machospeak — “dead or alive,” “bring ’em on” and the like — that became typical of his anti-terrorism rhetoric. “I had to show the American people the resolve of a commander in chief that was going to do whatever it took to win,” Bush explains. “No yielding. No equivocation. No, you know, lawyering this thing to death.” In “Against All Enemies,” Clarke recalls the evening of Sept. 11, 2001, when Bush snapped at an official who suggested that international law looked askance at military force as a tool of revenge. “I don’t care what the international lawyers say, we are going to kick some ass,” the president retorted.
The message was unmistakable: The law is an obstacle to effective counterterrorism. Worrying about procedural niceties is passe in a 9/11 world, an annoying impediment to the essential work of ass-kicking.
Except, they did lawyer this thing to death. Instead of disregarding the law, the Bush administration enlisted it. “Beginning almost immediately after September 11, 2001, [Vice President Dick] Cheney saw to it that some of the sharpest and best-trained lawyers in the country, working in secret in the White House and the United States Department of Justice, came up with legal justifications for a vast expansion of the government’s power in waging war on terror,” Jane Mayer writes in “The Dark Side,” her relentless 2008 compilation of the arguments and machinations of government lawyers after the attacks. Through public declarations and secret memos, the administration sought to remove limits on the president’s conduct of warfare and to deny terrorism suspects the protections of the Geneva Conventions by redefining them as unlawful enemy combatants. Nothing, Mayer argues of the latter effort, “more directly cleared the way for torture than this.”
To comprehend what our government can justify in the name of national security, consider the torture memos themselves, authored by the Justice Department’s Office of Legal Counsel between 2002 and 2005 to green-light CIA interrogation methods for terrorism suspects. Tactics such as cramped confinement, sleep deprivation and waterboarding were rebranded as “enhanced interrogation techniques,” legally and linguistically contorted to avoid the label of torture. Though the techniques could be cruel and inhuman, the OLC acknowledged in an August 2002 memo, they would constitute torture only if they produced pain equivalent to organ failure or death, and if the individual inflicting such pain really really meant to do so: “Even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent.” It’s quite the sleight of hand, with torture moving from the body of the interrogated to the mind of the interrogator.
After devoting dozens of pages to the metaphysics of specific intent, the true meaning of “prolonged” mental harm or “imminent” death, and the elasticity of the Convention Against Torture, the memo concludes that none of it actually matters. Even if a particular interrogation method would cross some legal line, the relevant statute would be considered unconstitutional because it “impermissibly encroached” on the commander in chief’s authority to conduct warfare. Almost nowhere in these memos does the Justice Department curtail the power of the CIA to do as it pleases.
In fact, the OLC lawyers rely on assurances from the CIA itself to endorse such powers. In a second memo from August 2002, the lawyers ruminate on the use of cramped confinement boxes. “We have no information from the medical experts you have consulted that the limited duration for which the individual is kept in the boxes causes any substantial physical pain,” the memo states. Waterboarding likewise gets a pass. “You have informed us that this procedure does not inflict actual physical harm,” the memo states. “Based on your research . . . you do not anticipate that any prolonged mental harm would result from the use of the waterboard.”
You have informed us. Experts you have consulted. Based on your research. You do not anticipate. Such hand-washing words appear throughout the memos. The Justice Department relies on information provided by the CIA to reach its conclusions; the CIA then has the cover of the Justice Department to proceed with its interrogations. It’s a perfect circle of trust.
Yet the logic is itself tortured. In a May 2005 memo, the lawyers conclude that because no single technique inflicts “severe” pain amounting to torture, their combined use “would not be expected” to reach that level, either. As though embarrassed at such illogic, the memo attaches a triple-negative footnote: “We are not suggesting that combinations or repetitions of acts that do not individually cause severe physical pain could not result in severe physical pain.” Well, then, what exactly are you suggesting? Even when the OLC in 2004 officially withdrew its August 2002 memo following a public outcry and declared torture “abhorrent,” the lawyers added a footnote to the new memo assuring that they had reviewed the prior opinions on the treatment of detainees and “do not believe that any of their conclusions would be different under the standards set forth in this memorandum.”
