"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
“The IJ granted Omorodion’s application for deferral of removal under the CAT and, after an initial remand by the BIA, reaffirmed that decision. In July 2018 the BIA vacated the IJ’s grant of CAT relief and ordered Omorodion removed, concluding that Omorodion did not show that she would suffer torture or that public officials would acquiesce in her torture. … First, Omorodion argues that the BIA mischaracterized and ignored key evidence. We agree. … The BIA also erred by failing to apply the clear error standard in its review of the IJ’s “predictive finding that [Omorodion] would suffer torture by or with the acquiescence of the Nigerian government.” … The BIA erred as a matter of law when it overlooked such evidence and rejected the IJ’s predictive finding. To summarize, we grant the petition and remand because the BIA overlooked material components of the record and misconstrued others. See Xiao Kui Lin v. Mukasey, 553 F.3d 217, 220 (2d Cir. 2009). Should the BIA vacate the IJ’s grant of CAT relief on remand, it should explain where it identifies clear error in the IJ’s factfinding based on the totality of the record. If any vacatur is not due to clear error, the BIA must otherwise “provide sufficient explanation to permit proper appellate review” of its decision. Hui Lin Huang, 3 677 F.3d at 137. For the foregoing reasons, the petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED for further proceedings consistent with this order.”
“We remand for the agency to conduct the required factfinding and analysis regarding the reasonableness of Perez Nagahama’s delay in filing her asylum claim following her changed circumstances. An asylum applicant must file an asylum “application . . . within 1 year after the date of . . . arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). There is an exception for “changed circumstances which materially affect the applicant’s eligibility for asylum.” Id. § 1158(a)(2)(D). Where there is such a change, the applicant must file an application “within a reasonable period given those ‘changed circumstances.’” 8 C.F.R. § 1208.4(a)(4)(ii). The IJ concluded and the BIA assumed that Perez Nagahama’s circumstances changed materially when she began living as openly gay in April 2015. What is a reasonable period for filing after a changed circumstance is a fact-specific inquiry: IJs should make specific “findings of fact with respect to the particular circumstances involved in the delay of the respondents’ applications” to determine the reasonableness of the delay. Matter of T-M-H- & S-W-C-, 25 I. & N. Dec. 193, 195–96 (B.I.A. 2010). … Perez Nagahama has raised a reviewable question of law that the agency failed to apply the proper standard because it did not consider her specific circumstances before concluding that her delay was unreasonable. … The agency did not conduct the required factfinding and analysis. … Here, the IJ did not make findings of facts regarding the reasonableness of the delay in light of the attendant circumstances. The BIA should have remanded to the IJ to consider whether the delay was reasonable. … Instead, the BIA made its own factual determinations that Perez Nagahama beginning to live as openly gay did not make her delay reasonable and that the other facts she pointed to were not related to this underlying changed circumstance. Compounding this issue, the BIA gave no reasoning for its conclusion that the relevant circumstance made her delay unreasonable.”
[Hats off to Genet Getachew!]
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Clearly, the BIA’s performance in this and other recent CA remands is far below even the “good enough for government work” mantra that prevails at Garland’s dysfunctional EOIR! Why does Garland think “NOT good enough for government work” is “goodenough for due process for ‘persons’ who happen to be foreign nationals” with the their lives at stake in his “smashed to smithereens” piece of our “justice” system?
The only way Garland gets to where his EOIR is today is by “Dred Scottification:” That is, intentionally treating “persons” (“humans”) in his Immigration Courts as “non –persons” under the Due Process Clause of our Constitution. If that sounds like a “Stephen Miller wet dream”🤮 (grotesque as that image undoubtedly is), it’s because that’s exactly what it is! How does a Dem Administration get away with this affront to due process, equal protection, and racial justice in America?
Kind of makes me wonder what they taught at Harvard Law (Garland’s alma mater) and other so-called “elite” law schools. I daresay that virtually all law students I have encountered in teaching immigration and refugee law for a number of years at Georgetown Law would have done better than the BIA had these cases been on my final exams.
The BIA’s inability to fairly and competently apply basic legal standards, honestly and professionally evaluate evidence of record, give asylum applicants the “benefit of the doubt” to which they are entitled under international standards, provide positive practical expert guidance on granting relief, eliminate “asylum free zones,” promote uniform outcomes, and develop and enforce “best judicial practices” is a major factor in the incredible two million case backlog that Garland has built in Immigration Court! His failure to take corrective action by replacing the BIA with competent, expert, unbiased appellate judges is a major breach of both ethical standards and his oath of office! How does he get away with it?
Thousands of asylum applicants at our border are being illegally returned to danger! Individuals with valid claims to be in the United States are routinely being denied relief for specious reasons and clear misapplications of basic legal standards in his “courts” —powerful indicators of systemic bias that should have been forcefully addressed by Garland on “day one” of his tenure at EOIR, as experts recommended.
Garland’s victims’ lives are irrevocably ruined or even ended! Misery is inflicted on their family, loved ones, and American communities! Dedicated lawyers working overtime to save lives are mistreated by Garland’s courts and traumatized by sharing the horrible consequences to their clients of systemic inferior judging! America is denied legal immigrants we need!
Our Federal justice system is overwhelmed with wasteful and never-ending litigation of immigration cases that should have been timely granted in the first instance and bad policies that never should have seen the light of day. In this respect, note that the IJ actually got it right in Omorodion! Then, in attempting to accommodate DHS and achieve an illegal removal, the BIA completely botched it on appeal! Even where justice prevails at the “retail” level, the BIA screws it up!
Yet Garland just shows up for work and draws his paycheck as if this were the way “justice” is supposed to work in America and fixing it is “below his pay level!” Gimmie a break!
Meanwhile, back at the ranch, many congrats and much appreciation to NDPA stalwarts Tom Moseley and Genet Getachew!
I am particularly honored to recognize the litigation greatness of my long-time friend, former INS colleague, and NDPA litigation icon 👍🏼🗽 Tom Moseley. He honed his complex litigation skills as an INS Special Assistant U.S. Attorney for the Southern District of NY during my tenure as Deputy General Counsel and Acting General Counsel at the “Legacy INS.”
Since leaving INS decades ago, Tom has been a tower of “practical impact litigation” and “Life-Saving 101” in New Jersey and beyond. Thanks for all you do, my friend!
American poses with dead Haitian revolutionaries after being killed by US Marine machine gun fire – 10-11-1915.jpg. Past US armed invasions of Haiti to protect our interests haven’t done much to improve the lives of the Haitian people. Public Realm
As Haiti Unravels, U.S. Officials Push to Send in an Armed Foreign Force
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U.S. seeks to prompt armed invasion of Haiti by OTHER countries to protect US from Haitian refugees seeking freedom and a new life! What could possibly go wrong?
Nothing shakes up brave US security officials like some unarmed Black individuals in leaky boats risking their lives to “breathe free” and to contribute to the U.S. economy in the process!
Really! There must be about “two Democrats in the world” who think this crackpot scheme is a good idea. Unfortunately, they are employed by the Biden Administration and in charge of “immigration policy!”
Sorry, Casey, but I have to keep saying it: “Can’t anyone here play this game?” Apparently not!
“Casey Stengel might understand the Biden Administration’s immigration policies. The rest of us not so much.” PHOTO: Rudi Reit Creative Commons
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
Politico: Experts in the immigration field say they’re expecting a stressful and chaotic transition when a court-ordered deadline to end the Trump directive is hit, one that could drive a new rush to the border and intensify GOP criticism. See also States move to keep court from lifting Trump asylum policy.
Reuters: The United States is in talks with Mexico and other countries to facilitate the return of Venezuelan migrants to their homeland, a senior U.S. official said in a call with reporters on Tuesday.
TRAC: The South Texas Family Residential Center in Dilley, Texas, which currently houses single adults (mostly females) has more than doubled the number of individuals it is holding since September. ICE reports this facility run by CoreCivic now has the largest average daily population of detainees (1,562) in the country
CBS: McCarthy also threatened to use “the power of the purse and the power of subpoena” to investigate and derail the Biden administration’s immigration and border policies, saying Republican-led committees would hold oversight hearings near the U.S.-Mexico border.
LexisNexis: “Remand is required in this case because the BIA did not give consideration to all relevant evidence and principles of law, as those have been detailed by this Court’s recent decision in Scarlett v. Barr, 957 F.3d 316, 332–36 (2d Cir. 2020). … Because Mejia did not fear torture at the hands of the Guatemalan authorities, the relevant inquiry is whether government officials have acquiesced in likely third-party torture. To make this determination, the Court considers whether there is evidence that authorities knew of the torture or turned a blind eye to it, and “thereafter” breached their “responsibility to prevent” the possible torture.”
LexisNexis: “Having reviewed both the IJ’s and the BIA’s opinions, we hold that the agency did not err in finding that Garcia-Aranda failed to satisfy her burden of proof for asylum and withholding of removal, but that the agency applied incorrect standards when adjudicating Garcia-Aranda’s CAT claim.”
Law360: The Third Circuit has backed a decision denying a Dominican man’s bid for deportation relief based on his fear of being tortured, saying the procedural flaws he claimed tainted his proceedings — including the use of legal jargon and a videoconferencing glitch — did not prejudice him.
Law360: An English-speaking Cameroonian lost her chance to stay in the U.S. after the Eighth Circuit ruled that she failed to provide enough evidence showing that military officers had attacked her for her presumed support of Anglophone separatists.
LexisNexis: “Without record evidence that Phong orally waived his right to appeal before the IJ, we decline to address his alternative arguments that any waiver was unconsidered, unintelligent, or otherwise unenforceable. Rather, we remand to the BIA to develop the record on the waiver issue and, if it deems it appropriate, to consider Phong’s remaining arguments in the first instance.”
Law360: A divided Ninth Circuit on Monday ruled that the federal government was not constitutionally required to provide a Salvadoran immigrant a second bond hearing amid his prolonged detention during removal proceedings, while also bearing the burden to show he was a flight risk or danger to the community.
AP: The U.S. Department of Homeland Security has agreed to pay a Vermont-based immigrant advocacy organization $74,000 in legal fees to settle a lawsuit seeking information about whether advocates were being targeted by immigration agents because of their political activism.