In these documents, lawyers enable lawlessness. Another May 2005 memo concludes that, because the Convention Against Torture applies only to actions occurring under U.S. jurisdiction, the CIA’s creation of detention sites in other countries renders the convention “inapplicable.” Similarly, because the Eighth Amendment’s prohibition on cruel and unusual punishment is meant to protect people convicted of crimes, it should not apply to terrorism detainees — because they have not been officially convicted of anything. The lack of due process conveniently eliminates constitutional protections. In his introduction to “The Torture Memos: Rationalizing the Unthinkable,” David Cole describes the documents as “bad-faith lawyering,” which might be generous. It is another kind of lawyering to death, one in which the rule of law that the 9/11 Commission urged us to abide by becomes the victim.
Years later, the Senate Intelligence Committee would investigate the CIA’s post-9/11 interrogation program. Its massive report — the executive summary of which appeared as a 549-page book in 2014 — found that torture did not produce useful intelligence, that the interrogations were more brutal than the CIA let on, that the Justice Department did not independently verify the CIA’s information, and that the spy agency impeded oversight by Congress and the CIA inspector general. It explains that the CIA purported to oversee itself and, no surprise, that it deemed its interrogations effective and necessary, no matter the results. (If a detainee provided information, it meant the program worked; if he did not, it meant stricter applications of the techniques were needed; if still no information was forthcoming, the program had succeeded in proving he had none to give.)
“The CIA’s effectiveness representations were almost entirely inaccurate,” the Senate report concluded. It is one of the few lies of the war on terror unmasked by an official government investigation and public report, but just one of the many documented in the 9/11 literature.
. . . ,.
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Sound painfully familiar? It should, to those of us “DOJ vets” who lived through this period. The use of the “third person,” “double and triple negatives,” “weasel words” like “you have given us to understand that,” “decision by committee” where a memo is routed through so many layers of bureaucracy that the original author or authors don’t even appear on its face — are all “devices” to diffuse and obscure responsibility and avoid clear accountability for controversial(and too often wrong) decisions!
During our time at the BIA, my fellow U.W. Badger, Judge Mike Heilman and I were often at odds on the law, particularly when it came to asylum. Anybody who doubts this should read Mike’s remarkable and famous (or infamous) “rabbi dissent” in Matter of H-, 21 I&N Dec. 337, 349 (BIA 1996) (Heilman, Board Member, dissenting). Nevertheless, one thing we agreed upon was requiring any decisions written for us to use the first person to reflect whose decision it actually was!
“Lawyers enable lawlessness.” How true! In 2002, DOJ lawyers (hand-chosen by the politicos) “tanked” and enabled, even encouraged, gross law violations by the CIA.
Fast forward to 2018. Then, White Nationalist AG Jeff Sessions exhorted his wholly-owned “judges” at EOIR not to treat DHS enforcement as a party before the court, but rather as a worthy “partner” in combatting the largely-fabricated “scourge” of illegal immigration (that actually, as we can now see, was propping up Trump’s economy). Is it surprising that precedent decisions by Sessions, Whitaker, and Barr favored DHS nearly 100% of the time and the BIA thereafter issued almost no precedents where the individual prevailed (not that there were many of those following “the Ashcroft purge,” even before Sessions)?
Asylum grant rates in Immigration Court tumbled precipitously, while both the trial, and particularly appellate, levels at EOIR were “packed” with judges whose main qualification appeared to be an expectation that they would churn out large numbers of removal orders without much analysis or consideration of the factors favoring the individual. Misogyny and anti-asylum, anti-private-lawyer attitudes (those “dirty lawyers”) were encouraged by Sessions as part the “culture” at EOIR, sometimes visibly rewarded by “elevation” to the BIA.
Interestingly, at the same time in 2002 that the group of DOJ attorneys was furiously working in secret to justify torture, in clear violation of the Convention Against Torture (“CAT”), another group in the DOJ, the BIA, was struggling to make the CAT work in “real world” litigated cases. A number of us dissented from the majority of our BIA colleagues’ wrong-headed and rather transparent attempt to “neuter” CAT protection from the outset. Unlike the “secret lawyers” at the DOJ, our work was public and had consequences not only for the humans involved, but for those of us who had the audacity to stand up for their rights under domestic and international law!