USCIS: Today, U.S. Citizenship and Immigration Services announced it is extending and expanding previously announced filing fee exemptions and expedited application processing for certain Afghan nationals.
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Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
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T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
Folks, it’s about re-instituting the law and screening system for legal asylum seekerswhich was in effect, in one form or another, for four decades before being illegally abrogated by the Trump Administration’s abusive use of Title 42. Outrageously, after promising to do better during the 2020 election campaign, the Biden Administration has “gone along to get along” with inflicting massive human rights violations under the Title 42 facade until finally ordered to comply with the law by U.S. District Judge Emmet G. Sullivan last month.
One of Judge Sullivan’s well-supported findings was that the scofflaw actions by both Trump and Biden officials had resulted in knowingly and intentionally inflicting “dire harm” on legal asylum applicants:
Sullivan wrote that the federal officials knew the order “would likely expel migrants to locations with a ‘high probability’ of ‘persecution, torture, violent assaults, or rape’ ” — and did so anyway.
“It is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals,” Sullivan wrote. “It is undisputed that the impact on migrants was indeed dire.”
Contrary to the “CYA BS” coming from Biden Administration officials, making the law work at the Southern Border requires neither currently unachievable “reform” legislation nor massive additions of personnel! It does, however, require better personnel, expert training, accountability, smarter use of resources, and enlightened, dynamic, courageous, principled, expert leadership currently glaringly lacking within the Biden Administration.
The Administration’s much ballyhooed, yet poorly conceived, ineptly and inconsistently implemented,“revised asylum regulations” have also failed to “leverage” thepotential for success, thus far producing only an anemic number of “first instance” asylum grants. This is far below the rate necessary for the process significantly to take pressure off the backlogged and dysfunctional Immigration Courts, one of the stated purposes of the regulations!Meanwhile, early indications are that Garland’s ill-advised regulatory time limits on certain arbitrarily-selected asylum applications have further diluted quality and just results for EOIR asylum decisions. That, folks, is in a system where disdain for both of these essential judicial traits is already rampant!
It’s not rocket science! It was well within the capability of the Biden Administration to establish a robust, functional asylum system had it acted with urgency and competency upon taking office in 2021:
Better Asylum Officers at USCIS and Immigration Judges at EOIR — well-qualified asylum experts with practical experience in the asylum system who will timely recognize and grant the many valid asylum claims in the first instance;
Cooperative agreements with NGOs and pro bono organizations to prescreen applications in an orderly manner and represent those who can establish a “credible fear;”
A new and improved BIA of qualified “practical scholars” in asylum law who will establish workable precedents and best practices that honestly reflect the generous approach to asylum required (but never carried out in practice or spirit) by the Supremes in Cardoza-Fonseca and the BIA itself in its long-ignored and consistently misapplied precedent in Mogharrabi;
An orderly refugee resettlement program administered under the auspices of the Feds for those granted asylum and for those whose claims can’t be expeditiously granted at the border and who therefore must present them in Immigration Court at some location away from the border.
The Biden Administration has nobody to blame but themselves for their massive legal, moral, and practical failures on the Southern Border! With House GOP nativist/restrictionists “sharpening their knives,” Mayorkas, Garland, Rice, and other Biden officials who have failed to restore the legal asylum system shouldn’t expect long-ignored and “affirmatively dissed” human rights experts and advocates to bail them out!
The massive abrogations of human rights, due process, the rule of law, common sense, and human decency that the GOP espouses — so-called enforcement and ineffective “deterrence” only approach — will NOT resolve the humanitarian issues with ongoing, often inevitable, refugee flows!
But, the Biden Administration’s inept approach to human rights has played right into the hands of these GOP White Nationalist politicos. That’s an inconceivable human tragedy for our nation and for the many legal refugees we turn away without due process or fair consideration of their life-threatening plight! These are refugees — legal immigrants — who should be allowed to enter legally and help our economy and our nation with their presence.
If we want refugees to apply “away from the border,” we must establish robust, timely, realistic refugee programs at or near places like Haiti, Venezuela, and the Northern Triangle that are sending us refugees. In the Refugee Act of 1980, Congress actually gave the President extraordinary discretionary authority to establish refugee processing directly in the countries the refugees are fleeing. This was a significant expansion of the UN refugee definition which requires a refugee to be “outside” his or her country of nationality. Yet, no less than the Trump and Obama Administrations before, President Biden has failed to “leverage” this powerful potential tool for establishing orderly refugee processing beyond our borders!
Meanwhile, down on the actual border, a place that Biden, Harris, Mayorkas, Garland, Rice, and other “high level architects of failed asylum policies” seldom, if ever, deign to visit, life, such as it is, goes on with the usual abuses heaped on asylum seekers patiently waiting to be fairly processed.
A rational observer might have thought that the Biden Administration would use the precious time before Dec. 22, 2022, reluctantly “gifted” to them by Judge Sullivan, to pre-screen potential asylum seekers already at ports of entry on the Mexican side. Those with credible fear and strong claims could be identified for orderly entries when legal ports of entry (finally) re-open on Dec. 22. Or, better yet, they could be “paroled” into the U.S. now and expeditiously granted asylum by Asylum Officers.
This would reduce the immediate pressure on the ports, eliminate unnecessary trips to backlogged Immigration Courts, and expedite these refugees’ legal status, work authorization, and transition to life in the U.S.
I have no idea what the Biden Administration has done with the time since Judge Sullivan “gifted” them a stay. The only noticeable actions have been more BS excuses, blame-shifting, and lowering expectations.
But, in reality, by their indolent approach to humanitarian issues and the law, in the interim the Administration has consciously left the fate of long-suffering and already “direly-harmed” legal asylum seekers to the Mexican Government. According to a recent NBC News report, the Mexican Government forcibly “rousted” many awaiting processing at a squalid camp near the border and “orbited them’ to “who knows where.” https://www.nbcnews.com/now/video/mexican-authorities-evict-venezuelan-migrants-from-border-camps-155516485544
Judge Sullivan might want to take note of this in assessing how the Biden DOJ has used the “preparedness time” that he reluctantly granted them following his order.
“Karla Iveth Garcia-Aranda petitions for review of two decisions of the Board of Immigration Appeals (“BIA”) denying asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Garcia-Aranda, a native and citizen of Honduras, testified before an Immigration Judge (“IJ”) that she and her family had been threatened, kidnapped, and beaten by members of the Mara 18 gang while a local Honduran police officer was present. Garcia-Aranda sought asylum and withholding of removal, arguing that the gang had persecuted her because she was a member of the Valerio family, which ran its own drug trafficking ring in Garcia-Aranda’s hometown. She also sought protection under CAT based on an asserted likelihood of future torture at the hands of the gang with the participation or acquiescence of the local Honduran police. Having reviewed both the IJ’s and the BIA’s opinions, we hold that the agency did not err in finding that Garcia-Aranda failed to satisfy her burden of proof for asylum and withholding of removal, but that the agency applied incorrect standards when adjudicating Garcia-Aranda’s CAT claim. Accordingly, the petition for review is DENIED IN PART and GRANTED IN PART, the decisions of the BIA are VACATED IN PART to the extent they denied Garcia-Aranda’s claim for CAT protection, and the case is REMANDED to the BIA for further proceedings consistent with this decision. … Because of these legal errors, we grant the petition as to Garcia-Aranda’s claim for protection under CAT and vacate the BIA’s decisions regarding CAT protection. See Rafiq v. Gonzales, 468 F.3d 165, 166–67 (2d Cir. 2006) (remanding a CAT claim for proper application of Khouzam). On remand, we direct the agency to consider, in light of all testimony and documentary evidence, whether Garcia-Aranda will more likely than not be tortured by, or at the instigation of, or with the consent or acquiescence of, any public official (or other person) acting under color of law. As more fully described above, that means considering questions such as whether it is more likely than not that the gang will torture Garcia-Aranda, including meeting all the harm requirements for torture under section 1208.18(a), and whether it is more likely than not that local police acting under color of law will themselves participate in those likely gang actions or acquiesce in those likely gang actions. The BIA is also instructed to remand to the IJ for any additional factfinding that is necessary for the BIA to make its determination.”
[NOTE: This PFR was filed in 2018! Hats off to Heather Axford and team!]
Heather Axford Senior Staff Attorney Central American Legal Assistance Brooklyn, NY
“Petition for review of a December 26, 2018 decision of the Board of Immigration Appeals (“BIA”) vacating a July 27, 2017 decision of an Immigration Judge (“IJ”) granting Petitioners’ application for asylum and protection under the Convention Against Torture (“CAT”). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the petition for review is GRANTED in part and DENIED in part. Accordingly, the decision of the BIA is VACATED in part, and the case is REMANDED for proceedings consistent with this summary order. … Remand is required in this case because the BIA did not give consideration to all relevant evidence and principles of law, as those have been detailed by this Court’s recent decision in Scarlett v. Barr, 957 F.3d 316, 332–36 (2d Cir. 2020). … Because Mejia did not fear torture at the hands of the Guatemalan authorities, the relevant inquiry is whether government officials have acquiesced in likely third-party torture. To make this determination, the Court considers whether there is evidence that authorities knew of the torture or turned a blind eye to it, and “thereafter” breached their “responsibility to prevent” the possible torture. Scarlett, 957 F.3d at 334 (quoting Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004)); see 8 C.F.R. § 1208.18(a)(7). … Here, record evidence raises questions as to the Guatemalan government’s inability to protect Mejia, insofar as it indicates that Mejia sought assistance from Guatemalan police and was told that they could not protect her and she should simply hide in her home. … Insofar as the BIA ruled without the benefit of Scarlett, a remand is warranted before this Court conducts any review. We therefore remand for the sole purpose of allowing the BIA to decide, after reasoned consideration of the record, whether the Guatemalan police’s inability to protect Mejia constituted acquiescence.”
Mikhail Usher, Esq. Senior Partner The Usher Law Group PLLC My & New Jersey PHOTO: Usher Law Group
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Congrats to NDPA superstars Heather and Mike!