Here’s an excerpt from my long-forgotten dissenting opinion in Matter of J-E-, 22 I&N Dec. 291, 314-15 (BIA 2002) (Schmidt, Board Member, dissenting):
The majority concludes that the extreme mistreatment likely to befall this respondent in Haiti is not “torture,” but merely “cruel, inhuman or degrading treatment.” The majority further concludes that conduct defined as “torture” occurs in the Haitian detention system, but is not “likely” for this respondent. In short, the majority goes to great lengths to avoid applying the Convention Against Torture to this respondent.
We are in the early stages of the very difficult and thankless task of construing the Convention. Only time will tell whether the majority’s narrow reading of the torture definition and its highly technical approach to the standard of proof will be the long-term benchmarks for our country’s implementation of this international treaty.
Although I am certainly bound to follow and apply the majority’s constructions in all future cases, I do not believe that the majority adequately carries out the language or the purposes of the Convention and the implementing regulations. Therefore, I fear that we are failing to comply with our international obligations.
I conclude that the respondent is more likely than not to face officially sanctioned torture if returned to Haiti. Therefore, I would grant his application for deferral of removal under the Convention Against Torture and the implementing regulations. Consequently, I respectfully dissent.
Within a year of that decision, my dissenting colleagues and I were among those “purged” from the BIA by Ashcroft because of our views. I’d argue that EOIR has continued to go straight downhill since then, and is now in total free fall! Surely, any “facade” of quasi-judicial independence at the BIA has long-since crumbled. Yet, AG Garland pretends there is no problem. Garland’s apparent belief that this is still Judge Bell’s or Ben Civiletti’s or even Ed Levi’s DOJ is simply, demonstrably, wrong.
Today’s DOJ has been part and parcel of a highly inappropriate “weaponization” of the law and “Dred Scottification” directed against individual civil rights, migrants, voters, women, people of color, and a host of “others” who were on the far right “hit list” of the Trump kakistocracy. Nowhere has that been more evident than at the dysfunctional and institutionally biased EOIR. The problems plaguing American justice today have increased since 9-11. They will continue to fester and grow unless and until Garland faces reality and makes progressive leadership and judicial changes at EOIR to addresses the toxic culture of complicity and abusive use of the law to degrade individual and human rights. And, some real accountability at the rest of the badly-damaged DOJ should not be far behind.
“A federal judge declared unlawful the U.S. government’s turnbacks of asylum seekers arriving at ports of entry along the U.S southern border. The court ruled that the United States is required by law to inspect and process asylum seekers when they present themselves at ports of entry, and condemned the practice of denying access to the asylum process through metering and similar practices.
The decision came after oral arguments were held before U.S. District Judge Cynthia Bashant of the Southern District of California on Tuesday.
The case, Al Otro Lado v. Mayorkas, was brought 4 years ago by Al Otro Lado and a group of 13 individuals seeking asylum in the United States whom U.S. Customs and Border Protection turned back. The Center for Constitutional Rights, Southern Poverty Law Center, American Immigration Council, and the law firm Mayer Brown challenged the policy.
Nicole Ramos, Border Rights Project Director of Al Otro Lado, said, “After over four years, a U.S. federal court concluded what our team at Al Otro Lado has known all along, that CBP’s turning away of asylum seekers from ports of entry and metering are illegal and violate the rights of the individuals and families most in need of our protection. Despite DHS’s lies about their capacity to process asylum seekers, the reasons behind why metering exists, and the agency’s destruction of evidence in the case, today the rule of law and justice prevail.”
Baher Azmy, Legal Director of the Center for Constitutional Rights, said, “This is such an important victory for our heroic partners at Al Otro Lado, who have fought for asylum seekers for years against every variation of government lie, denial, and abuse of power. The decision will protect thousands of vulnerable people at the border.”
Melissa Crow, Senior Supervising Attorney with the Southern Poverty Law Center, said, “This decision affirms what people fleeing persecution and immigrant rights advocates have argued for years: the U.S. government’s denial of access to the asylum process at ports of entry is blatantly illegal. The Court properly recognized the extensive human costs of metering, including the high risk of assault, disappearance, and death, when CBP officers flout their duty to inspect and process asylum seekers and instead force them to wait in Mexico.”
“Turning back asylum seekers at ports of entry unconstitutionally stripped people of their right under U.S. law to access the asylum process in the United States. Ports of entry are a critical part of our nation’s asylum system and serve as the front door for arriving asylum seekers. Today’s decision underscores that the government may not simply shut that door and deny asylum seekers this right. The law protects asylum seekers arriving at our doorstep as it does those who stepped over the threshold. CBP must inspect and process arriving asylum seekers,” said Karolina Walters, senior attorney at American Immigration Council.
“Today’s decision is not just a victory for justice and the rule of law, it takes a significant step towards ending a troubling chapter in our nation’s history,” said Stephen Medlock, a partner at Mayer Brown LLP. “Under the turnback policy that was at issue in this case, the very government officials that should have been welcoming and assisting victims of persecution and torture were told to turn them away from the United States. The district court found that to be unequivocally illegal.”
Maria Frausto at the American Immigration Council, mfrausto@immcouncil.org or 202-507-7526; Marion Steinfels at SPLC, marion.steinfels@splcenter.org or 202-557-0430; Jen Nessel, Center for Constitutional Rights, 212-614-6449, jnessel@ccrjustice.org; Melissa Flores, Al Otro Lado, melissa@alotrolado.org, 213-444-6081.”
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Not surprisingly to those of us who understand the system, this illegal, inane, and unnecessary policy instituted by the Trump kakistocracy and inexplicably continued under Biden has fueled illegal entries, as we effectively gave asylum seekers no legal avenue to make their applications.
As noted above, the Trump Administration also lied to the court and the public about the justification for the program, which clearly was fabricated.
But, to be fair, the Biden Administration has done little to re-establish the rule of law for asylum seekers at the Southern Border. Obviously, this case demands a long overdue investigation into the DOJ attorneys who handled and defended the indefensible, and the misconduct of those attorneys and CBP officials in hiding or destroying evidence and creating bogus scenarios to “justify” their illegal actions. But, don’t hold your breath for Garland, who seems largely indifferent to misconduct at the DOJ or anywhere else in Government, to take any action.
Legal asylum seekers suffer severe consequences for the Government’s concerted attack on their legal rights and humanity. The “perps on our payroll” — not so much. No wonder our legal system is in free fall!
It isn’t clear to me how this case interacts with Biden’s continuation of Title 42 which illegally bars many asylum seekers from pursuing their claims in any manner. There are exceptions, but they appear to be somewhat arbitrary and depend mostly on what CBP feels like doing on any particular day.
For those allowed to pursue claims in the U.S., the Biden Administration still doesn’t have a functioning way of promptly and fairly determining their cases. “Dedicated Dockets” at EOIR are just another “designed to fail” gimmick, almost certain to increase backlogs without promoting fairness and efficiency.
That which would make the asylum system functional for all — immediate EOIR reform, including new progressive leadership, a progressive BIA, much better asylum precedents, some progressive IJs well-qualified to handle asylum cases fairly and efficiently (e.g., getting them right initially, insisting that Asylum Officers do likewise, and cracking down on frivolous behavior by DHS in Immigration Court, rather than the haste makes waste “any reason to deny culture” that drives EOIR’s incredibly poor and inept performance on asylum cases today) and working agreements with the private bar for representation and reasonable scheduling — has been of little visible interest to Garland and his lieutenants to date.
With Congress more or less living on another planet, that’s likely to leave reshaping the asylum system to the Federal Courts. There, as this case shows, there is still a smattering of Article III Judges committed to due process and the rule of law for asylum seekers. But, there are now enough right wing extremists put on the bench by the GOP to make it highly likely that any hard won progressive judicial reforms will eventually be undone.
The one place where progressive reforms could actually take place, and be made to endure, at least for the balance of this Administration — EOIR — has been mishandled by Garland to date.
What an awful, disgraceful mess — with no viable plans for improvement on the horizon!
Proposed asylum regulation changes that rely heavily on a currently broken, dysfunctional, non-expert EOIR to protect the rights of asylum seekers — after years of intentionally bashing them on behalf of their nativist overlords — is an obvious non-starter that fails to “pass the straight face test” as those who actually are condemned to practice before EOIR know all to well. Of course, the regulatory proposal wasn’t drafted by those actually familiar with the human trauma of litigating asylum cases at EOIR.
Ah, Casey, “why can’t anyone out there in ‘Bidenland’ play this game?”
“Casey Stengel might understand Judge Garland. The rest of us not so much.” PHOTO: Rudi Reit Creative Commons