Here’s commentary from my Round Table colleague Hon. “Sir Jeffrey” Chase on Heather’s performance on Garcia-Aranda v. Garland:
“Heather is a remarkable litigator who did a remarkable job on this case – it was a tough panel that had basically ruled out asylum from the start; it was most impressive to hear Heather persuade the judges over the course of oral arguments as to the CAT standard (during which one of the judges repeatedly referenced proposed Trump regs that had never taken effect, but were nevertheless listed on the government’s eCFR as if it had).
Best, Jeff“
And, here’s my response:
“Heather is truly an NDPA superstar. And, I’m proud that she got her start appearing at the Arlington Immigration Court!
The heroes of the 2022 midterm elections were Democratic voters and activists, not the party’s leadership. Those leaders should remember that and not try to distance themselves from the party’s base as they have at times in the past two years.
Though they changed course in the final months before the election, the Biden administration and congressional Democrats spent much of 2021 and 2022 on a flawed strategy. Democratic leaders were determined to boost the party with people who didn’t vote for Joe Biden in 2020, particularly the White voters without college degrees who have shifted sharply to the GOP over the last decade. So Democrats focused largely on economic policy, such as the American Rescue Plan, the infrastructure bill and a law making it easier to manufacture microchips in the United States. They intentionally highlighted how these provisions would help people without college degrees and people in rural areas.
They at times sidelined other issues, such as voting rights, that might not be the priorities of White voters without college degrees. In July, a top White House official, communications director Kate Bedingfield, bashed party activists who complained that the administration wasn’t responding aggressively enough to the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization ruling eliminating the right to an abortion. And Democrats moved to the right on some issues, most notably policing. There were constant efforts to court moderate GOP voters and lawmakers and sideline prominent left-wing figures.
. . . .
The Democrats didn’t do well in this year’s elections by flipping lots of voters in places that voted Republican in 2020, such as Florida and Ohio. What they did was maintain strength in the congressional districts and states that they won two years ago and four years ago. The party’s base prevented the bottom from falling out.
Party officials are rushing to give credit — to one another. And some of the party’s leaders do deserve praise. Candidates such as Gov. Gretchen Whitmer of Michigan, who easily won reelection, and Pennsylvania Gov.-elect Josh Shapiro early in their campaigns highlighted abortion and democracy, in addition to the economy. Biden rightly ignored some in the party who argued he should not talk about democracy issues in the final days of the campaign.
But in elections, the voters are the actors, the deciders. And this year, millions of Democratic-leaning voters turned out and stuck with the party, looking past sky-high inflation and a leadership team that spent much of its time courting people who would never vote for Democrats while ignoring key priorities of people who always vote for the Democrats.
These voters should be commended and celebrated.
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Read the complete op-ed at the link.
Perry my friend, let’s go back just a bit in time and think about the “original targets” of Trump’s MAGA GOP “platform” of hate, lies, false narratives, and virulent anti- democracy insurrection masquerading as “patriotism!”
Who’s been out there fighting for truth, justice, and equality before the law since “Day 1” of the MAGA hate movement? Who led the resistance at airports when the first manifestations of the Trump regime’s neo-Nazism in action began just shortly after his inauguration? Who took the legal fight to preserve American democracy all the way to the Supremes before a right-leaning majority still wedded to Dred Scott and the Chinese Exclusion cases tilted in favor of tyranny? A tilt, I might add that has progressively gotten worse over time and has spawned millions of human rights abuses, enabled torture, and actually helped kill some of the vulnerable humans we were sworn to protect?
Historically, migrants of all types, voluntary or involuntary, have constituted the “other” in America — targeted, disadvantaged at law,and exploited by their fellow Americans even while being the essential ingredient that has built our nation.
It’s rather odd, considering that 98% of us were “the other” at some point in history. I suppose a reckoning with that “inconvenient truth” is one of a number of reasons why theMAGA GOP works so hard to “whitewash” American history.
So, it’s worth thinking about why a talented group, their expertise, and their “learned wisdom” — and the better America for all that they represent and fight for — becomes so expendable and ignored by Dems between election cycles. Also worth reflecting on where American democracy, tenuous as it might be today, would be without them.
If the Biden Administration had honored and “leveraged” the immigration experts who helped elect it in 2016 and preserve it in 2022, we might well have order at the border, many more legal workers, lower inflation, decreasing backlogs, focused immigration enforcement that preserves national security, courts that model equal justice and due process and help develop the Article III Judiciary of the future, creative ideas for helping the economy of rural America, smarter use of taxpayer dollars, the list goes on. Success in these areas might even have enabled Dems to hold onto the House or given them a bigger margin in the Senate.
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
Texas Observer: But as the case of Felipe shows, immigration officials have continued to separate parents and children in violation of the policy. From the start of the new administration to August 2022—the latest month for which data has been published—U.S. authorities have reported at least 372 cases of family separation.
AP: Within hours, the Justice Department asked the judge to let the order take effect Dec. 21, giving it five weeks to prepare. Plaintiffs including the American Civil Liberties Union didn’t oppose the delay.
Politico: Party leaders are pushing hard for legislation aiding the undocumented population known as “Dreamers” before Republicans take the House. But GOP senators have little interest. See also House Judiciary GOP Highlights First Oversight Targets.
TRAC: The outcome for asylum seekers has long been influenced by the identity of the immigration judge assigned to hear their case. This continues to be true as documented by TRAC’s just released judge-by-judge report series, now updated through FY 2022. In Arlington, Virginia, judge denial rates ranged from 15 percent to 95 percent. In Boston, judge denial rates varied from 17 percent to 93.5 percent. In Chicago, they ranged from 16 percent to 90 percent, while in San Francisco one judge denied just 1 percent of the cases while another denied 95 percent.
NPR: Individuals held in immigration detention were barred from visits with relatives and friends for more than two years during the pandemic — far longer than federal prisons. In May, ICE lifted the ban, but immigrant advocates and people in detention centers argue that social visits have not been fully nor consistently reinstated.
Philly Inquirer: A second bus carrying immigrants from Texas arrived in Philadelphia Monday morning, a twice-in-six-days sequel that propelled the city to offer fresh welcome to more weary, uncertain travelers from the border.
AP: U.S. immigration authorities didn’t do enough to adequately vet or monitor a gynecologist in rural Georgia who performed unnecessary medical procedures on detained migrant women without their consent, according to results of a Senate investigation released Tuesday.
Intercept: According to ICE’s Performance-Based National Detention Standards, whenever there is a “calculated use of force,” staff are required to use a handheld camera to record the incident. The Intercept, with Kumar’s consent, requested the video through the Freedom of Information Act. After ICE refused to turn over the footage, The Intercept filed a lawsuit and ICE subsequently agreed to turn over the footage, but the agency redacted the faces and names of everyone who appears in it, aside from Kumar.
Guardian: A multi-country investigation by the Guardian finds at least 6,500 migrant workers from south Asia have died in Qatar in the 10 years since it was awarded the right to host the World Cup.
AG: (1) Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018), is overruled. (2) Pending the outcome of the rulemaking process, immigration judges and the Board of Immigration of Appeals may consider and, where appropriate, grant termination or dismissal of removal proceedings in certain types of limited circumstances, such as where a noncitizen has obtained lawful permanent residence after being placed in removal proceedings, where the pendency of removal proceedings causes adverse immigration consequences for a respondent who must travel abroad to obtain a visa, or where termination is necessary for the respondent to be eligible to seek immigration relief before United States Citizenship and Immigration Services.
Law360: The Biden administration on Thursday swept aside a Trump-era decision that mostly stripped immigration judges of their power to end removal proceedings, restoring immigration courts’ ability to terminate some deportation cases while it devises new policy.
Law360: A federal judge on Wednesday granted “with great reluctance” the Biden administration’s request for a five-week stay of his previous day’s order to end expulsions of migrants under Title 42, a public health provision the Trump administration began using at the start of the pandemic.
Law360: A split Fourth Circuit panel ordered the U.S. Board of Immigration Appeals to reconsider a Jamaican man’s removal order, criticizing the agency’s reasons for rejecting his claims that he diligently sought reversal of his order following a Supreme Court ruling.
LexisNexis: Michael Shannon writes: “I wanted to share a very good written decision from IJ Barbara Nelson, who granted asylum to my client based on her actual and imputed feminist political opinion under Hernandez-Chacon v. Barr.”
Law360: The federal government got the green light from an Arizona federal judge to conduct psychological examinations of asylum-seeking parents suing for damages for the alleged emotional trauma from being separated from their children at the southwestern U.S. border.
AILA: AILA and partners sent a letter to USCIS, EOIR, and OPLA addressing the unnecessary hurdles non-detained people in removal proceedings face in securing a biometrics appointment prior to their merits hearing.
AILA: USCIS notice of the automatic extension of the validity of TPS-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal set to expire on 12/31/22, through 6/30/24. (87 FR 68717, 11/16/22)
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added. If you receive an error, make sure you click request access.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
After two years of “drinking the koolaid,” the party might be over for Mayorkas & Garland, as McCarthy & his insurrectionist/White Nationalist zanies “move in for the kill.”
Two years of ineptness, failure to clean house at DOJ and DHS, unkept promises to advocates, lack of guts to quickly reverse Trump’s massive scofflaw program of racist-inspired human rights abuses, arrogant “tuning out” of experts, lack of engagement and presence at the border have been largely ignored by Dems in both Houses. Indeed, other than a hearing on the Article 1 bill before Chair Lofgren (at which Garland was not required to appear and explain his due-process-denying mess and abject failure to reform EOIR), Dems failure to conduct meaningful oversight of the Administration’s mishandling of refugee programs, asylum, detention, asylum seeker resettlement, and Immigration Courts will be “coming home to roost” as insurrectionist, racists from the House GOP take aim at “snuffing” humanity and abolishing the rule of law!
Two years of inept, immoral, “Miller Litism” from the Administration leaves Dems with no defense and no supporters of their actions. Nativist restrictionists wanted “100% kill” @ border! Experts wanted a return to the rule of law, orderly processing, and due process. The Biden Administration delivered neither!
We tried to tell them, but they wouldn’t listen! No,McCarthy and his insurrectionist White Nationalist zany-haters have the floor. Just have to hope that historians are fully documenting the lies and Neo-Nazi views that these GOP hacks will be promoting — to help future generations understand how America “went off the rails” in the 21st century! Understandably, the GOP would rather focus on Biden’s failed immigration policies than on the rampant gun violence, hate crimes, child abuse, forced births, and dumbing down of America at the heart of their vile agenda!
🇺🇸Due Process Forever! The GOP’s “New McCarthyism,” Never!
The John F. Kennedy Center for the Performing Arts and Georgetown University Announce 2023 “Legacy of a Dream” Awardee
featuring
Leslie Odom, Jr.
and
THE LET FREEDOM RING CHOIR,
Nolan Williams, Jr., Music Producer
In a musical tribute to Dr. Martin Luther King Jr.
Monday, January 16, 2023 at 6 p.m.
(WASHINGTON)—The John F. Kennedy Center for the Performing Arts and Georgetown University celebrate the legacy of Dr. Martin Luther King Jr. with a free, ticketed musical tribute, the Let Freedom Ring Celebration. The annual program, part of the Center’s Millennium Stage free daily performance series, features Leslie Odom, Jr. and the Let Freedom Ring Choir led by Music Producer Nolan Williams, Jr., on Monday, January 16, 2023 at 6 p.m. in the Kennedy Center Concert Hall.
Georgetown University will present the annual John Thompson Jr. Legacy of a Dream Award to Paula Fitzgerald, executive director of Ayuda. Since 1973, Ayuda has served more than 150,000 low-income immigrants throughout Washington DC, Maryland and Virginia. The award is given by Georgetown University to a local individual who exemplifies the spirit of Dr. Martin Luther King Jr. For more information about this year’s awardee and the Legacy of a Dream Award, please visit: https://www.georgetown.edu/mlk-initiative/
Free tickets—up to two per person—will be distributed on a first-come, first-served basis at the Hall of Nations box office, beginning at 4:30 p.m. on Monday, January 16. This performance will be close-captioned and will be live streamed on the Kennedy Center Facebook and YouTube pages, and on the website at www.kennedy-center.org.
ABOUT LESLIE ODOM, JR.
Leslie Odom, Jr. is a multifaceted, award-winning vocalist, songwriter, author, and actor. With a career that spans all performance genres, he has received recognition with Tony® and Grammy Awards® as well as Emmy® and, most recently, two Academy Award® nominations for his excellence and achievements in Broadway, television, film, and music. Odom most recently starred in and performed the songs of legendary singer Sam Cooke in the critically acclaimed Amazon film adaptation of One Night in Miami…, directed by Regina King. His portrayal of the soul icon was met with widespread praise and critical acclaim, earning him nominations for an Academy Award®, BAFTA Award, Critics’ Choice Award, Golden Globe Awards®, and Screen Actors Guild Awards, among others. King also enlisted Odom to write, compose, and perform the film’s original song, “Speak Now,” for which he was nominated for an Oscar and has since earned him a Critics’ Choice Award for Best Song as well as several other award nominations.
Odom recently starred in The Many Saints of Newark, a prequel to David Chase’s Award-winning HBO series The Sopranos that was released in theaters and on HBO Max in October 2021, and he can also be heard voicing the character of ‘Owen Tillerman’ in Season 2 of the Apple TV+ animated musical-comedy series Central Park, for which he received an Emmy® nomination for Outstanding Character Voice-Over Performance in 2020. He also hosted CBS’s “The Tony Awards Present: Broadway’s Back!” special live concert event., during which he performed various musical numbers throughout the 2-hour celebration along with David Byrne, John Legend, Audra McDonald and many others. His other upcoming projects include Rian Johnson’s highly anticipated sequel, Knives Out 2; and David Gordon Green’s new Exorcist trilogy. Additional film and television credits include the Disney+ filmed musical performance of the original Broadway production of Hamilton, the limited series Love in the Time of Corona, which he executive produced and co-starred opposite Nicolette Robinson, Harriet, Murder on the Orient Express, Only, Red Tails, and Smash.
Best known for his breakout role as the original ‘Aaron Burr’ in the smash hit Broadway musical Hamilton, Odom won the Tony Award for Best Actor in a Musical and a Grammy Award ® as a principal soloist on the original cast recording for his performance. He made his Broadway debut in RENT at the age of 17. He also starred opposite Lin-Manuel Miranda and Karen Olivo in a 2014 City Center Encores! revival of Jonathan Larson’s Tick, Tick…Boom! In December 2017, Odom returned to the New York City stage in a solo concert at Jazz at Lincoln Center. The cabaret-style performance was crafted around signature songs and music that shaped this artist’s journey, all performed with a world-class band in front of a live audience. The show was filmed for broadcast as an hour-long PBS special as part of the 17-time Emmy Award®-winning series, Live from Lincoln Center, and premiered in April 2018.
A Grammy Award®-winning recording artist, Odom’s self-titled debut album was part-funded by a successful Kickstarter campaign and released in 2014 by Borderlight Entertainment, Inc. His new label home, S-Curve, re-released an expanded version with additional material in June 2016, and the album reached #1 on the Billboard Jazz charts and charted in the Billboard Top 200. In winter 2017, Odom topped the charts once again with the re-release of his second album and first holiday album, Simply Christmas, as a deluxe edition with new arrangements and new songs. Simply Christmas hit #1 on iTunes and the Billboard Jazz charts, #4 on the Billboard Holiday chart, and #31 on the Billboard Top 200 chart. Odom released his third full-length album and first of original material, Mr, in November 2019, and the following October teamed up with nine-time Grammy-nominated and multi-platinum artist Sia to debut a new version of standout track “Cold.” His critically acclaimed second holiday album, The Christmas Album, was released in November 2020. He has performed at the White House, Super Bowl, and on hallowed stages such as Lincoln Center, Rockefeller Center, and the Macy’s Thanksgiving Day Parade.
In March 2018, Odom added the title of author to his resume with the release of his book—Failing Up: How to Take Risks, Aim Higher and Never Stop Learning. Written in the style of a commencement speech, the book brings together what Odom has learned in life so far, tapping into universal themes of starting something new, following your passions, discovering your own potential, and surrounding yourself with the right people. Failing Up is about unlocking your true potential and making your dreams come true even when it seems impossible. The book was published by Feiwel & Friends, an imprint of Macmillan Publishers.
ABOUT THE AWARDEE
Paula Fitzgerald, Esq. is the executive director of Ayuda, a nonprofit that provides legal, social and language services to help low-income immigrants in the Washington, DC, area navigate the immigration and justice systems, heal from trauma and overcome language isolation.
As executive director, Fitzgerald leads Ayuda’s efforts to increase the availability of direct services for more than 8,000 immigrants annually. Under her leadership, Ayuda’s programs have expanded throughout the District of Columbia, Maryland and Virginia to reach more low-income immigrants. She began her work with Ayuda as an immigration staff attorney and quickly advanced to managing attorney of Ayuda’s Virginia office. Prior to joining Ayuda in 2008, Fitzgerald served as an immigration staff attorney at Hogar Hispano of the Catholic Charities of the Diocese of Arlington and as an associate at Hunton & Williams LLP.
Her immigration legal work focused on humanitarian relief for individuals, children and families. She also has extensive experience in family-based immigration matters, consular processing, waivers and NACARA cases. Fitzgerald credits her mother, a Colombian immigrant who was a social worker at a school with a large Latin American immigrant population, and her father, who worked as a psychologist for the mentally ill at Saint Elizabeth’s Hospital, for instilling the values that led to her work.
Fitzgerald earned a certificate in Nonprofit Management from Georgetown in 2016 and a J.D. from the University of Virginia School of Law. She graduated cum laude with a B.A. in psychology from James Madison University. Paula and her family have lived in northern Virginia for more than 40 years.
ABOUT LET FREEDOM RING CELEBRATION
As part of Georgetown University’s MLK Initiative: Let Freedom Ring!, this event builds on the success of the first joint program in January 2003, which featured the legendary Roberta Flack and attracted more than 5,000 patrons. The second, held in August of 2003, commemorated the 40th anniversary of Dr. King’s “I Have a Dream” speech and featured actor, civil rights leader, and 2004 Kennedy Center Honoree, Ossie Davis. Past concerts have featured Jessye Norman in 2004; Aaron Neville in 2005; Yolanda Adams in 2006 and in 2016; Brian McKnight in 2007; Denyce Graves in 2008; Kennedy Center Honoree Aretha Franklin in 2009; India.Arie in 2010; Patti LaBelle in 2011; Bobby McFerrin in 2012; Smokey Robinson in 2013; Dionne Warwick in 2014; Natalie Cole in 2015; Gladys Knight in 2017; Vanessa Williams in 2018; and Audra McDonald and Brian Stokes Mitchell in 2019, and Chaka Khan in 2020.
ABOUT GEORGETOWN UNIVERSITY
Established in 1789 by Archbishop John Carroll, Georgetown is the oldest Catholic and Jesuit university in the United States. Located in Washington D.C., Doha, Qatar, and around the world, Georgetown University is a leading academic and research institution, offering a unique educational experience that prepares the next generation of global citizens to lead and make a difference in the world. For more information about Georgetown University, visit Georgetown.edu or connect with Georgetown on Facebook, Twitter, LinkedIn, or Instagram.
Georgetown’s annual MLK Initiative honors Dr. Martin Luther King Jr. through a series of academic, artistic, and extracurricular programs that examine Dr. King’s life and work and address the contemporary challenges our nation faces in order to fulfill his dream of justice and equality for all people. For more information visit: https://www.georgetown.edu/mlk-initiative/
ABOUT THE KENNEDY CENTER’S MILLENNIUM STAGE
Millennium Stage is a manifestation of the Kennedy Center’s mission and vision to welcome all to celebrate our collective cultural heritage in the most inclusive and accessible way possible. Millennium Stage offers free live community performances, streamed live Wednesday–Saturday each week and Sunday matinee film screenings in the Justice Forum.
The series aims to eliminate financial and geographical barriers to the arts and celebrate the human spirits and arts in our society, hopefully, ultimately leading to intercultural understanding. The programs are varied with artists from many different communities and mediums of performing arts so that we are showcasing the story of our country and our world.
A full list of our generous sponsors can be found online.
“I am humbled to be selected as the 2023 Legacy of a Dream recipient. My mission has always been to make a lasting impact in the lives of others. I can think of no greater honor than being recognized alongside past recipients – fierce advocates and change-makers in our DMV community.”
— Paula Fitzgerald, Esq.
Executive Director, Ayuda
**************************
Congratulations Paula, my friend!
As I have said many times, “you are totally awesome.” Your brilliance, creativity, “institutionalized kindness,” courage, integrity, work ethic, and leadership by example have built AYUDA into an ever more powerful and dynamic NGO that incorporates all that is best in the DMV area. AYUDA serves as a beacon of hope, humanity, and “grass roots support” for members of our community from around the world.
You empower and inspire everyone around you, which is what great leadership is all about. You are also “one heck of a fundraiser and executive with a vision and the practical skills to make it happen!” And, you continue to recruit, attract, support, and nurture super-talented staff who embody and carry out AYUDA’s community values!
I remember a function honoring the retiring chief executive of an organization I worked for in the past. That individual was highly competent, but not particularly “warm and fuzzy.” The MC, perhaps at a loss for words, turned to the honoree and said: “You were a great fiduciary!”
Being a “vet” of countless retirement ceremonies, I had expected the more traditional good natured “roast” or heartwarming personal anecdotes. At the time, I found the “fiduciary accolade” pretty weird.
Since then, however, carrying that “heightened awareness” with me, I have observed many “not so great fiduciaries.” So, Paula, I’m going to say it: “You are a great fiduciary!”
AYUDA’s many dedicated donors can be assured that you treat each incoming dollar the way you treat each of AYUDA’s clients and staff: With great appreciation, deep respect, and a determination to unlock the full potential for the greater good.
Thanks for all you do for America and humanity, Paula! You indeed “exemplify the spirit of Dr. King!”
FULL DISCLOSURE: I am a member of the AYUDA Advisory Council and an Adjunct Professor at Georgetown Law. I have known Paula and admiredher work and values since she first appeared before me as an attorney at the “Legacy” Arlington Immigration Court almost two decades ago.
Let’s look at this in perspective. Biden ran in 2020 on a platform of ending Title 42 and restoring asylum processing at the border. Almost two years later, after illegally returning hundreds of thousands of asylum seekers without any process at all, his Administration still lacks a coherent, transparent plan to implement asylum law at the border. This wasn’t “rocket science” as there had been an operating asylum system at the border for approximately four decades, since the enactment of the Refugee Act of 1980, until Trump illegally ended it.
After more than a year of dawdling, the Administration eventually, reluctantly, set a May 23, 2022 date to “lift” the illegal Title 42 “blockade,” giving GOP nativists more than ample time to block it.
In the meantime, they squandered time, money, and goodwill thinking of ways to actually extend the illegal removals. Their “defense” of lifting Title 42 was, predictably, half-hearted and inept. Not surprisingly, they were enjoined by nativist right wing judges. Reportedly, many Administration officials breathed a “sigh of relief” that the GOP nativists and their “wholly owned judges” had “bailed them out” from having to actually restore the asylum system and make good on their campaign promises.
Now, another six months have gone by. Garland and Mayorkas still are “not ready for prime time.” Sounds like they thought their “regime of illegal returns” would last forever!
Casts doubt on the good faith of their claim that they wanted to end Title 42 in the first place. Almost all Administrations, once in office, get enamored of the idea that “because it’s only immigrants” they don’t have to treat them as humans. What’s another month of law violations after two years and hundreds of thousands of human rights abuses?
I have little confidence that there will be a functional, due process compliant, asylum system on Dec. 22 at the border. I’m not aware that DHS and EOIR even have the properly trained qualified personnel to correctly and efficiently apply asylum law. There is no known plan for working with the pro bono bar to insure representation and prioritize the many potentially grantable cases.
There is certainly a mind-boggling “leadership void” at both DHS and DOJ on refugee, asylum, and human rights issues. The ill-advised “gimmicks” and “corner-cutting” that Garland and Mayorkas have substituted for competence and expertise in “recently arrived” asylum cases have resulted in elevated denials, hindered representation, and alienated the pro bono bar and human rights NGOs. The latter have far more expertise in asylum law and better ideas on how to efficiently and fairly process refugees and asylees than anyone at either DHS or EOIR. Yet, the experts have intentionally been “frozen out” of the decision-making process.
Additionally, and stunningly, Garland has gone out of his way to alienate and demoralize the already stressed and overextended immigration bar with a insane dose of “Aimless Docket Reshuffling.” Setting “D-Day” for reinstating the law, three days before the Christmas holiday, also seems highly problematic. What could possibly go wrong with a system run by politicos who have spent two years avoiding providing fair hearings to asylum seekers?
In the vacuum created by the Biden Administration’s incompetence and lack of leadership, racist GOP governors have taken control of “asylum resettlement” and conducted it in ways calculated to cause the most disruption, cruelty, and suffering for the political pawns (actually humans) that Biden has abandoned.
This does not sound like a “dressed for success” plan to restore a fair and efficient asylum system. But, after two years of adapting and using clearly illegal methods instead of competently handling human rights issues, the Biden group has gotten very used to “programmed failure” and shifting the blame to Trump (out of office since Jan. 20, 2021), the hapless victims, and their lawyers.
I hope I’m wrong. But, I strongly suspect that it’s going to take more than Judge Sullivan’s order to end the disingenuous “Miller Lite” approach to immigration within the Biden Administration and usher in an era of expertise, competence, integrity, and courage in addressing human rights.
“Judge” Roy Bean (1825-1903) American Saloon Keeper & “Jurist” Public Realm His reputation for “rough justice” in the West would be right at home in the “Asylum Free Zones” of Garland’s EOIR. Bean “was once trying a Mexican on a charge of horse stealing and his charge was the shortest on record: Gentlemen of the Jury, there’s a greaser in the box and a hoss missing. You know your duty, and they did.”
Here’s the latest analysis of Garland’s ongoing abuse of his office from Austin Kocher, PhD, at TRAC:
Has Alfred E. Neumann been “reborn” as Judge Merrick Garland? “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?” PHOTO: Wikipedia Commons
If someone NOT Merrick “What Me Worry” Garland (the “Alfred E. Neumann of Biden’s immigration bureaucracy”) took a look at the data, one major thing would jump out! There are likely more than 400,000 refugees entitled to asylum sitting in Garland’s 770,000 case asylum backlog (52% x 770,000). (The asylum backlog at EOIR is a “subset” of Garland’s largely self-inflicted, ever mushrooming, nearly 2 million case EOIR backlog — more judges have produced more backlog, so that’s likely NOT the answer here).
And, this is in a system currently governed by skewed anti-asylum BIA “precedents” and a chronic “anti-asylum culture” actively encouraged and fed by the Trump Administration. In a properly staffed and functioning court system with qualified, due-process oriented, judges and an expert BIA that enforced some decisional consistency and properly and generously interpreted asylum law, a “grant rate” of 75% or more would be a plausible expectation.
Given the obvious (and I would argue intentional) lack of reliable data on how a legitimate asylum system, one consisting at all levels of judges with well-recognized expertise in asylum law and human rights, and overseen by competent, due-process-oriented judicial administrators, might function, the 75% figure is just an “educated guesstimate.” But, it matches my own personal experience over 13 years on the bench in the (now defunct) Arlington Immigration Court.
It’s also in line with my recent conversations with the head of one of the largest NGOs in the DMV area involved in meeting busses and counseling those “orbited” from the Southern border by the racist/nativist GOP Govs that Biden, curiously, has chosen to run our domestic refugee resettlement program. This is a person who, unlike Garland, his lieutenants, and most of the other politicos and nativist blowhards participating in the “border travesty,” actually spent years of a career representing individuals in Immigration Court. They estimated that “at least 70%” of the “arriving bus riders” had very viable asylum claims.
This is a far cry from the nativist, restrictionist myths promoted by both the Trump and Biden Administrations — obviously to cover up their gross human rights violations in knowingly and illegally returning hundreds of thousands of legal refugees to danger zones! Many human rights experts would consider such gross misconduct to be “crimes against humanity.” Consequently, it doesn’t take much imagination to see why self-interested scofflaw officials like Garland, Mayorkas, and White House advisors seek to manipulate the system to keep the asylum grant rates artificially low while eschewing proper, realistically robust use of the overseas refugee program to take the pressure off the border — by acting legally rather than illegally!
Almost all the EOIR asylum backlog consists of “regular docket” (I use this term lightly with EOIR where “normalcy” is unknown) cases. Those are refugees who have had time to get lawyers, adequately prepare, document their cases, but are stuck in Garland’s chronically dysfunctional system. Consequently, they are “denied by delay” legal immigration status, a chance to get green cards, and to eventually qualify for citizenship. The American economy is denied an important source of legal workers who should be part of our permanent workforce and well on their way to full participation in our political system and society!
An expert looking at this system would see a “golden opportunity” to move most of the backlogged “easily grantable” asylum cases out of the system with stipulated grants or short hearings (the kind you actually might be able to do 3-4 a day without stepping on anyone’s due-processrights or driving the private bar nuts). These cases would also avoid the BIA’s appellate backlog, as well as eliminating unnecessary workload in the U.S. Circuit Courts (which already have their own inconsistency, rubber stamp, and bias issues in the human rights/racial justice area that seem to be getting worse, not better).
Knocking 400,000+ cases off the backlog wouldn’t completely solve Garland’s 2 million case backlog problem — only a complete “house cleaning” at EOIR, replacing many of the current bureaucrats with competent leaders and expert Immigration Judges well-versed in asylum law, will do that. But, cutting EOIR’s backlog by 20% (and the asylum backlog by over 50%) without stomping on anyone’s rights, while bolstering much-needed legal immigration, and harnessing the strengths of the private/pro bono bar, is nothing to “sneeze at!” That’s particularly true in comparison with Garland’s two years of mindless “designed to fail” gimmicks and astounding mismanagement, which have produced exactly the opposite results!
How bad has Garland’s leadership been at on human rights, due process, and racial justice at DOJ. A number of seasoned asylum practitioners have told me that today’s EOIR, also suffering from a tidal wave of Garland’s“Aimless Docket Reshuffling” — is actually significantly worse than it was under Trump! That’s right, Garland’s tone-deaf incompetence has exceeded the disorder and systemic unfairness caused by overt xenophobia, anti-asylum bias, misogyny, “dumbing down,” and enforcement-biased “weaponization” of the Sessions/Barr years.
As for Dr. Kocher’s cogent observation that input from the Immigration Judges who actually decide these cases is a “missing ingredient,” good luck with that, my friend! Perhaps understandably in light of his unseemly failures at EOIR, Garland has taken EOIR’s traditional opaqueness and “muzzling” of Immigration Judges to new heights — even barring their participation in CLE events aimed at improving the level of practice before his courts.
Apparently, “studied incompetence” in a Democratic Administration can be even worse than the “malicious incompetence” of the Trump Kakistocracy — at least where immigrants rights/human rights/racial justice/ women’s rights are concerned at EOIR. That’s an astounding observation! One that I actually never thought I’d hear from practitioners!
The only way for human rights and racial justice experts and advocates to “communicate” with Garland in his “ivory tower” is to ‘“sue his tail” in court! Judge Sullivan’s recent opinion finding Title 42 illegal incorporates the very facts and law used by human rights experts and advocates in years of fruitless pleading and begging Garland to “cease and desist” his support for unlawful conduct and “just follow the law.” The latter seems like a modest “no-brainer” request to a guy once nominated by an Dem President for the Supremes.
Waiting for Merrick Garland to fix the mess at EOIR to provide even a bare minimum of due process and rational administration is like waiting for the guy pictured below. Frustrated and “Garland-weary” as they might be, human rights advocates should take it to heart and act accordingly!
Waiting for Merrick Garland and his “clueless crew” at DOJ to fix the dysfunctional Immigration Courts will be an exercise in futility. He only pays attention when ordered by a Federal Judge, which, somewhat ironically, he used to be. But, he’s proven “beyond a reasonable doubt” that he is unqualified to run one of the most important and life-determining Federal Judiciaries — one where due process has been buried beneath an avalanche of expediency, incompetency, intellectual dishonesty, and dumb gimmicks. When will “enough be enough?” https://creativecommons.org/licenses/by-sa/3.0
A federal judge on Tuesday struck down a Donald Trump-era policy used by U.S. border officials to quickly expel migrants because of the covid pandemic, saying the ban had little proven benefit to public health even as it shunted migrants to dangerous places.
U.S. District Judge Emmet G. Sullivan in the District of Columbia vacated the order known as Title 42, effectively restoring asylum seekers’ access to the borders for the first time since the Trump administration issued it during the earliest days of the pandemic.
The decision — which takes effect immediately — knocks down one of the last remaining barriers to asylum from the Trump administration, advocates for immigrants said. It also poses an immediate logistical challenge for the Biden administration after two consecutive years of record apprehensions on the U.S.-Mexico border, with the possibility that the numbers could grow.
Biden officials have long worried about a mass rush to the border creating an emergency similar to the one that occurred in Del Rio, Texas, in Sept. 2021, when thousands of migrants crossed illegally and overwhelmed U.S. agents, creating a squalid camp on the banks of the Rio Grande that embarrassed the Biden administration.
Sullivan’s ruling also comes days after top border official Chris Magnus resigned under pressure after clashing with Homeland Security Secretary Alejandro Mayorkas.
The Justice Department and the Department of Homeland Security had no immediate response to the ruling.
The American Civil Liberties Union, one of the organizations that brought the lawsuit on behalf of migrants, said Sullivan’s decision to vacate the Title 42 policy means the policy ends for all migrants, including families and adults traveling without children.
“Title 42 unfortunately had a long shelf life but has finally been ended, and that will mean enormous relief to desperate asylum seekers,” said ACLU lawyer Lee Gelernt.
Sullivan also made clear that that he would not stay his order pending appeal, leaving it to a higher court to do so if the Biden administration sought more time to address the ruling.
. . . .
Key Quote:
Sullivan wrote that the federal officials knew the order “would likely expel migrants to locations with a ‘high probability’ of ‘persecution, torture, violent assaults, or rape’ ” — and did so anyway.
“It is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals,” Sullivan wrote. “It is undisputed that the impact on migrants was indeed dire.”
***************
The horrific consequences for lawful asylum seekers subjected to this unlawful policy have indeed been “dire:” rape, assault, kidnapping, beating, torture, extortion, starvation, illness, sickness, death, family separation, despair, to name a few.
By contrast, there have been NO consequences for Stephen Miller and the other Trump Administration officials who fabricated and directed this ruse on the justice system and attack on humanity and the rule of law! Nor have there been any consequences for lower level officials who “went along to get along” with what they knew or should have knownto be deadly abuses of our laws.
Additionally, Biden officials who continued to violate the law and even concocted ways of expanding its illegal and immoral use have escaped accountability and continue in their jobs. DOJ lawyers who failed to do “due diligence” and defended a policy based on pretext, misrepresentations of fact, racism, and xenophobia have also continued to operate in the “ethical twilight zone” that normally would have serious professional consequences!
Of course the whole history of the Title 42 charade ☠️🤮has been one of one step forward and three steps back. The corrupt decision-making extends to unqualified right-wing zealots with lifetime sinecures on the Federal Article III bench and to equally corrupt GOP state AG’s for their dishonest scheme to force continued illegal Title 42expulsions.
So, despite these “crimes against humanity,” don’t expect that “heads will roll!” Given the current sorry state of our Federal Courts and the DOJ, it’s not certain that Judge Sullivan’s order will actually have effect or that asylum seekers will ever get the fundamentally fair and humane treatment to which they are entitled.
But, I am certain that this will eventually go down in history as one of the most disgraceful intentional abrogations of law, with the most drastic consequences for humanity and our nation’s reputation, in 21st Century legal history!
It’s also worthy of note that rather than getting the asylum system properly staffed and trained, bringing in Immigration Judges with the required expertise, installing a BIA of expert judges capable of issuing correct, realistic, generous, practical asylum precedents, working cooperatively with the private bar to facilitate representation, and developing an orderly process for resettlement (away from the border) of asylum applicants who pass credible fear, Garland, Mayorkas, and a White House officials have dithered away two years of time without getting the necessary robust, fair, expert, efficient, timely asylum adjudication system up and running!
The advice and pleas of experts and advocates have been “tuned out” or ignored by those in charge! Now, as all of us predicted, the “chickens have come home to roost” for the Administration’s indifferent, incompetent, and lackadaisical approach to the biggest racial justice and human rights crisis facing our nation.
Thanks Judge Sullivan! Thanks ACLU! Apologies to the hundreds of thousands of asylum seekers wronged by the cowardly failure of America to uphold our laws, Constitution, and international obligations — that “subset” of victims who are still alive despite our Government’s grotesque misconduct!
Along the 2,000-mile (3,219km) boundary between the US and Mexico, the 2022 fiscal year proved the deadliest on record for people trying to make unauthorized crossings of this heavily patrolled international line.
In Eagle Pass’s regional enforcement sector alone, border patrol agents discovered more than 200 dead migrants between October 2021 and the end of July, compared to an already heartbreaking 34 bodies during the entire 2020 fiscal year.
Ahead of this week’s crucial midterm elections, Republicans have manipulated these harrowing statistics as yet another opportunity to make much ado about what various rightwing players call Joe Biden’s “open border policies”, accusing his administration of incompetence that is causing “body bags [to] keep piling up”.
It’s close to sealed by a hostile combination of pandemic-era public health measures cynically retooled as federal immigration control and mass policing by state troops who arrest, jail and criminalize migrants.
Cruelly, these hardline deterrence mechanisms advanced by both Democrats and Republicans have probably only made the US’s south-west border bloodier.
Deterrence as a strategy has informed some of the US’s most controversial immigration policies, from separating families, to detaining children, to stranding asylum seekers in dangerous Mexican border towns.
But desperate people still find ways to make it on to US soil: last fiscal year, Customs and Border Protection documented nearly 2.38m enforcement encounters at the southern border, a record high causing headaches for Biden as conservatives accuse the president of being “lax” on border crime.
The truth is more complex, and not at all lax. More than a million of last fiscal year’s border enforcement encounters were processed under Title 42, now invoked as a federal immigration enforcement tool but originally disguised as a public health measure amid the Covid-19 pandemic.
The policy allowed the Trump and now the Biden administrations to expel huge numbers of people from the US without even letting them ask for asylum, seemingly in violation of domestic and international law.
Far from ending unauthorized migration, the invocation of Title 42 has in fact dramatically inflated the number of encounters at the US-Mexico border, as people who are expelled feel compelled to cross again – and again, and again. Sometimes, relentless migrants have been so determined to complete their journeys that they have risked life and limb dozens of times, fueling a political and humanitarian disaster.
And both parties continue to police people seeking security and opportunity over violence, persecution and poverty as if they’re national security threats.
In the shadow of it all, the corpses amass.
Back in Eagle Pass, locals like Rosalinda Medrano who have lived for decades along a porous border understand that migrants have and will always come or, increasingly, die trying.
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“Even though there’s one fence, and another fence, and so many troopers, and the national guard, and you name it – Border Patrol, here and there and everywhere – it’s not gonna stop these families,” she said, adding simply: “They want a better life.”
**************************
Read the complete article at the link, in which Alexandra points to the numerous achievable solutions that both parties eschew — for political reasons — some cynical, dishonest, and racist (GOP) — others cowardly (Dems). None of what Alexandra reports will come as news to faithful readers of Courtside, or, indeed, to anyone who has taken the time to actually study and reflect on America’s decades of expensive, inhumane, “deterrence policies.”
Fact is, existing law, if correctly applied and administered, offers some obvious ways to start solving the problem:
Robust realistic “overseas” refugee programs in the Western Hemisphere — 150,000 would be a modest start — rather than the piddling, restricted numbers now slowly doled out by the Biden Administration.
Reopen legal ports of entry to legal asylum seekers, as required by law, to incentivize and reward them for not seeking to cross between ports of entry.
Staff the Asylum Office and the Immigration Courts with real experts in asylum law (there are plenty of well-qualified lawyers now in the private sector) who are committed to due process and can rapidly recognize and grant the many meritorious cases. Then, individuals are admitted in legal status, on their way to green cards, rather than aimlessly wandering the US with government-issued packets of misinformation (or no information at all) waiting for hearings that will come either too soon or too late, but never in a reasonable manner and often with incorrect preordained results designed to abuse the legal system as an “enforcement deterrent.” (NOTE: To act as an incentive/reward for appearing at ports of entry, the asylum system must be credible, transparent, and timely — something that no Administration has achieved to date, but which is possible with more vision, leadership, and better personnel making decisions.)
Work with, bolster, support, and learn from the many NGOs in the U.S. to insure that asylum seekers are informed of their obligations, represented on their applications, and resettled, mostly away from the borders to areas that need them, in an orderly fashion.
“Even though there’s one fence, and another fence, and so many troopers, and the national guard, and you name it – Border Patrol, here and there and everywhere – it’s not gonna stop these families,” she said, adding simply: “They want a better life.”
We can, and must, do better than “more body bags” as a matter of national policy! Migrants aren’t going to stop coming. That, we can’t change in the long run — no matter how many lies, myths, and distortions nativists throw out there, and no matter how fast spineless Dem politicos run from or attempt to hide the truth. But, we can deal with reality in a more humane, practical, realistic manner that will serve our nation’s, and humanity’s, interests into the future.
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
Forbes: Evidently, USCBP is eliminating the passport entry stamp to streamline the entry process. So now, foreign nationals will only have access to the Form I-94 website as proof of their lawful immigration status.
CBS: The department confirmed the review when asked to respond to accounts from migrants who told “60 Minutes” that U.S. Customs and Border Protection (CBP) officials along the U.S.-Mexico border kept their documents, despite agency policy instructing agents to return migrants’ personal property unless they are fraudulent.
NIJC: More than 130 immigration, criminal justice, and civil rights organizations released a letter today urging the Biden administration to include immigrants in the pardon process.
Law360: More than 100 immigrant rights organizations are urging the Biden administration to fully reinstate visitation at immigration detention facilities, saying in a Thursday letter that visitation is crucial for detainees’ mental health and monitoring human rights violations.
SA Current: The ACLU is condemning the actions of U.S. Customs and Border Protection agents allegedly caught on video firing pepper balls at a group of Venezuelan migrants protesting along the banks of the Rio Grande River near El Paso.
Law360: The Second Circuit on Wednesday declined to review a decision denying an asylum application from a Honduran man and his son who claim they will be killed by gang members if they return home, finding the Board of Immigration Appeals properly reviewed the immigration judge’s decision.
Law360: The Second Circuit on Tuesday backed the U.S. Board of Immigration Appeal’s decision to apply a persecution motive standard used in asylum requests to an Ecuadorian’s withholding of removal request, saying it was reasonable for the agency to do so.
Law360: The Third Circuit on Tuesday knocked down a Guatemalan man’s asylum bid after concluding he failed to back up his fears of violence in the Central American nation based on gang recruitment efforts and his rejection of gangs due to his evangelical Christian faith.
Law360: The Eighth Circuit has upheld a Board of Immigration Appeals ruling that denied a family asylum based on alleged gang threats for lack of evidence that the government of El Salvador could not or would not protect them.
Law360: A Mexican citizen who said police and criminal gangs would torture him for being bisexual and suffering from mental illness if he is deported a third time
Law360: The Ninth Circuit on Thursday backed an order requiring U.S. Citizenship and Immigration Services to adjudicate Special Immigrant Juvenile petitions within 180 days, rejecting the government’s argument that a lower court relied on “stale evidence” and disregarded hardship considerations.
Law360: Republican state attorneys general accused the Biden administration of violating an injunction requiring it to repel migrants from the border under pandemic-era restrictions, saying a sharp drop in Haitian expulsions indicated the administration was selectively lifting the so-called Title 42 border block.
AILA: On 10/31/22, DHS began limited implementation of the DACA final rule. USCIS will continue to accept and process applications for deferred action, work authorization, and advance parole for current DACA recipients. Due to litigation, USCIS will accept but cannot process initial DACA requests.
AILA: EOIR 30-day notice and request for comments on proposed revisions to Form EOIR-42A and Form EOIR-42B. Comments are due 12/5/22. (87 FR 66326, 11/3/22)
AILA: EOIR 30-day notice-and-comment period for proposed revisions to Form EOIR-31A, which allows an organization to seek accreditation or renewal of accreditation of a non-attorney representative to appear before EOIR and/or DHS. Comments are due by 12/5/22.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added. If you receive an error, make sure you click request access.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
Supposedly, the main political issues right now are the economy and inflation. But, the economy and inflation are largely determined by the Fed, markets, global conditions, weather, and a certain amount of pure luck — all things beyond the direct control of the political branches of the USG.
As mentioned by Chuck Todd on last Sunday’s NBC “Meet the Press,” many experts say that the most effective tool that the Administration and Congress have to improve the economy without triggering a recession is to increase legal immigration — sooner rather than later. But, neither party is interested. The GOP sees an anti-immigrant stance as a key to political success. And, the Dems are “actively disinterested” in the issue. So, the opportunity passes.
But, the reality is that, in the long run, no amount of shipping containers, walls, prisons, family separations, deportations, exclusions to death or despair, hate rhetoric, or restrictive legal roadblocks will halt the future flow of human migration, and not incidentally, the internal relocation in America as certain areas become “unlivable.”
According to a government report published in today’s Washington Post:
The U.S. can expect more forced migration and displacement
Already, the authors of Monday’s report said, major storms such as Hurricane Maria, as well as extended droughts that strained lives and livelihoods, have led people to leave their homes in search of more-stable places.
In the hotter world that lies ahead, they write, additional climate impacts — along with other factors such as the housing market, job trends and pandemics — are expected to increasingly influence migration patterns.
“More severe wildfires in California, sea level rise in Florida, and more frequent flooding in Texas are expected to displace millions of people, while climate-driven economic changes abroad continue to increase the rate of emigration to the United States,” the report finds.
Such shifts are inherently complicated and fraught.
Several Indigenous tribes in coastal regions, facing fast-rising seas, have already sought government help to relocate, but have struggled to do so without significant hurdles.
“Forced migrations and displacements disrupt social networks, decrease housing security, and exacerbate grief, anxiety and mental health outcomes,” the authors write.
Neither political party appears serious about addressing these migration realities — already underway. The ideas that we can wall ourselves off, invest in “sending countries,” detain, and deport our way out of migration are not “solutions.”
Failure to act boldly and expansively on legal immigration will create a huge class of exploitable, disenfranchised, extralegal residents and plenty of work for border agents, internal police, righty judges, and jailers. It will also be a huge boon to smugglers and cartels who basically will “own” the American migration franchise. But, in the long run, building a large “underground humanity” won’t be enough to offset the “downside” of lacking a robust, realistic, orderly, legal immigration process.
Eventually, those nation-states that figure out how to harness, welcome, and distribute the power of human migration will rule the future. Right now, America’s leaders, of both parties, seem wedded to a “sure to fail” approach of either opposing or ignoring the realities and unlimited potential of human migration. Too bad — for all of us!
Org. Sign-On Letter to the Admin re: Haitians in Guantánamo Bay or third country agreements
Hi everyone –
This morning, Haitian Bridge Alliance (HBA) along with 288 immigration, civil rights, human rights, and faith-based organizations, sent a letter to President Biden urging him to protect Haitian asylum seekers. In the letter, organizations urged the administration to not send Haitians seeking safety back to Haiti, third countries, or detain them in Guantánamo Bay.
Pretty much says it all! A Dem Administration abandons the values of racial justice and immigrant justice for some “strategy” that sure escapes me.
It’s not like continuing to “beat up” on Haitians and other migrants of color and threatening to inflict even more extreme violations of legal andhuman rights than the Trump Administration has garnered ANY support or acceptance from the far right. They continue to characterize all Administration policies as “open borders,” although nothing could be further from the truth.
Additionally, failure to reinstitute and improve the rule of law at the border for legal asylum seekers has failed to create an orderly process for screening asylum seekers at ports of entry or for refugee status outside the U.S. and timely and generously processing valid claims for protection. The result has been a loss of an important group oflegal immigrants who could have helped reduce inflation and improved the economic outlook. At the same time, shifting asylum screening away from legal ports of entry has overburdened the Border Patrol by forcing everyone seeking protection to cross the border between ports of entry.
As a related point, I defy anyone to explain on what basis some asylum seekers apprehended at the border are allowed to enter and pursue claims and others similarly situated are orbited back into danger with no process whatsoever. It’s certainly NOT the result of the prompt screening by USCIS Asylum Officers that Congress mandated, but the Trump and Biden Administrations have ignored — to everyone’s detriment.
This resulting “disorder at the border” has NOT attracted independent voters to the Administration’s immigration stance.
At the same time it has driven an unwise and entirely unnecessary wedge between the Administration and 1) Democrats who want “order at the border” and a reduction in extralegal entries; 2) Democrats who believe in strictly honoring our legal, Constitutional, treaty, and human rights obligations to asylum seekers regardless of race; and 3) Democrats who believe that both 1) and 2) are achievable!
I have no idea what the Biden Administration’s “vision” of border law and policy is. But, I can tell you for sure that it’s NOT working and that more, harsher, racially discriminatory enforcement without reinstating our refugee and asylum systems and reforming the totally dysfunctional Immigration Courts is NOT the answer!
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
CONTENTS (jump to section)
NEWS
LITIGATION & AGENCY UPDATES
RESOURCES
EVENTS
PRACTICAL UPDATES
New I-765 and I-589 are mandatory starting next week: Starting Nov. 7, 2022, USCIS will only accept the 07/26/22 editions.
NBC: The Biden administration is weighing options to respond to what could soon be a mass exodus of migrants from Haiti, including temporarily holding migrants in a third country or expanding capacity at an existing facility at the U.S. prison at Guantánamo Bay, Cuba, according to two U.S. officials and an internal planning document reviewed by NBC News.
CBS: The figure, which far exceeded the previous record of 546 migrant deaths recorded by Border Patrol in fiscal year 2021, is likely an undercount due to data collection limits, migration policy analysts said.
LA Times: After analyzing the records of nearly 17,000 calls between 2016 and 2021 from its national immigrant detention hotline, Freedom for Immigrants released a report Wednesday that it and other advocacy groups say indicates a pattern of racism and abuse toward Black migrants.
ACLU: After 16 months of negotiations, settlement talks between the Biden administration and plaintiffs in Ramos v. Mayorkas officially collapsed yesterday afternoon, leaving more than 260,000 people at risk of deportation. Beneficiaries of Temporary Protected Status (TPS) and their US citizen children first brought the lawsuit in 2018 after Trump revoked protections for individuals from El Salvador, Haiti, Nicaragua, Sudan, and later for Nepal and Honduras.
NPR: After months of public feedback, the federal agency has shortened and simplified its disability waiver, which is used to exempt immigrants with physical, mental or learning disabilities from the English and civics test requirements.
Intercept: On Monday, Gov. Doug Ducey began dropping the first of thousands of shipping containers along a 10-mile stretch of national forest in open defiance of federal authorities. In the days since, the Republican governor has transformed a remote section of rugged desert into what looks like a junkyard.
CBS: Seventy-three percent of surveyed voters in Arizona, Georgia, Nevada, Pennsylvania and Wisconsin said they backed giving immigrants living in the U.S. without legal permission an opportunity to “earn” lawful status and ultimately citizenship if they meet certain requirements, including passing background checks.
Law360: A split Ninth Circuit declined to revive the asylum bid of a Salvadoran man ordered deported after traveling through Guatemala and Mexico before entering the U.S., saying its hands were tied when it came to reviewing expedited removal orders.
Law360: A split Ninth Circuit has ordered the U.S. Board of Immigration Appeals to reconsider a Guatemalan man’s deportation relief bid, saying the agency wrongly ruled out government acquiescence in the man’s account of being tortured by Guatemalan police officers.
Law360: The Tenth Circuit declined to review a former conditional green card holder’s challenge of a 1999 deportation order, saying his chances of tossing the decades-long order stopped at the immigration courts due to his unlawful reentries into the U.S.
Law360: U.S. Citizenship and Immigration Services approved a Mexican woman’s application for a T visa, designated for sex trafficking victims, after an Illinois federal judge faulted the agency’s earlier refusal to accept an immigration judge’s waiver of inadmissibility, the woman said.
Law360: A California federal judge tossed an equal protection claim brought by young immigrants who were abused or neglected by their parents, dismissing on Wednesday their argument that the government was unfairly treating them differently from trafficking victims in doling out work authorization.
Politico: The governor’s office did not immediately respond to a request for comment, but lawyers representing the Florida Center for Government Accountability said they anticipated there would be an appeal.
ICE: The organization was responsible for organizing well over 500 sham marriages in exchange for substantial amounts of money solely for the alien beneficiary to obtain immigration benefits.
Law360: Senate Democrats called on the Biden administration to broaden Haitian immigration protections to cover Haitians who have fled political and economic turmoil over the past year, saying Wednesday that conditions in Haiti have only worsened since the administration last offered relief
EOIR: The Executive Office for Immigration Review (EOIR) announced the appointment of 32 immigration judges to courts in California, Florida, Georgia, Illinois, Maryland, New York, Tennessee, Texas, and Virginia.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added. If you receive an error, make sure you click request access.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
When all else fails, picking on vulnerable Black Haitian refugees is always a popular way to buff up your “restrictionist creds” for Administrations of both parties. But, the GOP already has the White Nationalist/nativist vote locked up. So, what the Biden folks hope to get by throwing Haitians “under the bus” and driving back and forth over their bodies is a mystery to me.
Hey, I’m only a retired Immigration Judge, not a political wonk. But, I can’t see what Biden and Harris stand to gain with their cruel, anti-Haitian policies.
Why not set up viable refugee programs in Haiti, as we did for Cubans, if we don’t want more refugees taking to the sea in leaky boats? Why not prioritize immigrant visa processing for qualified immigrants from Haiti, Cuba, Venezuela, the Northern Triangle, and other Western Hemisphere countries? Migration from these nations to the U.S. is a reality that benefits both the migrants and our nation. Why not use the tools at hand to channel legal immigration rather than flailing around with questionable built to fail “deterrents.”
Too many Biden Administration Immigration officials appear to share Stephen Miller’s “upside down” view of the Statue of Liberty, in whole or in part! Why can’t they just follow the Refugee Act of 1980 and establish the robust, timely, generous legal approach to refugees and asylum seekers that best serves America?Bill Frelick Director Refugee and Migrant Rights Division Human Rights Watch
Refugees are people who flee for their lives. Escape from danger and abuse is usually chaotic, sudden, desperate. The Biden administration’s rollout of its new policy for Venezuelan refugees seems oblivious to this refugee reality and risks doing more harm than good.
. . . .
Announcing the program on Oct. 12, Homeland Security Secretary Alejandro N. Mayorkas said Venezuelans who enter irregularly “will be returned to Mexico.”
He didn’t mention — and appeared to disregard — U.S. law, which recognizes that anyone who arrives in the United States has the right to seek asylum “whether or not at a designated port of arrival” and “irrespective of such alien’s status.”
The impact of this announcement, “effective immediately,” was the summary return to Mexico without examination of their asylum claims of any Venezuelans entering the United States without authorization. Mexico has given no assurances that it will examine their refugee claims or provide asylum to those who fear return to Venezuela. In fact, the 4,050 Venezuelans expelled to Mexico since the implementation of the policy have been given visas valid for only one week and instructed to leave the country.
. . . .
With the Biden administration’s plan in effect, we might as well apply a blowtorch to Emma Lazarus’s welcoming poem at the foot of the Statue of Liberty and chisel in a new message: “Give me your well-rested, your well-to-do, your properly ticketed jet-setters yearning to breathe free.”
Read Bill’s complete op-ed act the link. Bill is one of many “practical experts” who would do a much better job than current Administration politicos in establishing and running a refugee and asylum program that would comply with the law, due process, human dignity, and America’s best interests.Why is Biden following the lead of his “clueless (and spineless) crew?”
The Refugee Act of 1980was enacted and amended to deal with these situations! Robust, realistic refugee programs outside the U.S. should encourage many refugees to apply, be screened abroad, and admitted legally.
Other refugees arriving at our border can be promptly screened for credible fear. Those who fail that test can be summarily removed in accordance with existing law.
Those who pass that test should have access to counsel and receive timely, expert adjudications, with full appeal rights, under the generous “well founded fear” (1 in 10 chance) international standard established by the Refugee Act. See, e.g., INS v. Cardoza-Fonseca (Supremes); Matter of Mogharrabi (BIA).
It’s not “rocket science!” With dynamic, experienced refugee experts running the system and “practical scholars” with expertise in refugee processing and human rights laws serving as USCIS Asylum Officers and EOIR judges at the trial and appellate levels the legal system should be flexible enough to deal with all refugee situations in an orderly manner.
Many, probably a majority, of today’s asylum seekers should be granted asylum and admitted to the U.S. in full legal status, authorized to work, and on their way to green cards and eventual citizenship. Like those admitted from abroad, they could also be made eligible for certain resettlement assistance to facilitate integration into American communities who undoubtedly will benefit from their presence.
The more robust, realistic, and timely our overseas refugee programs become, the fewer refugees who will be forced to apply for asylum at our borders. Also, real, bold, dynamic humanitarian leadership, including accepting our fair share of refugees and asylees, could persuade other countries signatory to the Geneva Refugee Convention to do likewise.
No insurmountable backlogs; no bewildered individuals wandering around the U.S. in limbo waiting for hearings that will never happen; few “no shows;” no long-term detention; no botched, biased “any reason to deny” decisions from unqualified officers and judges leading to years of litigation cluttering our legal system, no diverting Border Patrol resources from real law enforcement, no refugees huddled under bridges or sitting on street corners in Mexico!
It’s not “pie in the sky!” It’s the way our legal system could and should work with competent leadership and the very best available adjudicators and judges! It would support the proper, important role of refugees as an essential component of LEGAL IMMIGRATION, not an “exception” or “loophole” as racists and nativists like to falsely argue.
Instead of demonstrating the competence and integrity to use existing law to deal with refugee and asylum situations, the Biden Administration resorts to ad hoc political gimmicks. Essentially, the “RA80” has been repealed “administratively.” Effectively, we’re back to the “ad hoc” arbitrary approaches we used prior to ‘80 (which I worked on during the Ford Administration, and where I recollect I first heard of Bill Frelick).
I doubt that the late Senator Ted Kennedy, former Rep. Elizabeth Holtzman, and the rest of the group who helped shepherd the Refugee Act of 1980 through Congress would have thought that using Border Patrol Agents as Asylum Officers or packing the Immigration Courts and the BIA with judges prone to deny almost every asylum claim, regardless of facts or proper legal standards, was the “key to success!”
Congress specifically intended to eliminate the use of parole to deal with refugees except in extremely unusual circumstances, not present here. Biden’s latest ill-advised gimmick violates that premise. It’s totally inexcusable, as the refugee flow from Venezuela is neither new nor unpredictable. I was granting Venezuelan asylum cases before I retired in June 2016. Even then, there were legions of documentation, much of it generated by the USG, condemning the repressive regime in Venezuela and documenting the persecution of those who resisted!
A better AG would say “No” to these improper evasions of existing law. But, we have Merrick “What Me Worry” Garland! His botching of the Immigration Courts has been combined with a gross failure to stand up for equal justice for migrants (particularly those of color) across the board! America and refugees deserve better from our chief lawyer.
The Refugee Act of 1980 actually provides all the tools and flexibility the Biden Administration needs to establish order on the border and properly and fairly process refugees and asylees. Why won’t they use them?
AG Merrick Garland has “looked the other way” while the Biden Administration flaunts applicable protection laws in and outside the U.S. He also runs a dysfunctional “court system” where anti-asylum bias, worst practices, poorly qualified decision makers, and grotesque inconsistencies undermine the legal rights of asylum seekers and other refugees. Doesn’t America deserve more competence from its top lawyer? PHOTO: Wikipedia Commons
